Jagdish Prasad Vs. The State of Bihar
& ANR [1974] INSC 31 (13 February 1974)
KRISHNAIYER, V.R.
KRISHNAIYER, V.R.
SARKARIA, RANJIT SINGH
CITATION: 1974 AIR 911 1974 SCR (3) 369 1974
SCC (4) 455
CITATOR INFO :
E&R 1974 SC 917 (10,16) D 1974 SC2305 (1)
RF 1975 SC 522 (21) RF 1987 SC1977 (4) R 1990 SC1597 (19)
ACT:
Maintenance of Internal Security Act 1971,
Sec. 3(1)(a) (iii)--Order of detention under sec. 3 (1) (a) (iii)--Grounds--Maintenance
of Supplies and Services essential to the community--Legality of order.
Words and phrases "Supplies and
Services" meaning of--Constitution of India, Art. 32--Practice--Petition
for habeas corpus--Return to Rule Nisi.
Affidavit--on behalf of State--Who should
file.
HEADNOTE:
The petitioner, a licensed wholesale dealer,
was detained pursuant to an order passed u/s 33 of the Act by the District
Magistrate, Ranchi for his antisocial activity prejudicial to the maintenance
of supplies and services essential to the community. The particulars of the
grounds supplied to him u/s 8 stated that he was found secretly transporting 50
bags of rice in his truck at mid-night contrary to the conditions of his
wholesaler's licence and that, when caught red handed, he gave false excuses
and imaginary numbers of licence dealers, some of whom on verification had no
current licence and all of whom disowned the alleged purchases. The petitioner
challenged the validity of the order by a petition for habeas corpus. The
affidavit in return filed by the State was sworn by an Upper Division Assistant
(Special) Home Department. In that affidavit the words "and services"
after "maintenance of supplies", were struck off.
The petitioner raised two contentions before
this Court:
(i) The District Magistrate was uncertain
whether he was detaining the petitioner to prevent disruption of maintenance of
supplies or services essential to the life of the community and such a mindless
order was bad in law. (ii) Supplies and Services are two distinct concepts and
though services being disrupted was one of the precise reasons for the
detention, no particulars which would make out that ground, apart from the
distinct ground of preventing supplies, had been given; therefore, the order was
illegal.
Dismissing the petition held
1. The District Magistrate when passing an
order of detention u/s 3 of the Act has to be fair and clear and not doubtful
about why he is detaining the man. "Either or" ill fits into s. 3.
Not so, when it is cumulative. A man may be detained on grounds A and B but not
A or B. In the present case, illicit transport of food grains in the still
secrecy of night by one whose business licence does not permit it and who gives
false explanation when confronted does indulge in an activity with impact on
supplies and services.
Supplies and stocks if hijacked by
wholesalers upsets the delicate control scheme. go also transport and delivery
to each centre according to its requirements is thrown out of gear by these
private operations. For example, Bihar hopping harrowingly from drought to
floods, can ill-afford to have the wheels of distribution, of which supplies
and services are two facets, wobble or break down. Therefore, the order of
detention cannot be held to bad in economics of law. [373 D, 377 H] Rameshwar
Lal v. State of Bihar [1968] 2 S.C.R. 505 and Prabhu Dayal V. District
Magistrate, Kamrup, W.P. No. 1946 of 1973 dated October 11, 1973, referred to.
11. In interpreting expressions such as
"supplies and services" basically the statutory subjects matter
colours the concept. The complex needs and amenities of modern life and the
multifarious obligations of a welfare state mingle supplies and services. For
example, an essential commodity is at once a supply and a service. The
touchstone of social control is that it must be a 370 thing essential for the
existence of the community; when crystallised it is supplies, when sublimated
it is services.
It depends in most cases on the angle from
which you view and the lens you use. There can be no dichotomy between
"supplies and services" in the special context of a State being
called upon in an emergency to supply that primary necessity of existence,
viz., food, which' is perhaps the basic service which Government must render to
the people.
In the present case, the allegation is of
nocturnal, illegal rice transport intercepted by officials and no violence is
done to language to describe that activity as prejudicial to supplies and
services. Rushing food supplies to a nation in hunger is a composite operation
of supplies and services essential to the life of the community and the order
is not bad because it telescopes both. An intelligent fore-, cast made by the
District Magistrate that the detenu would break the control' system and
blackmarket in rice cannot be castigated as irrational. [372 C-H, 376 F] Ram
Manohar Lohia v. State of Bihar and another [1966] 1 S.C.R. 709, Prabhu Dayal
v. Dist. Magistrate, Kamrup, W.P. No. 1496 of 1973 dt. 11-10-73 and Keshav
Talpade v. Emperor A.I.R. 1943 F.C.R. 1, 8 distinguished on facts.
III. (obiter dicta) It is difficult to
appreciate why in return to a rule nisi in the habeas corpus motion, it is not
thought serious enough even where liberty of a citizen is choked off, to get
the District Magistrate to explain his subjective satisfaction and the grounds
therefor. Not even why he is not available, nor the next best, the oath of a
senior officer in the Secretariat who had been associated with the handling of
the case at Government level. Mechanical affidavits, miniaturising the files
into a few paragraphs, by someone handy in the Secretariat cannot be regarded
as satisfactory. This is not a mere punctilio of procedure but a probative
requirement of substance. T373 B] The above observations stand only as obiter
dicta in the present case since counsel made no point about this aspect of the
affidavit. However, in a subsequent judgment in Mohd. Alam v. State of West
Bengal, W.P. Nos. 1678 and' 1855/1973 dt. 14-2-74, this Court comprised of the
same Bench has specifically laid down that the proper person to file the
counter-affidavit in return to Rule, nisi issuedby the Supreme Court in habeas
corpus petition is the District Magistrate who had passed the order of
detention or a senior officer who personally dealt with the case of the detenu
in the Government Secretariat, or had to put up the file to the Minister for
orders.
ORIGINAL JURISDICTION : Writ Petition No.
1972 of 1973.
Under Article 32 of the Constitution of India
for the issue of Writ in the nature of habeas corpus.
Frank Anthony and S. K. Gambhir, for the
petitioner.
K. K. Sinha and S. K. Sinha, for the
respondents.
The Judgment of the Court was delivered by.
KRISHNA IYER, J. The petitioner detained by
the order of the District Magistrate for anti-social proclivity prejudicial to
the maintenance of supplies and services essential to the community challenges
its validity in this petition for habeas corpus.
Mr. Frank Anthony has vigorously urged two
vital defects as vitiating the detention order incarcerating the petitioner,
based mainly on the, unreported ruling of this Court in Prabhu Dayal v.
District Magistrate, Kamrup(1), the wellknown Lohia(2) case and a few other
peripheral (1) W. P. No. 1496 of 1973; judgment dated October 11, 1973.
(2) A. I. R. 1960 S. C. 633.
371 observations in other decisions. The
District Magistrate was uncertain whether he would detain the petitioner to
prevent disruption of maintenance of supplies or of services essential to the
life of the community and such a mindless order suffered from a fatal genetic
disease diagnosed by this Court in many decisions as fatal, runs the
submission.
Now, the admitted facts and the authoritative
law and their interaction. It is best to begin with the impugned order itself
which reads "No. 1182/C dated, the 9th October, 1973.
Whereas I am satisfied that with a view to
preventing Shri Jagdish Prasad, Proprietor M/s Lachmi Bhandar, North Market
Road, Upper Bazar, Ranchi, from acting in any manner prejudicial to the
maintenance of supplies and services essential to the community, it is
necessary to make an order that he be detained. Now, therefore, in exercise of
the powers conferred by Sub-section (2) of the Section 3 of the Maintenance of
Internal Security Act, 1971 (No. 26 of 1971), 1 hereby direct that the said
Shri Jagdish Prasad be detained.
He shall be treated in detention in Ranchi
Jail and classified as Class Y and in division IB.
(S. N. Sinha) District Magistrate,
Ran-.hi." The executive interdict on the trader's freedom is issued to
inhibit his acting in any manner prejudicial to the maintenance of supplies and
services essential to the community. The semantics of 'supplies' and 'services'
in this context, argued Sri Anthony, serves to show that certain activities
bear upon supplies only, e.g., hoarding or blackmarketing, while other actings
may disrupt services only , e.g., sabotage of railway tracks or scavenger's
strike. He argued that some misconduct may be ambidextral as for example, huge
quantities of telegraph wires being poached or a railway wagon being looted in
an organised manner.
The cornerstone of his contention, in the
first stage, is that blackmarketing in foodgrains belongs to the first speciesessential
supplies-and not to the secondessential services In Rameshwar Lal v. State of
Bihar(1) this Court pointed out :
"No doubt blackmarketing has at its base
a shortening of supplies because blackmarket flourishes best when the
availability of commodities is rendered difficult. It has a definite tendency
to disrupt supplies when scarcity exists or scarcity is created artificially by
hoarding to attain illegitimate profits. Indulging in blackmarketing is conduct
which is prejudicial to the maintenance of supplies. It is hardly necessary to
read supplies conjunctively with services, as was contended although cases may
exist where supplies and services may both be affected. The word 'and' is not
used conjunctively but disjunctively. If sweepers strike, no question of
disrupting sup(1) [1968]2 S. C. R. 505.
372 plies arises but services essential to
the life of the community will certainly be disrupted." he familiar
imagery in Lohia's case of concentric circles in the context of Law and Order
(the larger circle) and public order (the smaller but graver one) was projected
here with a little readjustment. Similies and metaphors land literary grace to
legal argument but are apt to play tricks in areas of strict logic or cold law.
Courts have to be cautious while transplanting picturesque projections from one
situation to another. So let us take an independent close-up of the profiles of
essential ,supplies' and 'services' to discover common morphology and divergent
features. Basically, the statutory subject-matter colours the concept. Counsel
traced the pedigree of the Act, with special reference to essential supplies
and services, to substantiate his thesis of compartmentalisation and marginal
overlapping. May be, counsel is right in his contention that all supplies are
not services and all services are not supplies but the complex needs and
amenities of modern life and the multifarious obligations of a welfare state mingle
supplies and services so much that the concentric circle geometry becomes a
misleading stroke of conceptualism in this jural area. For example, an
essential commodity is at once a supply and a service. Section 36(3) of the
Defence of India Rules, 1971 defines it to mean "essential commodity"
means food, water, fuel, light, power or any other thing essential for the
existence of the community which is notified in this behalf by
Government;" "Light and power" thus are commodities; so also
food and water. Yet who will deny that light is a service or drinking water,
for that matter ? The touchstone of social control is that it must be a thing
essential for the existence of the community; when crystallised it is supplies,
when sublimated it is services. It depends in most cases an the angle from
which you view and the lens you use. Food is supplies, so is shipping and
wagons, kerosine and gasoline. And yet they are services. At a feeding centre
for starving children you supply food, serve gruel.
In other words, food is supplies, feeding is
services. In Blackpool Corporation v. Lovkar(1) it was held that providing
housing accommodation fell within the scope of "supplies and
services" in Regulation 51 (1) of the Defence (General) Regulation, 1939.
We see no force in the dichotomy between the two attempted by counsel in the
special context of a State being called upon in. an emergency to supply that
primary necessity of existence, viz., food, which is perhaps the basic service
which Government must render to the people. In the present case, the allegation
is of nocturnal, illegal, rice transport, intercepted by officials, and you do
no violence to language to describe that activity as prejudicial to supplies
and services. Anyway, rushing food supplies to a nation in hunger is a
composite operation of supplies and services essential to the life of the
community and the order is not bad because it telescopes both.
Shri Anthony relied on the mental vacillation
of the detaining officer as disclosed in the affidavit in return filed by the
State where 'and services' is struck off after "maintenance of
supplies". If this reflects the (1) [1948] 1 K.B, 349.
373 slippery satisfaction of the District
Magistrate it is unfortunate. Here some Upper Division Assistant (Special),
Home Department, has sworn an affidavit, not with personal knowledge but with
paper wisdom. It is difficult to appreciate why in return to a rule nisi in a
habeas corpus motion, it is not thought serious enough even where liberty of a
citizen is choked off, to get the District Magistrate to explain his subjective
satisfaction and the grounds therefor. Not even why he is not available, not
the next best, the oath of a senior officer in the Secretariat who had been
associated with the handling of the case at Government level. Mechanical
affidavits, miniaturising the files into a few paragraphs, by someone handy in
the Secretariat cannot be regarded as satisfactory. This is not a mere
punctilio of procedure but a probative requirement of substance. However, in
this case, counsel made no point about this aspect of the affidavit because the
relevant material recited in the detention order is almost admitted in the
petitioner's averments. Even so, the curious striking off in the affidavit of
one ground relied on by the District Magistrate in his order is obscure.
Had the authority used one or other of the
grounds in the alternative, such for example as 'public order' or 'security of
State' or 'maintenance of supplies', it would have failed in law. Ile has to be
firm and clear and not doubtful about why he is detaining the man. 'Either or'
ill fits into s.3.
Not so, when it is cumulative. A man may be
detained on grounds A and B but not A or B. Here, the cumulative, not the
alternative, is the tenor of the order. Had it been otherwise due care would
stand negatived and the order would fail. Fundamental rights are fundamental
and administrative indifference is impermissible to encroach beyond the strict
lines of the law. Rameshwar Lal(1) elicited some stern observations from
Hidayatullah, J., as he then was. The learned Judge said :
"However, the detention of a person
without a trial, merely on the subjective satisfaction of an authority however
high, is a serious matter. It must require the closest scrutiny of the material
on which the decision is formed, leaving no room for errors or at least
avoidable errors. The very reason that the courts do not consider the
reasonableness of the opinion formed or the sufficiency of the material on
which it is based, indicates the need for the greatest circumspection on the
part of those who wield this power over others. Since the detenu is not placed
before a Magistrate and has only a right of being supplied the grounds of
detention with a view to his making a representation to the Advisory Board, the
grounds must not be vague or indefinite and must afford a real opportunity to
make a representation against the detention. Similarly, if a vital ground is
shown to be, non-existing so that it could not have and ought not to have played
a part in the material for consideration, the court may attach some importance
to this fact." The present case hardly fails for this reason since
particulars of grounds are given which cover supplies and services to the
community, prejudice to which is the rationale stated in the order. But it is
con(1) [1968] 2 S.C.R. 505.
374 tended that the particulars furnished
relate to supplies only and how services are affected is left vague. If one
ground is vague, the order fails. In Rameshwar Lal(1) it was pointed out :
" where some grounds are found to be non
are cancelled or given up, the detention cannot be justified .... if the
grounds are not sufficiently precise and do not furnish details for the purpose
of making effective representation the detention can be questioned." In
this connection, Shri Anthony forcefully urged his case that services being
disrupted was one of the precise reasons for the detention, but no particulars
which would make out that ground, apart from the distinct ground of preventing
supplies, have been given. On the reasoning in Prabhu Dayal the order is
illegal, he argued.
Mathew, J., brought out the fatal flaw in
Prabhu Dayal thus "The fact that one of the grounds mentions that paddy
and rice had been unearthed and seized from the unauthorised possession of the
petitioners from the rice mill in question on the date of the detention order
would not necessarily lead to the inference that the petitioners have been
indulging in unauthorized milling of paddy, much less that they were smuggling
the resultant rice to Maghalaya for earning undue profit. It cannot, therefore,
be said that the first ground, namely, that the petitioners are responsible for
unauthorised milling of paddy and smuggling of the resultant rice to Meghalaya
for earning undue profit, is a conclusion reached from the fact of seizure of
paddy and rice on 25-7-1973 or the seizure of rice on 16-5-1972 from their
unauthorized possession at Messrs. Srinivas Basudeo, Fancy Bazar,
Gauhati." These are not only cases where one of the grounds of detention
was vague, but also cases where the detaining authority did not apply its mind
at all to one of the grounds of detention. If the detaining authority had no
particulars before it as regards the smuggling operation how was it possible
for it to have been satisfied that the petitioners were smuggling rice to
Meghalaya for earning undue profit ? If there was any particular instance of
smuggling of the kind in the mind of the detaining authority, it would have
been possible for it to specify the particular instance at least in the
grounds." Reference was also made in the above case by the learned Judge
to Keshav Talpade v. Emperor(2) where it was said "If a detaining
authority gave four reasons for detaining a man, without distinguishing between
them, and any two or three of the reasons are held to be bad, it can never be
certain to what extent the bad reasons operated on the mind of the (1) [1969] 2
S.C.R. 505.
(2) A.I.R. 1943 F.C.R.1,8.
375.
authority or whether the detention order
would have been made at all if only one or two good reasons had been before
them." The law is thus indubitable that if one ground is vague of denuded'
of any detail the order, even if other good grounds exist, is bad. The sole
enquiry then is whether in substance no material has been set out here from
which a rational inference regarding perverting services to the community has
been given at all, as happened in Prabhu Dayal(1), case. We demur.
The order detailing grounds of detention
reads thus "In pursuance of section 8 of the Maintenance of Internal Security
Act, 1971 (No. 26 of 1971), Shri Jagdish Prasad, Proprietor M/s Lachmi Bhandar,
North Market Road, Upper Bazar, Ranchi is informed that he has been ordered to
be detained in my order No. 1182/C dated 9th October, 73 on the following
grounds
1. That you on 2-10-72 at about 12 O'Clock at
night were transporting 50 bags of rice weighing on truck No. BRV 6627 which
was checked by the Sub-Divisional Magistrate, Sadar, Ranchi.
2. That you produced at the time of checking
cash memo book and you asserted that out of 50 bags of rice seized oil the said
truck, 15 bags of rice were sold to Biswanath Floor Mill, Khelari, 10 bags of
rice to Pramod Floor Mill, Khelari and 10 bags to Shri Kundanlal Khelari.
3. That in support of your assertion as
stated in Para No. 2 above, you produced Cash memo No. 1134 dated 2-10-73
showing sale of 15 bags of rice to M/s Biswanath Flour Mill, Khelari and you
mentioned licence Number of M/s Biswanath Flour as 34/69 (R) On verification by
a Magistrate 1st Class, Ranchi, at Khelari from Shri Jagi Ram, Proprietor of
M/s Biswanath Flour Mill, Khelari, it has been established that the licence
number of the firm is 63/68 and not 34/69.
Shri Jagi Ram has also asserted that he did
not purchase any rice from you or from any other place on 2-10-73.
4. That similarly in support of assertion as
stated in Para 2 above, you produced Cash memo No. 1135 dated 2-10-73 showing
sale of 10 bags of rice to M/s Pramod Flour Mill of Khelari showing their
licence number as 31/68 (R). On actual verification at Khalari by a Magistrate
1st Class, Ranchi, from Shri Bhagwan Singh, Proprietor of M/s Pramod Flour
Mill, Khelari it has been established that the licence of M/s Pramod Flour
Mill, Khelari is 9/72 and not 31/69. It has also been established that M/s
Pramod Flour Mill, Khelari had no license in 1969. It has also been established
that on 2-10-73 M/s Flour Mill Khelari did not make any purchase of rice from
you or from any other shop.
(1) W.P. 1496 of 1973; Judgment dated October
11, 1973.
376
5. That similarly in support of your
assertion as stated in Para No. 2 above, you produced cash memo No. 1137 dated
2-10-73 showing sale of 10 bags of rice. to Shri Kundan Lal of Khelari showing
his licence number as 26/67(R). On actual verification at Khelari by a
Magistrate 1st Class, Ranchi, from Shri Kundan Lal of Khelari it has been established
that Shri Kundan Lal of Khelari has got no foodgrain dealer's licence, nor he
deals in foodgrains. It has also been established that the said Kundan Lal of
Khelari did not purchase any rice from you on 2-10-73.
In the circumstances I am satisfied that it
he is allowed to remain at large, he will indulge in activities prejudicial to
the maintenance of supplies and services essential to the community for
prevention of such activities I consider his detention necessary. . . . "
He who runs and reads will be satisfied, if the statements are true, it is not
for the Court to investigate the veracity of these averments that prolix
particulars are communicated about the midnight movement of 50 bags of ricea
clandestine misadventure contrary to the conditions of this wholesaler's
licence-and, when challenged, reeled off imaginary numbers of licences of
dealers some of whom, on verification, had no current licence and all of whom
had disowned the alleged purchases. May be, the petitioner has a good defence
but the imprisonment is preventive and not punitive, the conclusion is based on
the executive's subjective satisfaction, not the court's objective assessment.
Even the admitted facts are tell-tale. The petitioner is a licensed wholesale
dealer. He can carry on his business only at a place mentioned in his licence
and not do transport and sale outside those premises. He can sell only to a
wholesale or retail merchant holding a permit. He shall issue 'to every
customer a correct receipt giving the name, address and licence number of the
customer' and other details and keep a duplicate of the same. On the recitals
in the annexure to the order, the petitioner has, in violation of all these
safeguards, attempted to run the gauntlet of the law. An intelligent forecast
made by the District Magistrate that the detenu would break the control system
and blackmarket in rice cannot be castigated as irrational. The argument is
that all this is germane to supplies, not services. Therefore, as earlier
explained, the whole order breaks down.
We do not dismiss this argument as merely
technical or procedural for the eloquent reason given by Mathew, J., if we may
say, with deep deference in Prabhu Dayal's case :
"The facts of the case might induce
mournful reflection how an honest attempt by an authority charged with the duty
of taking prophylactic measure to secure the maintenance of supplies and
services essential to the community has been frustrated by what is popularly
called a technical error.
We say and we think it is necessary to
repeat, that the gravity of the evil to the community resulting from antisocial
activities can never furnish an adequate reason for 377 invading the personal
liberty of a citizen, except in accordance with the procedure established by
the Constitution and the laws. The history of personal liberty is largely the
history of insistence on observance of procedure. Observance of procedure has
been the bastion against wanton assaults on personal liberty over the years.
Under our Constitution, the only guarantee of personal liberty for a person is
that he shall not be deprived of it except in accordance with the procedure
established by law. The need today for maintenance of supplies and services
essential to the community cannot be over-emphasised. There will be no social
security without maintenance of adequate supplies and services essential to the
community. But social security is not the only goal of good society. There are
other values in a society. Our country is taking singular pride in the
democratic ideals in personal liberty. It would indeed be ironic if, in the
name of social security, we would sanction the subversion of this liberty. We
do not pause to consider whether social security is more precious than personal
liberty in the scale of values. For, any judgment as regards that would be but
a value judgment on which opinions might differ. But whatever be its impact on
the maintenance of supplies and services essential to the community, when a
certain procedure is prescribed by the Constitution or the Laws for depriving a
citizen of his personal liberty, we think it our duty to see that procedure is
rigorously observed, however strange this might sound to some ears." Part
IV of the Constitution projects a value judgment which some, jurists have
interpreted to mean that in the hierarchy of human rights the right to life
ranks highest and if the liberty of the few starve the life of the many the
jural order may break down, an aspect on which we do not now need to speak.
The position of law is plain but does not
apply here. We have, been at pains to explain that illicit transport of food grains
in the still secrecy of night by one whose business license does not permit it
and who gives false excuses when confronted, does indulge in an activity with
impact on supplies and services. Supplies and stocks, if hijacked by
wholesalers upsets the delicate control scheme.
SO also transport and delivery to each centre
according to its requirements thrown out of gear by these private operations.
And Bihar, hopping harrowingly from drought to floods, can ill-afford to have
the wheels 378 of distribution, of which supplies and services are two facets,
wobble or break down. Anyway, we cannot hold the order bad, in economics or
law.
Counsel referred to the quantity being but 50
bags of rice too small to thwart supplies to the community. While that is of
little avail legally, it suggests cynically that larger black-marketers are
easy in their bosom while deserving to be behind bars. That is not our province
as judges, and our views as citizens are out of place.
In conclusion, we would like to express
concern at prolonged detentions without trial without periodical review of each
individual case in changing circumstances. The petition fails and is dismissed.
S. B. W. Petition dismissed.
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