Bankatlal Vs. State of Rajasthan
 INSC 215 (17 October 1974)
SARKARIA, RANJIT SINGH SARKARIA, RANJIT SINGH
CITATION: 1975 AIR 522 1975 SCR (2) 470 1975
SCC (4) 598
Maintenance of Internal Security Act 1971-S.
3(1) (a) (iii)scope of-"Supply and Service" meaning of.
Whether detaining authority bound to convey
all the details of previous convictions of the detenu.
Pursuant to two orders of detention under s.
3(1) (a) (iii) of the Maintenance of internal Security Act, 1971 the petitioner
was detained on the ground that he was indulging in adulteration of essential
foodstuffs and was in possession of donkey dung, sawdust, gypsum, ICI colours
and coloured plastic paper used and intended for use in adulteration of
foodstuffs; that the samples of foodstuffs sold by him, on examination were
found to contain highly adulterated material; that the recovery of huge
quantity of adulterated foodstuffs and adulterated material which is unhygenic
and injurious to public health proved that by indulging in the business of
manufacture, sale and storage for sale of such essential commodities he had
been acting in a manner prejudicial to the maintenance of supplies essential to
the community and that he could not be prevented from doing so by prosecution
under the Prevention of Food Adulteration Act. Before the confirmation of the
order of detention by the Government the petitioner filed a habeas corpus
petition before the High Court, which was dismissed. In a petition under
article 32 of the Constitution it was contended (i) that the grounds of
detention were non-existent; (ii) that the grounds communicated to the detenu
did not have a direct nexus with the maintenance of supplies and services
essential to the community; and (iii) that in an affidavit filed before the
High Court the District Magistrate relied upon an earlier prosecution and
conviction of the petitioner under the Prevention of Food Adulteration Act, but
failed to mention this ground in the order of detention, in consequence of
which the grounds communicated were vague.
Dismissing the petition,
HELD : (1) It cannot be said that the grounds
of detention were non-existent. On the report of the public analyst the chilli
powder and haldiwhole would be deemed to be adulterated articles of food
falling within the definition of cl. (c) and (f) respectively and Amchoor
within the definition of cl. (b) and (c) of s. 2(1) of the Prevention of Food
Adulteration Act, 1954. In the light of the information received by the
detaining authority that the petitioner had been systematically adulterating
foodstuffs on a large scale, the discovery in bulk of extraneous matter stored
in the premises which could be used for adulteration could not be said to be
irrelevant. [477 H; 478 A-B] (2)(a) Supplies in the context of s. 3(1)(a) (iii)
means supply of essential commodities or foodstuffs in a wholesome form. It
does not mean the supply of their adulterated substitutes. Engagement in the
process of adulteration of foodstuffs meant for sale is an activity highly
prejudicial to the maintenance of supplies and services essential to the
community, more so when it is done in an organised manner and on a large scale.
[478 F-G] Misri Lal v. The State A.I.R 1951 Pat. 134 F. B. over-ruled, and Hari
Ram v. State (1974) 25, Raj. Law Weekly p.26 approved.
(b) Food adulteration activity particularly
of an organised kind is an activity prejudicial to the maintenance of supplies
and services essential to the life of the community which may justify an order
of detention under s. 3(1) (a)(iii) of the Act. One of the primary necessaries
of life is food; one of the elementary obligations of a welfare state is to
ensure food to its citizens. The concepts of "Supplies" and
services" intermingle in the discharge of that obligation by the State.
Maintenance 471 of sale of pure food stuffs to the public is both a 'supply"
and a "service'. A person who sells adulterated food to the people not
only evinces a tendency to disrupt the even flow of essential supplies but also
interrupts service to the community.
[479 G-H] Haradhan Saha v. State of West
Bengal, Writ petition No. 1999 of 1973 decided on 21-8-1974 referred to.
(c) one broad test for the exercise of the
power which the detaining authority may keep in View, particularly in a case of
adulteration of foodstuffs is whether the material before it about the
activities of the person sought to be detained in the proximate past and
present, is such as to enable it to make a reasonable prognosis of the
probability of that person to behave similarly in the future. In the present
case on the material before him the District Magistrate could reasonably be
satisfied that unless detained, the detenu would be likely to continue the food
adulteration activity in the future and it was, therefore, necessary to detain
him. [481 B & D] (3) The mere fact that all the details of his previous
prosecutions and their results or his conviction were not conveyed to the
detenu did not contravene art. 22(5) of the Constitution and s. 8(1) of the
Act. All these fact were within the knowledge of the detenu. There was
sufficient indication in the first as well as the second order of detention
about the previous prosecution of the petitioner for food adulteration
offences. What constitutes the substance of the grounds is the factum of the
raid and the discovery of adulterated chilli powder, Amchur, Haldi and a large quantity
of odd materials such as sawdust, donkey dung etc. which, in the opinion of the
detaining authority, were suspected adulterants. The presence of these
suspected adulterants in bulk, safely stored in tins may not by itself amount
to an offence under the penal law but it was a relevant circumstance which
could be taken into account by the detaining authority in reaching its
subjective satisfaction. [381 H; 482 B; 481 G]
ORIGINAL JURISDICTION: Writ Petition No. 292
Petition Under Article 32 of the Constitution
of India A. K. Sen, Badri Das Sharma and S. K. Bagga, for the Petitioner.
L. M. Singhvi, S. M. Jain and S. K. Jain, for
The Judgment of the Court was delivered by
SARKARTA J. The petitioner challenges the validity of the order of his
detention made by the District Magistrate, Jodhpur under s. 3(1)(a) (iii) of
the Maintenance of Internal Security Act, 1971 (for short the Act) and prays
for a writ in the nature of habeas corpus.
The order of detention was passed on March
18, 1974. In pursuance thereof, the petitioner was taken into custody on March
The detention order (for short, the first
order) which was served on the detenu at the time of his arrest on March 19,
1974. states ".......whereas, the said Shri Bankat Lal has been indulging
in rampant adulteration of essential foodstuff and supply thereof for
consumption by the community at large, operating a factory and firm under the
name and style of Laxmi Narain Moondra situated in Makrana Mohalla, Jodhpur for
such adulteration, so much so, that 170 odd bags of material which among other
things, includes 7 tins of sawdust, 15 bags of colour (yellow and Gherwa), 70
bags of chilli seed, black colour leaves, which look like tea leaves, one bag
of gypsum (khaddi) power and a tin of 472 animal dung, used and intended for
use in adulteration of foodstaffs, which are piosonous and injurious to public
health were recovered from your godown and one floor mill owned and/or
controlled by the said Shri Bankatlal;
3. And, whereas recovery from the godown and
flour mill mentioned in the preceding paragraph, also includes foodstuff like
Haldi, Mirchi, and Amchoor, which on chemical examination by the Public Analyst
have been found to be adulterated for which prosecution is contemplated against
the said Shri Bankatlal under the Prevention of Food Adulteration Act, 1954;
4. And, further there is reasonable
apprehension that the said Shri Bankatlal will continue to indulge in
adulteration and sale of adulterated foodstuffs and thereby act prejudicial in
the matter of maintenance of supplies essential to the community and frustrate
the objective of supply of pure food stuffs to the community at large and there
is no other way to prevent him from acting in such prejudicial manner otherwise
than by invoking the provisions of s. 3 (1) (a) (iii) of the Maintenance of
Internal Security Act.
5. And, therefore, in exercise of the powers
conferred upon me by S. 3 (2) of the Maintenance of Internal Security Act, I
order the detention of Shri Bankatlal.. . " The second order containing
further particulars of the grounds of detention was served on the petitioner on
March 20, 1974. It reads:
"x x x I . That on 11-3-1974 between 11 30
a.m. and 2 p.m. Dr. (Miss) Raj Kumari, District Chief Medical and Health
Officer Jodhpur together with....... . . . . . went to Sumer Market... . . .where
one Shri Hiranand son of Shri Lal Chand Sindhi, retailer gave credible
information that you are owning a business firm named as 'Laxmi Narain Moondra
a wholesale concern at 'Killikhana', Makrana Mohalla, Jodhpur and you are doing
wholesale business of adulteration of essential commodities (foodstuffs) by
adultering cheap unhygenic and injurious materials like colours, saw-dust,
gypsum, Gharu and sand with chilly-seeds, Haldi, Dhania, Amchur, tea-leaves and
flour and manufacture adulterated foodstuffs for sale to the general public as
pure varieties of such essential commodities. When the party raided your above
shop and four godowns situated in the same premises and searched there between
11-3-1974 and 14-3-1974, the information given by Shri Hiranand was confirmed.
You, together with your son were found present in your shop and on the search
of your premises the checking party found under your ownership and control huge
quantities of adulterated foodstuffs as well as the materials used by you for
the purpose of adulterating essential commodities. A perusal of the recovery
memos of the articles seized show that you possessed the stock of following
adulterated articles for manufacture, sale and storage of foodstuffs for sale
under your control.
473 (a) On 11-3-1974 in your main shop:(i)
Eleven full bags and seven half-bags of adulterated chilli powder, weighing 80
Kg. to 20 Kg. each.
(ii) One quintal bag of Haldi powder and two
half bags of the same.
(iii) Ten to twenty kg. bags of Amchur
(iv) one tin of Dhaniya mixed with refuse.
(v) Two tins of Tumba oil.
Samples of each of the above foodstuffs were
taken on 11 31974 by paying you. the price of each sample in the presence of
Motbirs and forms IV and V were given to you; sealing the articles in your,
presence and copy of the recovery memo, was also furnished to you.
(b) On 11-3-1974 Two rooms in the main shop
containing above foodstuffs were scaled in your presence containing:
1. Sixty bags of chilli powder.
2. Ten bags of Haldi.
3. Five bags of Amchur.
4. Five bags of unhusked Amchur.
(c) On 11-3-1974-The following material used
by you for adulteration was recovered from your main shop.
(1) One bag of gypsum `Khaddi).
(2) Half bag of red colour used for mixing
with chilli powder.
(3) One package of I. C. I. colour containing
green colour suspected to be used for colouring adulterated Dhaniya.
(4) One packet containing 'saffron colour'
used for mixing with Haldi powder.
(5) Red coloured plastic paper used for
(6) Weights and weighing machines.
(d) On 12-3-1974 at 3 25-From your godown No.
1 and 2 rented to you by Shri Ramesh Chandra Mathur of the same locality:
1. Sixty-two bags of chilli unhusked seeds,
used for adulterating in chillies.
(e) On 13-3-1974 from above godown:
1. Thirty-four bags of chilli seeds.
2. Ten tins of black used-ten-leaves-like
3. Ninety-nine tins of white powder.
4. Two bags of suspected soap stone powder.
474 (f) On 13-3-1974 and 14-3-1974.
From the flour mill under your control in
which food licence No. 1666 Book No 10 dated 13-3-1973 in the name of your wife
Srimati Ramadevi was also recovered.1. Eleven bags of husked seeds of chillies.
2. Two tins suspected to contain 'Donkey
dung.' 3. Eleven tins of suspected material with sawdust.
4. one tin of yellow saw dust.
5. One tin of suspected mango seed powder.
6. Two tins of waste material of Dhaniya.
2. That the samples of foodstuffs sold by you
to the Food inspector on 11-3-1974 were examined by the Public Analyst and
found on examination highly adulterated containing:
1. Chilli powder-total ash 8.12 % and ash
insoluble in H. C. C. 1 .99 %, contains silicious matter sand etc.
2. Haldi which contains 46 .24 % heavily
infested with insects in such material.
3. Amchur which contains 20 % extraneous matter.
This further confirms your dealing in
adulterated foodstuffs and its supply to the community.
3 That it Was found from the statements of
Hira Nand and your landlord Ramesh Chandra Mathur whose premises are rented by
you for hoarding and manufacturing above foodstuffs that you are engaged in
such business for a long time now and you put such a( ulterated commodities for
sale to the innocent customers as pure foodstuffs.
4. That in order to escape the consequences
of your actions, you deliberately failed to produce your firm's Registration
certificate issued under the 'Shops and Commercial Establishment Act'.
5. That you deliberately refused to open the
flour mill established under your control in the name of your wife Srimati
Ramadevi and prevented the Health Officer from taking the search of the above
mill in your presence.
However, by invokingy the provisions of
section 10 of the Prevention of Food Adulteration Act, 1954, the mill was
unlocked in the presence of motbirs and huge adulterated foodstuffs and
material used for adulterating foodstuffs were recovered.
6. That in your main shop, you fraudulently
and deliberately exhibited writings on cardboard styled 'foodstuffs not for
human consumption' to avoid the checking. However, the recovery of the
adulterated articles on the contrary prove that none of these articles are used
other than as foodstuffs.
7. That the recovery of huge quantity of
above adulterated foodstuffs and adulterated material which is unhygenic and
injurious to the public health goes to prove that by indulging in the business
of manufacture sale and storage for sale of such essential commodities you have
been acting prejudicial to the maintenance of supplies essential to the
community and have been doing so for several years past and further, that you
are likely to continue to indulge in this nefarious activity injurious to the
public health and prejudicial to the maintenance of supplies essential to the community
and that you could not be prevented from doing so by mere prosecution under the
Prevention of Food Adulteration Act, which is being contemplated and therefore,
it was necessary to detain you by invoking the provisions of s. 3 (1) (a) (iii)
of Maintenance of Internal Security Act, 1971." Now some other material
facts may be set out. The State Government approved the order of detention on
March 23, 1974. On or about the 6th 'April, 1974 the petitioner moved the High
Court of Rajasthan under Article 226 of the Constitution for the issue of a
writ of habeas corpus on the ground that his detention was illegal. The High
Court dismissed the writ application on May 6, 1974. The reference to the
Advisory Board was made on April 10,1974 in compliance with s. 10. The detenu
made a representation, dated 16/17th April 1974, which was despatched by the
Superintendent, Central Jail, Jodhpur, on April 17, 1974, and was received by
the Government on April 20, 1974. The Government then forwarded that
representation to the Advisory Board which considered it and heard the detenu
in person and reported to the Government that there was sufficient cause for
the detention. The State Government confirmed the detention order on May 11,
Mr. Ashok Sen, learned Counsel for the
petitioner has tried to make out these points in his arguments: (1) The grounds
of detention are non-existent; (2) The grounds communicated to the detenu are
not germane having a direct nexus with the maintenance of supplies and services
essential to the community; (3) The District Magistrate had stated in his
affidavit before the High Court that before passing the order of detention, he
had come to know that the petitioner had been prosecuted and convicted earlier
under the Prevention of Food Adulteration Act. This ground which must have
weighed with the District Magistrate in making the detention order, was not
mentioned in the grounds of detention communicated to the detenu who was, in
consequence, deprived of the opportunity of explaining the circumstances in
which he was earlier convicted. Failure to do so leaves the ground communicated
vague and the detention is on that account illegal.
In elaboration of the first point, Mr. Sen
submits that in the first place, the donkey dung, saw-dust, gypsum, I. C. I.
Colours, coloured plastic paper, dhaniya
waste, etc. which were found in the premises were not adulterants. They were
kept there for innocuous purposes.
476 The donkey-dung was meant for being used
as fuel; the sawdust was there for preserving slabs of ice. Secondly, there was
no evidence, whatever, that these articles were being used to adulterate the
spices or other foodstuffs for sale. It is stressed that none of the foodstuffs
taken from the premises was found adulterated or mixed with these alleged
adulterants viz., donkey-dung, sawdust I. C. I.
colour etc. The only extraneous matter in the
sample of chilli powder detected by the Public Analyst-proceeds the
argument-was 1 .99 %, sand. Presence of such a small percentage of sand in that
sand-swept country may be an act of God and not of the petitioner; and the same
could be the reason for the presence of stone-dust in the sample of Amchoor.
About the presence of insects, 46 .24 % in the sample of Haldi-whole it is
contended that the same had also been brought about by the process of nature
and not by human hand. Strictly Speaking, maintains the Counsel, none of the
foodstuffs in the premises had been found adulterated; the three samples
examined by the Public Analyst were only substandard. It is urged that there
was no nexus between the alleged adulterants and the foodstuffs the samples of
which were found sub-standard. The detaining authority had therefore in taking
into account these alleged adulterant, erred and based the order of detention
on an irrelevant consideration. Since it cannot be predicted, argues the
Counsel, to what extent the authority was influenced by this irrelevant matter,
the order stands vitiated.
Dr. Singhvi, learned Counsel for the State,
submits that the reports of the Public Analyst, far from excluding, strongly
indicated the possibility of the samples of, chilli powder and Amchoor
containing a substantial percentage, of animal dung, sawdust, gypsum and waste
matter. In particular, it is stressed that the dust and stones found in Amc
were probably of gypsum. The Analyst, it is pointed out, did not say that
duststones and coriander seeds were the only components of what he
compendiously describes as 20 % "extraneous matter". It is further
submitted that the fibre and insoluble ash found in the chilli powder might be
due to the mixing of the adulterants (other than I. C. I. colour) found in the
premises. On these premises, it is maintained, the seizure of the aforesaid
adulterants along with the adulterated foodstuffs for sale, was highly relevant
and germane to the object of the detention viz., maintenance of supplies and
services essential to the community.
Taking the first points first, the presence
of donkey-dung, sawdust, gypsum, I. C. I. colours, refuse, coloured plastic,
papers etc. stored in tins, bags or other receptacles, in premises where spices
and other foodstuffs were also lying stored, some of which were found adulterated
was by itself a suspicious circumstance. The petitioner held no license to deal
in I. C. I. colours or gypsum etc. At no stage, the petitioner said that the
animal dung had been stored by him for use as fuel and we doubt very much that
donkey dung is so used. Nor did he say that the sawdust had been kept there for
preserving ice or for other domestic use. With winter waning, the season must
still be cool on the 11th March. The question on fusingice in that season did
not arise. Although sawdust, gypsum, I. C. I. colours etc. are articles of
innocent 477 use, yet in the circumstances of the case, they could furnish
reason for the detaining authority to suspect that they were kept there for
'use as adulterants. This suspicion was strengthened by the fact that thee
samples of chilli powder, Amchoor and Haldi-whole were found by thePublic
Analyst to be highly adulterated containing 1. 45 % extraneous matter and
46.24% insects. True, that the Analyst did not find any artificial colouring
matter in these samples. But at the same time he did not positively exclude the
possibility of sawdust, donkey-dung, gypsum and refuse having been used in
adulterating the samples. He detected in Amchoor, 20. 0 % extraneous matter
including "dust-stones, and other edible seeds namely coriander etc."
apart from insects. Gypsum is rock chalk. Chemically, it is hydrous calcium
salphate. The "dust stones" could be calcium sulphate. Then, the use
of "etc." by the Analyst shows that this extraneous matter could
include other things also. The result of the analysis of chilli powder was as
Moisture content 6.82% Total Ash 8.12% Ash
insoluble in HCI 1.99% Crude fibre 28.16% It is evident that there was an
excess of insoluble ash (1 .
99 %) which according to the particulars
conveyed to the detenu, was siliclous matter, sand etc. The possibility of
gypsum being a component of this insoluble ash had not been ruled out.
There could be no doubt that on the basis of
the reports. of the public Analyst, the chilli powder, Amchoor and Haldi whole
taken from the premises of the petitioner were prima facie adulterated
Section 2(1) of the Prevention of Food
Adulteration Act, 1954 provides:
"an article of food shall be deemed to
(b) if the article contains any other
substance which affects', or if the article is so processed as to affect,
injuriously the nature. substance or quality thereof, (c) if any inferior or
cheaper substance has been substituted wholly or in part for the article so as
to affect injuriously the nature, substance or quality thereof; and (f) if the
article consists wholly or in part of any filthy, putrid, disgusting, rotten,
decomposed or diseased animal or vegetable substance or is insectinfested or is
otherwise unfit for human consumption.............." On the report of the
Public Analyst the chilli powder and Haldi whole would be deemed to be 'adulterated
articles of food' falling within the above quoted clauses (c) and (f)
respectively, while Amchoor would be covered both by clauses (b) and (c).
Two things emerge clear from the above
discussion. First, that the chilli powder, Amchoor and Haldi-whole of which
samples were 478 taken were adulterated articles of food. Second, in the light
of the information received by the detaining authority that the petitioner had
been systematically adulterating food-stuffs on a large-scale, the discovery in
bulk of extraneous matter stored in the premises, which could be used for
adulteration, could not be said to be, irrelevant.
By no stretch of reasoning, therefore, could
it be said that the grounds of detention were non-existent.
This takes us to the second point. It raises
Is food adulteration activity an activity
prejudicial to the maintenance of supplies and services to the community? For
reasons that follow, the answer to this question, in our opinion must be in the
Section 3(1) of the Act runs thus:
"The Central Government or the State
Government may, (a) if satisfied with respect to any person (including a
foreigner) that with a view to preventing him from acting in any manner
prejudicial to (i) .. ...
(ii) .. ..
(ii the maintenance of supplies and services
essential to the community, it is necessary so to do, make an order directing
that such person be detained." Sub-section (2) specially empowers the
District Magistrate, Additional District Magistrate and the Commissioner of
Police to make an order on the basis of their subjective satisfaction.
It is not disputed that spices such as chilli
powder, Amchoor, Haldi etc. are 'foodstuffs' and as such are commodities
essential to the life of the community.
'Supplies' in the context of s. 3(1) (a)
(iii) means the supply of essential commodities or foodstuffs in a wholesome
form. It does not mean the supply of their adulterated substitute. There can be
no doubt therefore, that engagement in the process of adulteration of
foodstuffs meant for sale, is an activity highly prejudicial to the maintenance
of supplies and services essential to the community, more so when it is done in
an organised manner and on a large scale.
In Misri Lal v. The State (1), a Full Bench
of the Patna High Court, ,speaking through Imam J. (as he then was) took a
different view in these terms:
"I do not think that the words
'maintenance of supplies and services essential to the community could
reasonably carry the meaning that any one who adulterated foodstuffs would be
acting in a manner prejudicial to the maintenance of supplies or the continuity
of supplies. It is true that adulterated foodstuff 1. A.I.R. 1951 Pat. 134 F.B.
479 supplied to the community may be harmful
to its health, but supplying such adulterated foodstuff would not be
prejudicial to the maintenance of supplies. The Act does not speak of
profiteering, much less profiteering at the expense of the health of the
The above, we think, is too narrow a view. If
it was intended to lay it down as an absolute proposition of law, that in no
circumstances food adulteration activity can be prejudicial to the maintenance
of supplies and services essential to the community, we would, with respect,
disapprove it as not enunciating a correct principle. The view in Misri Lal's
case (supra) was dissented from by a Bench of the Rajasthan High Court in Hari
Ram v. State. (1) Commenting on the decision of Misri lal's case, that Court
"In our opinion the crucial words of the
statute are" acting in a manner prejudicial to the maintenance of
supplies". The burden is not on maintenance as it merely imports
continuity. The essence of the matter is that the act should not prejudicial to
A person is said to act to the detriment or
acts injuriously. The next question is supply of what? We have already said the
commodity which is essential to the community. Ata (flour) is certainly one of
such articles and probably the most basic for keeping the soul and body
together. If at a is adulterated with some powder, what is supplied is not a
commodity essential to the community but its counterfeit. The object of the
Security Act is to deal effectively with the threats to the organized life and
to the security of India..." "In essence we regret to have to repeat
that supply means the supply of essential commodity and not its counterfeit and
those who are engaged in the process of counterfeiting an essential commodity
are certainly acting prejudicially to the maintenance of Supply of the
essential commodity. In Our opinion, therefore, adulterating an essential
commodity is acting prejudicially to the maintenance of its supply and the
provisions of sec. 3(1) (a) (iii) are clearly attracted." This seems to be
the correct line of approach, but it does not stop at maintenance of
"supplies" only. It extends further to "services", also.
one of the primary necessaries of life is food; one of the elementary
obligations of a welfare state is to ensure food to its citizens. The concepts
of "supplies" and "services" intermingle in the discharge
of that obligation by the State. Maintenance of sale of pure foodstuffs to the
public, therefore, is both a "supply" and a "service". A
person who sells adulterated food to the people not only evinces a tendency to
disrupt the even flow of essential supplies but also interrupts service to the
community. Recently in Jagdish Prasad v.
State of Bihar, a decision to which one of us
was a partythe connotation, scope and inter-relationship of the terms
"supplies" and "services9" in s. 3 (1) (1) (1974) 25 Raj.
Law Weekly p. 26.
480 (a) (iii) of the Act came up for
examination in the context of blackmarketing in foodgrains. What was said then
may usefully be extracted now:
"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
mast be a thing essential for the existence of the community; when crystalised
it is supplies when sublimated it is services.
It depends in most cases on the angle from
which you view and lens you use. Food is supplies, so shipping and wagons
kerosene and gasoline. And yet they are services. At a feeding centre for
starving children you supply food, serve gruel." Food adulteration
activity, therefore, particularly of an organized kind, as in the present case,
is an activity prejudicial to the maintenance of supplies and services
essential to the life of the community which may justify an order of preventive
detention under s. 3(1) (a)(iii).
We will, however, sound a note of caution.
The Act gives extraordinary power of high potency to the Executive.
Exercised with due discretion and care, it
may prove to be an effective weapon for fighting social evils, encompassed by
the statute, that are eating into the vitals of the Nation and pose a
capriciously, the power may turn into an engine of oppression, posing a threat
to the democratic way of life, itself. The need for utmost good faith and
caution in the exercise of this power, therefore, cannot be over emphasised.
But every petty, or ordinary act of
adulteration of foodstuffs will not justify preventive action under the Act.
It is only adulteration carried on habitually
or in a big way that throws out of gear the even tempo of life. Only big whales
plunging to prey unleash tidal waves which disturb the even keel of communal
life, the little fry acting in a small way in their little world, matter
They hardly cause a ripple to the even flow
of supplies and services. In simple ordinary cases of adulteration, therefore,
where there are no circumstances pre-indicative of the offender's propensity to
indulge in adulteration in the future, it may not be proper to exercise the
power of preventive detention. Where the malaise is outgrown and malignant the
preventive "radiotherapy" sanctioned by the Act can properly be
applied. It is here that the distinction between the concepts of preventive
detention and punitive incarceration comes in for importance. Speaking for this
Court in Haradhan Saha v. State of West Bengal (1) the learned Chief Justice
brought out this distinction thus:
"The power of preventive detention is
qualitatively different 'from punitive detention. The power of preventive
detention is a precautionary power exercised in reasonable anticipation. It may
or may not relate to an offence. It is not a parallel proceeding. It does not
overlap with prosecution even if it relies on certain facts for which
prosecution may be launched or may have been launched. An order of preventive
detention may be (1) Writ Petition No. 1999 of 1973 decided on 21-8-1974.
481 made with or without prosecution and in
anticipation or after discharge or even acquittal. The pendency of prosecution
is no bar to an order of preventive detention. An order of preventive detention
is also not a bar to prosecution." One broad test therefore, for the
exercise of the power which the detaining authority may usefully keep in view,
particularly in a case of adulteration of foodstuffs, is :
"Whether the material before it about
the activities of the person sought to be detained, in the proximate past and
present, is such as to enable it to make a reasonable prognosis of the
probability of that person to behave similarly in the future. The nature and
process of the activity, its magnitude, its impact on the public generally and
the incidence of the evil in the locality or in the State generally, are some
of the relevant factors which the authority may usefully take into
consideration in arriving at its satisfaction.
Here it is clear from the facts and
circumstances stated above that on the material before him the District
Magistrate could reasonably be satisfied that, unless detained, the detenu
would be likely to continue the food adulteration activity in the future and it
was therefore necessary to detain him. Accordingly this contention also must be
In regard to the third point, viz.,
non-communication of particular of the previous conviction of the petitioner,
it may be observed that the District Magistrate, Shri Zutshi, who made the
detention order, averred in the counter affidavit which he had filed before the
High Court, that at the time of making the impugned order, he knew that the
petitioner had been previously prosecuted for offences punishable under the Prevention
of Food Adulteration Act, but the judgment of the case in which he was
prosecuted, was not available. Thus the detaining authority did not know
whether the previous prosecution of the petitioner had resulted in his
conviction. That was why he did not mention the fact of this conviction, as
distinguished from prosecution, in the particulars of the 'grounds of detention
communicated to the detenu. It is not worthy that the grounds of detention were
incorporated by the detaining authority in the order of detention itself, which
has been quoted in extenso earlier in this judgment. What constitutes the
substance of the grounds is the factum of the raid and the discovery of
adulterated chilli powder, Amchur and Haldi and a large quantity of odd
materials such as sawdust, donkey-dung etc. which in the opinion of the
detaining authority were-and we think for good reasons suspected adulterants.
The presence of these suspected adulterants in bulk, safely stored in tins, may
not by itself amount to an offence under the penal law but it was a relevant
circumstance which could be taken into account by the detaining authority in
reaching its subjective satisfaction.
The mere fact, therefore, that all the details
of his previous prosecutions and their results or his conviction were not
conveyed to the detenu did not contravene Art. 22 (5) of the Constitution and
s. 8(1) of the Act. All these facts were within the knowledge of the detenu. In
any case, he could, if he so desired, ask for these particulars. it 482 has
been admitted before us, as was done before the High Court, that the petitioner
was only once convicted for an offence under the Prevention of Food
Adulteration Art. That conviction, it is submitted by Mr. Sen, was based on his
confession and the petitioner had made that confession on the advice of his
Counsel in order to escape the harassment of a protracted trial.
As already noticed, there was sufficient
indication in the first as well as the second order of detention about the
previous prosecution of the petitioner for a food adulteration offence. He was
heard in person by the Advisory Board and had every opportunity to explain the
circumstances in which he was previously prosecuted and convicted. Thus the
objection with regard to the non communication of these details of previous
prosecution and conviction is merely an afterthought.
No other point was raised before us In the
result the petition fails and is dismissed. Rule discharged.