Full Judgment Text
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PETITIONER:
MOTILAL JAIN
Vs.
RESPONDENT:
STATE OF BIHAR & ORS.
DATE OF JUDGMENT:
27/03/1968
BENCH:
HEGDE, K.S.
BENCH:
HEGDE, K.S.
VAIDYIALINGAM, C.A.
SHAH, J.C.
SIKRI, S.M.
BACHAWAT, R.S.
MITTER, G.K.
CITATION:
1968 AIR 1509 1968 SCR (3) 587
CITATOR INFO :
RF 1969 SC 323 (13)
RF 1973 SC 295 (8)
R 1974 SC 156 (6)
R 1974 SC 183 (15,19,59)
R 1974 SC 255 (9)
R 1979 SC1925 (8)
ACT:
Preventive Detention Act (4 of 1950), ss. 3(1)(c)(iii) and 4
Several grounds in order of detention-Some Vague and non-
existent Whether order can be sustained.
HEADNOTE:
The appellants partner in a grocery shop, was detained under
s. 3 (I) (a) (iii) and s. 4 of the Preventive Detention Act
for indulging in black-marketing of essential commodities.
He was supplied with an order detailing a number of grounds
in support of his detention. In one of the &rounds viz.,
cl. (a) of the order the name of the shopkeeper to whom the
appellant was said to have sold match boxes and soap "at a
price higher than that fixed for these commodities" was not
mentioned. Neither the price fixed nor the price at which
it was said to have been sold was mentioned. In another
ground viz.’ el. (d) of the order a sale was alleged to K
who was not existing in the described locality. On the
question of the validity of the order of detention, this
Court,
HELD : The order must be set aside.,
The ground mentioned in cl. (a) was vague. The futility of
making representation in respect of an unknown man and of an
unspecified price can easily be imagined. There was no
opportunity to the appellant’ to satisfy the Advisory Board
that the alleged purchaser was a ficutious figure or that he
is an enemy of his or that the information given by him
should otherwise be not accepted. [590 C-E]
Further, there was nothing to show that the Government had
either fixed the sale price of the commodities or it had any
power to do so. Therefore the ground in el. (a) was not
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only vague but also irrelevant.
The ground mentioned in el. (d) was non-existent. The
State’s explanation that the sale was made to K of another
locality and due to typographical mistake the locality was
wrongly described was curious That apart, the appellant
could not have made any representation in respect of the
such a new allegation against him.
The State’s contention that even if the grounds mentioned in
cis. (a) and (d) are ignored, still the detention of the
appellant could be justified on the remaining grounds
mentioned in that order, was wholly untenable. The defects
noticed in the two grounds viz cls. (a) and (d) were suffi-
cient to vitiate the.order of detention impugned, in these
proceedings as it was not possible to hold that those
grounds could not have influenced the decision of the
detaining authority. The constitutional requirement that the
grounds must not be vague must be satisfied with respect to
each of the grounds communicated to the person detained
subject to the claim of privilege under el. (6) of Art. 22
of the Constitution, and where one of the grounds mentioned
is vague, even though other grounds are not vague the
detention is not in accordance with the procedure
established by law and is therefore illegal. [591 F; C-D].
L7 Sup. CI/68-13
588
Dr. RaM Krishan Bhardwaj v. State of Delhi, [1953] S.C.R.
708, Shibban Lal Saksena v. State of U.P. [1954] S.C.R. 418,
Dwarka Dass Bhatia v. State of Jammu and Kashmir, [1956]
S.C.R. 948 and Rameshwar Lal Patwari v. State of Bihar,
[1968] 2 S.C.R. 505, followed.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 34 of
1968.
Appeal by special leave from the Judgment and order dated
December 15, 1967 of the, Patna High Court in Crl. W.J.C.
No. 92 of 1966.
M. C. Chagla, A. N. Sinha and B. P. Jha, for the appellant.
U. P. Singh, for respondent No. 1.
The Judgment of the Court was delivered by
Hegde, J. In this appeal by special leave, the question for
decision is whether the appellants detention under sub-cl.
(iii) of cl. (a) of sub-s. (1) of S. 3 and of S. 4 of the
Preventive Detention Act, 1950, (IV of 1950)-to be
hereinafter referred to as "the- Act", as per order, of the
Governor of Bihar No. A-DE-Pur1501/67-6357/G dated September
25, 1967, is unlawful.
The appellant is a partner in the grocery shop by name
"Shanti Stores" in Gulab Bagh where sugar, maida, soap,
match boxes, kerosene oil and other articles are sold. He
is said to have indulged in black-marketing is essential
commodities. As per the order of September 27, 1967 grounds
in-support of the appellanes detention were supplied. They
read as follows
"(a) On 10-3-1967 he sold match boxes and soap
to a shopkeeper of Purnea Court compound at a
price higher than that fixed for these
commodities and did not grant any receipt for
the same.
(b) On 15-3-1967 it transpired from one Satya-
narain Prasad a shopkeeper of Purnea Bus
stand, that he (Shri Motilal Jain) sold Wm
match boxes at Rs. 1 1 /per gross which was
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Rs. 2/- higher than the price fixed. This was
also substantiated by Nagendra Ramoli, a
shopkeeper of-Purnea Court compound who had
also been supplied match boxes at the higher
rate by him (Shri Motilal Jain).
(c) On 15-4-1967 it transpired from Chandradeb
Sao, Shankerlal Modi, and Sitaram Sah, all of
Gulab Bagh that-they got supplies of sugar and
maida from him in excess of the quantity
allotted to them on ration cards at a price
higher than those fixed by the Government.
(d) On 7-5-1967. he sold kerosene oil to one
Kishun Bhagat of Gulab Bagh at Rs. 12/- per
tin
589
(excluding cost of tin) which was higher than
’the price fixed by the Government.
(e) On 4-7-1967 he sold sugar at Rs. 2/- per
kg. to Shyamsunder Poddar and Jangli Singh of
Dhamdaha. The price charged by him was much
higher than the rate fixed by the Government
in this regard.
(f)On 7-8-1967 it was learnt from Nathu Sah,
Chanderdeb Sah, Kusurnlal Sah, and Ram Rattan
Sah, all of Gulab Bagh, that he (Shri Motilal
Jain) indulged in black-marketing of sugar,
niaida, kerosene oil and other controlled
commodities, to deal in which he had obtained
licence. It was further learnt from Moti Sah
a worker of Gulab Bagh Navayubak Sangh that he
(Shri Motilal Jain) obtained supplies of match
boxes, vegetable, oil from West Bengal to sell
them in black market.
Though the appellant made representation against his order
of detention to the Advisory Board, the said Board did- not
recommend his case for release. Thereafter he approached
the High Court of Patna in Cr. W.J.C. No. 92 of 1966 under
Art. 226 of the Constitution and s. 491 of, the Code of
Criminal Procedure for a writ or order in the nature of
habeas corpus directing his release from detention. .- A
Bench of that High Court consisting of the learned Chief
Justice and B. N. Jha J., refused to entertain that petition
with these observations
"We have also gone through the grounds stated
in annexure-’B’ and find that specific
instances with full particulars have been
given. On the basis of those instances the
detaining authority has held that the peti-
tioner has been indulging in black-marketing
of essential commodities. Mr. Balbhadra
Prasad Singh,challenged the correctness of the
facts stated in the grounds and also filed
affidavits by certain’ persons and urged that
those allegations of facts should not be
believed. This Court in its writ jurisdiction
cannot sit in second appeal -and examine
whether specific instances of black marketing
were established by satisfactory evidence.
"For these reasons, we are not satisfied that
this is a fit case for admission. The
application is accordingly dismissed."
It is against that order the appellant has come up in appeal
to this Court.
Mr. Chagla, learned counsel for the appellant contended that
each -one of the grounds supplied to ’the appellant in
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support
590
of the order of detention is either vague or non-existing,
and therefore the appellant’s detention is clearly illegal.
After we have heard the learned counsel for the appellant as
wen as the learned counsel for the respondents in respect of
the grounds mentioned in cls. (a) and (d) of the order of
September 27, 1967, we did not think it necessary to examine
the remaining grounds as we were of the opinion that the
ground set out in cl. (a) is vague as well as irrelevant and
that set out in cl. (d) is non-existing, and as such the
impugned order of detention cannot be sustained.
On an examination of facts set out in cl. (a) of the order,
it is seen that the name of the shopkeeper to whom the
Appellant is said to have sold match boxes and soap "at a
price higher than that fixed for these commodities" is not
mentioned. Neither the price fixed nor the price at which
the appellant is said to have sold the match boxes and soap
is mentioned. The futility of making representation against
an unknown man in respect of an unspecified price can easily
be imagined.. There was no opportunity to the appellant to
satisfy the Advisory Board that the alleged purchaser is a
fictitious figure or that he is an enemy of his or that the
information given by him should otherwise be, not accepted.
As things stood the appellant was left to attack a shadow.
He could not also make any representation as regards the
alleged sale or the price at which the goods were sold
except making a bare denial of the accusations made against
him. That is not all. The appellant definitely averred in
his special leave application that the Government neither
fixed the sale price of the match boxes or soap nor it had
any power to do so. This averment is not controverted-, On"
the other hand what was stated in reply by the respondents
was that the manufacturers had fixed the retail price of
those articles and the appellant could not have sold them
for a price higher than that fixed by the manufacturers. It
is not the case of the respondents that. the price fixed by
the manufacturers-assuming that there was any such fixation
and further assuming that the appellant had sold the
articles in question at a price higher than the price fixed-
had any legal sanction behind it A notification issued by
the Bihar Government on January 20, 1967 and published on
March 1, 1967, ’in exercise of the powers conferred on it by
S. 3 of the Essential Commodities Act, 1955 (10 of 1955),
read with the order of the Government of India in the
Ministry of Commerce published under notification No. S.O.
1844 dated June 18, 1966, the only provision of law on which
reliance was placed by. the respondents, prescribes that a
dealer should obtain a price list showing the wholesale and
retail Price of the commodity purchased by him or obtained
by him from every manufacturer, importer or distributor
where such prices are fixed by the manufacturers and display
at a conspicuous part of the place where he carries on his
business the price list
591
and stock position of the scheduled commodities specified in
Schedules I and 11 of that Order; further he should not
withhold from sale except under specified circumstances any
of the commodities mentioned in Schedule II thereto. That
Order empowers the State Government by order to regulate the
I distribution of any scheduled commodity mentioned in Sch.
II by any manufacturer, producer or distributor in such area
or areas and in such manner as may be specified. It is not
the case of the respondents that the appellant had
contravened the aforementioned Order in any manner. Hence,
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the ground set out in cl. (a) of the order of September 27,
1967 is not only vague but also irrelevant.
In clause (d) of that order it is mentioned that the
appellant sold kerosene oil to one Kishun Bhagat of Gulab
Bagh at Rs. 12/per tin (excluding cost of tin) which was
higher than the price fixed by the Government. in his
special leave. application, among other things, the
appellant asserted that there is -no Person by the name of
Kishun, Bhagat in Gulab Bagh. In the reply filed on behalf
of the respondents that allegation is accepted as correct.
The new case pleaded by the respondents is that the alleged
sale was made to Kishun Bhagat of village Kishanpur, P. S.
Dhamdaha, and there was typographical mistake in mentioning
the name of the purchaser in the grounds supplied to the
detenu. This is a curious explanation. That apart, quite
clearly the appellant could not have made any representation
in respect of the new allegation leveled against him. Hence
the ground mentioned in cl. (d) must be held to be non-
existing.
it was strenuously urged on behalf of the respondents that
even if the grounds mentioned in cls, (a) and (d) of the
order of Government dated September 27, 1967 are ignored,
still the detention of the appellant_can be justified on the
basis of the re. grounds mentioned in that order. We have
no hesitation in rejecting this contention as being wholly
untenable.
It must be remembered that in this case we are dealing with
the liberty of a citizen of this country. The power -given
to the State under the Act is an extraordinary power. It is
exercisable under special conditions and is subject to
definite limitations. The nature of the power is such that
the liberty of an individual can be deprived on the
subjective satisfaction of the prescribed authority that
there is sufficient cause for his detention. A detenu has
not the benefit of a regular trial or even an objective
examination of the accusations made against him. As
observed by this Court in Dr. Ram Krishan Bhardwaj v. The
State of Delhi(1), preventive, detention is a serious
invasion of personal liberty and such
(1) [1953] S. C. R. 708.
592
safeguards as the Constitution has provided against the
improper exercise of the power must be jealously watched and
enforced by the Court. In that case this Court further laid
down that under Art. 22(5) of the Constitution, as
interpreted by this Court, a person detained under the Act,
is entitled, in addition to the right to have the ground of
his detention communicated -to him, to a further night to
have particulars as full and adequate as the circumstances
permit furnished to him as to enable him to make
representation against the order of detention and the
sufficiency of the particulars conveyed in the second-
communication is a justiciable issue ’ the test being
whether they are sufficient to enable the detained person to
make representation which on being considered may give him
relief. It is also laid down in that decision that the
constitutional requirement that the; grounds must not be
vague must be satisfied with respect to each of the grounds.
communicated to the person detained subject to the claim of
privilege under cl. (6) of Art. 22 of the Constitution, and
where one of the, grounds mentioned is vague, even though
the other- grounds are not vague the detention is not in
accordance with the procedure established by law and is
therefore illegal.
The same view was reiterated by this Court in Shibban Lal
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Saksena v. The State of U.P.(1). There it was found that out
of the two grounds served on the detenu one was non-
existent. The contention of the State that the detention of
Shri Saxena should not be interfered with because one of the
two grounds mentioned in the order is a good ground, was
rejected by this Court with the observation that to say that
the other ground which still remains is quite sufficient to
sustain the order would be to substitute an objective
judicial test for the subjective decision of the executive
authority which is against the legislative policy underlying
the statute and in such cases the position would be the same
as if one of these two grounds was irrelevant for the
purpose of the Act or was wholly illusory and that would
vitiate the detention order as a whole.
In Dwarka Dass Bhatia V. The State of Jammu and Kashmir("),
Bhatia was ordered to be detained on the ground -that it was
necessary to detain him with a view to preventing him from
acting in a manner prejudicial to the maintenance of
supplies and services essential to ’the community. The said
order was based on the, ground of alleged illicit smuggling
by Bhatia of essential goods, such as shaffon cloth,. zari
and mercury to Pakistan. It was found that shaffon cloth
and zari were not essential goods. It was not established
that the smuggling attributed to Bhatia was substantially
Only of mercury or that the smuggling as regards,shaffon
cloth and zari was of an inconsequential nature. On those
facts
(1) [1951] S.C.R. 418.
(2) [1956] S.C.R. 948.
593
this Court held that the order of detention was bad and must
be quashed. The subjective satisfaction of the detaining
authority must be properly based on all the reasons on which
it purports to be based. If some out of those reasons are
found to be nonexistent or irrelevant, the court cannot
predicate what the subjective satisfaction of the authority
would have been on the exclusion of those reasons. To
uphold the order on the remaining reasons would be to
substitute the objective standards of the court for the
subjective satisfaction of the authority. The Court must,
however, be satisfied that the vague or irrelevant grounds
are such as, if excluded, might reasonably have affected the
subjective satisfaction of the authority.
In a recent case, Ranteshwar Lal Patwari v. The State of
Bihar(’), speaking for the Court, Hidayatullah, J. (as he
then was) observed
"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
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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 defects noticed in the two grounds mentioned above are
sufficient to vitiate the order of detention impugned in
these proceedings as it is not possible to hold that those
grounds could not have influenced the decision of the
detaining authority. Individual liberty is a cherished
right, one of the most valuable fundamental rights
guaranteed by our Constitution to the citizens of this
country. If that right is invaded, excepting strictly in
accordance with law, the aggrieved party is entitled to
appeal to the judicial power of the State for relief. We
are not unaware of the fact that the interest of the society
is no less important than
(1) [1968] 2 S.C.R. 505.
594
that of the individual. Our Constitution has made provision
for safeguarding the interests of the society. Its
provisions harmonise the liberty of the individual with
social interest. The authorities have to act solely on the
basis of those provisions. They cannot deal with the
liberty of the individual in a casual manner, as has been
done in this case. Such an approach does not advance the
true social interest. Continued indifference to individual
liberty is bound to errode the structure of our democratic
society. We wish that the High Court had examined the:
complaint of the appellant more closely.
For the reasons mentioned above, this appeal is allowed and
the order of detention impugned herein is set aside. The
appellant is directed to be set at liberty forthwith.
Y.P. Appeal allowed.
595