Case: Jagdish Prasad Vs. The State of Bihar &amp; Another

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 dealers license, 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 2-10-1973. In the circumstances I am satisfied that if 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 ......."12. 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 rice - a clandestine misadventure contrary to the conditions of this wholesalers licence - and, when challenged reeled off imaginary numbers of licenses of dealers some of whom, on verification, had no current license 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 executives subjective satisfaction, not the Courts objective assessment. Even the admitted facts are tell-tale. The petitioner is a licenced wholesale dealer. He can carry on his business only at a place mentioned in his license 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 license 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.13. 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 Dayals case W. P. No. 1496 of 1973, D/-11-10-1973 = (AIR 1974 SC 183 = 1974 Cri LJ 286)."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 anti-social activities can never furnish an adequate reason for 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 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-emphasized. 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 enshrined in its constitution and the most cherished of these ideals is 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 that procedure is rigorously observed, however strange this might sound to some ears."14. 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 of 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.15. The position of law is plain but does not apply here. We have been at pains to explain that illicit transport of foodgrains 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 is thrown out of gear by these private operations. And 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. Anyway, we cannot hold the order bad, in economics or law.16. 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 suggest cynically that larger black-marketeers 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.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]If this reflects the 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 chocked 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 some one handy in the Secretariat cannot be regarded as satisfactory. This 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 petitioners averments. Even so, the curious striking off in the affidavit of one ground relied on by the District Magistrate in his order is obscure.The law is thus indubitable that if one ground is vague or 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 Dayals case W. P. No. 146 of 1973, D/-11-10-1973 : =(AIR 1974 SC 183   = 1974 Cri LJ 286). We demur.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 rice - a clandestine misadventure contrary to the conditions of this wholesalers licence - and, when challenged reeled off imaginary numbers of licenses of dealers some of whom, on verification, had no current license 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 executives subjective satisfaction, not the Courts objective assessment. Even the admitted facts are tell-tale. The petitioner is a licenced wholesale dealer. He can carry on his business only at a place mentioned in his license 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 license 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.The position of law is plain but does not apply here. We have been at pains to explain that illicit transport of foodgrains 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 is thrown out of gear by these private operations. And 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. Anyway, we cannot hold the order bad, in economics or law.16. 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 suggest cynically that larger black-marketeers 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 ofbe counsel is right in his contention 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 meancommodity" means, food, water, fuel, light, power or any other thing essential for the existence of the community which is notified in this behalf byand 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 on the angle from which you view and the lens you use. Food is supplies, so is shipping and wagons, kerosene 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. InBlackpool Corporation v. Locker (1948) 1 KB 349it 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.The present case hardly fails for this reasons 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 contended 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 (1968) 2 SCR 505   = (AIR 1968 SC 1303   = 1968 Cri LJ 1490) it was pointed out.where some grounds are found to beare 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."