MOTJLAL JAIN

STATE OF BIHAR .t ORS.

March 27, 1968 (1. C. SHAH, S. M. Soou, R. S. BACllAWAT, G. K. MITTER,

C. A. VAIDIALINGAM AND K. S. HEGDE, 11.]

Preventive Detention Acl (4 of 1950), sa. 3(l)(a)(li/) and 4- Se.veral grount!s in order of detention--Some vague and non-exi.rtent- WMther order can be sustained,

 C The appellant-a partner in a grocery shop, was detained under s. 3(l)(a)(iii) and s. 4 of the Preventive Detenfion Act for indulgiDg in black-marketing of essential COllllllodities. He was supplied with an order detailing a number of groµnds In support of his detention. In one of the arounds viz., cl. (a) of tlie order the name of the shopkeeper to whOlll the t was said to have sold match boxes and soap "at a , price higher than that fixed for these C0111modities" was not mentioned. Neither the price fixed nor, the priee at which it was said to have been sold was D mentioned.

In another round vk.,.cl. (d) of the order a sale was alleged to K who was not e><istina in the 'described locality.· On the questi0n of the validity of the order of detention, this Court,

HELD : Tho order must be set aside.

The gi'ound mentioned ill cl. (a) was .vague. The futility of making representation in respect of an unknown man and of an ified price

can easily be imagined.

There waa no OllP<'rtilllity to the ap'pellant' to l8lilfy the Advilory. that .the alleged putchaaer was a :fictitious figure or that he ls an enemy of his or that the information given by him s!Jould otherwile be not accepted. [590 c.B]

. Furth", 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 gfoulld in cl •. (a) wils not only vague but also irrele\>ant.

The ground mentioned in cl. (d) was. non....istenL The. State's e>tplanation. that the sale was made to K of another 1ocality and dne to typographical mistake the locality . wss wrongly described wss lbat apart, the appellant could not have made any l\tation in respect of the such a new allegation against him. ·

The State's coiltention that even if the grounds .mentioned in els. {a) and (d) are if11ored, still the 'detention of the appellant could be justi&ed oa the remain~ grounds mentioned in that Order, Was wholly untenable.

The defects noticed in the two grounds 'vit, els.· (a)' and (d) w"e sufiicient io vitiate . the order o! detention impugned In . these proceedinp as it was not .possible to . hold that those grounds could not have influenced the decision of. the detaining authority.

The constitutional requil'ement that the grounds must not be vigue must be satisfied .with respect to each of the rrounds C!)inmuilii:ated to !lie perion detained snbjeq to the claim of privilege under cl. ( 6) of Art. 22 of the Constitution, and where one of the grounds mentioned is "81!\l~. even !bough other grounds are not vague lbe detention iS .nat in accordante with the procedure estalished by law ind la tbetdfdle. lllOiat [S9t .,. C.DJ.

L7,!laP.Cl/68--13 .

Dr. Ram Kris/um B//ardwr.j v, State of Delhi, [i9S3] S.C.R. 708, S//ibban Lal Saksenr. v. State of U.P. [1954] S.C.R. 418, Dwarka Dass Bhatia\'. State of Janunu and Kash1nir, (1956] S.C.R. 948 and Rameshwar Lal Pmwr.ri v. State of Bihar, [19~8] 2 S.C.R. SOS, followed,

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. I.

The Judgment of the Court was delivered by

Hegde, J. In this appeal by special leave, the question for decision is whether the appellant's detention under sub-cl. (iii) ofcl. (a) ofsub-s. (1) ofs. 3 andofs. 4ofthePreventiveDeten tion Act, 1950, (IV of 1950 )--to be hereinafter refen-ed to as "the Act", as per order of the Governor of Bihar No. A-DE-Pur-

1501/67-6357 /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 in essential commodities. As per the order of September 27, 1967 grounds in support of the appel lant's detention were supplied. They tead 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 Satyanarain Prasad a shopkeeper of Purnea Bus stand, that he (Shri Motilal Jain) sold him match boxes at Rs. 11/· per gross which was 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 Guiab 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 Guiab Bagh at Rs. 12/ • per tin

MOT!LAL JAIN v. lllHAR (Hegde, J.)

(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, Kusumlal Sah, and Ram Rattan Sah, all of Guiab Bagh, that he (Shri Motilal Jain) indulged in black-marketing of sugar, maida, kerosene oil and other controlled commodities, to deal in which he had obtained licence.

It was further learnt from Moti Sah a worker of Guiab 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 Bertch of that High Court consisting of the learned Chief Jutice 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 petitioner has been indulging in black-marketing of essential commodities. lt1r. 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 sec.ond appeal and examine whether specific instances of black marketing were established by satisfactory eviderice.

"For these reasons, we are not satisfied that this is a iit case for admission. The application is accordingly dismissed."

It is against that -0rder the appellant has come up in appeal to H this Court.

Mr. Chagla, iearned counsel for the appellant, content; led that each. one of the .grounds supplied to the appellant in suPl'ort

590 SUP.RBMB OO!mT llBPOl.TS

(1968] 3 S.C.R.

of the order. of detention is either vague or non-esting, and therefore the appellant's detention is clearly illegal.

After we have heard the learned counsel for the appellant as well as thQ learned counsel for the respondents in respect of the grounds mentioned in els. (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 OJ, lt 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 J!Ppellant 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 Advisor}' Board that the alleged purchaser is a fictitious figure or that he is an eneniy 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 excepting 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 nublished under notification No. S.O. 1844 dated June 18, 1966, the only provision of law on which reliance was placed by the resoondents, prescrll, es that a dealer should obtain a price list showine; the wholesale and retail nrice of the commodity nurchased bv him or obtained by him from everv manufacturer, imnorter or distributor where such prices are fixed by \he manufacturer$ and disnlav at a consnicuous part of the place where he carries on his business the price list

and stock position of the scheduled commodities specified in Schedules I and II 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 distribution of any scheduled commodity mentioned in Sch. Il 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 aplant had contravened the aforementioned Order in any manner. Hence, 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 Guiab {lagh. 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 vi!lage 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 levelled against him. Hence the ground mentioned in

cl. ( d) must be held tci be non-existing.

It was strenuously ur~ on behalf of the respondents that even if the grounds mentioned in els. (a) and ( d) of die order of Government dated September 27, 1967 are ignored, still the detention of the appellant _can be justified on the basis of the remaining 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 io definite lirilltations. 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 detentfon. A detenu )las 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('), preventive detention is a serious invasion of personal liberty and such

(I) [19531 S. C.R. 708.

592 SUPREME COURT llEPOllTS

( 1968) 3 S.C.R.

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 right to have particulars as full and adequate as the circumstances pennit 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 lµ'e sufficient to enable the detained person to make representation which on being considered may give him relief. It is also laid dQwn in that decision that the constitutional requirement that the grounds must not be vague m11st be satisfied with respect to each of the grounds communicated to the person detained subject to the claim of privi- 1.ege 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 proce, dure established by law and is therefore illegal.

The same view was reiterated by this Court in Shibban Lal Saksena v. The State of U.P.('). There it was found that out Of

the two grounds served on the deienu 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 jlosition 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 K_ashmir('), Bhatia was ordered to be detained on the ground that

it w.as necessary to detain him with aview to preventing him from G acting in a manner prejudicial to the maintenance of supplies and services essential to the community. The said order was based ori the ground of alleged illicit smuggling by Bhatia of essential gs, .such as shatfon cloth~ zari and merc1icy 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 H cloth and zari was of an inconsequential nature. On th0se facts

(I) [195-1) S.C.R. 418. 12)

1956) S.C.R. 948.

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 ihe vague or irrelevant grounds are such as, if excluded, might reasonably have affected the subjective satisfaction of the authority.

In a recent case, Ramcshwar 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 requirethe closest scrutiny of the material on which the decision is formed, leaving no room for errors or at least avoidaole erroci.

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, mdicates 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 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 ill'lerest of the society is no less important than

(I) [1968J 2 S.C.R. 505.

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 Ciinnot deal with the liberty of the individual in a casual manner, as has been done in this case.

Such an approach does not _11dvance the true social interest.

Continued indifference to individual liberty is bound to errode the structure of our democratic sliciety.

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.