JAGDJSH PRASAD

THE STATE OF BIHAR AND ANOTHER

February 13, 1974

[V. R. KRISHNA IYER AND R. S. SARKAR!A, JJ.]

Mainte11a11ce of Inrernat Security Act 1971, Sec. 3(1) (a) {iii)-Order of detentiori under sec. 3( I) (a) (iii)-Grou11ds-Mai11tenance of Supplies a11d Ser .. vices essential to the community-Legality of order. ·

Words and phrases "Supplies and Services" meaning of-Constitution of India, Art. 32-Practice-Petilion for habeas corpus-Return to Rule Nisi.

A/fidavit-011 behalf of State-Who should file.

The petitioner, a licensed wholesale dealer, was detained pursuant to an order passed u/s 33 of the Act by the District J.Iagistrate, 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 bis wholesaler's licence and that, when caught red banded, 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 Distric&

Maistrate 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; l;1erefore, the order was illegal.

Dismissing the petition held :

I. The District Magistrate when passing an order of detention u/s 3 of the Act bas to be fair and clear and not doubtful abrfit why he is detaining the man. "Either or" ill fits into s. 3, Not so, when it 1s 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. So 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 detentiol}, cannot be held to bad in economics of law. [373 D, 377 H]

Ra111eshwar Lal v. State of Billar [19.68] 2 S.C.R. 505 and Prabhu Dayal v.

District Magistrate, Kamrup, W.P. No. 1946 of 1973 dated October 11, 1973, referred to.

H. Jn 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

th!ne essential f\lr the e; x:isence of the community; when crystallised it is supphes, wh.en subhated 1t 1s services. lt depends in most cases on the angle from which you view and the lens you use. There can be no dichotomy beteen "supplies and services" in the special context of a State being called upon 1n 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 vialence is done to language to describe that activity as prejudicial to supplies a •1d services.

Rushing food supplies to a nation ; n 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 forecast 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 Fl

Ram Manohar Lohia V. State of Bihar and another [1966] 1 S.C.R. 709, Prablru Dayal v. Dist. Magistrate, Katnrup, W.P. No. 1496 of 1973 dt. 11-10-73 and Keshav Talpade v. Emperor A.LR. 1943 F.C.R. l, 8 distinguished on facts.

III. tObiler 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 ven wlly 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 D into a few par_agraphs, by some one handy in the Secretariat cannot be regarded as satisfactory. This is not a mere punctilio of procedure but a probath•e requirement of substance.

[373 BJ

[The above observations stand on1y as obiter dlcu' in the present case since counsel n1ade no point about 'this aspect of the affidavit.

However, in a subsequent judgment in Mohd. Ala111 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 th<:t the proper person to file the counter-affidavit in return to Rule E 11isi issued by the Supreme Court in hahcas corr11s petition is the District Magistrate who had passed the order of detention or a senior officer who prrsonally dealt with the case of 1he 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 supp1ies and services essential to the community challenge'i 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('), the well-known Lohia( 2) case and a few other peripheral

(I) w. P. No. 1496 of 1973; judgment dated October II, 1973.

(2) A. I. R. 1960 S. C. 633,

A observations in other . decisions. The District Magistrate was uncertain whether he would detain the peiitioner to prevent disruption of mainten.ance 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 inter- B action. 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 tq 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 C community, it is neceary to ¥e an order that he be detained. Now, therefore, in exereise of the powers conferred by Sub-section (2) of the Section 3 of the Maintenance of Internal Security Act, 1971 (No. 26-0f 1971), I hereby direct that the said Shri Jagdish Prasad be detained.

He shall be tr.eated in detention in Ranchi.Jail and classi- D lied as Class Y and. in division IB.

(S. N. Sinha) District Magistrate, Ranohi."

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 fservices' in this context, argued Sri Anthony, serves to sho\V 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. Be 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 species-essential supplies-and not to the second-essential 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 scarc'ity exi..:; ts 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 cqntended 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-

(!) 11968]2 S. C. R. 505.

plies arises bi.t services essential to the life of the coQlmunity will certainly be disrupted." The familiar imager, y in Lo hi a' s case of concentric circles in the COii text of Law and Order (the larger circle) and public order (the smaller but graver one) \\as projected here with a little re-adjustment. Sirnilies and metaphors ler.d liierary 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 an other. So let us take an fodependent close-up of the profiles of essential 'supplies' and 'services' to discover common morphology and divergent features. Basicall:r, the statutory subject-matter colours the concept.

Counsel traced th: pedigree of the Act, with special r<ferencc to. essen tial supplies and services, to substantiate his thesis of compartmentalisation and marginal overlapping. May be, counsel is right .in his contention that all supr lies are not services and Bil services ate not supplies but the complex r.eeds and amenities of modern life and the multifarious obligations of a y•elfare state mingle supplies and services so much that the concentric ci1 cle geometry becomes a misleading stroke of conceptualism in this jural larea.

For example, an essential commodity is at once a supply atd a servjce: Section 36(3) of the Defence of India Rules, 1971 defi.les it to mean :

"essential commodity" means food, water .. fuel, light, power or any other tiring essential for the existence of the community which is notified in this behalf by Gqvernment;" "Light and powu" 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 ·)f 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, ke::osine and gasoline. And yet they are services. At a feeding centre for starving children you supply food, •crve gruel. In other words, fold is supplies, feeding is services. In Blackpool Corporation v. Lo1kar('> 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 i:: of nocturnal, illegal, rice transport, intercepted by officials, and you do no violence to language to describe that activity as prejudicial to rnpplies a'nil 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 lx•th.

Shri Antho1y 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 reftects the ·----- (!) (1948] t K.B, 349.

slippery satisfaction of the District Magistrate it is unfortunate. Here some Upp"r 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 v:ho had been associated with the handling of the cas_e at Government level.

Mechanical affidavits, miniaturising the files into a few paragraphs, by some one handy in the Socretariat cannot be regarded as satisfactory.

This is not a mere punctilio of procedure but a proOative 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.

He 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 Jines of the Jaw. Rameshwar Lal(') 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 noi J?laced before a Magistrate and has only a right of being supphed 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 riot 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 particular< of

grons are givn V.:hich covr supplies an? services to the community, preiudtce to whteh ts the rattonale stated m the order. But it is con-

(!) (1968] 2 S.C.R. 5-05.

SUPREME COURT REPORTS l 1974 J 3 S.C.ll.

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(') it was pointed out:

" .. where some grounds are found to be non-exis.ting or are ca"celled 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 det•!ntion can be questioned."

In this connection, Shri Anthony forcefully urged his case that services being farupted 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 dat1: 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 earninp 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 l 972 from their unauthorized possession at Messrs.

Sriniva; 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 dicl 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 hwe been satisfied that the petitioners wore smuggling rice to Mcghalaya for earning undue profit? H 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."

Re[cren•:c "as also made in the above case by the learned Judge to Keshav Ta!pad!' v. f111peror('~) wher-e. it was said :

"If a chtnining authority gave four reasons for detaining a man. 1vithout Ui.;; tinguishing between them, and any two or three cl the reasons arc held to be bad, it can never be certain to wha extent the bad reasons operated on th~ mind of the

(t) 11963' 2 S.C.R. 505.

(2) A.LR. 1943 F.C.ld,8.

JAGDISH PRASAD v. BIHAR (Krishna lyer, /.)

authority or whether the detention order would have been made at all if only one or two good reasons had been before them.''

The Jaw 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 Daya/('), case.

We demur.

The order detailing grounds of detention reads thus :

"In pursuance of section 8 of the Maintenance of Iriternal 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 ordoreJ to be detained in my order No. 1182/C dated 9th October, 73 on the following grounds :- !. That you on 2-10-72 .at about 12 O'Clcck 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 on the said truck, 15 bags of rice were sold to Biswanath Floor Mill, Khelari, JO 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. ll34 dated 2-10-73 showing sale of 15 bags of rice to M/s Biswanalh Flour Mill,

Khelari and you mentioned lice11ce Nun1ber of M/s Bis\vanath Flour as 34/69 (R). On verification by a Magistrate !st Class, Ranchi, at Khelari from Shri Jagi Ram, Proprietor of M/s Biswanath Flour Mill, Khelari. it has been established that tho licence number of the firm is 63/68 and not 34/69.

Sl; ri Jagi Ram has also asserted that he did not purchase any rice from you or frorn any other p1ace 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 Fl.our Mill of Khelari showing their licence numher as 31 /68 (R). On actual verification at Khalari by a Magistrate I.st 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. t496 of 1973; Judgmeot dated Ootobzr tt.1973.

5. That similarly in support of your assertion as stated A. 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 Kh, lari showing his licence number as 26/67(R). On

actual verification at Khelari by a Magistrate !st Class, Ranchi, from Shri Kundan Lal of Khelari it has been established that Shri Kundan Lal of Khelari has got no foodgrain dealer's lic:ence, nor he deals in foodgrains. It has also been B establishee 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 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 deten• C tion necesnary . ... "

He who runs and reads will be satisfied, if the statements are true, -it is not for ·:he Court to investigate the veracity of these averments -that prolix particulars are communicated about the ruidnight movement of 50 bags of rice-a clandestine misadventure contrary to the conditions of this wholesaler's licence-and, when challenged, reeled D off imaginary numbers of licences of dealers some of who1n, on verifica~ tion, 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. H' can carry on his business only at a place mentioned E in his licence and not do transport and sale qutside those premises. He can ; ell only to a.wholesale or retail merchant holding a pern1it. He shall h sue 'to every customer a correct receipt giving the name, address and licence number of the customer' and other details and keep a duplicate of toe 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 F 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 germrne 10 supplies, not services.

Therefore, as earlier explained, the wfoJle order breaks down.

We do not 1!ismiss this argument as merely technical or procedural for the eloquent reason given by Mathew; J., if we may say, with deep G deference in Prcbhu 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 '<> technical H error. We ; ay 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

invading the personal liberty of a citizen, except in accorddance 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 personlil 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 communhy 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 or 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 procedur.e 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 e 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 docs not apply he.re .. we hae been at pains to explain that illicit transport of foodgrams m the ."~ secrecy of night by one whose business license d.oes not. per!Dlt t

and who gives false excuses when confronted, does mdulge m a~ aa:f vity with impact on supplies and services. Supplies and stoc ' hi'acked by wholesalers, upsets .the delicate control. schem.o:· So ~

trnsport and delivery to each centre accoding to its ruireen~ IS thrown out of gear by these private opet1ons. And B1har, oppmg. barrowingly from drought to tloods, 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 Jaw.

Counsel referred to the quantity being but 50 bags of rice-too small to thwart supp'ies 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 ourviews 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.