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1982 DIGILAW 24 (MP)

Gordhandas Mohandas Kukreja v. State of M. P.

1982-01-13

G.G.SOHANI, K.N.SHUKLA

body1982
ORDER G.G. Sohani, J. This is a pctition under Article 226 of the Constitution of India for the issuance of a writ of habeas corpus for the release of the petitioner who has been detained by an order of detention passed by the District Magistrate, lndore, under section 3 of the Prevention of Black marketing and Maintenance of Supplies of Essential Commodities Act, 1980 (hereinafter referred to as "the Act") on being satisfied that the detention of the petitioner is necessary with a view to preventing him from acting in any manner prejudicial to the maintenance of supplies of commodities essential to the community. The facts giving rise to this petition briefly are as follows: The petitioner carries on business under the name and style of 'Kukreja Oil Industries' at village Pigdambar, Tehsil Mhow, District lndore. On 17-8-1981, respondent No. 3, the Food Controller, inspected the premises of the aforesaid concern of the petitioner. According to respondent No. 3, the petitioner was not present at the premises of his concern at that time and hence he was contacted by respondent No. 3 on telephone and asked to remain present at the time of enquiry but the petitioner informed respondent No. 3 that he was unwell and that he was sending his son Gopaldas to remain present at the time of inspection. Thereafter Gopaldas, the son of the petitioner, reached the premises of the concern. Ratanchand, Munim of the petitioner was also present at the time of inspection. The statements of Gopaldas and Ratanchand were recorded. Ratanchand deposed that the stock consisted of 66 drums of linseed oil, each drum weighing 185 kg. Gopaldas deposed that he was owner of the concern known as 'Jayashree Oil Mills', that the premises of the concern 'Kukreja Oil Industries' owned by his father-the petitioner-were inspected in his presence, that no stock register was maintained and that no fortnightly return was sent by that concern, that only linseed oil was extracted by the concern and that there was no stock of linseed but there was ready stock of 66 drums of linseed oil. Respondent No. 3 found that no plant for refining oil was installed at the premises and that 10 out of the aforesaid 66 drums appeared to contain soyabean oil. Respondent No. 3 found that no plant for refining oil was installed at the premises and that 10 out of the aforesaid 66 drums appeared to contain soyabean oil. The drums were seized and sample was taken in the presence of the petitioner's son and one bottle of the sample was given to him. The sample in a sealed bottle was then sent to the public analyst, Municipal Corporation lndore, who, after analysis, sent his report on 19-8-1981 that the sample was not of linseed oil but of refined Soyabean oil. Thereafter, on 20th August 1981, respondent No. 2, the District Magistrate, lndore, passed an order under section 3(2) of the Act directing that the petitioner be detained with a view to preventing him from acting in any manner prejudicial to the maintenance of supplies of commodities essential to the community. The order could not, however, be served upon the petitioner as the petitioner was found absconding. Therefore, on 4th September 1981, respondent No. 2 passed an order under section 7(1)(b) of the Act, which was published in the Government Gazette dated 11th September 1981, notifying the petitioner to surrender within 7 days. Respondent No. 2 also reported abscondence of the petitioner to the Chief Judicial Magistrate, Indore, as required by section 7(1) of the Act, for taking action against the petitioner under the provisions of sections 82, 83, 84 and 85 of the Code of Criminal Procedure. In the meanwhile, respondent No. 2, the District Magistrate, Indore, had sent the order of detentioa to the State Government for approval and necessary approval was accorded by the State Government on 29th August, 1981 and a report was made to the Central Government in accordance with the provisions of section 3(4) of the Act. On 21-9-1981 the petitioner was taken into custody from a nursing home at Indore and the order of detention and the grounds on which the order had been made were served on the petitioner. The petitioner was allowed legal assistance and his representation (Annexure K) was placed before the Advisory Board before which the petitioner appeared through his counsel. On 21-9-1981 the petitioner was taken into custody from a nursing home at Indore and the order of detention and the grounds on which the order had been made were served on the petitioner. The petitioner was allowed legal assistance and his representation (Annexure K) was placed before the Advisory Board before which the petitioner appeared through his counsel. The petitioner was informed by the State Government vide Annexure G that the Advisory Board had reported that there was, in its opinion, sufficient cause for the detention of the petitioner and that the State Government had, therefore, confirmed the order of detention under the provisions of section 12(1) of the Act, directing that the period of detention would continue upto 20th March 1982. The petitioner was, however, as stated at the bar, released on parole on the ground of ill health. Thereafter he has filed this petition challenging the order of his detention. In the return filed on behalf of the State, the allegation of the petitioner that the order of detention was invalid, was denied and necessary documents were produced. During the course of hearing affidavits were filed on behalf of the State, of the District Magistrate who had passed the order of detention and of the Food Controller who had inspected the premises of the petitioner. Learned counsel for the petitioner contended that these arfidavits should not be taken on record as they ought to have been filed along with the return. It is needless to point out that as far as possible the affidavit in answer to the rule riisi should be filed by the person who passed the order of detention. The State should have, therefore, filed the affidavits of the officers concerned along with the return and not during the course of hearing. However, learned counsel for the petitioner was unable to point out that any new fact was for the first time sought to be introduced on behalf of the State by these affidavits or that any prejudice was caused to the petitioner by the delay in filing these arfidavits. Under these circumstances we are unable to uphold the contention advanced on behalf of the petitioner that the affidavits in question should not be taken on record. Under these circumstances we are unable to uphold the contention advanced on behalf of the petitioner that the affidavits in question should not be taken on record. The first contention advanced on behalf of the petitioner was that the grounds of detention and the particulars thereof which were furnished to the petitioner were in Hindi language which the petitioner did not know and bence his detention order was liable to be quashed. Reliance was placed on the decisions of the Supreme Court in Harikisan v. State of Maharashtra AIR 1962 SC 911 and Hadibandhu Das v. District Magistrate, Cuttack AIR 1969 SC 43 . It is well settled by the decision of the Supreme Court in Harikisan v. State of Maharashtra (supra) and Hadibandhu Das v. District Magistrate, Cuttack (supra), that in order that the detenu should be in a position to effectively make his representation against the order of detention, he should have knowledge of the grounds of detention and the detenue must be, there-fore, furnished with the grounds in a language which he can understand and in a script which he can read if he is a literate person. In the instant case, it is admitted that the petitioner is a literate person conducting his business at Indore which is predominantly a Hindi speaking city. At the time of service of the grounds the petitioner made no grievance that he was not conversant with Hindi and hence was unable to make representation against the order of detention. In point of fact, the representation Annexure F made by the petitioner against the detention order runs into about 12 typed pages and each and every allegation made in the grounds and the particulars furnished to the petitioner has been dealt with. That apart, photostat copies of the prescribed forms of fortnightly returns alleged to have been sent by the petitioner to the authorities were filed by the petitioner in this Court to prove that he was complying with the provisions of the Pulses, Edible Oil-seeds and Edible Oils (Storage Control) Order, 1977 (hereinafter referred to as "the Storage Control Order"). The prescribed form of return is in Hindi and it is not the case of the petitioner that he had filed there returns without understanding the contents of the prescribed forms. In fact, in some of these returns, necessary information is also supplied by the petitioner in Hindi. The prescribed form of return is in Hindi and it is not the case of the petitioner that he had filed there returns without understanding the contents of the prescribed forms. In fact, in some of these returns, necessary information is also supplied by the petitioner in Hindi. That is why in the grounds set out in the petition assailing the order of detention, the ground that as the petitioner was not conversant with Hindi, he was unable to make an effective representation against the order of detention has not been taken. In face of the detailed representation (Annexure F) learned counsel for the petitioner was unable to point out as to how the petitioner was prevented from making effective representation against the order of detention. In the circumstances of the case, the petitioner cannot be held to be not conversant with Hindi as urged on behalf of the petitioner. From the detailed representation made by the petitioner against the order of his detention, dealing with each and every fact alleged in the grounds served on the petitioner, it cannot but be held that effective knowledge of the facts and circumstances on which the order of detention was based was brought home to the petitioner. As admitted by him, legal assistance was made available to the petitioner for making a representation. The order of detention cannot therefore be questioned on the ground that no effective opportunity was afforded to the petitioner to make representation against the order of his detention because the grounds of detention served upon the petitioner were in Hindi. The next contention advanced on behalf of the petitioner was that the order of detention was passed on irrelevant and nonexistent grounds. To appreciate this contention it is first necessary to turn to the relevant provisions of the Act. Section 3 (1) of the Act reads as under:- 3. The next contention advanced on behalf of the petitioner was that the order of detention was passed on irrelevant and nonexistent grounds. To appreciate this contention it is first necessary to turn to the relevant provisions of the Act. Section 3 (1) of the Act reads as under:- 3. (1) The Central Government or a State Government or any officer of the Central Government, not below the rank of a Joint Secretary to that Government specially empowered for the purposes of this section* by that Government, or any officer of a State Government, not below the rank of a Secretary to that Government specially empowered for the purposes of this section by that Government, may, if satisfied, with respect to any person that with a view to preventing him from acting in any manner prejudicial to the maiutenance of supplies of commodities essential to the community it is necessary so to do, make an order directing that such person be detained. Explanation.- For the purposes of this sub-section the expression acting in any manner prejudicial to the maintenance of supplies of commodities essential to the community means,- (a) committing or instigating any person to commit any offence punishable under the Essential Commodities Act, 1955 (10 of 1955), or under any other law for the time being in force relating to the control of the production, supply or distribution of, or trade and commeree in, any commodity essential to the community; or (b) dealing in any commodity.- (i) which is an essential commodity as defined in the Essential Commodities Act, 1955 (10 of 1955), or (ii) with respect to which provisions have been made in any such other law as is referred to in clause (a), with a view to making gain in any manner which may directly or indirectly defeat or tend to defeat the provisions of that Act or other law aforesaid; By virtue of the Explanation, the Act empowers the detaining authority to make an order of detention if that authority is satisfied with respect to any person that it is necessary to make such order with a view to preventing him from (a) committing or instigating any person to commit any offence punishable under the Essential Commodities Act, 1955, or under any other law for the time being in force relating to the control of the production, supply or distribution of or trade and commeree in, any commodity essential to the community, or (b) dealing in any commodity which is an essential commodity as defined in the Essential Commodities Act, 1955, or with respect to which provisions have been made in any such other law as is referred to in clause (a ). It is well settled that the power of detention is a preventive measure. It may be useful to refer to the following observations of the Supreme Court in Khudiram Das v. State of West Bengal AIR 1975 SC 550 , in this behalf:- The power of detention is dearly a preventive measure. It does not partake in any manner of the nature of punishment. It is taken by way of precaution to prevent mischief to the community. It does not partake in any manner of the nature of punishment. It is taken by way of precaution to prevent mischief to the community. Since every preventive measure is based on the principle that a person should be prevented from doing something which, if left free and unfettered, it is ressonably probable he would do, it must necessarily proceed in all cases, to some extent, on suspicion or anticipation as distinct from proof. Patanjali Sastri, C. J., pointed out in State of Madras v. V. G. Row AIR 1952 SC 196 , that preventive detention is "largely precautionary and based on suspicion" and to these observations may be added the following words uttered by the learned Chiefjustice in that case with reference to the observations of Lord Finlay in Rex v. Halliday 1917 AC 260, namely, that "the court was the least appropriate tribunal to investigate into circumstances of suspicion on which such anticipatory action must be largely based. Now the grounds of detention and particulars thereof as set out in the order passed by the District Magistrate are as follows :- It will be seen that the basic facts set out in the schedule annexed to the grounds, on which the order of detention was founded were that the premises of the petitioner were inspected on 17-8-1981 by respondent No. 3, the Food Controller, that the petitioner sent his son to remain present at the time of inspection on the ground that he was unwell, that at the time of inspection it was stated that no stock register was maintained nor was any stock register produced, that fortnightly returns as required by the Storage Control Order were not sent by the petitioner, that there was thus a deliberate contravention of the provisions of the control orders, that out of 66 drums stated to contain linseed oil, 10 drums containing 18 quintals of refined soyabeen oil were found at the premises of the petitioner without obtaining any licence as required by the licensing Order and that the petitioner was thus found dealing in edible oil and oil seeds with a view to making gain in a manner likely to defeat the provisions of the Essential Commodities Act, 1955 and the Control Orders made thereunder. It was urged by learned counsel for the petitioner that reference in the grounds to the fact that the stock register was demanded from the petitioner who failed to produce it, was factually incorrect because the petitioner was admittedly not present at the time of inspection. But the reference to the words and in the grounds has to be construed in the light of the fact stated in the particulars of the grounds that when the petitioner was called upon by the Food Controller to remain present at the time of inspection, he deputed his son to remain present at the time of enquiry. The petitioner had thus authorized his son to remain present at the time of inspection on his behalf. The statement of Gopaldas, the son of the petitioner and proprietor of another concern 'Jayashree Oil Mill' was record-ed by respondent No. 3. Similarly, the statement of Ritanchand Muneem of the petitioner was recorded at the time of enquiry and copies of these statements were furnished to the petitioner along with the grounds. These statements disclose that no stock register was maintained by 'Kukreja Oil Industries' and that fortnightly returns of stocks were not sent by that concern. Under these circumstances, the reference to the fact that the petitioner did not produce the stock register at the time of inquiry in the narration of facts in the schedule annexed to the grounds of detention cannot be held to be recital of a non-existent fact on which the order of detention was based. It was then urged that in the narration of facts in the schedule annexed to the grounds an irrelevant fact was stated that by failure to maintain proper accounts of edible oil and oil seeds the petitioner contravened not only the provisions of the Storage Control Order, but also evaded payment of sales tax and other taxes. Now, in the narration of facts set out in the schedule a passing reference to one of the results flowing from failure to maintain accounts and stock register, namely, evasion of sales tax by the petitioner, cannot be construed to be a ground on which the order of detention was passed. Now, in the narration of facts set out in the schedule a passing reference to one of the results flowing from failure to maintain accounts and stock register, namely, evasion of sales tax by the petitioner, cannot be construed to be a ground on which the order of detention was passed. The grounds of detention and the schedule have to be construed reasonably and in our opinion, the evasion of taxes was not one of the basic facts stated in the schedule on which the order of detention was founded. It was then stated that the petitioner was a 'producer' of refined soyabean oil and not a 'dealer' and hence it was not necessary for him to obtain any licence under the provisions of M. P. Pulses, Edible Oilseeds and Edible Oils Dealers-Licensing Order, 1977 (hereinafter referred to as "the Licensing Order"). Clause 3 of the Licensing Order reads as under : - 3 Licensing of dealers.-(I) No person shall carry on busincss as a dealer in pulses or in edible oil seeds or in edible oils except under and in accordance with the terms and conditions of a licence issued in this behalf by the Licensing authority if the stocks of pulses, edible oil seeds or edible oils in his possession exceed the quantities specified below :- Stock limits. (i) Pulses 10 quintals for all pulses taken together. (ii) All Edible oils including 5 quintals for all edible oils including Vanaspati taken together. (iii) Edible Oil seeds including groundnut in shell. Clause 2 (c) of that Order defines a 'dealer' as follows : - "2 (c) "Dealer" means a person engaged in the business of purchase, sale or storage for sale of any Pulses, Edible Oilseeds or Edible 30 quintals of all edible oil seeds. Oils, whether or not in conjunction with any other business and includes his representative or agent; Now at the time of inspection of the petitioner's premises it was given out that 66 drums found at the premises contained linseed oil and that linseed oil alone was extracted at those premises. Ten out of those 66 drums were however suspected to contain refined soyabean oil and the suspicion was confirmed when the report of the public analyst was received. Ten out of those 66 drums were however suspected to contain refined soyabean oil and the suspicion was confirmed when the report of the public analyst was received. Though the petitioner has now averred that he has a refining plant, the Food Controller Miss Kapoor who inspected the premises has filed an affidavit stating that no plant for refining oil was found installed at the premises at the time of her inspection. On behalf of the petitioner documents were produced in this Court to show that immediately before the inspection of his premises he had purchased soyabean seed and that he was permitted by the Excise Department to refine small quantity of soyabean oil on experimental basis. But these facts are not compatible with the statements of Gopaldas and the muneem of the petitioner recorded at the time of inspection and the absence of any plant for refining oil at the premises as averred by Miss Kapoor, the Food Controller. No reason has been pointed out nor do we see any, to disbelieve the statement of the Food Controller. However, it is not necessary for us to embark on any inquiry in that behalf any further, because all that we have to see is whether any reasonable authority could on the basis of facts stated in the grounds and the schedule annexed to it, come to the conclusion to which the District Magistrate did. These facts were that at the premises of the petitioner who carries on business in oil, 18 quintals of refined soyabean oil were found, that the petitioner did not hold a dealer's licence and that neither accounts nor stock register was available for verification at the time of inspection. The large quantity of oil found at the premises of the petitioner was admittedly for sale. All these facts were relevant and germane to the question which the detaining authority had to consider, namely, whether any action should be taken against the petitioner to prevent him from committing any offence punishable under the Essential Commodities Act, 1955 and to prevent him from dealing in edible oil, which is an essential commodity, with a view to making gain in any manner which may defeat the provisions of the Essential Commodities Act, 1955 and the control orders made thereunder. It was also contended on behalf of the petitioner that fortnightly returns of his stock were sent to the authorities and certificates of posting were produced to prove that fact. The receipt of those returns is however denied on behalf of the State and this is borne out by the statements made on behalf of the petitioner at the time of enquiry. The petitioner has thus failed to satisfy us that the order of detention was based on vague, irrelevant or non-existent grounds. It was then contended that the order of detention was liable to be quashed as it was based on one single incident. But as held in Debu Mahto v. State of West Bengal AIR 1974 SC 816 , it is not as if in no case can a solitary act attributed to a person form the basis for detention. The following observations in that decision are pertinent:- We must of course make it dear that it is not our view that in no case can a single solitary act attributed to a person form the basis for reaching a satisfaction that he might repeat such acts in future and in order to prevent him from doing so, it is necessary to detain him. The nature of the act and the attendant circumstances may in a given case be such as to reasonably justify an inference that the person concerned, if not detained, would be likely to indulge in commission of such acts in future. The order of detention is essentially a precautionary measure and it is based on a reasonable prognosis of the future behaviour of a person based on his past conduct judged in the light of the surrounding circumstances. Such past conduct may consist of one single act or of a series of acts. In the instant case, a large quantity of refined soyabean oil was found at the premises of the petitioner who did not hold any licence as required by the Licensing Order and who was found to be not maintaining any accounts or stock register and was not sending fortnightly returns of his stock as required by the Storage Control Order. On these facts it could not be said that any reasonable authority could not have come to the conclusion to which the detaining authority did. As already observed, sufficiency of the grounds is outside the limits of judicial review. On these facts it could not be said that any reasonable authority could not have come to the conclusion to which the detaining authority did. As already observed, sufficiency of the grounds is outside the limits of judicial review. The last contention urged on behalf of the petitioner was that there was no application of mind by the State Government while approving the order of detention as required by section 3(3) of the Act. Reliance was placed on the fact that whereas in the report made to the Central Government by the State Government (Annexure R-7).it was stated that the order of detention was approved by the State Government on 29-8-1981, the wire-Icss message sent by the Under Secretary to the Government to the District Magistrate (Annexure R-6) communicating approval of the State Government is dated 28th August 1981. However, during the course of hearing the original Annexure R-6 was shown to us which we directed should be shown to the learned counsel for the petitioner. The original of Annexure R-6 bears the date 29-8-1981 and a mistake about date has crept in the 'true' copy filed along with the return. It was urged that the petitioner was never informed as to what material was placed before the State Government by respondent No. 2, the District Magistrate, while seeking approval and hence it must be held that there was no application of mind by the State Government. The contention cannot be upheld. The order of detention was founded on facts stated in the grounds and the schedule annexed to the grounds which were served on the petitioner along with copies of statements recorded at the time of inspection and of the report of the public analyst. All this record was sent to the State Government by the District Magistrate vide his letter dated 22nd August 1981 (Annexure R-6). Under the circumstances it cannot be said that there was no application of mind by the State Government while approving the order of detention. Learned counsel for the petitioner referred to the decisions of this Court in Komal Chopda v. District Magistrate, Bilaspur and another and Jailal Sinha v. District Magistrate, Raipur and anothers. These decisions, however, turn on the particular facts of each case. Learned counsel for the petitioner referred to the decisions of this Court in Komal Chopda v. District Magistrate, Bilaspur and another and Jailal Sinha v. District Magistrate, Raipur and anothers. These decisions, however, turn on the particular facts of each case. In Komal Chopda's case (supra) it was held that the grounds communicated to the detenu were vague and that essential facts relating to the grounds were not disclosed to him to enable him to make an effective representation. In Jailal Sinha's case (supra) it was held that there was no material on the basis of which any reasonable person could be satisfied about the existence of grounds on which the order of detention was based. In the instant case, the petitioner has failed to satisfy us that the order of detention deserves to be quashed because it was based on vague, irrelevant or non-existent grounds or that no reasonable authority could possibly have come to the conclusion to which the District Magistrate did or that there was any violation of the procedural safeguards provided by law. For all these reasons, this petition fails and is accordingly dismiss-ed. No order as to costs. Petition dismissed