Shiv Charan Singh v. State of Uttar Pradesh — 1982 DIGILAW 847 (ALL)

ORDER 1. The petitioner has challenged the legality of his detention by virtue of an order passed by the District Magistrate, Aligarh on 30-3-1982 under S. 3(1) of the Prevention of Black marketing & Maintenance of Supplies of Essential Commodities Act, 1980 (Act No. 10 of 1980), hereinafter referred to as 'the Act'. 2. The facts giving rise to this Habeas Corpus petition lie within a narrow compass and the point which has been canvassed before us is also a very short one. The petitioner was employed as a Salesman in the District Co-operative Federation, Aligarh and was posted at the fair price shop run by the Federation at Nyaya Panchayat, Dhanipur district Aligarh. The petitioner was arrested on 4-4-1982 and the grounds and other relevant materials on which the detention purported to be based were also supplied to him on the same date. On 7-4-1982 the order of detention was approved by the State Government under S. 3(3) of the Act. The petitioner made a representation on 6-5-1982 which was received by the State Government on 8-5-1982 and rejected on 11-5-1982. The State Government made a reference to the Advisory Board on 13-5-1982 and the Board rejected the petitioner's representation on 26-5-1982. The order of detention was ultimately confirmed by the State Government on 18-6-1982 under S. 12 of the Act. 3. The order of detention expressly recites that the District Magistrate was satisfied that the petitioner, namely, Shiv Charan Singh, acting as Salesman in the District Cooperative Federation (D.C.F.) Branch Dhanipur, was likely to act in a manner prejudicial to the maintenance of supplies of commodities essential to the community and hence it was necessary to pass an order of detention with a view to preventing him from acting in such fashion (emphasis supplied). The grounds served on the petitioner expressly mentioned that at the relevant time the petitioner was functioning as a Salesman at the fair price shop and was still continuing as such. It has been averred in the petition that the services of the petitioner as a Salesman were terminated on 6-3-1982. The letter of the date addressed by the Secretary, District Cooperative Federation, Aligarh in this regard has been annexed to the petition. It has been averred in the petition that the services of the petitioner as a Salesman were terminated on 6-3-1982. The letter of the date addressed by the Secretary, District Cooperative Federation, Aligarh in this regard has been annexed to the petition. The specific allegation against the petitioner in the grounds supplied to him was that while acting as salesman he refrained from distributing sugar and kerosene oil to the consumers which has been received at the fair price shop for the purposes of such distribution and that he disposed them of in the black market (emphasis added). 4. The point, which has been canvassed on behalf of the petitioner, is that the order of detention was passed on 30-3-1982 whereas prior to that i.e. on 6-3-1982, the petitioner's appointment as Salesman of the District Cooperative Federation had been cancelled. It is, therefore, submitted that there was absolutely no possibility of the petitioner indulging in his capacity as Salesman in such activities as could be prejudicial to the maintenance of supplies of commodities essential to the community. It needs to be emphasised that it is not the case of the State that the petitioner was carrying on any other business or was in any other employment where still an apprehension could be entertained that he could possibly indulge in black-marketing or such other activities again as might be prejudicial to the maintenance of supplies of essential commodities. Neither there is any such allegation nor has any such material been placed on behalf of the opposite parties. On the other hand, in the counter affidavit filed by Sri Rajiv Ratna Shah, District Magistrate, Aligarh it has been stated in unequivocal terms:- "That in reply to the averments made in paras 18,29 and 30 of the petition, it is stated that there was no prior information with the deponent to show that the services of the petitioner had been terminated on 6-3-19811 The fact of termination of the services of the petitioner was mentioned for the first time in his representation dated 6-5-82. Even fit may be admitted that his services had been terminated on 6th Mar. 1982, his past conduct justified his detention as he obtained 20 bags of sugar and 3000 litres of kerosene oil in Feb. Even fit may be admitted that his services had been terminated on 6th Mar. 1982, his past conduct justified his detention as he obtained 20 bags of sugar and 3000 litres of kerosene oil in Feb. 1982 and disposed them of at in the black market." 5 Thus, the specific allegation made in the petition that the petitioner's services had been terminated on 6-3-1982 stands un-controverted in the counter affidavit. On the other hand, it is admitted that the District Magistrate took into account for the purposes of his subjective satisfaction the salient fact that the petitioner's past conduct i.e. what he did in Feb. 1982, to be precise, was blameworthy and that was the basis of future apprehension against him. As we have already mentioned, in the grounds supplied to him also it was stated that he 'was and is' a salesman at the District Cooperative Federation fair price shop. Consequently, it follows that the order of detention was vitiated on two clear counts. Firstly, the essence of the provisions of section 3 of the Act is that if the past conduct of a person gives an indication of his likely future conduct, he may be legitimately detained for prevention of acts prejudicial to the maintenance of supplies of essential commodities. This obviously presupposes a proximate probability of the recurrence of such conduct. Where, however, the circumstances exclude the possibility of any such recurrence and the tendency to act in such matter has been nipped in the bud on account of a supervening event, no such apprehension can be rationally entertained. In view of the un-controverted fact that the petitioner's services as salesman had been terminated much before the passing of the detention order, we are of the opinion that the subjective satisfaction of the District Magistrate, who passed the order of detention, was on the face of it arbitrary and irrational. If the opposite party had indicated any other transaction or employment in which the petitioner would possibly have availed of yet another opportunity of involving himself in such transaction again, the matter would have stood on a different footing. In the absence of any such allegation the very bottom is knocked out of this ground in the order of detention. If the opposite party had indicated any other transaction or employment in which the petitioner would possibly have availed of yet another opportunity of involving himself in such transaction again, the matter would have stood on a different footing. In the absence of any such allegation the very bottom is knocked out of this ground in the order of detention. We are fortified in our opinion by the following observations of the Supreme Court in Vijai Kumar v. State of J. and K. A.l.R. 1982 S.C. 1023 at page 1027: "Preventive detention is resorted to, to thwart future action. If the detenu is already in jail charged with a serious offence, he is thereby prevented from acting in a manner prejudicial to the security of the State. May be. in a given case there yet may be the need to order preventive detention of a person already in jail. But in such a situation the detaining authority must disclose awareness of the fact that the person against whom an order of preventive detention is being made is to the knowledge of the authority already in jail and yet for compelling reasons a preventive detention order needs to be made. There is nothing to indicate the awareness of the detaining authority that the detenu was already in jail and yet the impugned order is required to be made. This, in our opinion, clearly exhibits non application of mind and would result in invalidation of the order." 6. Secondly, the impugned order suffers from another infirmity. As is evident from the grounds supplied to the petitioner, the subjective satisfaction of the District Magistrate proceeded on twin grounds, namely, that the petitioner "was and is acting as a Salesman." It cannot be gainsaid on the facts stated above that the petitioner had ceased to be a Salesman on the date of the order of detention and, therefore, the order was also based on a factually nonexistent ground. It is manifest that the District Magistrate on his own showing was clearly influenced by the consideration that the petitioner, according to his belief, was still functioning as a salesman of the District Cooperative Federation. In fact, the District Magistrate has very candidly owned that the fact of the petitioner's services as Salesman having been terminated was not known to him when he passed the detention order. In fact, the District Magistrate has very candidly owned that the fact of the petitioner's services as Salesman having been terminated was not known to him when he passed the detention order. If the District Magistrate had been aware of the fact that the petitioner had ceased to be a salesman of the District Cooperative Federation and still stated grounds and materials which justified the detention of the petitioner thereafter, the order would not have been vulnerable. Since, however, admittedly he passed the order in ignorance of that material fact, it "clearly exhibits non application of mind and would result in invalidation of the order", to borrow the language of the Supreme Court in Vijai Kumar's case in the passage already extracted. For these reasons we are constrained to hold that the order of detention was invalid and his continued detention is illegal. 7. In the result this Habeas Corpus petition succeeds and the order of detention is quashed. We order that the petitioner shall be set at liberty forthwith unless he is required in any other case.