Jhamman Lal v. District Magistrate, Aligarh — 1984 DIGILAW 127 (ALL)

Judgment I. P. Singh, J. 1. BY this habeas corpus writ petition filed under Article 226 of the Constitution of India petitioner Jhamman Lal (hereinafter referred to as the detenu) challenges the validity of the detention order dated 4-11-1983 passed by the District Magistrate, Aligarh in exercise of the powers under section 3 of the Prevention of Black-marketing and Maintenance of Supplies of Essential Commodities Act, 198(0 (hereinafter referred to as the Act). 2. THE facts as appearing from the petition, counter affidavit and the rejoinder affidavit filed on behalf of the parties are that the detenu is a license of a fair price shop. On 22-10-83 the Supply Inspector submitted his report to the Sub Divisional Magistrate, Koil, Aligarh to. the effect that the detenu should be asked to produce the documents i.e., relevant registers concerning the transaction of sugar at his fair price shop for the last month. Accordingly a notice was given to the detenu to produce those documents. THE detenu refused to accept that notice. According to the detenu, he had made a complaint against Shri R. P. Kulshrestha, Supply Inspector of Koil to the district authorities on 24-10-83 vide Annexure 1 to the petition. However, the receipt of this complaint in the office of the District Magistrate has been denied in the counter affidavit filed by the District Magistrate, Aligarh. At any rate, the fair price shop of the detenu was inspected on 29-10-83 by the Supply Inspector when the stock was found to be nill.No register was then made available by the detenu to the Supply Inspector. About this a detailed report was lodged by the Supply Inspector. On the basis of this report the ADM (Civil Supplies) Aligarh submitted his detailed report to the District Magistrate recommending the detention of the detenu under the provisions of the Act. After a perusal of the said report and the relevant material on the point the District Magistrate, Aligarh formed his subjective satisfaction and passed the impugned order of detention dated 4-11-83. The said detention order was approved by the State Government which fact was conveyed to the District Magistrate on 14-11-83. The order of detention accompanied by the grounds of detention and the copies of the relevant documents providing material for the detention were served upon the detenu. He was confined in District Jail, Aligarh. The said detention order was approved by the State Government which fact was conveyed to the District Magistrate on 14-11-83. The order of detention accompanied by the grounds of detention and the copies of the relevant documents providing material for the detention were served upon the detenu. He was confined in District Jail, Aligarh. He made his representation dated 28-11-83 and on that very date the present petition was also moved. 3. THE counter affidavit of Syed Israr Husain Rizvi, Upper Division Assistant in Food and Civil Supplies section-10, U. P. Secretariat, Luckno.v disclosed the datewise action taken on the said representation which ultimately was rejected by the Honourable Food Minister on 6-12-83 and the fact was intimated to the district authorities on 8-12-83. THE same fact was also intimated to the Advisory Board on 9-12-83. THE Advisory Board heard the case of the detenu on 20-12-83 and submitted its opinion to the State Government on 23-12-83 which was received there on 24-12-83. THEreafter the State Government affirmed the order of detention and this fact was communicated to the detenu on 3-1-84. 4. A perusal of the grounds of detention indicates that on one occasion earlier also, i.e., on 15-4-80, the licence of the detenu was suspended on account of serious irregularities but later on after imposition of a fine of Rs. 100/- was restored on 29-4-80. Again for the second time on 22-7-80 for similar irregularities his licence was suspended but after imposition of fine of Rs. 100/- it was again restored on 23-6-81. In the background of the above two instances and the report relating to the inspection of the detenu's shop by the Supply Inspector on 29-10-83 the District Magistrate reached the subjective satisfaction that in order to prevent the petitioner from acting in a manner prejudicial to the maintenance of supplies of essential commodities it was necessary to detain him. Accordingly detention order was made on 4-11-83. 5. HAVING heard the learned counsel for the detenu as well as the learned A.G.A. we are of the opinion that the petition can be disposed of on one point only and it is not necessary to go into the merits or demerits of other points taken in the petition to challenge the validity of the order of detention. 5. HAVING heard the learned counsel for the detenu as well as the learned A.G.A. we are of the opinion that the petition can be disposed of on one point only and it is not necessary to go into the merits or demerits of other points taken in the petition to challenge the validity of the order of detention. The main point that strikes is as to whether in the circumstances detailed in the grounds leading to the detention order it was necessary to have resort to the passing of the impugned detention order. In other words whether to prevent the detenu from acting in a manner prejudicial to the maintenance of supplies essential to the community it was necessary to detain him. 6. IN para 2 of the counter affidavit of Shri P. L. Puniya, District Magistrate, Aligarh dated 8-12-83 it has been admitted that the detenu was a licensee of the fair price shop and that the said licence was obtained by the detenu after entering into an agreement to that effect. On our asking a blank printed form containing the terms and conditions of the said licence was made available to us. The first clause thereof provides for the dates from which the agreement was to come into force and was to continue unless otherwise terminated earlier by the different authorities mentioned therein. Clause 7 requires a licensee to maintain stock register showing opening balance, quantity of sugar received, quantity of sugar sold and closing balance at the close of the day. Clause 10 directs the licensee to furnish such information to the authorities as may be described from him and shall render all necessary facilities at all reasonable times to such persons as may be authorised to inspect the said retail shop to check the account and take sample for examination. Clause 16 provides that the District Magistrate/TRO/SDO, shall have the right to terminate this agreement at any time without assigning any reason therefor. It was not disputed before us that this was the form executed between the detenu and the authorities concerned to run the fair price shop. Thus the terms and conditions of the licence make it clear that the District Magistrate or other authorities mentioned therein have a right to terminate the agreement at any time without assigning any reason therefor. 7. Thus the terms and conditions of the licence make it clear that the District Magistrate or other authorities mentioned therein have a right to terminate the agreement at any time without assigning any reason therefor. 7. IT is argued on behalf of the detenu that in the present case the detenu is said to be in a position to act in a manner prejudicial to the maintenance of supplies of commodities essential to the community by virtue of his being a licensee of the fair price shop. Cancellation of the said licence is in the hands of the authorities for which they are not required to furnish reasons. By cancelling the said licence the detenu could be deprived of the privilege of being a licensee and thereby automatically prevented in future from acting in a manner prejudicial to the maintenance of the supplies essential to the community. IT is further pointed out that in para 14 of the petition the detenu has alleged that his licence had been suspended. IT is, therefore, argued that there was no necessity to resort to preventive detention and as such the impugned detention order is invalid. 8. BUT in para 17 of the counter affidavit of the District Magistrate, Aligarh dated 8-12-83, it was stated that 'it is wrong to allege that the fair price shop of the petitioner has been suspended'. There is no reason to doubt the assertion of the District Magistrate and we take it that detenu's licence is still alive. The learned A.G.A. has referred to the case of Atmakuri Venkatratrnom v. District Magistrate Prakasam, District Ongole, 1982 CrLJ 2024 to stress that the detention could not be set aside even if the sugar licence was cancelled. The facts of that case were that the detenu was a fair price shop dealer. The ground of detention against him showed that he was purchasing sugar from an adjoining village fair price shop dealer meant for distribution in those villages and he was selling it to unauthorised persons. This ground indicated that his actions were not confined to those which were expected to be performed as a dealer at his own fair price shop. The ground of detention against him showed that he was purchasing sugar from an adjoining village fair price shop dealer meant for distribution in those villages and he was selling it to unauthorised persons. This ground indicated that his actions were not confined to those which were expected to be performed as a dealer at his own fair price shop. His actions in purchasing sugar from other fair price shop dealer and selling the same to unauthorised persons were such that revealed the tendency on his part, in his individual capacity and not as a dealer of the fair price shop to act in a manner prejudicial to the maintenance of commodities essential to the community. In these circumstances, even if the sugar licence or the authorisation for the fair price shop was to be cancelled he was still likely to act in the above prejudicial manner. Thus in the background of the facts of that case it was found necessary to detain the detenu and mere cancellation of the licence would not have secured the desired end. 9. HOWEVER, in the present case there is no such ground that the detenu was involved in dealing in sugar beyond what was supplied to him as the licensee of the fair price shop. The grounds only revealed that he as a licensee authorised to deal in sugar would, in future also be likely to act in the said prejudicial manner and to prevent which the impugned order of detention was made. 10. HOWEVER, there is no material to show that at the time of forming subjective satisfaction about the necessity of making the detention order the detaining authority had taken into account as to what would be the position if the licence of the detenu were to be cancelled. We do not know what effect the consideration of the above matter would have had on the mind of the detaining authority at the time of forming his subjective satisfaction. There is nothing in the counter affidavit of the District Magistrate even which could be taken by way of an explanation that the above aspect was very much before him for consideration and that the detention of the detenu was still considered necessary and that the detention order was made being alive to that situation. That renders the impugned order of detention dated 4-11-83 illegal and it must be struck down. That renders the impugned order of detention dated 4-11-83 illegal and it must be struck down. In the result, the petition succeeds and :is allowed. The respondents are directed not to keep the petitioner under detention in pursuance of the order dated 4-11-83 made under section 3 of the Act by the District Magistrate. Aligarh and subsequently confirmed by the State Government and to release him from custody forthwith unless his detention is otherwise required in connection with some other case. Petition allowed.