UMESH CHAND v. STATE OF UTTAR PRADESH — 1984 DIGILAW 380 (ALL)

B. N. KATJU, J. ( 1 ) THIS is a petition for the issue of a writ of habeas corpus. ( 2 ) THE petitioner is detained in District Jail, Aligarh under the order of the District Magistrate, Aligarh dated 30/11/1983 passed under Section 3 (2) of the Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act, 1980 (hereinafter referred to as the Act) with a view to prevent him from acting in any manner prejudicial to the maintenance of supplies of commodities essential to the community. The petitioner was arrested on 2-1-1984 and the aforesaid order was served on him on that day along with the grounds of detention. The petitioner made an application for the supply of certain documents on 19. 1-1984, which was rejected by the District Magistrate on the same day. The petitioner submitted his representation to the Superintendent, District Jail, Aligarh on 22-1-1984. It was received by the District Magistrate, Aligarh on 23-1-1984 and was sent by aim to the State Government on 24/1/1984. It was rejected by the State Government on 4/1/1984. ( 3 ) THE learned counsel for the petitioner contended that the representation of the petitioner was not placed before the Advisory Board by the State Government within three weeks from the date of his detention as required by Section 10 of the Act. From an examination of the record of the District Magistrate it appeared that the representation of the petitioner was received by the Superintendent District Jail, Aligarh on the evening of 22/1/1984, which was a Sunday. It was sent by him to the District Magistrate on the nest day (23/1/1984 ). According to the counter-affidavit of the District Magistrate the representation of the petitioner could not be sent from Aligarh on 23/1/1984 so as to be placed before the Advisory Board by 5 P. M. on that day (23/1/1984 ). It was, therefore, sent from Aligarh to the State Government by the District Magistrate on 24/1/1984 along with his comments. It thus appears that the representation of the petitioner was not received by the District Magistrate from the Superintendent District Jail, Aligarh on 23. 1. 1984 in time so that it could be sent to Lucknow on that day by the trains which connect Aligarh with Lucknow so as to reach the Advisory Board by 5 P. M. on that day. 1. 1984 in time so that it could be sent to Lucknow on that day by the trains which connect Aligarh with Lucknow so as to reach the Advisory Board by 5 P. M. on that day. The explanation furnished by the District Magistrate, Aligarh for not sending it on 23/1/1984 is thus satisfactory. The representation of the petitioner was admittedly submitted by him 20 days after his arrest on 22/1/1984. In these circumstances, it was not possible for the District Magistrate to comply with the provisions of Section 10 of the Act. The detention of the petitioner cannot, therefore, be held to be illegal for non-compliance with the provisions of Section 10 of the Act. ( 4 ) IT was next contended by the learned counsel for the petitioner that the representation of the petitioner was not disposed of by the State Government expeditiously as required by Article 22 (5) of the Constitution of India. As mentioned earlier, the petitioner submitted his representation to the Superintendent, District Jail, Aligarh on 22/1/1984 in the evening. It was sent by the Superintendent, District Jail, Aligarh to the District Magistrate, Aliaarh on 23/1/1984 and the District Magistrate Aligarh sent it to the State Government on 24/1/1984. According to the counter- affidavit filed by Syed Israr Rizvi, Assistant in the Food and Civil Supplies Department, Section 10 U. P. Secretariat, Lucknow the representation of the petitioner was received at Lucknow on 24/1/1984 and on account of the intervening holiday (26/1/1984) it was dealt with in the Secretariat on 28/1/1984. It was placed before the Under Secretary on 31. 1. 1984. On 1. 2. 1984 it was examined by the Secretary, Food and Civil Supplies Department and was rejected by the State Government on 4. 2. 1984. It is, therefore, evident that the representation of the petitioner was rejected within 12 days of its submission by him. It cannot, therefore, be held that the representation of the petitioner was disposed of after an inordinate delay and the State Government acted in a lethargic manner or in a cavalier fashion. 2. 1984. It is, therefore, evident that the representation of the petitioner was rejected within 12 days of its submission by him. It cannot, therefore, be held that the representation of the petitioner was disposed of after an inordinate delay and the State Government acted in a lethargic manner or in a cavalier fashion. It may be mentioned that it has been held in S. K. Ibrahim v. State of West Bengal and others that the disposal of the representation of the detemi within 10 days does not amount to its being disposed of after an inodinate delay, In Suresh Bhojroj Chelani v. State of Maharastra the representation of the petitioner was disposed by the State Government within 16 days of its submission and within 6 days of its receipt. It was held that the delay in the disposal of the representation of the petitioner was not unreasonable. It is well-settled that no absolute test can be laid down to determine whether there has been a delay in disposing of the representation of the detenu. It is a question of fact to be determined in each case. In the present case, it cannot be held that the representation of the petitioner was not disposed of by the State Government expeditiously as required by Article 22 (5) of the Constitution of India. ( 5 ) IT was next contended by the learned counsel for the petitioner that the detaining authority did not supply the documents, which were demanded by the petitioner in his application dated 19. 1. 1984, which were necessary for making his representation. It appears that all the documents referred to in the grounds of detention and demanded by the petitioner were supplied to him except the agreement entered into by him in 1980-81 and copies of his three licences. In our opinion, the detaining authority is only required to supply those documents, which were before it when it passed the order of detention as the order of detention is based only on those documents. The detaining authority, in our view is not required to supply documents, which were not before it when it passed the order of detention, although they may have been referred to in some of the documents, which were before it when it passed the detention order. The detaining authority, in our view is not required to supply documents, which were not before it when it passed the order of detention, although they may have been referred to in some of the documents, which were before it when it passed the detention order. It is well settled that the detenu is entitled to be furnished with not only the grounds of detention but also the documents and material on which those grounds are based. It is obvious that the grounds of detention are based only on the material that is before the detaining authority. Although in that material there may be a reference to some other documents, but the detenu is not entitled to get a copy of those documents as they were not before the detaining authority when it passed the order of detention. In the present case, the counter affidavit of the District Magistrate shows that all the relevant documents were supplied to the petitioner along with the grounds of detention. We have also examined the record of the District Magistrate relating to the case of the petitioner and found that copies of all the documents that were before the District Magistrate when he passed the order of detention against the petitioner were supplied to the petitioner along with the grounds of detention. The record also showed that a copy of the agreement entered into by the petitioner in 1980-81 and copies of the three licences of the petitioner were not before the District Magistrate when be passed the detention order against the petitioner. He was, therefore, not required to supply these documents to the petitioner along with the grounds of detention. In our opinion, the non-supply. of these documents has not affected his right under Article 22 (5) of the Constitution of India to make an effective representation against the grounds of his detention. ( 6 ) IT was need contended by the learned counsel for the petitioner that the ground of the detention of the petitioner was state. It was stated in the grounds of detention that the petitioner was the proprietor of Govind Dal Mill at Aligarh. In 1980-81 the petitioner was supplied 3477. 82 quintals of Dhan common, 2844. 24 Quintals of Dhan fine and 44. 10 quintals of Dhan super fine (total quantity of 6366. It was stated in the grounds of detention that the petitioner was the proprietor of Govind Dal Mill at Aligarh. In 1980-81 the petitioner was supplied 3477. 82 quintals of Dhan common, 2844. 24 Quintals of Dhan fine and 44. 10 quintals of Dhan super fine (total quantity of 6366. 21 quintals) for custom bulling under an agreement under which the rice was required to be supplied after hulling of the Dhan to the State Government by 30. 6. 1981. The petitioner, however, did not comply with the aforesaid agreement and did not supply 220 quintals of rice from Dhan common and 214 quintals, 65 Kilograms and 300 grams of rice from Dhan fine to the State Government by 5-9-1983. The petitioner also did not return 5451 bags to the State Government as required under the agreement by 5-9-1983. All this was also not in stock on 5/9/1983. The petitioner thus sold the aforesaid quantity of rice in black market and violated clause 9 of the V. P. Rice and Paddy (Levy and Regulation of Trade) Order, 1981 (hereinafter referred to as the 1981 Order), which was punishable under Section 3/7 of the Essential Commodities Act. A report under that section was lodged against the petitioner by Suresh Chand Garg Marketing Inspector on 5-9-1983 at P. S, Banna Devi at Aligarh. ( 7 ) THE Regional Food Controller, Agra suspended the wholesale licence of the petitioner on 8-9-1983 as the petitioner had violated the agreement entered into by him with the Food Controller by not supplying the agreed quantity of rice by 30-6-1981 and the said rice was also not found in stock on 5-9-1983, from which it appeared that the petitioner had sold it in black market, thus violating the provisions of clause 9 of the 1981 Order. The petitioner also did not return 5451 bags which he was required to return to the State Government under the agreement. The petitioner thus violated condition Nos. 5, 6, 7, 11 and 13 of the wholesale licence issused under the V. P. Foodgrains Dealers (Licensing and Restriction on Hoarding) Order, 1976 (hereinafter referred to as the 1976 Order) and condition No. 1 of the Rice Milling Licence issued under the Rice Milling Industries Regulation Act, 1958. The order suspending the wholesale licence of the petitioner was served on him on 16-9-1983. The order suspending the wholesale licence of the petitioner was served on him on 16-9-1983. ( 8 ) THE mill of the petitioner was inspected on 14-11-1983 by Bhagwan. Singh Senior Marketing Inspector alongwith the Sub-Divisional Officer Koel, the District Supply Officer, Aligarh and others. At the time of the his licence when it was suspended on 8. 9. 1983 and the suspension order was communicated to him on 16-9-1983, but they could not obtain any satisfactory answer. Huge quantity of paddy was also being dried in the mill premises, the hulling machine was found to be working and ovens were heated. 10 bags of rice mixed with husk was also recovered from the hulling machine. The articlest recovered from the mill of the petitioner were as follows: Thus the stock found in the mill of the petitioner did not tally with the entries in the stock board. As the wholesale licence of the petitioner had been suspended on 8-9-1983 and the suspension had been communicated to him on 16-9-1983, the petitioner was not entitled to purchase any paddy for himself after 16. 9. 1983. As 160 bags -of paddy had been brought by truck No. UTI 9459 from Ghora Tanda, Bareilly on the licence of the petitioner, it appeared that it had been brought for illegal trade. The petitioner could only operate on his commission Agents licence and purchase paddy on behalf of others. He could also not store paddy which had been purchased by him nor could he hull his own paddy, but he could hull the paddy of others provided that he obtained a permit under clause 4 of the 1981 Order, which was not obtained by him. Apart from this the stock register relating to the wheat and other articles recovered from the mill was not produced by the 1 Dhan Basmati 112. 00 quintals 2 Dhan fine 552 16 3 Dhan common 12. 24 4 Rice fine 132. 92 5 Rice Basmati 26. 93. 6 Rice common 97. 02 quintal 7 Broken Rice fine 21. 04 8 Broken Rice common 11. 85 9 Wheat 74. 00 10 Madia 3. 50 11 Flour 3. 60 12 Husk 0. 72 13 Rice fine mixed with hush which was in the process_of_hulling 8. 00 brother of the petitioner although a written order was given to him to do so. 02 quintal 7 Broken Rice fine 21. 04 8 Broken Rice common 11. 85 9 Wheat 74. 00 10 Madia 3. 50 11 Flour 3. 60 12 Husk 0. 72 13 Rice fine mixed with hush which was in the process_of_hulling 8. 00 brother of the petitioner although a written order was given to him to do so. The petitioner thus violated clause 3 of the 1976 Order and the provisions of 1981 Order. ( 9 ) IT appears from the grounds of detention that part of paddy that was supplied to the petitioner in 1980-81 under the agreement entered into by him with the Food Controller for conversion into rice was not returned to the State Government as required by the agreement by 30. 6. 1981. It was not returned even till 5. 9. 1983 and was also not found in stock of the mill on that day. The wholesale licence of the petitioner was consequently suspended by the Senior Marketing Inspector on 8. 9. 1983 and the suspension order was communicated to the petitioner on 16. 9. 1983. It is thus clear that the breach of the agreement of 1980-81 by the petitioner was directly connected with the suspension of the wholesale licence of the petitioner on 8. 9. 1983. At the time of the inspection of the petitioners milon 14. 11. 1983 it was found that the petitioner was carrying on business of purchase of food grains even after his wholesale licence had been suspended on 8. 9. 1983. The breach of the agreement entered into by the petitioner in 1980-81 cannot, therefore, be considered in isolation but must be considered along with the activities of the petitioner in November, 1983, which led to the suspension of his wholesale license on 8. 9. 1983. It cannot, therefore, be held that the breach of the agreement entered into by the petitioner in 1980- 81 was state and could not be taken into consideration by the District Magistrate while passing the detention order against the petitioner on 30. 11. 1983. ( 10 ) IT was next contended by the learned counsel for the petitioner that the petitioner did not commit any breach of clause 9 of the 1981 Order as the agreement entered into by the petitioner in 1980-81 had expired on 30. 6. 1981 whereas the 1981 Order came into force on 7. 11. 1981. 11. 1983. ( 10 ) IT was next contended by the learned counsel for the petitioner that the petitioner did not commit any breach of clause 9 of the 1981 Order as the agreement entered into by the petitioner in 1980-81 had expired on 30. 6. 1981 whereas the 1981 Order came into force on 7. 11. 1981. It is clear from clause 10 of the U. P. Rice and Paddy (Levy and Regulation of Trade) Order 1977 (hereinafter referred to as the 1977 Order) that the State Government could by general or special order make supplementary provisions in respect of matters for which no provision existed or insufficient provision existed in that Order. It appears from the letter of the Deputy Secretary, Food and Civil Supplies. U. P. Government, which was examined by us, that the State Government had passed general order on 10. 10. 1980 and 3u0. 80 directing the Food Controllers to enter into agreement with rice millers for the hulling of paddy into rice and the form of the agreement was also prescribed in the Government Order. It may be mentioned that the aforesaid letter of the Deputy Secretary was not before the detaining authority when it passed the detention order against the petitioner, but a reference was made to it in the first information report dated 5-9-1983 which was before the detaining authority when it passed the detention order against the petitioner. It thus appears that the agreement entered into by the petitioners and the Food Controller in 1980- 81 was under the Government Orders passed under clause 10 of the 1977 Order. The 1977 Order was repealed by the 1981 Order, which came into force on 7/11/1981. Clause 15 of the 1981 Order is as follows: 15 Rescission.-The Uttar Pradesh Rice and Paddy (Levy, Regulation of Trade and ,control of Movement) Order, 1977 is hereby rescinded and the provisions of section 6 and section 24 of the U. P. General Clauses Act, 1904 (U. . Act No. lof 1904) shall apply in relation to its recision as they apply in relation to the repeal of an enactment by an Uttar Pradesh Act. Under Section 24 of the U. P. General Clauses Act orders made or issued under the repealed enactment continue in force and are deemed to have been made or issued under the corresponding provisions of the repealing Act. Under Section 24 of the U. P. General Clauses Act orders made or issued under the repealed enactment continue in force and are deemed to have been made or issued under the corresponding provisions of the repealing Act. Clause 9 of the 1981 Order specifically mentions that the State Government may enter into an agreement with a licenced rice miller to convert Piddy into rice. It, therefore, follows that the Government Order passed under clause 10 of the 1977 Order will be deemed to have been passed under clause 9 of the 1981 Order. By virtue of Section 24 of the U. P. General Clauses Act, the agreement entered into by the petitioner under the Government Order passed under clause 10 of the 1977 Order will, therefore, be deemed to have been entered into under clause 9 of the 1981 Order. Thus although the breach of 1980-81 agreement entered into by the petitioner had taken place on 30. 6. 1981, the petitioner would be deemed to have violated clause 9 of the 1981 Order, which is punishable under Section 3/7 of the Essential Commodities Act. In these circumstances, it cannot be held that the petitioner did not violate clause 9 of the 1981 Order, but only committed breach of the general order passed under clause 10 of the 1977 Order by not returning the rice to the State Government by 30. 6. 1981 as required under the agreement entered into by the petitioner in 1980-81. It may be mentioned that from the record relating to the case of the petitioner produced before us that the time of 30. 6. 1981 for the return of the rice to the State Government under the 1980-81 agreement was extended first till 3. 11. 1981 and then till 28. 2. 1981. It, however, appears from the record of the District Magistrate that this extension of time for the supply of rice by the petitioner to the State Government was not brought to the notice of the Distt. Magistrate when he passed the order of detention against the petitioner. In our opinion, this was not material as admittedly the petitioner did not supply the required rice to the Government even till 5. 9. 1983, which was much beyond the extended period. Magistrate when he passed the order of detention against the petitioner. In our opinion, this was not material as admittedly the petitioner did not supply the required rice to the Government even till 5. 9. 1983, which was much beyond the extended period. ( 11 ) IT was next contended by the learned counsel for the petitioner that only the wholesale licence of the petitioner had been suspended but his licence as a Commission Agent was not suspended. He could, therefore, do the business of a Commission Agent even after the suspension of his wholesale licence and the 160 bags of paddy, which were found in his mill on 14. 11. 1983, could have been received by him as a Commission Agent and not as a wholesaler. The documents which were recovered from the office of the mill of the petitioner on 14. 11. 1983 at the time of the inspection of the mill were addressed to the petitioners mill and included the covering letter sent by the New Bharat Transport Agency, Ghora Tanda, Bareilly. It was not mentioned in this letter that the bags were sent to the petitioner to be sold to third parties on behalf of the New Bharat Transport Agency and the petitioner could deduct his commission charges. It was only mentioned in the covering letter that the petitioner may receive the bags that were being sent. The cash memo of the New Bharat Agency that was recovered at the time of the inspection, on the other hand, mentioned the price of each bag of paddy and also the total price. The documents recovered from the petitioners mill on 14. 11. 1983 provided material for the detaining authority to reach the conclusion that the petitioner was engaged in the business of purchase of paddy. In a Habeas Corpus petition, the subjective satisfaction of the detaining authority cannot be interfered with on the ground that another view on the material before him was possible, but can only be interfered with if there was. no material on the basis of which his subjective satisfaction could be arrived at. In a Habeas Corpus petition, the subjective satisfaction of the detaining authority cannot be interfered with on the ground that another view on the material before him was possible, but can only be interfered with if there was. no material on the basis of which his subjective satisfaction could be arrived at. In the present case, there was enough material in the form of the documents recovered from the office of the mill of the petitioner at the time of the inspection of the mill on 14-11-1983 on the basis of which the detaining authority could come to the conclusion that the petitioner was engaged in the business of purchase of paddy even though his wholesale licence had been suspended earlier. ( 12 ) IT was next contended by the learned counsel for the petitioner that the 1981 - Order was wrongly quoted in one or two places in the grounds of detention. Instead of mentioning the order as Rice and Paddy (Levy and Regulation of Trade) Order, it has been mentioned as Paddy and Rice (Levy and Regulation) Order. This indicated that the case of the petitioner had been dealt with casually and mechanically and the detaining authority did not apply its mind. The 1981 Order has, however, been rightly quoted at two places in the grounds of detention. In our opinion the misquoting of the 1981 Order is of a very minor and trivial character and it was not such as to have misled the petitioner so that he could not have made an effective representation against the grounds of detention. ( 13 ) IT was next contended by the learned counsel for the petitioner that the charge sheet submitted by the investigating officer on 22-9-1983 in the Court of C. J. M. Aligarh was under Section 406 Indian Penal Code and not under Section 3/7 of the Essential Commodities Act. This document which was relevant was not placed before the detaining authority when it passed the order of detention against the petitioner on 30-11-1983. This document which was relevant was not placed before the detaining authority when it passed the order of detention against the petitioner on 30-11-1983. In our opinion, there was enough material before the detaining authority to come to the conclusion that the petitioner had committed a breach of Clause 9 of the 1981 Order punishable under Section 3/7 of the Essential Commodities Act and it was not at all necessary to place the Charge-sheet before the detaining authority before it passed the order of detention against the petitioner. It is noteworthy that there was no discrepancy between the chargesheet and the grounds of detention regarding the activity of the petitioner but only with respect to the offence made out against the petitioner. ( 14 ) IT was next contended by the learned counsel for the petitioner that the petitioner was entitled to hull his paddy under the licence issued to him under the Rice Milling Industries Regulation Act. 1958 even though his wholesale licence issued under the 1976 Order was suspended on 8-9-1983. We are unable to accept this contention as under the licence issued to the petitioner under the 1958 Act, he was only entitled to operate his mill whereas after the suspension of his wholesale licence he was not entitled to engage in the business of purchase, store for sale or sell paddy. It is obvious that if the petitioner could not purchase paddy, he could not hull it in his mill. ( 15 ) THE result, therefore, is that the detention of the petitioner in District Jail, Aligarh is not illegal. ( 16 ) THERE is no merit in this petition. It is accordingly dismissed. ( 17 ) THE prayer of the learned counsel for the petitioner for the grant of a certificate that this is a fit case for appeal to the Supreme Court is refused. Writ petition dismissed. .