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1986 DIGILAW 180 (PAT)

Ram Naresh Singh v. State of Bihar

1986-05-14

S.B.SANYAL

body1986
JUDGMENT : Satya Brata Sanyal, J. - This is an application for a writ of habeas corpus to quash the ORDER :of detention of the petitioner under the Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act, 1980 (hereinafter referred to as "the Act"). In view of the powers conferred under section 3 of the Act the petitioner has been detained which has been affirmed by the State Government (Annexure 8) pursuant to grounds (Annexure 5). 2. Mr. Bharuka appearing on behalf of the petitioner contended that the grounds are irrelevant to conclude that the petitioner is acting in a manner prejudicial to the maintenance of supplies of commodities. essential to the community. He further contented that the satisfaction that the petitioner is responsible to prepare artificial fertilizer and indulged in blackmarketing is based on no instance whatsoever. He also submitted that one of the grounds is too remote to have any relevance to the subjective satisfaction of the detaining authority. Further the instance of 1983 cited in the grounds has resulted in the petitioner's discharge on merit because the expert opined that there was no adulteration whatsoever of the fertilizer seized from the premises of the petitioner. 3. Mr. Tiwary appearing on behalf of the State contended that he has filed a counter-affidavit where detailed reasons have been given for arriving at the conclusion assailed in this writ application. It has been stated in paragraph 7 that the petitioner was seen selling the seized goods and, therefore, Mr. Bharuka is not correct to argue that in the grounds no instance of sale and purchase of the adulterated goods has even been averted. Mr. Tiwary has also drawn my attention to paragraph 9 of the counter-affidavit and said that within a short period it was not possible to get a chemical examination done of the fertilizer seized. He further stated that the 1983 instance has not been considered as a ground. The grounds of detention are in relation to paragraphs (1) to (5) only. 4. From what has been stated in grounds (1) to (5) it appears that some empty bags were recovered from the residence of the petitioner and 60 bags of fertilizer, which appeared to be Urea, and 10 bags of fertilizer, which appeared to be D.A.P., were also seized from the godown of the petitioner in addition to other fertilizer. 4. From what has been stated in grounds (1) to (5) it appears that some empty bags were recovered from the residence of the petitioner and 60 bags of fertilizer, which appeared to be Urea, and 10 bags of fertilizer, which appeared to be D.A.P., were also seized from the godown of the petitioner in addition to other fertilizer. It has also been stated that 35 bags full of light weight soil of dark colour were also recovered from the residence of the petitioner. Besides these, other things were also found in the godown of the petitioner. 5. Keeping out of consideration for the time being the 1983 event, which Mr. Tiwary contendeds is not a around, to conclude from the aforesaid seizure that the petitioner was indulging in preparation of artificial, fertilizer as also resorting to blackmarketing in relation to those articles does not appeal to me. Admittedly the articles seized have not been chemically examined on the date the ORDER :of detention was made and the grounds were served. Not a single instance of sale and purchase has been referred to in the grounds. From a mere recovery of empty bags from the residential part of the house and 35 bags full of light weight soil of dark colour from the residence, without the same being chemically examined, no reasonable person can come to the aforesaid conclusion. 6. I do not agree with Mr. Tiwary that the 1983 instance is not a ground but is the, background of the grounds. Whether it is a ground or background, it has influenced the mind of the District Magistrate because the 1983 episode related to initiation of a proceeding against the petitioner for indulging in adulteration of fertilizer. In the said case there was a chemical analysis of the fertilizer seized and from Annexure 1 it appears that the goods seized were found to be of normal quality. The case ended in the submission offina1 report which was accepted by the 2nd Additional Subordinate Judge in Muffasil Case No. 20 of 1983 on 25.4.85. Learned counsel for the State states that section 6A proceeding under the Essential Commodities Act is continuing with respect to the said case. The case ended in the submission offina1 report which was accepted by the 2nd Additional Subordinate Judge in Muffasil Case No. 20 of 1983 on 25.4.85. Learned counsel for the State states that section 6A proceeding under the Essential Commodities Act is continuing with respect to the said case. It is not denied that the petitioner was discharged from the said case as would be evident from the ORDER :dated 25.4.85 (Annexure 3) on the basis that there has been no material for the continuance of the proceeding; My attention has been drawn to a decision of the) Supreme Court in Smt. Bimla Dewan v. Lieutenant Governor or Delhi (A. I. R. 1982 Supreme Court 1257). Mr. Bharuka contends that in view of the ratio of that decision the 1983 episode could not have at all been taken into consideration for rendering the ORDER :impeached in this proceeding. It is true that discharge or acquittal by itself is not very important for exercise of jurisdiction under the Preventive Detention Act but the circumstances under which such discharge or acquittal results are relevant consideration which must be borne in mind while forming an opinion as to the petitioner's indulging in activities prejudicial to the maintenance of supplies of commodities essential to the community. In this case the petitioner was prosecuted for being adulterer of fertilizer. Chemical analysis of the adulterated articles shows no adulteration. Police after due investigation submitted a final form. It is not a case where the petitioner has been discharged for paucity of evidence or fear of witnesses in coming and deposing against the petitioner but on merits and lack of materials in support of the presumption that the petitioner is an adulterer. If the 1983 episode is a ground then it is a wholly irrelevant ground and the subjective satisfaction of the detaining authority is vitiated for the said ground being remote and irrelevant. If, on the contrary, that instance is treated as a background then it had certainly influenced the District Magistrate in concluding from mere seizure of a few empty bags of fertilizer that the fertilizer is adulterated and the empty bags are meant to be containers of the adulterated fertilizer. Not a single ounce of the fertilizer has been examined by an expert authority to persuade the District Magistrate to hold that the fertilizer seized is adulterated. Not a single ounce of the fertilizer has been examined by an expert authority to persuade the District Magistrate to hold that the fertilizer seized is adulterated. So far as 35 bags full of light weight soil of dark colour are concerned, it is again the presumption of the detaining authority without obtaining any opinion of an ex-pert whether it is a soil or it is a kind of adulterated or inadulterated fertilizer. There is no instance of sale and purchase of the said, articles for concluding profiteering and blackmarketing. Not a single instance of black marketing could be discerned from the entire grounds which according to me vitiate the subjective satisfaction of the detaining authority. 7. I do not find any substance in the argument of Mr. Tiwary, who tried to salvage the gounds by referring to the statements made in the counter affidavit. It is too late in the day to do so. The statements made in the counter-affidavit cannot be taken into consideration to remove the lacunae in the ORDER :of detention but has to be judged by the grounds mentioned in the ORDER :-The Sasthi Keot v. The State of West Bengal (A. I. R. 1974 Supreme Court 525) and Mohinder Singh Gill v. Chief Election Commissioner (A. I. R. 1978 Supreme Court 851). 8. In the result, I allow the application quash the ORDER :of detention of the petitioner as also the grounds of detention and direct the respondents and the Superintendent of Begusarai Jail to release the petitioner forthwith if his presence is not required in connection with some other case.