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Madhya Pradesh High Court · body

2009 DIGILAW 1373 (MP)

MeeraAgrawal v. Union of India

2009-12-14

K.S.CHAUHAN, R.S.GARG

body2009
JUDGMENT (ORAL) 1. Writ petition No. 10242/09 has been filed by Smt. Sarita Agrawal, challenging detention of her husband Shri PreetamAgrawal. Writ Petition No. 11281/09 has been filed by Smt. Madhwnita Agrawal challenging the detention of her husband Rajkumar Agrawal. Writ Petition No. 11729/09 has been filed by Smt. Meera Agrawal challenging the detention of her husband Shri Manoj Agrawal and Writ Petition No. 12473/09 has been filed by Smt. Seema Agrawal challenging the detention of her husband Radhe Shyam Agrawal. Undisputedly, Preetam, Rajkumar, Manoj and Radhe Shyam have already been detained in execution of the orders issued under Section 3 of the National Security Act, 1980. Writ Petition No. 12015/09 has been filed by one Bansilal Agrawal challenging the detention order which has yet not been executed anticipating that the order would be executed against his interest. 2. In all the cases it is not in dispute before us that Bansilal Agrawal is running a factory where he is producing ghee and other edible items. Detenue Rajkumar is running a factory in the name of RK. Dairy, detenue Manoj is running a factory in the name of Pankaj Dairy and detenue Radhe Shyam is running a factory in the name of Shreeje Dairy. Preetam Agrawal has come out with the case that he is not running any dairy or factory, but in fact he has been detained because against his brother Radhe Shyam, certain cases were registered and on some earlier occasion Preetam Agrawal was prosecuted for offence punishable under the provisions of Food Adulteration Act. 3. It is common submission by all the petitioners that the orders have been passed by the District Magistrate without application of mind and even without availability of the material on record. It is submitted that not even a single report of the public analyst showing that the sample drawn from the petitioners from their premises was found adulterated has been placed on record. It is also contended that the question regarding misbranding ghee and other products though has been taken to be one of the grounds for detention, but undisputedly, there is nothing on record to show, suggest or prove that any material was produced before the concerned District Magistrate. It is also contended that the question regarding misbranding ghee and other products though has been taken to be one of the grounds for detention, but undisputedly, there is nothing on record to show, suggest or prove that any material was produced before the concerned District Magistrate. The different petitioners have submitted that in long many years if some samples have failed and the prosecution is still going on, then at this stage the District Magistrate could not record his satisfaction that by the acts and deeds of the petitioners, they were likely to adversely affect maintenance of supplies and services essential to the community. It is also submitted that despite availaibility of the material with the concerned police officers/reporting authority if the material has not been produced on record and the substantial facts/evidence which could lead to the irresistible conclusion that the petitioners were involved in the activities which were prejudicial to the maintenance of supplies and services essential to the community, the petitioner could not be ordered to be detained. 4. Shri Prashant Singh, learned counsel for the State, however, submitted that from each of the record it would clearly appear that the Health Officer had reported to the District Magistrate that the samples drawn from the petitioner detenue/Bansilal or from their premises were adulterated. It is submitted that if such was the report and it was specifically contended that the articles were not fit for human consumption or those were likely to lead to the public epidemic then the District Magistrate was absolutely justified in issuing the order of detention. While admitting that the reports from the public analyst have not been produced on record. It is submitted that in case of Bansilal, C.D. prepared on the spot at the time of search and seizure was made, the same has been produced in these records, it is, however, admitted by the learned counsel for the State that the said C.D. the Panchanama report and copies of the First Information Report except a case registered under Section 420 of IPC nothing was produced before the District Magistrate. 5. Learned counsel for the State also submitted that recovery of huge quantity of adulterated/substandard material would clearly show the modus operandi of the detenue/Bansilal and in a case like present the District Magistrate was absolutely justified in issuing such orders. 6. 5. Learned counsel for the State also submitted that recovery of huge quantity of adulterated/substandard material would clearly show the modus operandi of the detenue/Bansilal and in a case like present the District Magistrate was absolutely justified in issuing such orders. 6. For proper appreciation of the matter we will have to refer section 3 (2) of the National Security Act, 1980. Sub-section (2) of Section 3 of the Act of 1980 provides:- 'The Central Government or the State Government may, if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudical to the security of the State or from acting in any manner prejudical to the maintenance of public order or from acting in any manner prejudical to the maintenance of supplies and services essential to the Community it is necessary so to do, make an order directing that such person be detained." A perusal of sub-section (2) would show that if the State Government is satisfied with respect to any person that with a view to preventing him from acting in any manner prejudical to the maintenance of supplies and services essential to the community, it is necessary so to do, make an order directing that such person be detained. The explanation appended to sub-section (2) provides that "acting in any manner prejudical to the maintenance of supplies and services essential to the community" does not include "acting in any manner prejudical to the maintenance of supplies of commodities essential to the community" as defined in the Explanation to sub-section (1) of section 3 of the Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act, 1980 and accordingly no order of detention shall be made under the Act on any ground on which an order of detention may be made under that Act. 7. In the matter of Preetam Agrawal, we have gone through the original records. The grounds for detention are that he is engaged in manufacturing of adulterated or spurious ghee. Similar are the grounds against the others. Unfortunately and undisputedly except giving the numbers of the cases pending consideration not even a single document has been produced before the District Magistrate to convince him that the samples were found adulterated. Undisputedly, not in a single case any of the detenue/Bansilal have been convicted. Similar are the grounds against the others. Unfortunately and undisputedly except giving the numbers of the cases pending consideration not even a single document has been produced before the District Magistrate to convince him that the samples were found adulterated. Undisputedly, not in a single case any of the detenue/Bansilal have been convicted. Learned counsel for the State Government though relied upon the C.D. filed before us but it would be imprudent on our part to look into the said C.D. which were never placed before the District Magistrate to convince him that particular material was seized, particular action was taken and particular items were found in the premises of Bansilal Agrawal. We have gone through the statements of the witnesses. The statements are almost identical and stereo type. In the matter of Preetam Agrawal two witnesses were examined and each of them have said that the detenue was engaged in manufacturing adulterated ghee and was also engaged in misbranding. The list of the cases registered against him nowhere shows that any of the case is in relation to misbranding or trying to sell the material manufactured by him in some different name. True it is that in some of the ceases, offences under section 420 of the Indian Penal Code have been registered. Though the question is not directly before us, but we will have to observe that such registration in itself would not be sufficient because the First Information Report do nowhere say that who were cheated and how an offence punishable under section 420 of the Indian Penal Code is made out. We are of the prima facie opinion that offences punishable under section 420 of the Indian Penal Code are not made out because there is no material on record to show that somebody was cheated. It is nobody case that the manufacturer or suppliers of ghee perusaded somebody to part with their property by telling them that the petitioners would be selling them pure ghee and by that further persuaded them that they would be getting pure ghee. There is nothing on record to show or suggest that somebody ever made any complaint that in absence of such a persuasion, he would not have purchased ghee nor would have parted with his property as price of ghee. There is nothing on record to show or suggest that somebody ever made any complaint that in absence of such a persuasion, he would not have purchased ghee nor would have parted with his property as price of ghee. Be that as it may, the question before us is that whether registration of an offence under Section 420 of the Indian Penal Code and in some of the cases registration under section 188 of Indian Penal Code would add to the gravity for purposes of detention. 8. Section 188 of the Indian Penal Code related to disobedience to order duly promulgated by public servant. Section 188 requires that if any person wilfully disobeys an order promulgated by public servant, then he may be punished in accordance with law. In the present, not even in a single matter, the order issued by promulgated by public servant has been brought on record. 9. True it is that nature of the allegations made against the detenue/Bansilal are of serious nature, but unfortunately to support the order of detention for the reasons best known to the authorities they have not produced any material before the District Magistrate nor the order passed by the District Magistrate shows that even in absence of such material he would have taken the same view. 10. It has also been contended before us that petitions are not maintainable at Jabalpur because the cause of action accrued in favour of the detenue/petitioners within the jurisdiction of Indore Bench and Gwalior Bench. It is to be noted that on an earlier occasion we ourselves had raised this question and thereafter it was argued before us that the final order of detention was passed by the State Government at Bhopal and the Advisory Committee had confirmed the same at Jabalpur, therefore, the Jabalpur Court would have jurisdiction. After hearing learned counsel for the parties, on these questions we are of the opinion and if we exercise our jurisdiction at Jabalpur, then the question of territorial jurisdiction would not debar us because Bhopal where the Headquarters of the State are situated and Jabalpur where the Advisory Committee had passed the final order are within our jurisdiction. 11. It is also to be observed that for purposes of detaining a person some casual approach is not required. 11. It is also to be observed that for purposes of detaining a person some casual approach is not required. When a person is to be taken into custody and is to be detained because of his activities which are prejudicial to the maintenance of public order of maintenance of supplies and services, then such material has to be brought on record which prima facie shows that free movements of such person would be prejudicial to the interest of the public, that is going to affect the even tempo of the life and it would be prejudicial to the maintenance of supplies and services essential to the community. In the present matters, the State Government though acted in a swift manner, but unfortunately in its zeal to obtain the detention order against the detenue/petitioners, they forgot that they were required to bring on record certain basic materials on basis of which a judicial conscience would stand satisfied that free movement of such person would be prejudicial to the public order. 12. Even for sake of repetition we would again observe that in absence of any record that the items recovered/seized or found in the premises were adulterated or any report from the public analyst, it would not be possible for us to hold that the District Magistrate could record his satisfaction. It is also to be seen that in many of the matters, it has been observed by the District Magistrate that certain articles were being sold in different names or that was the case of misbranding. For sake of repetition, we would again say that in the original files produced before us records relating to District Magistrate and the Advisory Board. We are unable to find anything which could justify the observations made by the District Magistrate on which he could record a ground for detention that any of the detenue or petitioner was engaged in misbranding the articles or they were selling adulterated articles under different brand names. Taking into consideration the totality of the circumstances, we are of the considered opinion that the concerned District Magistrate have not applied their mind to the facts of the case and were unjustified in recording their satisfaction simply on basis of the offence numbers that detention was a must. Taking into consideration the totality of the circumstances, we are of the considered opinion that the concerned District Magistrate have not applied their mind to the facts of the case and were unjustified in recording their satisfaction simply on basis of the offence numbers that detention was a must. We would also be justified in observing that in a case like present, the question relating to adulteration, manufacturing of spurius material and misbranding if is to be proved, then that must be proved by producing necessary materials. The observations made by one of the witnesses that detenue/petitioners were engaged in manufacturing spurious articles/adulterated material would not be the final verdict. In view of our findings, we would not be unjustified in observing that detention in such cases would be harassment to the persons against whom such orders are passed. 13. Taking into consideration the totality of the circumstances the orders of detention passed against the petitioners are hereby quashed. It is directed that Bansilal Agrawal against whom the order of detention has not yet been executed shall not be taken into custody in execution of the said order. Preetam Agrawal, Rajkumar Agrawal, Manoj Agrawal and Radhe Shyam Agrawal, who are in detention are hereby directed to be released forthwith, if not required in any other offence. Copy of this order be kept in connected matters.