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PETITIONER: DINANATH PANSARI

       Vs.

RESPONDENT: COLLECTOR & D. M. KEONJHAR & ANR.

DATE OF JUDGMENT01/04/1975

BENCH: BEG, M. HAMEEDULLAH BENCH: BEG, M. HAMEEDULLAH KHANNA, HANS RAJ

CITATION:  1975 AIR 1093            1975 SCR   52  1975 SCC  (1) 725

ACT: Maintenance   of  Internal  Security  Act,   1971,   Section 3(1)(a)(iii)--Order of detention under-Two views possible on the  need of detain-Court If can Interfere  with  subjective assessment and satisfaction.

HEADNOTE: The order of detention dated 6-7-1974 passed by the District Magistrate  of Keonjhar, Orissa, recited that  the  District Magistrate was satisfied that with a view to preventing  the petitioner  from  acting in any manner  prejudicial  to  the maintenance  of supplies and services essential to the  com- munity,  it is necessary to make the order under  Section  3 read with Section 5 of the Maintenance of Internal  Security Act.   The first ground related to sale by him of two  tyres without authority and cash memo.  The second ground  related to the disposal of the 140 out of 149 tyres in contravention of law. Dismissing the- Writ Petition, challenging the detention and also  the Special Leave Petition directed against the  order of the Orissa High Court, HELD : (i) As the Manager of the United Commercial  Company, the petitioner was certainly not a licensed dealer.  The 149 tyres had been obtained by the company for actual use on the trucks but most of them had, apparently, been disposed of in what  is  known,  as the  ’black  market’.   The  provisions relating  to  licensed dealers did not  warrant  such  sales which  were  struck  by the provisions of clause  2  of  the Orissa Automobile Tyres and Tubes Control Order, 1973.   The petitioner  had  not been detained for any  irregularity  or illegality committed as a licensed dealer, bout as a  person who seemed to have been diverting tyres from their pretended use, to sales in "black market".  He was unable to repel the allegation regarding the sale of two tyres. [55F; 56A] Debu  Mahto v. State of West Bengal, A.T.R. 1974,  S.C.  816 and Messrs Pusparaj & Co. and Ors. v. Collector of  Balasore JUDGMENT: (ii)It cannot be said that the impugned detention order  is either arbitrary or not connected with the purpose for which a detention may be ordered under s. 3(1)(a)(iii) of the Act. In  considering the legality of such an order,  this  Court cannot  function  as  a Court of Appeal.  If  there  is  any

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material  to justify the passing of the detention order  the necessity  for it is a matter of subjective  assessment  and satisfaction by the detaining authority with which no  Court would  be ordinarily justified in interfering.   This  Court would not interfere even if two views about the existence of the  need  to  detain  for the object  set  out  in  section 3(1)(a)(iii) of the Act were possible.  It is only when  the order  is  shown to be of such a nature that  it  could  not possibly  fall  within the scope of the law  conferring  the power  to make it that this Court would intervene  to  quash it. [56H; 57AB]

& ORIGINAL JURISDICTION : Writ Petition No. 39 of 1975. Petition  under  Art. 32 of the Constitution  of  India  and Special, Leave Petition No. 267 of 1975. From the judgment and order dated 15-1-75 of the Orissa High Court in C.J.C. No. 1133/74. A.K.  Sen,  B.  P. Maheshwari, Suresh  Sethi  and  R.  K. Maheshwari, for the petitioner (In W. P. No. 39/75). Bishen  Narain,  B. P. Maheshwari, Suresh Sethi  and  R.  K. Maheshwari, for the petitioner, (In S. L. P. 267/75). Gobind  Das and B. Parthasarthy, for the respondents (In  W. P. No. 39/75). The Judgment of the Court was delivered by BEG,  J.-This habeas corpus petition is directed  against  a detention  order  dated  6-7-1974  passed  by  the  District Magistrate  of Keonjhar in Orissa.  The order  recites  that the District Magistrate was statisfied that "with a view  to preventing  Shri  Dinanath  Pansari  s/o  Shri   Dwarikanath Pansari of Barbil town, P. S. Barbil, District Keonjhar from acting  in  any  manner prejudicial to  the  maintenance  of supplies  and  services essential to the  community,  it  is necessary  to  make"  the order under Section  3  read  with Section 5 of the Maintenance of Internal Security Act,  1971 (hereinafter  referred to as ’the Act’).  On the same  date, grounds  of  this  satisfaction  were  communicated  to  the petitioner giving the following particulars :               "1.  On  15-2-1974  you  received   Automobile               (Truck)  tyres  from  Madras  Rubber   Factory               through  Carry  Co. at Barbil  as  Manager  of               United  Commercial Company, Barbil  and  these               tyres  were specified to be used in the  fleet               of trucks owned by United Commercial Co. as  a               fleet  owner.  But instead of using the  tyres               in the fleet of United Commercial Co. you sold               two of those tyres the same day (15-2-1974) to               one   Narayan  Singh  at  Rs.   5400   without               authority and cash memo.  On this issue Barbil               P.S. case No. 32 dated 15-2-1974 u/s. 7 E.  C.               Act was registered and charge-sheeted  against               you.               2.    You, as Manager of the United Commercial               Co. received 149 truck tyres (137-through Tata               Nagar  Transport  Corporation, Barbil  and  12               through  Carry Co. Barbil)  between  14-2-1974               and  27-4-1974 as a fleet owner for use  in  a               fleet of 10 trucks maintained by you.   During               enquiry by the Special Magistrate, Barbil only               six  number  of  tyres  were  found  in   your               company’s Godown and your office incharge Shri               Shamasunder  Pandit stated these six tyres  to               be the only stock in hand.  On verification of

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             8 trucks belonging to your fleet on  19-5-1974               it was found that only 3 tyres fitted to these               trucks were new and the rest of the tyres were               either  too  old or resoled or  damaged  ones.               This  reveals that you have disposed of  tyres               received   as  a  fleet  owner  otherwise   in               contravention of law.               By the above acts of yours the maintenance  of               supplies and services of essential commodities               namely Automobile tyres have been dislocated",                              54 The petitioner alleges that he is a law-abiding citizen who, after  completing  his studies in 1966, started  a  business under  the  name  and  style  of  M/s.   Nancy  Automobiles, Rourkela,  in  Orissa, to deal in auto car parts,  which  he carried on until about the end of 1972; and, thereafter,  he became  a  Director  of a private  Transport  Company,  Soon afterwards,  in 1972, he started business under the name  of Vivek.   Automobiles in Barbil in the District of  Keonjhar. He  admits  that  he is "the Sole  Proprietor  of  the  said business"  and  "was  engaged in the purchase  and  sale  of automobile  spare parts, tyres and tubes".  He asserts  that he is a registered dealer under the Orissa Automobile  Tyres and Tubes Control Order, 1973.  He alleges that the  Central Govt. has not fixed the selling prices of tyres and tubes at any  time.  He states that, although originally the  Control order  covered  only  50 per cent of  the  tyres  and  tubes received by a licensee, subsequently a total restriction was imposed upon dealings in these goods which had been declared essential commodities.  But, he claimed that, on 18-12-1973, the  Controller of Supplies had issued an  order  permitting free  sales by licence holders to the extent of 25 per  cent of their stocks.  He alleges that, roundabout January, 1974, the District Magistrate of Keonjhar held a meeting at  which he  insisted that 25 per cent of tyres and  tubes  available for  free sale by the licensed dealers be sold only for  use on  vehicles  registered in Keonjhar on which tax  had  been paid under the Bihar and Orissa Motor Vehicles Taxation Act, and then issued a circular letter to dealers directing  that this  be  done  by  them.  The  petitioner  states  that  he vehemently  protested  against  the  District   Magistrate’s instructions  which  were invalid under the  law.   He  also asserts  that he objected to the formation of  an  allotment committee  by  the District Magistrate for  the  purpose  of distributing tyres and tubes in the District with the result that  the  District  Magistrate  was  displeased  with   the petitioner. The  petitioner  also alleges that, in Barbil,  which  is  a mining  area, there is considerable transport  business  and that truck owners in that District had formed an Association called  "The Barbil Mining Area Truck Owners’  Association". He  asserts that he has always resisted the illegal  demands of  truck owners.  The petitioner goes on to state that  his sister, Smt.  Sarda Devi of Chakradharpur, Distt.  Singhbum, in  Bihar  started a transport business at Barbil  in  1970, under  the name of "United Commercial Company"  (hereinafter referred  to  as  ’the Company’) which bad a  fleet  of  ten vehicles.   According  to  the  petitioner,  this  Company’s competition  with  the  truck owners deprived  them  of  big contracts and thus he incurred their displeasure.  He states that,  while the Truck Owners’ Association wanted  to  raise the  rates  of freight, the rates of the company  were   not raised  and that this further displeased the  truck  owners’ Association.   He  suggests  that  the  District  Magistrate wanted to please the truck owners.

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The  petitioner  does  not  state his  own  position  in  or connection  with  the United Commercial  Company,  but,  his assertions show, on the one hand that he was associated with this Company as its Manager, as stated in the grounds of the order  of  detention, and, on the other hand,  that  he  was anxious to justify sales of tyres to the public                              55 at  any  price  which was no part of the  business  of  this company.   Such  sales  could  be made  by  him  in  another capacity  and  only  according  to  the  provisions  of  the relevant  Control Order.  According to the opposite  parties prices were also controlled. The petitioner has tried hard to prove the mala fides of the District Magistrate in passing the detention order.  But, he has failed to discharge the difficult burden of doing that. It  has been urged on behalf of the petitioner that even  if the total quantity of 149 tyres shown to have been purchased directly  from  the  manufacturers by the  petitioner  as  a Manager of the United Commercial Company, between  14-2-1974 and 27-4-1974, specifically for the use of the fleet of  ten trucks maintained by the company had not been fully utilised for the fleet but had been mostly sold clandestinely by  the petitioner, as was inferred by the District Magistrate  from the  failure of the petitioner to account for more  than  21 out of 149 tyres, yet, this activity of the petitioner could not  reasonably lead to the inference that it was  necessary to detain the petitioner for the purpose of maintaining  the supplies of the essential commodity in future.  Reliance was placed upon Debu Mahto v. State of West Bengal(1), the facts of  which have little connection with the facts of the  case of  the petitioner who must have appeared to  the  detaining authorities to be using his dual capacity, one as a licensed dealer of tyres and tubes and another as the Manager of the, United  Commercial  Company,  as  a  cover  for   systematic concealed illegal sales at exorbitant prices. As  the Manager of the United Commercial Company, the  peti- tioner  was certainly not a licensed dealer.  The 149  tyres had  been  obtained  by the company for actual  use  on  the trucks but most of them had, apparently, been disposed of in what  is  known  as  the  "black  market".   The  provisions relating  to  licensed dealers did not  warrant  such  sales which  were  struck  by the provisions of clause  2  of  the Orissa Automobile Tyres and Tubes Control Order, 1973.  This provides as follows               "2. Licensing of dealers.-(1) No person  shall               obtain,  attempt to obtain, or store for  sale               or  distribution  or offer for  sale  or  sell               automobile tyres and tubes except under and in               accordance with the terms and conditions of  a               license issued in this behalf by the Licensing               Authority.               (2)   Every  dealer who is doing  business  on               the commencement of the order shall apply  for               the  Licence  within  fifteen  days  of   such               commencement". (1) AIR 1974 SC 816. 10 SC/75-5 56 The petitioner had not been detained for any irregularity or illegality  committed as a licensed dealer, but as a  person who seemed to have been diverting tyres from their pretended use,  for  which a large stock of tyres  had  been  obtained directly  from manufacturers, to sales in what is  known  as the  "black  market" as a regular side occupation.   He  was unable to repel the allegation that such a transaction  with

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one  Narayan Singh had been detected.  He put  forward  what did  not appear to be an honest plea-that he had loaned  two tyres  to  Narayan Singh who had deposited  Rs.  5,000/-  as security.  However, it is not for this Court to pronounce on possible  inferences  from  evidence  for  or  against   the petitioner.  It is for the detaining authorities to  satisfy themselves  about these matters and about the need to  order the  preventive  detention and its duration.   The  Advisory Board  had  also  endorsed  the  action  of  the   detaining authorities. It  was submitted on behalf of the petitioner that, after  a direction given on 19-8-1974 by the Collector, Keonjhar,  to the tyre manufacturing Companies not to supply tyres to  the company  as  an owner of a fleet of trucks, the  sources  of supplies  of  tyres  were dried up and  there  could  be  no necessity  to  detain the petitioner.  We were  referred  to (Messrs) Pusparaj & Co. and Ors. v. Collector of Balasore  & Ors.(1)  to  show that such a direction was not  legal.   If that  is  so, the petitioner can obtain relief  against  the direction  by appropriate proceedings.  We cannot  pronounce here upon its legality. The  question  whether  the  petitioner  bad  satisfactorily accounted  for  the 149 tyres purchased  from  manufacturers from  14-2-1974 to 27-4-1974 was also one of fact.   If  the petitioner’s  case  was  that all the  149  tyres  had  been actually used in this period on the ten trucks, as he  would like to make out, he was in the best position to prove  this fact.   He could not take shelter behind the plea  that  the detaining authorities did not ask the manufacturers to  give the  numbers of tyres sold by them to the United  Commercial Company when the petitioner, called upon to explain what had happened  to  the 149 tyres, could not  himself  give  their numbers  or  show  that he had them all  fitted  on  to  his trucks,  or  that he bad to discard so many  tyres  in  this period.  No stock of discarded tyres was evidently shewn  by the petitioner to the Magistrate who came to his premises to inquire  into  actual facts.  However,’  such  questions  of sufficiency  of evidence are not for this Court at  all  to determine.   We mention them only as an attempt was made  to raise them before us. We  are  unable to hold that the  impugned  detention  order against the petitioner is either arbitrary or not  connected with the purposes for which a detention may be ordered under Section  3  (1 ) (a) (iii) of the Act.  In  considering  the legality  of such an order we cannot function as a Court  of Appeal.  If there is any material to justify the passing  of the  detention  order the necessity for it is  a  matter  of subjective (1)  ILR [1972] Cuttack. 74.                              57 assessment and satisfaction by the detaining authority  with which no Court would be ordinarily justified in interfering. It  is only when the order is shown to be of such  a  nature that it could not possibly fall within the scope of the  law conferring  the  power  to make it  that  this  Court  would intervene to quash it.  A reference to (Messrs) Pushparaj  & Co.  v. Collector of Balasore & Ors. (supra),  itself  shows that  the  need to take drastic steps  for  maintaining  the supplies of an essential commodity, which had become scarce, was there in Orissa.  This Court would not interfere even if two views about the existence of the need to detain for  the object  set out in Section 3 (1) (a) (iii) of the  Act  were possible.  It was for the detaining authorities to determine the  duration of the need to detain the petitioner  provided they comply with the provisions of law whenever they do  so.

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We  are  unable to find any legal flaw  in  the  proceedings which resulted in the impugned detention order of 6-7-1974. Consequently, we dismiss this petition. V.M.K. Petition dismissed. 58