http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 7  

PETITIONER: DWARIKA PRASAD SAHU

       Vs.

RESPONDENT: THE STATE OF BIHAR & ORS.

DATE OF JUDGMENT12/11/1974

BENCH: BHAGWATI, P.N. BENCH: BHAGWATI, P.N. CHANDRACHUD, Y.V.

CITATION:  1975 AIR  134            1975 SCR  (2) 702  1975 SCC  (3) 722  CITATOR INFO :  RF         1975 SC 367  (1)

ACT: Maintenance  of  Internal Security Act, 1971-S.  3(2)  (iii) Mixing  of relevant and irrelevant grounds in the  order  of detention-Effect of.

HEADNOTE: The  Bihar Motor Spirit and High Speed Diesel  Oil  Dealers’ Licensing Order, 1966 required that the names and  addresses of  the purchasers must be mentioned in the cash memos;  but by  a subsequent order issued by the State  Government  this requirement  was dispensed with.  On receipt  of  complaints that  the petitioner was indulging in certain  malpractices, including charging a price higher than the controlled price, a surprise physical verification of the stock of high  speed diesel  oil was made and it was found that he had  stock  of oil  in  excess of that shown in the  stock  register.   The petitioner  was  detained under s. 3(2) (iii) of  the  Main- tenance of Internal Security Act, 1971 on the ground,  among others,  that  he sold 762 litres of the  said  oil  without giving the names and addresses of the purchasers in the cash receipts  in contravention of cl. 7 of the licence  and  the supply under In  a petition under Article 32 of the Constitution  it  was contended that the District Magistrate had totally failed to apply  his mind and his subjective satisfaction based  inter alia  on ground number 5 was therefore vitiated and it  ren- dered the order of detention invalid the said cash memos was to fictitious persons. Allowing the petition, HELD : The conclusion is inescapable that since ground no. 5 was  wholly  misconceived, non-existent  and  not  available under  the  law the order of detention must be  held  to  be invalid.  If there is one principle more firmly  established than  any other in this field of jurisprudence, it  is  that even  if  one  of the grounds or reasons which  led  to  the subjective  satisfaction of the detaining authority is  non- existent, misconceived or irrelevant the order of  detention would  be  invalid  and it would  not  avail  the  detaining authority  to contend that the other grounds or reasons  are good  and do not suffer from any such infirmity  because  it

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 7  

can  never be predicated to what extent the bad  grounds  or reasons  operated on the mind of the detaining authority  or whether  the detention order would have been made at all  if the  bad  grounds  or reasons were  excluded  and  the  good grounds   or  reasons  alone  were  before   the   detaining authority. [707F; C-D] Shibban  Lal  Saxena v. The State of Uttar  Pradesh,  [1954] S.C.R. 418, Dr. Ram Manohar Lohia v. State of Bihar &  Ors., [1966]  1 S.C.R. 709, Pushkar Mukharjee & Ors. v. The  State of West Bengal, [1969] 2 S.C.R. 635 and Biram Chand v. State of Uttar Pradesh, A.I.R. 1974 S.C. 1161, followed. In  the  instant case if only the  District  Magistrate  had applied  his  mind property and carefully and acted  with  a greater sense of responsibility, the infirmity vitiating the order  of  detention could have been  easily  avoided.   Not mentioning  the names and addresses of the customers in  the cash  memos was no longer a breach of cl. 7 of  the  licence and it could not support an inference that the sales covered by the cash memos were to fictitious persons.  The  District Magistrate   mechanically  subscribed  to  the  grounds   of detention without even caring to examine whether ground  no. 5  was  correct or not and proceeded to make  the  order  of detention. [706H] Ground  1 disclosed yet another instance of  non-application of  mind  on  the part of  the  District  Magistrate.   This circumstance also is indicative of the rather casual  manner in which the District Magistrate proceeded to make the order of detention without proper application of mind and it could have an invalidating consequence on the order of  detention. [707H; 708A] 703

JUDGMENT: ORIGINAL JURISDICTION : Writ Petition No. 346 of 1974. Under Art. 32 of the Constitution of India. G.   K.  Daphtary,  K.  K. Sinha and S. K.  Sinha,  for  the petitioner. U.   P. Singh, for the respondents. The Judgment of the Court was delivered by BHAGWATI,  J.-It  is with utmost reluctance,  and  we  might almost say regretfully, that we allow this petition directed against  the validity of an order of detention made  by  the District Magistrate, Ranchi under section 3 (2) (iii) of the Maintenance  of  Internal Security Act, 1971.  If  only  the District  Magistrate  had  applied  his  mind  properly  and carefully and acted with a greater sense, of responsibility, the  infirmity vitiating the order of detention  could  have been easily avoided.  We are painfully conscious of the fact that economic offenders are a menace to the community and it is  necessary in the interest of the economic well being  of the society to mercilessly stamp out such pernicious,  anti- social  and  highly reprehensible  activities  as  hoarding, black-marketing and profiteering which are causing havoc  to the  economy of the country and inflicting untold  hardships on  the common man and to carry on a relentless war  against such  economic offenders with a view to putting them out  of action.   But in the present case the attempt to  curb  this social menace has been frustrated and set at naught by  want of  due  care and application on the part  of  the  District Magistrate.   We hope and trust that, in future, in view  of the social objectives intended to be achieved by the use  of the Act against economic offenders, the District Magistrates will show greater care and attention in exercising the vast.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 7  

powers  conferred  upon  them under the  Act,  both  in  the interest  of personal liberty which is one of our  cherished freedoms  as  also  in the interest of  firm  and  effective action against those who are undermining the foundations  of our social and economic structure. The petitioner is a dealer in high speed diesel oil  holding a licence under the Bihar Motor Spirit and High Speed Diesel Oil Dealers’ Licensing Order, 1966.  It appears that certain complaints  were received against the petitioner from  local truck owners that he was not supplying high speed diesel oil to  them  according to their requirements and even  when  he supplied  a little, he made it a condition that they  should also  buy from him other commodities, such as grease,  brake oil,  filter oil etc., but so far as outside  truck  owner,% are  concerned,  he supplied them as much quantity  of  high speed  diesel  oil as they liked at prices higher  than  the controlled  price.   The third respondent, who is  the  sub- Divisional Officer, thereupon sent respondents Nos. 4 and  5 to the petrol pump of the petitioner with a view to checking the  accounts and verifying the stock of high  speed  diesel oil with the, petitioner.  Respondents Nos. 4 and 5 found on physical  verification that there was a total stock of  1957 litres  in  the  two tanks of the petitioner  as  against  a balance  of 1597 litres appearing in the books  of  account, with the result that there was an excess stock of 13-L319 Sup.CI/75 704 350  litres.   The District Magistrate  thereafter,  on  the materials  placed  before him, made the order  of  detention impugned in the present petition. The   order  of  detention  was  based  on  the   subjective satisfaction of the District Magistrate that with a view  to preventing   the  petitioner  from  acting  in  any   manner prejudicial  to  the maintenance of  supplies  and  services essential  to the community it was necessary to  detain  the petitioner.    Pursuant  to  the  order  of  detention   the petitioner was arrested and at the time of his arrest he was served with the grounds on which the order of detention  was made.  The grounds of detention served on the petitioner set out six grounds which were in the following terms : .lm15 "1. That he being the proprietor of M/s Sahu Brothers Caltex petrol dealers at Gumla, his cash Memo No. 70996 dated 14-2- 74 shows a sale of 1200, litres of High Speed Diesel oil  to one  Mr.  Griffiths  of Tung Tola P. S.  Raidib.   The  said quantity  is  much  beyond the  capacity  of  any  transport vehicle  and  thereby by the said alleged sale he  not  only aggravated the scarcity of an essential commodity i.e.  high speed diesel oil but he also supplied the said Mr.  Griffths the  said  oil in tins or barreals exceeding  37  litres  (8 imperial  gallons)  otherwise than in the tank  of  a  Motor vehicle,  without  obtaining a written permission  from  the District Magistrate or the Sub-Divisional Magistrate, autho- rising  the said Mr. Griffths to do so in  contravention  of section  7 of Bihar Motor Spirit and High Speed  Diesel  Oil Licensing Order 1966. 2.   That the said Mr. Griffths in his show cause  submitted to the Sub-Divisional Magistrate Gumla and in his  statement recorded  by  Executive  Magistrate,  has  denied  to   have purchase  1200 litres of high speed diesel oil at a time  at any time. 3.   That  thus it is quite apparent that by the  said  cash Memo No. 70996 no sale of the said oil was made and the said cash  Memo  was  fabricated  entirely  with  the  object  of disposing  of 1200 litres of the said oil in  a  clandestine

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 7  

way in black market. 4.   That he being the proprietor of M/s Sahu Brothers Gumla supplied 300 litres of said oil in Truck No. BR- 662 on  26- 74 and 300 litres to Truck No. MPL 5521 on 1-3-1974 and  400 litres in truck No. MPL ION on 1-3-1974 350 litres to  truck No.  MPL  2135  on  1-3-74 and  thereby  he  was.  not  only aggravating  the scarcity of essential commodity,  i.e.  the High Speed Diesel oil but also supplied more than 37  litres (eight Imperial gallons) of the said oil in tin or barrel to be  kept  or stored otherwise than in the tank  of  a  motor vehicle  without  obtaining  a  written  permission  of  the District Magistrate or the Sub-Divisional 705 Magistrate authorising storage in contravention of section 7 of the Bihar Motor Spirit and High Speed Diesel Oil  Dealers Licensing Order, 1966. 5.   That he supplied 762 litres of the said oil as per Cash Memos fully described in Schedule, I annexed hereto  without giving the name and addresses of the purchasers not only  in contravention  of clause 7 of the license but the supply  by the said cash memos-were shown to fictitious persons. 6.   That  on physical verification of his stock by Shri  R. D.  Singh  A.D.S.O. and L. Sawaya, Sub-Deputy  Collector  on 7-3-1974 his stock of the said oil was found to be in excess by  357 litres from the book balance which  is  undisputedly indicative  of the fact that he has been showing  fictitious sales." The usual procedure prescribed by the provisions of the  Act was  thereafter  followed  and the order  of  detention  was approved by the State Government, the representation of  the petitioner  was  considered and rejected, the  case  of  the petitioner   was  placed  before  the  Advisory  Board   and ultimately on receipt of the opinion of the Advisory  Board, the   order  of  detention  was  confirmed  by   the   State Government. The  main  ground  on which the validity  of  the  order  of detention  was  challenged on behalf of the  petitioner  was that  ground 5 was misconceived and betrayed total  lack  of application  of mind on the part of the District  Magistrate and  that vitiated the order of detention.   The  petitioner pointed out that though clause (7) of the Licence issued  to him  under the Bihar Motor Spirit and High Speed Diesel  Oil Dealers’ )Licensing Order, 1966 provided that the names  and addresses  of the purchasers must be mentioned in  the  cash memos,  an order No. 12706/S.C., dated 11th July,  1966  was issued  by  the State Government which dispensed  with  this requirement  until further orders and it was, therefore,  no longer  necessary to set out the names and addresses of  the purchasers  in the cash memos issued to them and the  ground that the petitioner supplied 762 litres of high speed diesel oil  under various cash memos without giving the  names  and addresses  of the purchasers in contravention of clause  (7) of  the  Licence was, therefore, wholly unfounded.   It  was also urged on behalf of the petitioner that if there was  no requirement  of setting out the names and addresses  of  the purchasers in the cash memos, no inference could  rationally be drawn by the District Magistrate from the absence of  the names  and  addresses of the purchasers in  the  cash  memos issued by the petitioner that the purchasers were fictitious persons.  The petitioner urged that in the circumstances  it was  clear  that  this  ground  was  based  on  a   complete misapprehension of the correct situation and showed that the District Magistrate had totally failed to apply his mind and the subjective satisfaction of the District Magistrate based inter  alia on this ground was, therefore, vitiated  and  it

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 7  

tendered the order of detention invalid.  We think there  is great 706 force  in this contention urged on behalf of the  petitioner and  the  order  of  detention must on  the  basis  of  this contention alone be held to be bad. The gravamen of the charge against the petitioner in  ground No. 5 was that he supplied 762 litres of high speed  ’diesel oil under several cash memos described in Schedule I to  the grounds of detention without giving the names and  addresses of the purchasers and this was not only in contravention  of clause  (7) of the licence, but it also indicated  that  the supplies  under  these cash memos were  made  to  fictitious persons.   Now,  it is true that clause (7) of  the  licence issued  to the petitioner provided that the  licensee  shall issue to every customer a correct receipt or invoice, as the case  may be, giving inter alia the name and address of  the customer  and, therefore, if this requirement prescribed  by clause  (7) were operative at the material time,  there  can be,  no doubt that the action of the petitioner  in  issuing cash memos to the purchasers without giving their names  and addresses  would have been in contravention of  clause,  (7) and  it  might  have been a  legitimate  inference  for  the District   Magistrate  to  draw  that  the  sales  were   to fictitious  persons,  because.  otherwise  their  names  and addresses  would  have been mentioned in the cash  memos  as required   by  clause  (7).   But  the   order   bearing-No. 12706/S.C.,  dated 11th July, 1966 was issued by  the  State Government  providing  that " as regards high  speed  diesel oil,  the  enforcement  of the following  condition  of  the licence  shall  be waived until further orders" and  one  of such  conditions was: "In the cash memo to be issued to  the customers the names and addresses of the customers need  not be  mentioned  and  it  will  be  sufficient  if  only   the registration  number of motor vehicles is noted in the  cash memo".   The  requirement of clause (7) of  the  licence  to mention the names and addresses of the customers in die cash memos was, therefore, dispensed with by the State Government with  effect from 11th July, 1966 until further  orders  and this  dispensation was in force at the time when sales  were made  by  the petitioner under the cash memos  described  in Schedule    to  the  rounds of  detention.   The  absence  of mention  of  the names and addresses of  the  purchasers  in these   cash   memos   did   not,   therefore,    constitute contravention of clause (7) of the licence and no  inference could  rationally he drawn by the District Magistrate,  from mere absence of names and addresses of the customers in  the cash memos, without anything more, that the sales under  the cash,  memos were to fictitious persons.  Ground No. 5  was, therefore,  wholly  unfounded.  It was based on  a  complete misapprehension  of what was required to be set out  in  the cash  memos.   It  is rather surprising  that  the  District Magistrate  should  not have known that the  requirement  of clause (7) of the licence in regard to mention of names  and addresses  of  the  customers in the  cash  memos  bad  been dispensed  with by the State Government as far back as  11th July,  1966.  If only the District Magistrate  had  properly applied  his mind and made the necessary inquiries  for  the purpose  of  satisfying himself in regard to the  charge  in ground  No. 5, he would have immediately realised  that  not mentioning  the names and addresses of the customers in  the cash memos 707 was  no longer a breach of clause (7) of the licence and  it could not support an inference that the sales covered by the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 7  

cash memos were to fictitious persons.  But it appears  that the  District  Magistrate  mechanically  subscribed  to  the grounds of detention without even caring to examine  whether ground  No. 5 was correct or not and proceeded to  make  the order of detention.  We have tried to see whether we  could, even  by taking a liberal or indulgent view, sustain  ground No.  5,  but we find it impossible to do so.   In  fact  the learned  counsel  appearing on behalf of the  State  frankly conceded  that it was not possible for him to  support  this ground.   If there is one principle more firmly  established than  any other in this field of jurisprudence, it  is  that even  if  one  of the grounds or reasons which  led  to  the subjective  satisfaction of the detaining authority is  non- existent  or  misconceived  or  irrelevant,  the  order   of detention  would  be  invalid and it  would  not  avail  the detaining  authority  to contend that the other  grounds  or reasons are good and do not suffer from any such  infirmity, because  it can never be predicated to what extent  the  bad grounds  or  reasons operated on the mind of  the  detaining authority  or  whether the detention order would  have  been made  at all if the bad ground or reason were  excluded  and the good grounds or reasons alone were before the  detaining authority.   See the decisions of this Court hi Shibban  Lal Saxena  v.  The State of Uttar Pradesh,(1) Dr.  Ram  Manohar Lohia  v. State of Bihar & Ors.(2) and Pushkar  Mukherjee  & Ors.  v.  The State of West Bengal.(3) Even as  recently  as this  year  a Division Bench of this Court  pointed  out  in Biram  Chand v. State of Uttar Pradesh(4) that "It  is  well settled that in an order under the present Act the  decision of  the  authority  is a subjective one and if  one  of  the grounds  is non-existent or irrelevant or is  not  available under the law, the entire detention order will fall since it is  not  possible to predicate as to whether  the  detaining authority would have made an order for detention even in the absence   of  non-existent  or  irrelevant   ground".    The conclusion is, therefore, inescapable that since ground  No. 5  was wholly misconceived, non-existent and "not  available under  the law", the order of detention must be held  to  be invalid. Though, on this view we are taking as regards the invalidity of ground No. 5, it is not necessary for us to say  anything in  regard to the other grounds, we think we ought  to  draw the  attention  of  the detaining  authority  to  one  other infirmity,  so  that  the  detaining  authority  can,  while exercising  the  power of detention in  future,  avoid  such infirmity.   That infirmity is to be found in ground  No.  1 and it discloses yet another instance of non-application  of mind on the part of the District Magistrate.  The allegation in  ground  No. 1 was that cash memo No. 70996,  dated  14th February,  1974 showed a sale of 1200 litres of  high  speed diesel  oil  to one Mr. Griffiths, but this  allegation  was patently  incorrect  as the cash memo in  fact,  as  frankly admitted  on behalf of the respondents, related only to  the sale of 200 litres of high speed diesel oil to Mr. Griffiths and for the sale of further 1000 litres of high speed diesel oil to Mr. Griffiths. there was another cash (1)  [1954] S. C. R. 418. (3)  [1969] 2 S.C.R 635 (4) A.I.R. 1974 S.C. 1161. (2) [1956] 1 S. C. R. 709. 708 memo No. 71120, dated 16th February, 1974 which did not find mention   in  ground  No.  1.  This  circumstance  also   is indicative of the rather casual manner in which the District Magistrate proceeded to make the order of detention  without proper application of mind and it could have an invalidating

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 7  

consequence  on  the order of detention. We hope  and  trust that  the  District Magistrate will be more careful  in  the future when he has occasion to exercise the enormous  powers of preventive detention entrusted to him by the Parliament. We  accordingly quash ’and set aside the order of  detention and’ direct that the petitioner be set at liberty forthwith. P.B.R.                       Petition allowed. 709