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PETITIONER: BANKATLAL

       Vs.

RESPONDENT: STATE OF RAJASTHAN

DATE OF JUDGMENT17/10/1974

BENCH: SARKARIA, RANJIT SINGH BENCH: SARKARIA, RANJIT SINGH BHAGWATI, P.N.

CITATION:  1975 AIR  522            1975 SCR  (2) 470  1975 SCC  (4) 598

ACT: Maintenance of Internal Security Act 1971-S. 3(1) (a) (iii)- scope of-"Supply and Service" meaning of. Whether detaining authority bound to convey all the  details of previous convictions of the detenu.

HEADNOTE: Pursuant to two orders of detention under s. 3(1) (a)  (iii) of  the  Maintenance  of internal  Security  Act,  1971  the petitioner was detained on the ground that he was  indulging in   adulteration  of  essential  foodstuffs  and   was   in possession of donkey dung, sawdust, gypsum, ICI colours  and coloured  plastic  paper  used  and  intended  for  use   in adulteration  of foodstuffs; that the samples of  foodstuffs sold  by  him, on examination were found to  contain  highly adulterated material; that the recovery of huge quantity  of adulterated foodstuffs and adulterated material which is un- hygenic  and  injurious  to public  health  proved  that  by indulging  in the business of manufacture, sale and  storage for sale of such essential commodities he had been acting in a   manner  prejudicial  to  the  maintenance  of   supplies essential  to  the  community  and  that  he  could  not  be prevented from doing so by prosecution under the  Prevention of  Food Adulteration Act.  Before the confirmation  of  the order of detention by the Government the petitioner filed  a habeas  corpus  petition before the High  Court,  which  was dismissed.   In a petition under article 32 of  the  Consti- tution  it was contended (i) that the grounds  of  detention were non-existent; (ii) that the grounds communicated to the detenu  did not have a direct nexus with the maintenance  of supplies and services essential to the community; and  (iii) that  in  an  affidavit  filed before  the  High  Court  the District  Magistrate relied upon an earlier prosecution  and conviction  of the petitioner under the Prevention  of  Food Adulteration  Act, but failed to mention this ground in  the order  of  detention, in consequence of  which  the  grounds communicated were vague. Dismissing the petition, HELD  : (1) It cannot be said that the grounds of  detention were non-existent.  On the report of the public analyst  the chilli   powder  and  haldiwhole  would  be  deemed  to   be adulterated  articles of food falling within the  definition

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of  cl.  (c)  and (f) respectively and  Amchoor  within  the definition  of cl. (b) and (c) of s. 2(1) of the  Prevention of  Food  Adulteration  Act,  1954.  In  the  light  of  the information  received  by the detaining authority  that  the petitioner  had been systematically adulterating  foodstuffs on a large scale, the discovery in bulk of extraneous matter stored in the premises which could be used for  adulteration could not be said to be irrelevant. [477 H; 478 A-B] (2)(a)  Supplies  in the context of s. 3(1)(a)  (iii)  means supply of essential commodities or foodstuffs in a wholesome form.   It  does not mean the supply  of  their  adulterated substitutes.   Engagement in the process of adulteration  of foodstuffs meant for sale is an activity highly  prejudicial to the maintenance of supplies and services essential to the community,  more so when it is done in an  organised  manner and on a large scale. [478 F-G] Misri Lal v. The State A.I.R 1951 Pat. 134 F. B. over-ruled, and  Hari  Ram v. State (1974) 25, Raj.  Law Weekly  p.-  26 approved. (b)  Food adulteration activity particularly of an organised kind  is  an  activity prejudicial  to  the  maintenance  of supplies and services essential to the life of the community which  may  justify  an order of  detention  under  s.  3(1) (a)(iii) of the Act.  One of the primary necessaries of life is  food;  one of the elementary obligations  of  a  welfare state  is to ensure food to its citizens.  The  concepts  of "Supplies"  and  services" intermingle in the  discharge  of that obligation by the State.  Maintenance 471 of sale of pure food stuffs to the public is both a ’supply" and a "service’.  A person who sells adulterated food to the people not only evinces a tendency to disrupt the even  flow of  essential  supplies but also interrupts service  to  the community. [479 G-H] Haradhan  Saha  v. State of West Bengal, Writ  petition  No. 1999 of 1973 decided on 21-8-1974 referred to. (c)  one broad test for the exercise of the power which  the detaining authority may keep in View, particularly in a case of adulteration of foodstuffs is whether the material before it about the activities of the person sought to be  detained in  the proximate past and present, is such as to enable  it to  make a reasonable prognosis of the probability  of  that person  to behave similarly in the future.  In  the  present case  on  the material before him  the  District  Magistrate could  reasonably  be satisfied that  unless  detained,  the detenu  would  be likely to continue the  food  adulteration activity  in the future and it was, therefore, necessary  to detain him. [481 B & D] (3)  The  mere  fact that all the details  of  his  previous prosecutions  and their results or his conviction  were  not conveyed to the detenu did not contravene art. 22(5) of  the Constitution  and s. 8(1) of the Act.  All these  fact  were within  the knowledge of the detenu.  There  was  sufficient indication  in  the  first as well as the  second  order  of detention  about the previous prosecution of the  petitioner for  food  adulteration  offences.   What  constitutes   the substance  of the grounds is the factum of the raid and  the discovery of adulterated chilli powder, Amchur, Haldi and  a large quantity of odd materials such as sawdust, donkey dung etc. which, in the opinion of the detaining authority,  were suspected         adulterants. The presence     of     these suspected adulterants in bulk, safely stored in tins   may not  by itself amount to an offence under the penal law  but it  was  a relevant circumstance which could be  taken  into

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account   by  the  detaining  authority  in   reaching   its subjective satisfaction. [381 H; 482 B; 481 G]

JUDGMENT: ORIGINAL JURISDICTION : Writ Petition No. 292 of 1974. Petition Under Article 32 of the Constitution of India A.   K.  Sen,  Badri  Das Sharma and S. K.  Bagga,  for  the Petitioner. L.   M.  Singhvi,  S.  M.  Jain and  S.  K.  Jain,  for  the Respondent. The Judgment of the Court was delivered by SARKARTA  J. The petitioner challenges the validity  of  the order  of  his detention made by  the  District  Magistrate, Jodhpur  under  s.  3(1)(a)  (iii)  of  the  Maintenance  of Internal  Security Act, 1971 (for short the Act)  and  prays for a writ in the nature of habeas corpus. The  order  of detention was passed on March 18,  1974.   In pursuance thereof, the petitioner was taken into custody  on March 19, 1974. The  detention order (for short, the first order) which  was served on the detenu at the time of his arrest on March  19, 1974. states ".......whereas, the said Shri Bankat Lal has been indulging in  rampant adulteration of essential foodstuff  and  supply thereof for consumption by the community at large, operating a factory and firm under the name and style of Laxmi  Narain Moondra  situated  in  Makrana  Mohalla,  Jodhpur  for  such adulteration,  so  much so, that 170 odd  bags  of  material which  among  other things, includes 7 tins of  sawdust,  15 bags of colour (yellow and Gherwa), 70 bags of chilli  seed, black colour leaves, which look like tea leaves, one bag  of gypsum (khaddi) power and a tin of 472 animal  dung, used and intended for use in  adulteration  of foodstaffs,  which  are piosonous and  injurious  to  public health  were recovered from your godown and one  floor  mill owned and/or controlled by the said Shri Bankatlal; 3.   And,  whereas recovery from the godown and  flour  mill mentioned   in  the  preceding  paragraph,   also   includes foodstuff like Haldi, Mirchi, and Amchoor, which on chemical examination  by  the Public Analyst have been  found  to  be adulterated  for which prosecution is  contemplated  against the  said  Shri  Bankatlal  under  the  Prevention  of  Food Adulteration Act, 1954; 4.   And, further there is reasonable apprehension that  the said Shri Bankatlal will continue to indulge in adulteration and   sale  of  adulterated  foodstuffs  and   thereby   act prejudicial  in  the  matter  of  maintenance  of   supplies essential  to the community and frustrate the  objective  of supply  of  pure- foodstuffs to the community at  large  and there  is  no other way to prevent him from acting  in  such prejudicial manner otherwise than by invoking the provisions of  s.  3  (1)  (a) (iii) of  the  Maintenance  of  Internal Security Act. 5.   And,  therefore,  in exercise of the  powers  conferred upon me by S. 3 (2) of the Maintenance of Internal  Security Act, I order the detention of Shri Bankatlal.. . " The  second  order  containing further  particulars  of  the grounds  of detention was served on the petitioner on  March 20, 1974.  It reads: "x                     x                         x I .  That on 11-3-1974 between 11 - 30 a.m. and 2 p.m. Dr. (Miss)    Raj  Kumari,  District Chief  Medical  and  Health

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Officer Jodhpur     together  with....... . . . . . went  to Sumer Market... . . .where one Shri Hiranand son of Shri Lal Chand  Sindhi, retailer gave credible information  that  you are owning a business firm named as ’Laxmi Narain Moondra  a wholesale concern at ’Killikhana’, Makrana Mohalla,  Jodhpur and  you  are doing wholesale business  of  adulteration  of essential  commodities  (foodstuffs)  by  adultering   cheap unhygenic  and injurious materials like  colours,  saw-dust, gypsum,  Gharu  and sand with chilly-seeds,  Haldi,  Dhania, Amchur,  tea-leaves  and flour and  manufacture  adulterated foodstuffs for sale to the general public as pure  varieties of  such essential commodities.  When the party raided  your above  shop and four godowns situated in the  same  premises and  searched  there between 11-3-1974  and  14-3-1974,  the information  given  by  Shri Hiranand  was  confirmed.  You, together  with your son were found present in your shop  and on  the  search of your premises the  checking  party  found under   your  ownership  and  control  huge  quantities   of adulterated foodstuffs as well as the materials used by  you for  the purpose of adulterating essential  commodities.   A perusal  of the recovery memos of the articles  seized  show that  you  possessed  the  stock  of  following  adulterated articles for manufacture, sale and storage of foodstuffs for sale under your control. 473 (a)  On 11-3-1974 in your main shop:- (i)  Eleven  full  bags and seven half-bags  of  adulterated chilli powder, weighing 80 Kg. to 20 Kg. each. (ii) One  quintal bag of Haldi powder and two half  bags  of the same. (iii)     Ten to twenty kg. bags of Amchur powder. (iv) one tin of Dhaniya mixed with refuse. (v)  Two tins of Tumba oil. Samples of each of the above foodstuffs were taken on 11  3- 1974 by paying you. the price of each sample in the presence of Motbirs and forms IV and V were given to you; sealing the articles  in your, presence and copy of the  recovery  memo, was also furnished to you. (b) On 11-3-1974 Two rooms in the main shop containing above foodstuffs were scaled in your presence containing: 1.   Sixty bags of chilli powder. 2.   Ten bags of Haldi. 3.   Five bags of Amchur. 4.   Five bags of unhusked Amchur. (c)  On  11-3-1974-The  following material used by  you  for adulteration was recovered from your main shop. (1)  One bag of gypsum ‘Khaddi). (2)  Half  bag  of red colour used for  mixing  with  chilli powder. (3)  One package of I. C. I. colour containing green  colour suspected to be used for colouring adulterated Dhaniya. (4)  One packet containing ’saffron colour’ used for  mixing with Haldi powder. (5)  Red coloured plastic paper used for mixing purposes. (6)  Weights and weighing machines. (d)  On  12-3-1974  at  3 25-From your godown No.  1  and  2 rented  to  you by Shri Ramesh Chandra Mathur  of  the  same locality: 1.   Sixty-two  bags  of  chilli unhusked  seeds,  used  for adulterating in chillies. (e)  On 13-3-1974 from above godown: 1.   Thirty-four bags of chilli seeds. 2.   Ten tins of black used-ten-leaves-like material. 3.   Ninety-nine tins of white powder. 4.   Two bags of suspected soap stone powder.

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474 (f)  On 13-3-1974 and 14-3-1974. From the flour mill under your control in which food licence No. 1666 Book No 10 dated 13-3-1973 in the name of your wife Srimati Ramadevi was also recovered.- 1. Eleven bags of husked seeds of chillies. 2.   Two tins suspected to contain ’Donkey dung.’ 3.   Eleven tins of suspected material with sawdust. 4.   one tin of yellow saw dust. 5.   One tin of suspected mango seed powder. 6.   Two tins of waste material of Dhaniya. 2.   That the samples of foodstuffs sold by you to the  Food inspector  on 11-3-1974 were examined by the Public  Analyst and found on examination highly adulterated containing: 1.   Chilli powder-total ash 8.12 % and ash insoluble in H.   C. C. 1 .99 %, contains silicious matter sand etc. 2.   Haldi  which  contains 46 .24 % heavily  infested  with insects in such material. 3.   Amchur which contains 20 % extraneous matter. This further confirms your dealing in adulterated foodstuffs and its supply to the community. 3  That  it Was found from the statements of Hira  Nand  and your landlord Ramesh Chandra Mathur whose premises are  ren- ted  by you for hoarding and manufacturing above  foodstuffs that  you are engaged in such business for a long  time  now and  you put such a( ulterated commodities for sale  to  the innocent customers as pure foodstuffs. 4.   That  in  order  to escape  the  consequences  of  your actions,  you  deliberately failed to  produce  your  firm’s Registration   certificate  issued  under  the  ’Shops   and Commercial Establishment Act’. 5.   That  you deliberately refused to open the  flour  mill established  under  your control in the name  of  your  wife Srimati  Ramadevi  and  prevented the  Health  Officer  from taking  the  search  of the above  mill  in  your  presence. However,  by invokingy the provisions of section 10  of  the Prevention  of  Food Adulteration Act, 1954,  the  mill  was unlocked  in  the presence of motbirs and  huge  adulterated foodstuffs  and  material used for  adulterating  foodstuffs were recovered. 6.   That   in   your  main  shop,  you   fraudulently   and deliberately   exhibited   writings  on   cardboard   styled ’foodstuffs   not  for  human  consumption’  to  avoid   the checking.  However, the recovery of the adulterated articles on  the contrary prove that none of these articles are  used other than as foodstuffs. 475 7.   That the recovery of huge quantity of above adulterated foodstuffs  and adulterated material which is unhygenic  and injurious  to  the  public  health goes  to  prove  that  by indulging  in the business of manufacture sale  and  storage for sale of such essential commodities you have been  acting prejudicial to the maintenance of supplies essential to  the community and have been doing so for several years past  and further, that you are likely to continue to indulge in  this nefarious  activity  injurious  to  the  public  health  and prejudicial to the maintenance of supplies essential to  the community and that you could not be prevented from doing  so by   mere   prosecution  under  the   Prevention   of   Food Adulteration Act, which is being contemplated and therefore, it was necessary to detain you by invoking the provisions of s. 3 (1) (a) (iii) of Maintenance of Internal Security  Act, 1971." Now  some  other material facts may be set out.   The  State Government  approved  the order of detention  on  March  23,

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1974.  On or about the 6th ’April, 1974 the petitioner moved the  High  Court  of  Rajasthan under  Article  226  of  the Constitution for the issue of a writ of habeas corpus on the ground  that  his  detention was illegal.   The  High  Court dismissed  the  writ application on May 6,  1974.   The  re- ference  to the Advisory Board was made on April 10,1974  in compliance  with s. 10.  The detenu made  a  representation, dated  16/17th  April  1974, which  was  despatched  by  the Superintendent,  Central Jail, Jodhpur, on April  17,  1974, and  was received by the Government on April 20, 1974.   The Government   then  forwarded  that  representation  to   the Advisory  Board which considered it and heard the detenu  in person  and  reported  to  the  Government  that  there  was sufficient  cause for the detention.  The  State  Government confirmed the detention order on May 11, 1974. Mr. Ashok Sen, learned Counsel for the petitioner has  tried to  make out these points in his arguments: (1) The  grounds of detention are non-existent; (2) The grounds  communicated to the detenu are not germane having a direct nexus with the maintenance  of  supplies  and  services  essential  to  the community;  (3)  The District Magistrate had stated  in  his affidavit  before  the High Court that  before  passing  the order of detention, he had come to know that the  petitioner had   been  prosecuted  and  convicted  earlier  under   the Prevention of Food Adulteration Act.  This ground which must have  weighed  with the District Magistrate  in  making  the detention  order,  was  not  mentioned  in  the  grounds  of detention   communicated   to  the  detenu   who   was,   in consequence,  deprived of the opportunity of explaining  the circumstances in which he was earlier convicted.  Failure to do so leaves the ground communicated vague and the detention is on that account illegal. In  elaboration of the first point, Mr. Sen submits that  in the first place, the donkey dung, saw-dust, gypsum, I. C. I. Colours,  coloured plastic paper, dhaniya waste, etc.  which were found in the premises were not adulterants.  They  were kept there for innocuous purposes. 476 The  donkey-dung  was  meant for being  used  as  fuel;  the sawdust  was there for preserving slabs of  ice.   Secondly, there  was no evidence, whatever, that these  articles  were being used to adulterate the spices or other foodstuffs  for sale.  It is stressed that none of the foodstuffs taken from the  premises  was  found adulterated or  mixed  with  these alleged  adulterants  viz., donkey-dung, sawdust  I.  C.  I. colour  etc.   The only extraneous matter in the  sample  of chilli  powder detected by the Public  Analyst-proceeds  the argument-was  1  .99  %, sand.  Presence  of  such  a  small percentage of sand in that sand-swept country may be an  act of God and not of the petitioner; and the same could be  the reason  for  the  presence of stone-dust in  the  sample  of Amchoor.   About  the presence of insects, 46 .24 %  in  the sample of Haldi-whole it is contended that the same had also been brought about by the process of nature and not by human hand.  Strictly Speaking, maintains the Counsel, none of the foodstuffs  in the premises had been found adulterated;  the three samples examined by the Public Analyst were only  sub- standard.   It is urged that there was no nexus between  the alleged adulterants and the foodstuffs the samples of  which were  found  sub-standard.   The  detaining  authority   had therefore  in taking into account these alleged  adulterant, erred  and  based the order of detention  on  an  irrelevant consideration.   Since it cannot be predicated,  argues  the Counsel, to what extent the authority was influenced by this irrelevant matter, the order stands vitiated.

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Dr. Singhvi, learned Counsel for the State, submits that the reports of the Public Analyst, far from excluding,  strongly indicated  the possibility of the samples of, chilli  powder and  Amchoor containing a substantial percentage, of  animal dung, sawdust, gypsum and waste matter.      In  particular, it is stressed that the dust and stones found in Amc   were probably of gypsum.  The Analyst, it is pointed out, did not say  that  duststones  and coriander  seeds  were  the  only components  of  what  he compendiously  describes  as  20  % "extraneous matter".  It is further submitted that the fibre and insoluble ash found in the chilli powder might be due to the  mixing of the adulterants (other than I. C. I.  colour) found in the premises.  On these premises, it is maintained, the  seizure  of the aforesaid adulterants  along  with  the adulterated  foodstuffs  for sale, was highly  relevant  and germane to the object of the detention viz., maintenance  of supplies and services essential to the community. Taking the first points first, the presence of  donkey-dung, sawdust, gypsum, I. C. I. colours, refuse, coloured plastic, papers  etc. stored in tins, bags or other  receptacles,  in premises  where spices and other foodstuffs were also  lying stored, some of which were found adulterated was by itself a suspicious circumstance.  The petitioner held no license  to deal  in I. C. I. colours or gypsum etc.  At no  stage,  the petitioner said that the animal dung had been stored by  him for  use as fuel and we doubt very much that donkey dung  is so  used.   Nor did he say that the sawdust  had  been  kept there  for preserving ice or for other domestic  use.   With winter  waning,  the season must still be cool on  the  11th March.   The  question on fusingice in that season  did  not arise.  Although sawdust, gypsum, I. C. I. colours etc.  are articles of innocent 477 use,  yet  in  the circumstances of  the  case,  they  could furnish  reason for the detaining authority to suspect  that they  were  kept  there  for  ’use  as  adulterants.    This suspicion was strengthened by the fact that thee samples  of chilli  powder, Amchoor and Haldi-whole were found  by  the- Public  Analyst to be highly adulterated containing 1. 45  % extraneous  matter  and  46.24%  insects.   True,  that  the Analyst  did  not find any artificial  colouring  matter  in these  samples.  But at the same time he did not  positively exclude the possibility of sawdust, donkey-dung, gypsum  and refuse  having  been used in adulterating t‘e  samples.   He detected  in  Amchoor, 20. 0 % extraneous  matter  including "dust-stones, and other edible seeds namely coriander  etc." apart  from insects.  Gypsum is rock chalk.  Chemically,  it is  hydrous  calcium salphate.  The "dust stones"  could  be calcium  sulphate.  Then, the use of "etc." by  the  Analyst shows that this extraneous matter could include other things also.   The result of the analysis of chilli powder  was  as under:      Moisture content                      6.82%      Total Ash                             8.12%      Ash insoluble in HCI                  1.99%      Crude fibre                          28.16% It is evident that there was an excess of insoluble ash (1 . 99  %)  which according to the particulars conveyed  to  the detenu, was siliclous matter, sand etc.  The possibility  of gypsum being a component of this insoluble ash had not  been ruled out. There could be no doubt that on the basis of the reports. of the  public Analyst, the chilli powder, Amchoor  and  Haldi- whole  taken from the premises of the petitioner were  prima facie adulterated articles.

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Section  2(1)  of the Prevention of Food  Adulteration  Act, 1954 provides:               "an  article  of food shall be  deemed  to  be               adulterated:               (b)   if   the  article  contains  any   other               substance which affects’, or if the article is               so  processed  as to affect,  injuriously  the               nature. substance or quality thereof,               (c)   if any inferior or cheaper substance has               been  substituted  wholly or in part  for  the               article  so  as  to  affect  injuriously   the               nature, substance or quality thereof; and               (f)   if  the  article consists wholly  or  in               part   of  any  filthy,  putrid,               disgusting,  rotten,  decomposed  or  diseased               animal  or vegetable substance or  is  insect-               infested  or  is  otherwise  unfit  for  human               consumption.............." On  the report of the Public Analyst the chilli  powder  and Haldiwhole  would be deemed to be ’adulterated  articles  of food’  falling within the above quoted clauses (c)  and  (f) respectively, while Amchoor would be covered both by clauses (b) and (c). Two  things emerge clear from the above discussion.   First, that  the  chilli powder, Amchoor and Haldi-whole  of  which samples were 478 taken  were  adulterated articles of food.  Second,  in  the light of the information received by the detaining authority that  the  petitioner had been  systematically  adulterating food-stuffs  on  a  large-scale, the discovery  in  bulk  of extraneous  matter  stored in the premises, which  could  be used for adulteration, could not be said to be,  irrelevant. By no stretch of reasoning, therefore, could it be said that the grounds of detention were non-existent. This takes us to the second point.  It raises the  question: Is food adulteration activity an activity prejudicial to the maintenance of supplies and services to the community?   For reasons  that  follow, the answer to this question,  in  our opinion must be in the affirmative. Section 3(1) of the Act runs thus: "The Central Government or the State Government may, (a)  if  satisfied with respect to any person  (including  a foreigner) that with a view to preventing him from acting in any manner prejudicial to (i)       ..               ... (ii)      ..          .. (ii  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." Sub-section (2) specially empowers the District  Magistrate, Additional  District  Magistrate  and  the  Commissioner  of Police  to  make an order on the basis of  their  subjective satisfaction. It  is  not  disputed that spices  such  as  chilli  powder, Amchoor,  Haldi  etc.  are  ’foodstuffs’  and  as  such  are commodities   essential  to  the  life  of  the   community. ’Supplies’  in  the context of s. 3(1) (a) (iii)  means  the supply of essential commodities or foodstuffs in a wholesome form.   It  does not mean the supply  of  their  adulterated substitute.    There  can  be  no  doubt   therefore,   that engagement  in  the process of  adulteration  of  foodstuffs meant  for  sale, is an activity highly prejudicial  to  the maintenance  of  supplies  and  services  essential  to  the

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community,  more so when it is done in an  organised  manner and on a large scale. In  Misri  Lal v. The State (1), a Full Bench of  the  Patna High Court, ,speaking through Imam J. (as he then was)  took a different view in these terms:               "I do not think that the words ’maintenance of               supplies   and  services  essential   to   the               community  could reasonably carry the  meaning               that any one who adulterated foodstuffs  would               be  acting  in  a manner  prejudicial  to  the               maintenance  of supplies or the continuity  of               supplies.    It  is  true   that   adulterated               foodstuff               1.    A.I.R. 1951 Pat. 134 F.B.               479               supplied  to the community may be  harmful  to               its  health,  but supplying  such               adulterated foodstuff would not be prejudicial               to the maintenance of supplies.  The Act  does               not   speak   of   profiteering,   much   less               profiteering  at the expense of the health  of               the community. The  above,  we  think, is too narrow a  view.   If  it  was intended  to lay it down as an absolute proposition of  law, that  in no circumstances food adulteration activity can  be prejudicial  to  the maintenance of  supplies  and  services essential to the community, we would, with respect, disappr- ove it as not enunciating a correct principle.  The view  in Misri  Lal’s case (supra) was dissented from by a  Bench  of the  Rajasthan  High  Court  in  Hari  Ram  v.  State.   (1) Commenting  on the decision of Misri lal’s case, that  Court said:               "In  our  opinion  the crucial  words  of  the               statute are"acting in a manner prejudicial  to               the  maintenance of supplies".  The burden  is               not  on  maintenance  as  it  merely   imports               continuity.  The essence of the matter is that               the act should not prejudicial to the  supply.               A  person is said to act to the  detriment  or               acts injuriously.  The next question is supply               of what?  We have already said- the  commodity               which  is  essential to  the  community.   Ata               (flour) is certainly one of such articles  and               probably  the most basic for keeping the  soul               and body together.  If ata is adulterated with               some  powder,  what  is  supplied  is  not   a               commodity  essential to the community but  its               counterfeit.   The object of the Security  Act               is to deal effectively with the threats to the               organized   life  and  to  the   security   of               India..."               "In  essence we regret to have to repeat  that               supply means the supply of essential commodity               and  not  its counterfeit and  those  who  are               engaged  in the process of  counterfeiting  an               essential   commodity  are  certainly   acting               prejudicially to the maintenance of Supply  of               the  essential  commodity.   In  Our  opinion,               therefore, adulterating an essential commodity               is acting prejudicially to the maintenance  of               its supply and the provisions of sec. 3(1) (a)               (iii) are clearly attracted." This  seems to be the correct line of approach, but it  does not  stop  at maintenance of "supplies"  only.   It  extends further to "services", also. one of the primary  necessaries

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of  life  is food; one of the elementary  obligations  of  a welfare  state  is  to ensure food  to  its  citizens.   The concepts  of  "supplies" and "services" intermingle  in  the discharge  of that obligation by the State.  Maintenance  of sale of pure foodstuffs to the public, therefore, is both  a "supply"  and a "service".  A person who  sells  adulterated food  to the people not only evinces a tendency  to  disrupt the  even  flow of essential supplies  but  also  interrupts service  to  the community.  Recently in Jagdish  Prasad  v. State  of Bihar, a decision to which one of us was a  party- the  connotation, scope and inter-relationship of the  terms "supplies" and "services9" in s. 3 (1) (1)  (1974) 25 Raj.  Law Weekly p. 26. 480 (a)  (iii) of the Act came up for examination in the context of  blackmarketing  in foodgrains.  What was said  then  may usefully be extracted now:                "Light  and power" thus are  commodities;  so               also  food and water.  Yet who will deny  that               light is a service or drinking water, for that               matter?   The touchstone of social control  is               that  it  mast be a thing  essential  for  the               existence  of the community; when  crystalised               it is supplies when sublimated it is services.               It  depends  in most cases on the  angle  from               which  you  view and lens you  use.   Food  is               supplies, so shipping and wagons kerosene  and               gasoline.   And yet they are services.   At  a               feeding  centre  for  starving  children   you               supply food, serve gruel." Food  adulteration activity, therefore, particularly  of  an organized  kind,  as  in the present case,  is  an  activity prejudicial  to  the maintenance of  supplies  and  services essential to the life of the community which may justify  an order of preventive detention under s. 3(1) (a)(iii). We  will, however, sound a note of caution.  The  Act  gives extraordinary  power  of  high  potency  to  the  Executive. Exercised  with due discretion and care, it may prove to  be an  effective weapon for fighting social evils,  encompassed by  the  statute,  that are eating into the  vitals  of  the Nation  and pose a capriciously, the power may turn into  an engine of oppression, posing a threat to the democratic  way of life, itself.  The need for utmost good faith and caution in  the exercise of this power, therefore, cannot  be  over- emphasised. But  every  petty,  or  ordinary  act  of  adulteration   of foodstuffs will not justify preventive action under the Act. It  is only adulteration carried on habitually or in  a  big way  that throws out of gear the even tempo of  life.   Only big  whales  plunging  to prey  unleash  tidal  waves  which disturb  the  even  keel of communal life,  the  little  fry acting in a small way in their little world, matter  little. They hardly cause a ripple to the even flow of supplies  and services.    In  simple  ordinary  cases  of   adulteration, therefore,  where there are no circumstances  pre-indicative of  the offender’s propensity to indulge in adulteration  in the  future, it may not be proper to exercise the  power  of preventive  detention.   Where the malaise is  outgrown  and malignant  the preventive "radiotherapy" sanctioned  by  the Act   can  properly  be  applied.   It  is  here  that   the distinction between the concepts of preventive detention and punitive  incarceration comes in for  importance.   Speaking for this Court in Haradhan Saha v. State of West Bengal  (1) the learned Chief Justice brought out this distinction thus:               "The   power   of  preventive   detention   is

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             qualitatively    different   ’from    punitive               detention.  The power of preventive  detention               is   a   precautionary  power   exercised   in               reasonable  anticipation.  It may or  may  not               relate  to an offence.  It is not  a  parallel               proceeding.    It   does  not   overlap   with               prosecution even if it relies on certain facts               for  which prosecution may be launched or  may               have  been launched.  An order  of  preventive               detention may be               (1)   Writ  Petition No. 1999 of 1973  decided               on 21-8-1974.               481               made  with  or  without  prosecution  and   in               anticipation   or  after  discharge  or   even               acquittal.  The pendency of prosecution is  no               bar  to an order of preventive detention.   An               order  of preventive detention is also  not  a               bar to prosecution." One  broad  test therefore, for the exercise  of  the  power which  the  detaining authority may usefully keep  in  view, particularly  in a case of adulteration of foodstuffs, is  : "Whether the material before it about the activities of  the person  sought  to be detained, in the  proximate  past  and present,  is such as to enable it to make a reasonable  pro- gnosis of the probability of that person to behave similarly in the future.  The nature and process of the activity,  its magnitude,  its  impact  on the  public  generally  and  the incidence  of  the  evil in the locality  or  in  the  State generally,  are  some  of the  relevant  factors  which  the authority  may usefully take into consideration in  arriving at its satisfaction. Here  it  is clear from the facts and  circumstances  stated above   that  on  the  material  before  him  the   District Magistrate  could  reasonably  be  satisfied  that,   unless detained,  the detenu would be likely to continue  the  food adulteration  activity  in the future and it  was  therefore necessary  to detain him.  Accordingly this contention  also must be rejected. In  regard  to the third point, viz.,  non-communication  of particular of the previous conviction of the petitioner,  it may  be observed that the District Magistrate, Shri  Zutshi, who  made  the  detention order,  averred  in  the  counter- affidavit which he had filed before the High Court, that  at the  time  of making the impugned order, he  knew  that  the petitioner  had  been  previously  prosecuted  for  offences punishable  under the Prevention of Food  Adulteration  Act, but the judgment of the case in which he was prosecuted, was not  available.  Thus the detaining authority did  not  know whether  the  previous  prosecution of  the  petitioner  had resulted in his conviction.  That was why he did not mention the   fact  of  this  conviction,  as   distinguished   from prosecution, in the particulars of the ’grounds of detention communicated  to  the detenu.  It is note  worthy  that  the grounds  of  detention were incorporated  by  the  detaining authority  in the order of detention itself, which has  been quoted   in   extenso  earlier  in  this   judgment.    What constitutes  the substance of the grounds is the  factum  of the  raid and the discovery of adulterated   chilli  powder, Amchur and Haldi and a large quantity of odd materials  such as  sawdust,  donkey-dung etc. which in the opinion  of  the detaining  authority  were-and  we think  for  good  reasons suspected  adulterants.   The presence  of  these  suspected adulterants  in  bulk,  safely stored in tins,  may  not  by itself amount to an offence under the penal law but it was a

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relevant  circumstance which could be taken into account  by the   detaining   authority  in  reaching   its   subjective satisfaction. The  mere  fact,  therefore, that all  the  details  of  his previous  prosecutions and their results or  his  conviction were  not conveyed to the detenu did not contravene Art.  22 (5)  of the Constitution and s. 8(1) of the Act.  All  these facts were within the knowledge of the detenu.  In any case, he could, if he so desired, ask for these particulars. it 482 has  been  admitted before us, as was done before  the  High Court,  that the petitioner was only once convicted  for  an offence under the Prevention of Food Adulteration Art.  That conviction,  it  is submitted by Mr. Sen, was based  on  his confession  and the petitioner had made that  confession  on the advice of his Counsel in order to escape the  harassment of a protracted trial. As  already noticed, there was sufficient indication in  the first  as  well as the second order of detention  about  the previous   prosecution   of  the  petitioner  for   a   food adulteration  offence.   He  was  heard  in  person  by  the Advisory Board and had every opportunity to explain the cir- cumstances  in  which  he  was  previously  prosecuted   and convicted.   Thus  the  objection with regard  to  the  non- communication  of these details of previous prosecution  and conviction is merely an afterthought. No other point was raised before us In  the  result the petition fails and is  dismissed.   Rule discharged. P.B.R. Petition dismissed. 483