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PETITIONER: MOTILAL JAIN

       Vs.

RESPONDENT: STATE OF BIHAR & ORS.

DATE OF JUDGMENT: 27/03/1968

BENCH: HEGDE, K.S. BENCH: HEGDE, K.S. VAIDYIALINGAM, C.A. SHAH, J.C. SIKRI, S.M. BACHAWAT, R.S. MITTER, G.K.

CITATION:  1968 AIR 1509            1968 SCR  (3) 587  CITATOR INFO :  RF         1969 SC 323  (13)  RF         1973 SC 295  (8)  R          1974 SC 156  (6)  R          1974 SC 183  (15,19,59)  R          1974 SC 255  (9)  R          1979 SC1925  (8)

ACT: Preventive Detention Act (4 of 1950), ss. 3(1)(c)(iii) and 4 Several  grounds in order of detention-Some Vague  and  non- existent Whether order can be sustained.

HEADNOTE: The appellants partner in a grocery shop, was detained under s. 3 (I) (a) (iii) and s. 4 of the Preventive Detention  Act for  indulging in black-marketing of essential  commodities. He was supplied with an order detailing a number of  grounds in  support of his detention.  In one of the  &rounds  viz., cl. (a) of the order the name of the shopkeeper to whom  the appellant  was said to have sold match boxes and soap "at  a price higher than that fixed for these commodities" was  not mentioned.   Neither the price fixed nor the price at  which it  was  said to have been sold was mentioned.   In  another ground  viz.’ el. (d) of the order a sale was alleged  to  K who  was  not existing in the described  locality.   On  the question  of  the validity of the order of  detention,  this Court, HELD : The order must be set aside., The ground mentioned in cl. (a) was vague.  The futility  of making representation in respect of an unknown man and of an unspecified  price  can easily be imagined.   There  was  no opportunity to the appellant’ to satisfy the Advisory  Board that the alleged purchaser was a ficutious figure or that he is  an  enemy of his or that the information  given  by  him should otherwise be not accepted. [590 C-E] Further,  there was nothing to show that the Government  had either fixed the sale price of the commodities or it had any power  to  do so.  Therefore the ground in el. (a)  was  not

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only vague but also irrelevant. The  ground  mentioned  in el. (d)  was  non-existent.   The State’s  explanation that the sale was made to K of  another locality  and due to typographical mistake the locality  was wrongly  described  was curious That  apart,  the  appellant could  not  have made any representation in respect  of  the such a new allegation against him. The State’s contention that even if the grounds mentioned in cis.  (a)  and (d) are ignored, still the detention  of  the appellant  could  be  justified  on  the  remaining  grounds mentioned in that order, was wholly untenable.  The  defects noticed in the two grounds viz cls. (a) and (d) were  suffi- cient  to vitiate the.order of detention impugned, in  these proceedings  as  it  was not possible  to  hold  that  those grounds  could  not  have influenced  the  decision  of  the detaining authority. The constitutional requirement that the grounds must not be vague must be satisfied with respect  to each  of  the grounds communicated to  the  person  detained subject  to the claim of privilege under el. (6) of Art.  22 of the Constitution, and where one of the grounds  mentioned is  vague,  even  though other grounds  are  not  vague  the detention   is   not  in  accordance  with   the   procedure established by law and is therefore illegal. [591 F; C-D]. L7 Sup.  CI/68-13 588 Dr.   RaM Krishan Bhardwaj v. State of Delhi, [1953]  S.C.R. 708, Shibban Lal Saksena v. State of U.P. [1954] S.C.R. 418, Dwarka  Dass  Bhatia v. State of Jammu and  Kashmir,  [1956] S.C.R.  948  and Rameshwar Lal Patwari v.  State  of  Bihar, [1968] 2 S.C.R. 505, followed.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 34  of 1968. Appeal  by special leave from the Judgment and  order  dated December  15, 1967 of the, Patna High Court in Crl.   W.J.C. No. 92 of 1966. M. C. Chagla, A. N. Sinha and B. P. Jha, for the appellant. U. P. Singh, for respondent No. 1. The Judgment of the Court was delivered by Hegde, J. In this appeal by special leave, the question  for decision  is whether the appellants detention under  sub-cl. (iii)  of cl. (a) of sub-s. (1) of S. 3 and of S. 4  of  the Preventive   Detention  Act,  1950,  (IV  of   1950)-to   be hereinafter referred to as "the- Act", as per order, of  the Governor of Bihar No. A-DE-Pur1501/67-6357/G dated September 25, 1967, is unlawful. The  appellant  is  a partner in the grocery  shop  by  name "Shanti  Stores"  in Gulab Bagh where  sugar,  maida,  soap, match  boxes, kerosene oil and other articles are sold.   He is  said  to have indulged in black-marketing  is  essential commodities.  As per the order of September 27, 1967 grounds in-support of the appellanes detention were supplied.   They read as follows               "(a) On 10-3-1967 he sold match boxes and soap               to a shopkeeper of Purnea Court compound at  a               price   higher  than  that  fixed  for   these               commodities and did not grant any receipt  for               the same.               (b) On 15-3-1967 it transpired from one Satya-               narain  Prasad  a  shopkeeper  of  Purnea  Bus               stand,  that  he (Shri Motilal Jain)  sold  Wm               match  boxes at Rs. 1 1 /per gross  which  was

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             Rs. 2/- higher than the price fixed.  This was               also  substantiated  by  Nagendra  Ramoli,   a               shopkeeper  of-Purnea Court compound  who  had               also  been supplied match boxes at the  higher               rate by him (Shri Motilal Jain).               (c) On 15-4-1967 it transpired from Chandradeb               Sao, Shankerlal Modi, and Sitaram Sah, all  of               Gulab Bagh that-they got supplies of sugar and               maida  from  him  in excess  of  the  quantity               allotted  to them on ration cards at  a  price               higher than those fixed by the Government.               (d)  On 7-5-1967. he sold kerosene oil to  one               Kishun  Bhagat of Gulab Bagh at Rs.  12/-  per               tin 589               (excluding cost of tin) which was higher  than               ’the price fixed by the Government.               (e)  On 4-7-1967 he sold sugar at Rs. 2/-  per               kg. to Shyamsunder Poddar and Jangli Singh  of               Dhamdaha.   The price charged by him was  much               higher  than the rate fixed by the  Government               in this regard.               (f)On  7-8-1967 it was learnt from Nathu  Sah,               Chanderdeb Sah, Kusurnlal Sah, and Ram  Rattan               Sah, all of Gulab Bagh, that he (Shri  Motilal               Jain)  indulged in black-marketing  of  sugar,               niaida,  kerosene  oil  and  other  controlled               commodities, to deal in which he had  obtained               licence.  It was further learnt from Moti  Sah               a worker of Gulab Bagh Navayubak Sangh that he               (Shri Motilal Jain) obtained supplies of match               boxes, vegetable, oil from West Bengal to sell               them in black market. Though  the appellant made representation against his  order of detention to the Advisory Board, the said Board did-  not recommend  his case for release.  Thereafter  he  approached the High Court of Patna in Cr.  W.J.C. No. 92 of 1966  under Art.  226  of the Constitution and s. 491 of,  the  Code  of Criminal  Procedure  for a writ or order in  the  nature  of habeas  corpus  directing his release from detention.  .-  A Bench  of  that High Court consisting of the  learned  Chief Justice and B. N. Jha J., refused to entertain that petition with these observations               "We have also gone through the grounds  stated               in   annexure-’B’  and  find   that   specific               instances  with  full  particulars  have  been               given.   On the basis of those  instances  the               detaining  authority has held that  the  peti-               tioner  has been indulging in  black-marketing               of   essential  commodities.   Mr.   Balbhadra               Prasad Singh,challenged the correctness of the               facts  stated  in the grounds and  also  filed               affidavits by certain’ persons and urged  that               those  allegations  of  facts  should  not  be               believed.  This Court in its writ jurisdiction               cannot  sit  in  second  appeal  -and  examine               whether specific instances of black  marketing               were established by satisfactory evidence.               "For these reasons, we are not satisfied  that               this  is  a  fit  case  for  admission.    The               application is accordingly dismissed." It is against that order the appellant has come up in appeal to this Court. Mr. Chagla, learned counsel for the appellant contended that each  -one  of  the grounds supplied to  ’the  appellant  in

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support 590 of  the order of detention is either vague or  non-existing, and therefore the appellant’s detention is clearly  illegal. After we have heard the learned counsel for the appellant as wen as the learned counsel for the respondents in respect of the  grounds mentioned in cls. (a) and (d) of the  order  of September 27, 1967, we did not think it necessary to examine the  remaining  grounds as we were of the opinion  that  the ground set out in cl. (a) is vague as well as irrelevant and that  set  out in cl. (d) is non-existing, and as  such  the impugned order of detention cannot be sustained. On an examination of facts set out in cl. (a) of the  order, it  is  seen  that the name of the shopkeeper  to  whom  the Appellant  is said to have sold match boxes and soap  "at  a price  higher than that fixed for these commodities" is  not mentioned.   Neither the price fixed nor the price at  which the appellant is said to have sold the match boxes and  soap is mentioned.  The futility of making representation against an unknown man in respect of an unspecified price can easily be  imagined.. There was no opportunity to the appellant  to satisfy  the Advisory Board that the alleged purchaser is  a fictitious figure or that he is an enemy of his or that  the information given by him should otherwise be, not  accepted. As  things stood the appellant was left to attack a  shadow. He  could  not also make any representation as  regards  the alleged  sale  or  the price at which the  goods  were  sold except making a bare denial of the accusations made  against him.  That is not all.  The appellant definitely averred  in his  special leave application that the  Government  neither fixed  the sale price of the match boxes or soap nor it  had any power to do so.  This averment is not controverted-, On" the  other hand what was stated in reply by the  respondents was  that  the manufacturers had fixed the retail  price  of those  articles and the appellant could not have  sold  them for a price higher than that fixed by the manufacturers.  It is not the case of the respondents that. the price fixed  by the manufacturers-assuming that there was any such  fixation and  further  assuming  that  the  appellant  had  sold  the articles in question at a price higher than the price fixed- had  any legal sanction behind it A notification  issued  by the  Bihar Government on January 20, 1967 and  published  on March 1, 1967, ’in exercise of the powers conferred on it by S.  3 of the Essential Commodities Act, 1955 (10  of  1955), read  with  the  order of the Government  of  India  in  the Ministry  of Commerce published under notification No.  S.O. 1844 dated June 18, 1966, the only provision of law on which reliance  was placed by. the respondents, prescribes that  a dealer should obtain a price list showing the wholesale  and retail  Price of the commodity purchased by him or  obtained by  him  from every manufacturer,  importer  or  distributor where such prices are fixed by the manufacturers and display at  a conspicuous part of the place where he carries on  his business the price list 591 and stock position of the scheduled commodities specified in Schedules  I  and 11 of that Order; further  he  should  not withhold from sale except under specified circumstances  any of  the commodities mentioned in Schedule II thereto.   That Order empowers the State Government by order to regulate the I distribution of any scheduled commodity mentioned in  Sch. II by any manufacturer, producer or distributor in such area or areas and in such manner as may be specified.  It is  not the   case  of  the  respondents  that  the  appellant   had contravened the aforementioned Order in any manner.   Hence,

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the ground set out in cl. (a) of the order of September  27, 1967 is not only vague but also irrelevant. In  clause  (d)  of  that order it  is  mentioned  that  the appellant  sold kerosene oil to one Kishun Bhagat  of  Gulab Bagh  at  Rs. 12/per tin (excluding cost of tin)  which  was higher  than  the  price fixed by  the  Government.  in  his special   leave.  application,  among  other   things,   the appellant  asserted that there is -no Person by the name  of Kishun, Bhagat in Gulab Bagh.  In the reply filed on  behalf of  the respondents that allegation is accepted as  correct. The new case pleaded by the respondents is that the  alleged sale  was made to Kishun Bhagat of village Kishanpur, P.  S. Dhamdaha, and there was typographical mistake in  mentioning the  name  of the purchaser in the grounds supplied  to  the detenu.   This is a curious explanation.  That apart,  quite clearly the appellant could not have made any representation in respect of the new allegation leveled against him.  Hence the  ground  mentioned in cl. (d) must be held  to  be  non- existing. it  was strenuously urged on behalf of the respondents  that even  if  the grounds mentioned in cls, (a) and (d)  of  the order  of Government dated September 27, 1967  are  ignored, still the detention of the appellant_can be justified on the basis of the re.   grounds mentioned in that order.  We have no  hesitation in rejecting this contention as being  wholly untenable. It must be remembered that in this case we are dealing  with the liberty of a citizen of this country.  The power  -given to the State under the Act is an extraordinary power.  It is exercisable  under  special  conditions and  is  subject  to definite limitations.  The nature of the power is such  that the  liberty  of  an  individual  can  be  deprived  on  the subjective  satisfaction  of the prescribed  authority  that there  is sufficient cause for his detention.  A detenu  has not  the  benefit of a regular trial or  even  an  objective examination  of  the  accusations  made  against  him.    As observed  by this Court in Dr. Ram Krishan Bhardwaj  v.  The State  of  Delhi(1),  preventive,  detention  is  a  serious invasion of personal liberty and such (1) [1953] S. C. R. 708. 592 safeguards  as  the Constitution has  provided  against  the improper exercise of the power must be jealously watched and enforced by the Court.  In that case this Court further laid down   that  under  Art.  22(5)  of  the  Constitution,   as interpreted by this Court, a person detained under the  Act, is entitled, in addition to the right to have the ground  of his  detention communicated -to him, to a further  night  to have  particulars as full and adequate as the  circumstances permit   furnished  to  him  as  to  enable  him   to   make representation  against  the  order  of  detention  and  the sufficiency  of  the  particulars conveyed  in  the  second- communication  is  a  justiciable issue  ’  the  test  being whether they are sufficient to enable the detained person to make  representation which on being considered may give  him relief.   It  is also laid down in that  decision  that  the constitutional  requirement  that the; grounds must  not  be vague must be satisfied with respect to each of the grounds. communicated to the person detained subject to the claim  of privilege under cl. (6) of Art. 22 of the Constitution,  and where  one of the, grounds mentioned is vague,  even  though the  other-  grounds are not vague the detention is  not  in accordance  with  the procedure established by  law  and  is therefore illegal. The  same view was reiterated by this Court in  Shibban  Lal

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Saksena v. The State of U.P.(1). There it was found that out of  the  two  grounds  served on the  detenu  one  was  non- existent.  The contention of the State that the detention of Shri Saxena should not be interfered with because one of the two  grounds  mentioned in the order is a good  ground,  was rejected by this Court with the observation that to say that the other ground which still remains is quite sufficient  to sustain  the  order  would be  to  substitute  an  objective judicial  test for the subjective decision of the  executive authority which is against the legislative policy underlying the statute and in such cases the position would be the same as  if  one  of these two grounds  was  irrelevant  for  the purpose  of  the Act or was wholly illusory and  that  would vitiate the detention order as a whole. In Dwarka Dass Bhatia V. The State of Jammu and  Kashmir("), Bhatia was ordered to be detained on the ground -that it was necessary  to detain him with a view to preventing him  from acting  in  a  manner  prejudicial  to  the  maintenance  of supplies and services essential to ’the community.  The said order was based on the, ground of alleged illicit  smuggling by  Bhatia of essential goods, such as shaffon cloth,.  zari and  mercury to Pakistan.  It was found that  shaffon  cloth and  zari were not essential goods.  It was not  established that  the smuggling attributed to Bhatia  was  substantially Only  of  mercury or that the smuggling  as  regards,shaffon cloth  and zari was of an inconsequential nature.  On  those facts (1) [1951] S.C.R. 418. (2) [1956] S.C.R. 948. 593 this Court held that the order of detention was bad and must be  quashed.  The subjective satisfaction of  the  detaining authority must be properly based on all the reasons on which it  purports to be based.  If some out of those reasons  are found  to  be nonexistent or irrelevant,  the  court  cannot predicate what the subjective satisfaction of the  authority would  have  been  on the exclusion of  those  reasons.   To uphold  the  order  on the remaining  reasons  would  be  to substitute  the  objective standards of the  court  for  the subjective  satisfaction of the authority.  The Court  must, however,  be satisfied that the vague or irrelevant  grounds are such as, if excluded, might reasonably have affected the subjective satisfaction of the authority. In  a  recent case, Ranteshwar Lal Patwari v. The  State  of Bihar(’),  speaking for the Court, Hidayatullah, J.  (as  he then was) observed               "The  detention of a person without  a  trial,               merely  on the subjective satisfaction  of  an               authority, however high, is a serious  matter.               It  must require the closest scrutiny  of  the               material  on  which the  decision  is  formed,               leaving  no  room  for  errors  or  at   least               avoidable  errors.  The very reason  that  the               courts  do not consider the reasonableness  of               the  opinion formed or the sufficiency of  the               material  on which it is based, indicates  the               need  for the greatest circumspection  on  the               part  of  those  who  wield  this  power  over               others.  Since the detenu is not placed before               a  Magistrate  and has only a right  of  being               supplied the grounds of detention with a  view               to   his  making  a  representation  to   -the               Advisory Board, the grounds must not be  vague               or   indefinite   and  must  afford   a   real               "opportunity to make a representation  against

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             the  detention.  Similarly, if a vital  ground               is  shown to be non-existing so that it  could               not have and ought not to have played- a  part               in  the material for consideration, the  Court               may attach some importance to this fact." The  defects noticed in the two grounds mentioned above  are sufficient  to  vitiate the order of detention  impugned  in these  proceedings as it is not possible to hold that  those grounds  could  not  have influenced  the  decision  of  the detaining  authority.   Individual liberty  is  a  cherished right,   one  of  the  most  valuable   fundamental   rights guaranteed  by  our  Constitution to the  citizens  of  this country.   If that right is invaded, excepting  strictly  in accordance  with  law, the aggrieved party  is  entitled  to appeal  to the judicial power of the State for  relief.   We are not unaware of the fact that the interest of the society is no less important than (1)  [1968] 2 S.C.R. 505. 594 that of the individual.  Our Constitution has made provision for   safeguarding  the  interests  of  the  society.    Its provisions  harmonise  the liberty of  the  individual  with social interest.  The authorities have to act solely on  the basis  of  those  provisions.  They  cannot  deal  with  the liberty  of the individual in a casual manner, as  has  been done  in this case.  Such an approach does not  advance  the true social interest.  Continued indifference to  individual liberty  is bound to errode the structure of our  democratic society.   We  wish that the High Court  had  examined  the: complaint of the appellant more closely. For the reasons mentioned above, this appeal is allowed  and the  order of detention impugned herein is set  aside.   The appellant is directed to be set at liberty forthwith. Y.P.                               Appeal allowed. 595