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PETITIONER: SATYA DEO PRASAD GUPTA

       Vs.

RESPONDENT: THE STATE OF BIHAR & ORS.

DATE OF JUDGMENT27/11/1974

BENCH: BHAGWATI, P.N. BENCH: BHAGWATI, P.N. UNTWALIA, N.L.

CITATION:  1975 AIR  367            1975 SCR  (2) 854  1975 SCC  (1) 736  CITATOR INFO :  R          1978 SC1155  (2)

ACT: Preventive  detention-Duty of Officers of Government not  to mislead  Court -Unexplained delay in  considering  detenu’s representation-Effect of Constitution  of  India  1950,  Art.  22(4)-Confirmation  of detention  with  a  view to continue  beyond  3  months-When should be made.

HEADNOTE: The District Magistrate issued an order of detention on June 11, 1974, under s. 3(2)(iii) of the Maintenance of  Internal Security Act, 1971 directing the detention of the petitioner and  reported  the  fact  to  the  State  Government.    The petitioner  was  arrested  on  July  11,  1974.   The  State Government approved the order of the detention and  referred the case to the Advisory Board on August 9, 1974.  On August 16. the representation of the petitioner was received by the State   Government   and  the  State  Government   sent   it immediately  to  the  Advisory Board.   The  Advisory  Board reported  on August 20 to the State Government that  in  its opinion  there  was sufficient cause to  detain  the  peti- tioner.   On November 15, the State Government rejected  the representation of the petitioner and confirmed the order  of detention, though. in the affidavit in reply filed on behalf of  the  respondent and sworn to by a  Deputy  Collector  on October  14.  it was stated that the  State  Government  had already    considered   and   rejected   the    petitioner’s representation.’ Allowing   the   petition   challenging   the   petitioner’s detention. HELD  :  (1)  No  words can be too  strong  to  condemn  the irresponsible attitude of such a high placed Officer as  the Deputy Collector in making a false and misleading  statement on  oath with a view to wresting a favourable decision  from the Court. [858C-D] (2)  Where  there  is inordinate delay on the  part  of  the State  Government  in considering the  representation  of  a detenu  and  no satisfactory explanation is offered  by  the State,   Government  for  such  delay,  the   constitutional obligation  is  violated  and  the  detention  is   rendered

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invalid.   The  constitutional requirement of  affording  an opportunity to a detenu to make a representation against the order  of  detention  is intended  to  provide  a  safeguard against  improper  or unjustified exercise of the  power  of detention  and  it is for this reason that  this  Court  has always insisted that the representation of the detenu should be considered promptly and without undue delay, so that,  if it is found by the detaining authority, on ;considering the, representation.  that  the  grounds on which  the  order  of detention  has  been made are incorrect or  non-existent  or irrelevant, the detaining authority itself may cancel  the order of detention at the earliest opportunity. [858E-859A] In  the  present case, there wag an inordinate  delay  of  3 months  on the part of the State Government  in  considering the   representation  of  the  petitioner  and   the   State Government  had not offered any explanation for  the  delay. [858E-F] Jayanarayan  Sukul v. State of West Bengal [1970]  3  S.C.R. 225, followed. (3)  Under Art. 22(4) of the Constitution, the  confirmation of the detention with a view to continue it beyond a period of  3  months, on receipt of the ,opinion  of  the  Advisory Board,  must be within 3 months from the date of  detention. But, in the present case, the order of confirmation was made beyond  3 months from the date of detention  and  therefore, the order of detention must "be held to be invalid. [859E-H] D.   S.  Roy  v. The State of West Bengal A.I.R.  1972  S.C. 1924, followed. 855

JUDGMENT: ORIGINAL   APPELLATE JURISDICTION : Writ Petition No. 448 of 1974. Petition under Article 32 of the Constitution. D.   P.  Singh.  Rajesh Prasad Singh and R. K. Jain for  the Petitioner; U.  P. Singh for the Respondents. The Judgment of the Court was delivered by BHAGWATI,  J. This is yet another instance where this  Court is reluctently compelled to set free from detention a person believed  to  be an economic offender.  We had  occasion  to point out in an earlier Judgment(1) that economic  offenders are  a  menace  to the society and it is  necessary  in  the interest  of  the economic well being of  the  community  to mercilessly stamp out such pernicious, antisocial and highly reprehensible  activities as boarding,  black-marketing  and profiteering  which are causing havoc to the economy of  the country  and inflicting untold hardships on the  common  man and  the  Court  would, therefore,  naturally  be  loath  to interfere with an order of detention which is calculated to put  an  economic offender out of action by  way  of  social defence.   But here in the present case the attempt to  curb this social menace has been frustrated and set at naught  by want  of due care, promptness and attention on the  part  of the  State Government and the Court is left with  no  choice but to strike down the detention of the petitioner.  If only the  State Government had properly applied its mind  to  the correct legal position as laid down by various decisions  of this  Court and shown greater concern  and  anxiety  while exercising the power of preventive detention, the  infirmity vitiating  the detention of the petitioner could  have  been easily avoided.  We hope and trust that the State Government will  be  more  careful in the future so  that  persons  Who

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disrupt  the social and economic life of the  community  are effectively  prevented  from  carrying  on  their  nefarious activities. The  petitioner is the karta of a Joint Hindu family and  as such  karta he runs a shop for selling medicines  and  drugs under  the  name  of Popular Pharmacy in  Ranchi.   On  22nd April,  1974, at about 8 p.m. one Vijoy Shankar  accompanied by R. N. P. Dube, Executive Magistrate, went to the shop  of the petitioner and asked for certain medicines according  to a  prescription made out by a House Surgeon of  the  Medical College,  Ranchi.  The petitioner, who was present at  the shop, asked Vijoy Shanker and R. N. P. Dube to come at  8.30 p.m.  and  stated that he would then be able to  supply  the medicines  to  them.   Vijoy Shankar  and  Dube  accordingly visited  the  shop again at 8.30 p.m.  when  the  petitioner supplied   most   of   the  medicines   mentioned   in   the prescription.   Amongst the medicines so supplied  were  two ampoules  of  pathedine  and  one  bottle  of  ether.    The petitioner  charged for these two ampoules of pathedine  Rs. 3/- as against the price of 90 paise per empoule shown  in the  current price list and for the bottle of  ether,  which contained 450 grms., he charged Rs. 20/as against the  price of Rs. 6.85 shown in the current price list.  This (1)  Dwarika  Prasad  Sahu V. State of Bihar, W. P.  346  of 1974, decided on 12-11-1974. 856 was in contravention of paragraph 15 (2) of the Drug  (Price Control) Order, 1970.  The petitioner also refused to  issue cash  memo in respect of the two ampoules of  pathedine  and one bottle of ether supplied by him, though he was bound  to do so under paragraph 22 of the Drug (Price Control)  Order, 1970.  When asked by Vijoy Shankar and R. N. P. Dube to give his  name, the petitioner falsely and deliberately gave  his name as Sailendra Kumar Gupta though his real name was Satya Deo Prasad Gupta. It  appears that on the following day, that is, 23rd  April, 1974, a group of persons claiming to be representatives of a body  known  as Nao Nirman Samiti came to  the  petitioner’s shop,  forcibly took him out and after placing a garland  of shoes around his neck and affixing a placard displaying  the slogan : Main black marketeer hun.  Chharupia ka ether  bees rupia men bechta hun-Ropular Medical, Bariat-u," paraded him through  the streets in a rickshaw with a rope tied  around his waist.  "The New Republic", a local newspaper, published in  its  issue dated 27th April, 1974, a photograph  of  the petitioner as he was being paraded in this procession.  This incident exemplied the wrath and anger of the people against the petitioner as they felt that he was black marketing  and profiteering in such essential commodities as medicines  and drugs. The  District Magistrate, Ranchi thereafter issued an  order of detention under section 3 (2) (iii) of the Maintenance of Internal  Security Act, 1971 directing that Sailendra  Kumar Gupta  that being the name given by the petitioner to  Vijoy Shankar  and  R.  N.  P. Dube at the  time  when  they  made purchases from him-should be detained as it was necessary so to do with a view to preventing him from acting in a  manner prejudicial  to  the maintenance of  supplies  and  services essential  to the community.  This order of  detention  had, however,  to  be  cancelled  since  the  real  name  of  the petitioner  was  Satya Deo Prasad Gupta  and  not  Sailendra Kumar  Gupta  as mentioned in the order of  detention.   The District  Magistrate  then issued another order  dated  11th June,  1974 of detention under section 3(2)(iii) of the  Act on the ground that it was necessary to detain the petitioner

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with  a  view  to preventing him from  acting  in  a  manner prejudicial  to  the maintenance of  supplies  and  services essential  to  the  community.  Pursuant  to  the  order  of detention the petitioner was arrested on 11th July, 1974 and at the time of his arrest, grounds of detention were  served on  him.   These  grounds related to the  incident  of  22nd April,  1974  when the petitioner had sold two  ampoules  of pathedine and one bottle of ether at prices exceeding  those shown  in  the current list of prices  in  contravention  of paragraph (15)2 of the Drug (Price Control) Order, 1970  and refused to issue cash memo in respect of these sales  though required  to do so under paragraph 22 of that order  and  it was on the basis of these grounds of detention that the Dis- trict  Magistrate  had arrived at the  requisite  subjective satisfaction   leading  to  the  making  of  the  order   of detention.   The  District  Magistrate,  immediately   after making  the  order of detention, reported the  fact  to  the State Government and the order of detention was unproved  by the State Government within the period prescribed by section 3, sub-section (3).  The State Government thereafter placed 857 the case of the petitioner before the Advisory Board on  9th August, 1974 as required by section 10.  It appears that the representation  of  the  petitioner against  the.  order  of detention  was  not received until, this date and  it  could not,  therefore, be forwarded to the Advisory Board  at  the time when the papers relating to the case of the  petitioner were  forwarded  to  it.   Subsequently,  however,  on  16th August,  1974  the  representation  of  the  petitioner  was received and the State Government immediately sent it to the Advisory  Board for its consideration.  The Advisory  Board, after  considering  the  grounds  of  detention,  the  other material  placed  before it and the  representation  of  the petitioner  made  a report dated 20th August,  1974  stating that in its opinion there was sufficient cause to detain the petitioner.   The State Government should  have  immediately thereafter proceeded to consider- the representation of  the petitioner  and decided whether or not to confirm the  order of  detention under section 12, sub-section (1) but no  such action was taken by the State Government for some time.  The petitioner,   therefore,   filed   the   present    petition challenging. the validity of the detention. The  only ground urged by Mr. D. P. Singh,  learned  counsel appearing on behalf of the petitioner, against the  validity of the detention was that the State Government had failed to consider  the representation of the petitioner and  to  make the  order of confirmation within a reasonable time and  the detention of the petitioner had, therefore. become  invalid. Indeed  Mr. D. P. Singh could not advance any other  ground, since it was apparent that, if the allegations contained  in the  grounds  of detention were true, the petitioner  was  a blackmarketeer  and  profiteer and it would not be  open  to this  Court in the exercise of its limited  jurisdiction  in cases  of this kind to enquire into the truth or falsity  of the grounds of detention.  When the petition originally came up  for hearing before a Bench of this Court  consisting  of Chandrachud,  J,  and  one  of us  (Bhagwati,  J.)  on  11th November.  1974. the attention of the Court was drawn  to  a statement made by the Deputy Collector, Ranchi in  paragraph 15  of  his affidavit in reply that  "the  State  Government fully,  rightly and sympathetically considered the  petition of the petitioner".  The reference here obviously was to the representation  of the petitioner, because paragraph  26  of the  petition  to which this was a reply  alleged  that  the State  Government  had not "so far"  considered  the  repre-

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sentation of the petitioner "resulting in a clear  violation of  the provisions of the Act".  This statement was made  in the  affidavit  in  reply  which was  sworn  by  the  Deputy Collector,  Ranchi on 14th October, 1974.   Now,  ordinarily the  Court  would have acted on this statement made  by  the Deputy  Collector, Ranchi on oath, but no date was given  in the affidavit. in reply as to when the representation of the petitioner  was.  considered  and  rejected  by  the   State Government  and the Court, therefore. adjourned the  hearing of  the  petition  and  directed Mr.  U  P.  Singh,  learned Advocate  appearing on behalf of the Government of Bihar  to produce  the original record of the case so that  the  Court could satisfy itself that everything was done. according  to law. L346 Sup./75 858 The  petition  thereafter came up for hearing before  us  on 18th  November.  1974.   Mr, U. P. Singh on  behalf  of  the Government of Bihar placed before us the record of the  case and  on  perusing  the  record.  we  found  that  the  order rejecting   the   representation  of  the   petitioner   and confirming the order of detention was made by the Government as  late  as  15th November, 1974  after  the  petition  was adjourned to enable Mr. U. P. Singh to produce the  original record  before  us- This was a startling  revelation  as  it showed  undoubtedly  that the statement made by  the  Deputy Collector, Ranchi in paragraph 15 of his affidavit in  reply that   the   State  Government  had  "fully,   rightly   and sympathetically   considered"  the  representation  of   the petitioner prior to the date of the affidavit in reply, that is  before  14th  October,  1974,  was  patently  false  and misleading.   It is a matter of regret that a highly  placed officer  like the Deputy Collector should have made  such  a false  and  misleading  statement on oath  with  a  view  to wresting  a favourable decision from the Court.   This  only shows   how  cavalierly  and  irresponsibly  the   executive authorities  in  the  present case  seem  inclined  to  view questions  concerning personal liberty and betrays  complete lack of candour and frankness with the Court.  No words  can be too strong to condemn such irresponsible attitude. We have already referred to the original record of the  case and that clearly shows that though the representation of the petitioner  was  received by the State  Government  on  16th August,  1974 and the Advisory Board, after considering  the case   of  the  petitioner  and  taking  into  account   his representation,  gave its opinion on 20th August, 1974,  the State Government slept over the matter for a period of about three  months  and  considered  the  representation  of  the petitioner only on 15th November, 1974 after the hearing  of the  petition  had been adjourned on  11th  November,  1974. There  was  obviously inordinate delay on the  part  of  the State  Government in considering the representation  of  the Petitioner.   There  is no explanation for  this  inordinate delay  offered by the State Government.  We asked Mr. U.  P. Singh  whether he was in a position on behalf of  the  State Government  to  offer  an explanation  for  this  apparently unreasonable delay. but he confessed his inability to do so. We fail to see why the State Government should not have been able  to consider the representation of the  petitioner  for about  three months.  This only shows callous  disregard  of the   constitutional  provision  which  requires  that   the representation  of  a  detenu  must  be  considered  without avoidable   delay.    The  constitutional   requirement   of affording an   opportunity  to  a  detenu   to   make   a representation against the order of detention is intended to

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provide a safeguard against improver or unjustified exercise of the power of detention and it is for this reason that the decisions  of  this  Court have  always  insisted  that  the representation  of the detenu should be considered  promptly and  without  undue  delay. so that if it is  found  by  the detaining  authority,  ,on considering  the  representation. that  the grounds on which the order of detention  has  been made  are  incorrect  or  non-existent  or  irrelevant,  the detaining authority itself may cancel the order of detention and the detenu may be freed from unjustified detention at 859 the  earliest  opportunity.  Here, there was  absolutely  no justification--at  least none could be pointed  out-why  the State  Government could not consider the  representation  of the  petitioner  for  about three months.  It  is  now  well settled  by the decision of a Bench of five Judges  of  this Court  in Jayanarayan Sukul v. State of West Bengal(2)  that where  there  is inordinate delay on the part of  the  State Government in considering the representation of a detenu and no   satisfactory  explanation  is  offered  by  the   State Government for such delay, the constitutional obligation  is violated and the detention is rendered invalid.  Ray, J., as he then was, speaking on behalf of the Court pointed, out in that case :               "In the present case, the State of West Bengal               is guilty of infraction of the  constitutional               provision not only by inordinate delay of  the               consideration  of the representation but  also               by  putting off the consideration  till  after               the  receipt  of the opinion of  the  Advisory               Board.   As we have already observed there  is               no explanation for this inordinate delay.  The               Superintendent  who made the enquiry  did  not               affirm  an affidavit.  The State has given  no               information   as  to  why  this   long   delay               occurred-  The inescapable conclusion  in  the               present case is that the appropriate authority               failed   to   discharge   its   constitutional               obligation   by   inactivity   and   lack   of               independent judgment." Therefore.  on  this  ground alone,  the  detention  of  the petitioner must be held to be invalid. There   is  also  another  ground  which  must   result   in invalidation of the detention of the petitioner.  The law is now well settled as a result of a decision of this Court  in D.  S. Roy v. The State of West Bengal(2) that on  a  proper interpretation  of Art. 22, clause (4) of the  Constitution, the confirmation of the detention with a view to continue it beyond  a period of three months, on receipt of the  opinion of the Advisory Board, must be within three months from  the date of detention.  The confirmation of the detention  must, therefore.  follow  within  three months from  the  date  of detention.   Here, in the present case, the  petitioner  was detained  pursuant to the order of detention on  11th  July, 1974   and  the  order  confirming  the  detention   should, therefore,  have been passed at the latest on 11th  October. 1974.   But  the State Government, though  it  received  the opinion  of the Advisory Board as far back as  20th  August, 1974,  did not bestir itself for well nigh three months  and it was only on 15th November, 1,974 that it suddenly woke up to   make   the  order  of  confirmation.   The   order   of confirmation  was clearly made beyond three months from  the date  of detention and there is, therefore, no  escape  from the  conclusion that the order of detention must be held  to be  invalid.   We may point out that the  decision  of  this

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Court in D.    S.  Roy  v. The State of West  Bengal(2)  was given as far back as (1) [1970] 3 S.C.R. 225. (2) A. 1. R. 1972 S. C. 1924. 860 7th  December,  1971  and Yet the State  Government  in  the present  case acted in contravention of  the  constitutional mandate enunciated and explained in that decision.  Taking a charitable view of the matter we may presume that the  State Government  was  not aware of this decision.   But-that  can hardly  be an excuse for violation of the law.  We think  it would  be  desirable  if some machinery is  set  up  by  the Government  of  India or the State Government by  which  the decisions of this Court in cases of preventive detention are brought  to the notice of the executive authorities as  soon as  they are handed down so that the  executive  authorities know  what is the law laid down by this Court and  they  can conform to it. We  are thus’ left with no choice but to hold the  detention of  the  petitioner  invalid.  We,  accordingly,  allow  the petition  and  make the rule absolute and  direct  that  the petitioner should be set at liberty forthwith. V.P.S. Petition allowed. 861