Jagdish Prasad v. The State of Bihar and Another

KRISHNA IYER, J. The petitioner detained by the order of the Dis-trict Magistrate for anti-social proclivity prejudicial to the mainte-nance of supp1ies and services essential to the community challenge'i its validity in this petition for habeas corpus.

Mr. Frank Anthony has vigorously urged two vital defects as vitiat-ing the detention order incarcerating the petitioner, based mainly on the unreported ruling of this Court in Prabhu Dayal v. District Magistrate, Kamrup('), the well-known Lohia( 2) case and a few other peripheral

(I) w. P. No. 1496 of 1973; judgment dated October II, 1973.

observations in other . decisions. The District Magistrate was uncertain whether he would detain the peiitioner to prevent disruption of main-ten.ance of supplies or of services essential to the life of the community and such a mindless order suffered from a fatal genetic disease diag-nosed by this Court in many decisions as fatal, runs the submission.

Now, the admitted facts and the authoritative law and their inter-action. It is best to begin with the impugned order itself which reads :

"No. 1182/C dated, the 9th October, 1973. Whereas I am satisfied that with a view tq preventing Shri Jagdish Pra-sad, Proprietor M/s Lachmi Bhandar, North Market Road, Upper Bazar, Ranchi, from acting in any manner prejudicial to the maintenance of supplies and services essential to the community, it is nece~ary to ¥e an order that he be de-tained. · Now, therefore, in exereise of the powers conferred by Sub-section (2) of the Section 3 of the Maintenance of Internal Security Act, 1971 (No. 26-0f 1971), I hereby direct that the said Shri Jagdish Prasad be detained.

He shall be tr.eated in detention in Ranchi.Jail and classi-lied as Class Y and. in division IB.

(S. N. Sinha) District Magistrate, Ranohi." The executive interdict on the trader's freedom is issued to inhibit his acting in any manner prejudicial to the maintenance of supplies and ser-vices essential to the community. The semantics of 'supplies' and fser-vices' in this context, argued Sri Anthony, serves to sho\V that certain activities bear upon supplies only, e.g., hoarding or blackmarketing, while other actings may disrupt services only, e.g., sabotage of railway tracks or scavenger's strike. Be argued that some misconduct may be ambidextral as for example, huge quantities of telegraph wires being poached or a railway wagon being looted in an organised manner. The cornerstone of his contention, in the first stage, is that blackmarketing in foodgrains belongs to the first species-essential supplies-and not to the second-essential services. In Rameshwar Lal v. State of Bihar( 1) this Court pointed out:

"No doubt blackmarketing has at its base a shortening of supplies because blackmarket flourishes best when the avail-ability of commodities is rendered difficult. It has a definite tendency to disrupt supplies when scarc'ity exi..:;ts or scarcity is created artificially by hoarding to attain illegitimate profits. Indulging in blackmarketing is conduct which is prejudicial to the maintenance of supplies, It is hardly necessary to read supplies conjunctively with services, as was cqntended al-though cases may exist where supplies and services may both be affected. The word 'and' is not used conjunctively but dis-junctively. If sweepers strike, no question of disrupting sup-

plies arises bi.t services essential to the life of the coQlmunity will certainly be disrupted."

The familiar imager,y in Lo hi a' s case of concentric circles in the COii· text of Law and Order (the larger circle) and public order (the smaller but graver one) \\as projected here with a little re-adjustment. Sirnilies and metaphors ler.d liierary grace to legal argument but are apt to play tricks in areas of strict logic or cold law. Courts have to be cautious while transplanting picturesque projections from one situation to an· other. So let us take an fodependent close-up of the profiles of essential 'supplies' and 'services' to discover common morphology and divergent features. Basicall:r, the statutory subject-matter colours the concept. Counsel traced th: pedigree of the Act, with special r<ferencc to. essen· tial supplies and services, to substantiate his thesis of compartmentalisa-tion and marginal overlapping. May be, counsel is right .in his conten-tion that all supr lies are not services and Bil services ate not supplies but the complex r.eeds and amenities of modern life and the multifarious obligations of a y•elfare state mingle supplies and services so much that the concentric ci1 cle geometry becomes a misleading stroke of concep-tualism in this jural larea. For example, an essential commodity is at once a supply atd a servjce: Section 36(3) of the Defence of India Rules, 1971 defi.les it to mean :

"essential commodity" means food, water .. fuel, light, power or any other tiring essential for the existence of the community which is notified in this behalf by Gqvernment;" "Light and powu" 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 ·)f social control is that it must be a: thing essential for the existence of the community; when crystallised it is supplies, when sublimated it is services. It depends in most cases on the angle from which you view and the lens you use. Food is supplies, so is shipping and wagons, ke::osine and gasoline. And yet they are services. At a feeding centre for starving children you supply food, •crve gruel. In other words, fold is supplies, feeding is services. In Blackpool Cor-poration v. Lo1·kar('> it was held that providing housing .accommo-dation fell within the scope of "supplies and services" in Regulation 51 (1) of the Defence (General) Regulation, 1939. We see no force in the dichotomy between the two attempted by counsel in the special context of a State being called upon in an emergency to supply that pri-mary necessity of existence, viz., food, which is perhaps the basic ser-vice which Government must render to the people. In the present case, the allegation i:: of nocturnal, illegal, rice transport, intercepted by offi-cials, and you do no violence to language to describe that activity as prejudicial to rnpplies a'nil services. Anyway, rushing food supplies to a nation in hunger is a composite operation of supplies and services essential to the life of the community and the order is not bad .because it telescopes lx•th.

Shri Antho1y relied on the mental vacillation of the detaining officer as disclosed in the affidavit in return filed by the State where 'and ser-vices' is struck off after "maintenance of supplies". If this reftects the

·----- (!) (1948] t K.B, 349.

slippery satisfaction of the District Magistrate it is unfortunate. Here some Upp«r Division Assistant (Special), Home Department, has sworn an affidavit, not with personal knowledge but with paper wisdom. It is difficult to appreciate why in return to a rule nisi in a habeas corpus motion, it is not thought serious enough even where liberty of a citizen is choked off, to get the District Magistrate to explain his subjective satisfaction and the grounds therefor. Not even why he is not avail-able, not the next best, the oath of a senior officer in the· Secretariat v:ho had been associated with the handling of the cas_e at Government level. Mechanical affidavits, miniaturising the files into a few paragraphs, by some one handy in the Socretariat cannot be regarded as satisfactory. This is not a mere punctilio of procedure but a proOative requirement of substance. However, in this case, counsel made no point about this aspect of the affidavit because the relevant material recited in the de-tention order is almost admitted in the petitioner's averments. Even so, the curious striking off in the affidavit of one ground relied on by the District Magistrate in his order is obscure.

Had the authority used one or other of the grounds in the alterna-tive, such for example as 'public order' or 'security of State' or 'main-tenance of supplies', it would have failed in law. He has to be firm and clear and not doubtful about why he is detaining the man. 'Either or' ill fits into s.3. Not so, when it is cumulative. A man may be de-tained on grounds A and B but not A or B. Here, the cumulative, not the alternative is the tenor of the order. Had it been otherwise due care would stand negatived and the order would fail. Fundamental rights are fundamental and administrative indifference is impermissible to encroach beyond the strict Jines of the Jaw. Rameshwar Lal(') eli-cited some stern observations from Hidayatullah, J ., as he then was. The learned Judge said :

"However, 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 noi J?laced before a Magistrate and has only a right of being supphed 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 oppor-tunity to make a representation against the detention. Simi-larly, if a vital ground is shown to be non-existing so that it could not have and ought riot to have played a part in the material for consideration, the court may attach some impor-tance to this fact."

The present case hardly fails for this reason since particular< of gro~n~s are giv~n V.:hich cov~r supplies an? services to the community, preiudtce to whteh ts the rattonale stated m the order. But it is con-tended that the particulars furnished relate to supplies only and how services are affected is left vague. If one ground is vague, the order fails. In Rameshwar Lal(') it was pointed out:

" .. where some grounds are found to be non-exis.ting or are ca"celled or given up, the detention cannot be justified .... if the grounds are not sufficiently precise and do not fur-nish details for the purpose of making effective representation the det•!ntion can be questioned."

In this connection, Shri Anthony forcefully urged his case that ser-vices being farupted was one of the precise reasons for the detention, but no particulars which would make out that ground,. apart from the distinct ground of preventing supplies, have been given. On the reason-ing in Prabhu Dayal the order is illegal, he argued.

Mathew, J., brought out the fatal flaw in Prabhu Dayal thus :

"The fact that one of the grounds mentions that paddy and rice had been unearthed and seized from the unauthorised possession of the petitione·rs from the rice mill in question on the dat1: of the detention order would not necessarily lead to the inference that the petitioners have been indulging in un-authorized milling of paddy, much less that they were smuggl-ing the resultant rice to Maghalaya for earning undue profit. It cannot, therefore, be said that the first ground, namely, that the petitioners are responsible for unauthorised milling of paddy and smuggling of the resultant rice to Meghalaya for earninp undue profit, is a conclusion reached from the fact"of seizure of paddy and rice on 25-7-1973 or the seizure of rice on 16-5· l 972 from their unauthorized possession at Messrs. Sriniva; Basudeo. Fancy Bazar, Gauhati."

These are not only cases where one of the grounds of de-tention was vague, but also cases where the detaining autho-rity dicl not apply its mind at all to one of the grounds of de-tention. If the detaining authority had no particulars before it as regards the smuggling operation how was it possible for it to hwe been satisfied that the petitioners wore smuggling rice to Mcghalaya for earning undue profit? H there was any particular instance of smuggling of the kind in the mind of the detaining authority, it would have been possible for it to specify the particular instance at least in the grounds." Re[cren•:c "as also made in the above case by the learned Judge to Keshav Ta!pad!' v. f111peror('~) wher-e. it was said :

"If a ch~tnining authority gave four reasons for detaining a man. 1vithout Ui.;;tinguishing between them, and any two or three cl the reasons arc held to be bad, it can never be certain to wha extent the bad reasons operated on mind of the ff

JAGDISH PRASAD v. BIHAR (Krishna lyer, /.) 375 authority or whether the detention order would have been made at all if only one or two good reasons had been before them.''

The Jaw is thus indubitable that if one ground is vague of denuded of any detail the order, even if other good grounds exist, is bad. The sole enquiry then is whether in substance no material has been set out here from which a rational inference regarding perverting services to the community has been given at all, as happened in Prabhu Daya/('), case. We demur.

The order detailing grounds of detention reads thus :

"In pursuance of section 8 of the Maintenance of Iriternal Security Act, 1971 (No. 26 of 1971), Shri Jagdish Prasad, Proprietor M/s Lachmi Bhandar, North Market Road, Upper Bazar, Ranchi is informed that he has been ordoreJ to be de-tained in my order No. 1182/C dated 9th October, 73 on the following grounds :-

!. That you on 2-10-72 .at about 12 O'Clcck at night were transporting 50 bags of rice weighing on truck No. BRV 6627 which was checked by the Sub-Divisional Magistrate, Sadar, Ranchi.

¶2That you produced at the time of checking cash memo book and you asserted that out of 50 bags of rice seized on the said truck, 15 bags of rice were sold to Biswanath Floor Mill, Khelari, JO bags of rice to Pramod Floor Mill, Khelari and 10 bags to Shri Kundanlal Khelari.

¶3That in support of your assertion as stated in para No. 2 above, you produced Cash memo No. ll34 dated 2-10-73 showing sale of 15 bags of rice to M/s Biswanalh Flour Mill, Khelari and you mentioned lice11ce Nun1ber of M/s Bis\vanath Flour as 34/69 (R). On verification by a Magistrate !st Class, Ranchi, at Khelari from Shri Jagi Ram, Proprietor of M/s Biswanath Flour Mill, Khelari. it has been established that tho licence number of the firm is 63/68 and not 34/69. Sl;ri Jagi Ram has also asserted that he did not purchase any rice from you or frorn any other p1ace on 2-10-73.

¶4That similarly in support of assertion as stated in para 2 above, you produced Cash memo No. 1135 dated 2-10-73 showing sale of 10 bags of rice to M/s Pramod Fl.our Mill of Khelari showing their licence numher as 31 /68 (R). On ac-tual verification at Khalari by a Magistrate I.st Class, Ranchi, from Shri Bhagwan Singh, Proprietor of M/s Pramod Flour Mill, Khelari it has been established that the licence of M/s Pramod Flour Mill, Khelari is 9/72 and not 31/69. It has also been established that M/s Pramod Flour Mill, Khelari had no license in 1969. It has also been established that on 2-10-73 M/s Flour Mill Khelari did not make any purchase of rice from you or from any other shop.

(1) W.P. t496 of 1973; Judgmeot dated Ootobzr tt.1973.

¶5That similarly in support of your assertion as stated in para No. 2 above, you produced cash memo No. 1137 dated 2-10-73 showing sale of 10 bags of rice to Shri Kundan Lal of Kh,lari showing his licence number as 26/67(R). On actual verification at Khelari by a Magistrate !st Class, Ranchi, from Shri Kundan Lal of Khelari it has been estab-lished that Shri Kundan Lal of Khelari has got no foodgrain dealer's lic:ence, nor he deals in foodgrains. It has also been establishee that the said Kundan Lal of Khelari did not pur-chase any rice from you on 2-10-73.

In the circumstances I am satisfied that if he is allowed to remain at large, he will indulge in activities prejudicial to the maintenance of supplies and services essential to the com-munity for prevention of such activities I consider his deten• tion necesnary . ... "

He who runs and reads will be satisfied, if the statements are true, -it is not for ·:he Court to investigate the veracity of these averments -that prolix particulars are communicated about the ruidnight move-ment of 50 bags of rice-a clandestine misadventure contrary to the conditions of this wholesaler's licence-and, when challenged, reeled off imaginary numbers of licences of dealers some of who1n, on verifica~ tion, had no current licence and all of whom had disowned the alleged purchases. May be, the petitioner has a good defence but the imprison-ment is preventive and not punitive, the conclusion is based on the exe-cutive's subjective satisfaction, not the court's objective assessment. Even the admitted facts are tell-tale. The petitioner is a licensed whole-sale dealer. H' can carry on his business only at a place mentioned in his licence and not do transport and sale qutside those pre-mises. He can ;ell only to a.wholesale or retail merchant holding a per-n1it. He shall h sue 'to every customer a correct receipt giving the name, address and licence number of the customer' and other details and keep a duplicate of toe same. On the recitals in the annexure to the order, the petitioner has. in violation of all these safeguards, attempted to run the gauntlet of the law. An intelligent forecast made by the District Magistrate that the detenu would break the control system and black-market in rice cannot be castigated as irrational. The argument is that all this is germrne ·10 supplies, not services. Therefore, as earlier ex-plained, the wfoJle order breaks down.

We do not 1!ismiss this argument as merely technical or procedural for the eloquent reason given by Mathew; J., if we may say, with deep deference in Prcbhu Dayal's .case :

"The facts of the case might induce mournful reflection how an honest attempt by an authority charged with the duty of taking prophylactic measure to secure the main-tenance of supplies and services essential to the community has been frustrated by what is popularly called '<> technical error. We ;ay and we think it is necessary to repeat, that the gravity of the evil to the community resulting from anti-social activities can never furnish an adequate reason for

JAGDISH PRASAD v. BIHAR (Krishna Iyer, /.) 377 invading the personal liberty of a citizen, except in accord-dance with the procedure established by the Constitution and the laws. The history of personal liberty is largely the history of insistence on observance of proce-dure. Observance of procedure has been the bastion against wanton assaults on personlil liberty over the years. Under our Constitution, the only guarantee of personal liberty for a person is that he shall not be deprived of it except in accordance with the procedure established by law. The need today for maintenance of supplies and services essen-tial to the communhy cannot be over-emphasised. There will be no social security without maintenance of adequate supp-lies and services essential to the community. But social secu-rity is not the only goal of good society. There are other values in a society. Our country is taking singular pride in the democratic ideals in personal liberty. It would indeed be ironic if, in the name of social security, we would sanc-tion the subversion of this liberty. We do not pause to consider whether social security is more precious than personal liberty in the scale of values. For, any judgment as regards that would be but a value• judgment on which opinions might differ. But whatever be its impact on the maintenance or supplies and services essential to the community, when a certain procedure is prescribed by the Constitution or the Laws for depriving a citizen of his personal liberty, we think it our duty to see that procedur.e is rigorously observed, however strange this might sound to some ears."

Part IV of the Constitution projects a value judgment which some jurists have interpreted to mean that in the hierarchy of human rights the right to life ranks highest and if the liberty of the few starve ~e life of the many the jural order may break down, an aspect on which we do not now need to speak.

The position of law is plain but docs not apply he.re .. we ha~e been at pains to explain that illicit transport of foodgrams m the ."~ secrecy of night by one whose business license d.oes not. per!Dlt aa:f ~t and who gives false excuses when confronted, does mdulge m a~ vity with impact on supplies and services. Supplies and stoc ' hi'acked by wholesalers, upsets .the delicate control. schem.o:· So ~ tr~nsport and delivery to each centre acco~ding to its r~uire~en~ IS thrown out of gear by these private ope~t1ons. And B1har, oppmg. barrowingly from drought to tloods, can ill-afford to have the wheels of distribution, of which supplies and services are two facets, wobble or break down. Anyway, we cannot hold the order bad, in econo-mics or Jaw.

Counsel referred to the quantity being but 50 bags of rice-too small to thwart supp'ies to the community. While that is of little avail legally, it suggests cynically that larger black-marketers are easy in their bosom while deserving to be behind bars. That is not our pro-vince as judges, and our·views as citizens are out of place.

In conclusion, we would like to express concern at prolonged detentions without trial without periodical review of each individual case in changing circumstances. The petition fails and is dismissed. s. B. w. Petition dismissed.

ORIGINAL JURISDICTION: Writ Petition No. 1972 of 1973. Under Article 32 of the Constitution of India for the issue of Writ in the nature of habeas corpus.

Frank Anthony and S. K. Gambhir, for the petitioner.

K. K. Sinha and S. K. Sinha, for the respondents.