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Case Number

O.J.C No. 917 of 1991

Advocates

S.K.Mohanty
R.K.Patra
P.Palit
M.Mohapatra
D.P.Dhalsamant
D.Mohanty
B.Mohanty
A.K.Patnaik

Judges

A.K Padhi
A. Pasayat, JJ.

Acts

PREVENTION OF BLACKMARKETING AND MAINTENANCE OF SUPPLIES OF ESSENTIAL COMMODITIES ACT 1980
SECTION 6 A ESSENTIAL COMMODITIES ACT 1955
section 8(1) of the Prevention Act.
section 7 of the Prevention Act
sub-section (2) of section 3

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Smart Summary

Structured Summary of the Opinion (A. Pasayat, J.)

Factual and Procedural Background

The petitioner is a dealer in essential commodities holding a licence for purchase, sale or storage of free-sale sugar. On 10-7-1989 officials of the Food and Supplies Department raided the petitioner's godown and seized 231 bags of free-sale sugar; a proceeding under section 6-A of the Essential Commodities Act, 1955 ("the Act") was initiated and remains pending. On 26-9-1989 personnel of the Civil Supplies Department seized 13 quintals of free-sale sugar from the petitioner's business premises and a prosecution report under the Act was submitted.

The petitioner contends the allegations are factually incorrect, legally untenable and motivated; he alleges harassment and asserts that an order of detention under the Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act, 1980 ("the Prevention Act") was passed without basis. The petitioner says he left Orissa for Rajasthan on personal and professional business and that his wife made representations on his behalf; he further contends no genuine effort was made to arrest him so any basis for detention has evaporated. He seeks quashing of the detention order.

The State asserted the petition is not maintainable and that no justifiable cause has been shown. The State also maintained that non-arrest resulted from the petitioner's evasive tactics and that he cannot take advantage of his own wrongful conduct to invalidate the detention.

Procedurally, the writ application was heard and ultimately dismissed by the Court; Smt. A.K. Padhi, J. agreed.

Legal Issues Presented

Whether an order of preventive detention can be questioned before its execution (i.e., at the pre-execution stage).
Whether delay in the execution (arrest) of a detention order can be a ground for invalidating the order, and if so, under what circumstances.
Whether the pendency or non-disposal of proceedings under section 6-A of the Essential Commodities Act affects the validity of a preventive detention order.
Whether a detenu may challenge the grounds of detention before those grounds are served in accordance with section 8(1) and section 8(2) of the Prevention Act.

Arguments of the Parties

Petitioner's Arguments

The allegations in the proceedings under the Act are factually incorrect, legally untenable and motivated by an oblique purpose to harass and bring disrepute.
A detention order under the Prevention Act was issued without basis; the detention was intended to deprive the petitioner of his personal liberty.
The petitioner left Orissa for legitimate personal and professional reasons; his wife made representations explaining his bona fides.
No genuine effort was made to arrest the petitioner; any initial basis for detention has evaporated because of delay and non-execution of the order.
The pending proceeding under section 6-A (not yet disposed) demonstrates that the detention grounds lacked substance.

State's Arguments

The writ petition is not maintainable and the petitioner has not made out a justifiable cause for relief.
Non-arrest was due to the petitioner's evasive tactics; the petitioner cannot take advantage of his own wrongdoing to challenge the detention order.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Munn v. Illinois (1876) 94 U.S. 113	Illustration that Article 21 (right to life) encompasses dignity and more than mere animal existence (citing Field, J.).	Used to underscore the heightened constitutional value of personal liberty and the need for strict safeguards in preventive detention matters.
Rex v. Holliday 1917 A.C 260	Preventive detention is precautionary (not punitive); it is anticipatory to prevent apprehended activities.	Court relied on the characterisation of preventive detention as precautionary when analysing the law and purpose of detention orders.
The Additional Secretary to the Government of India v. Smt. Alka Subhash Gadia 1990 (2) S.C.A.L.E 1352	Non-interference at pre-execution stage is the rule; interference is exceptional and discretion must be exercised judicially in exceptional cases.	Applied to hold that interference before grounds are served is premature and should not be claimed as a matter of right; exceptional circumstances not shown.
Brij Mohan Sharma v. District Magistrate, Cuttack, 71(1991) C.L.T. 755	Mere favourable outcome or pendency in a section 6-A proceeding is not sufficient to vitiate grounds of detention.	Invoked to reject the petitioner's contention that pendency or favourable developments in the section 6-A proceedings automatically render the detention mala fide or vague.
Haradhan Saha v. The State of West Bengal (1975) 3 SCC 198 : A.I.R. 1974 S.C. 2154	Pendency of a prosecution, or discharge or acquittal, does not affect the validity of preventive detention.	Relied upon to support the principle that criminal proceedings' status does not automatically invalidate preventive detention orders.
Samir Chatterjee v. State of West Bengal (1975) 1 SCC 801 : A.I.R. 1975 S.C. 1165	Preventive detention validity unaffected by pendency/disposition of prosecution.	Grouped with similar authorities to reject the petitioner's reliance on section 6-A proceedings to impugn detention.
Brij Mohan Gorey v. State of West Bengal (1972) 2 SCC 550 : A.I.R. 1972 S.C. 2256	Similar principle that pendency/acquittal/discharge does not nullify preventive detention.	Used as part of a line of authority to deny that pendency of prosecution undermines detention grounds.
Mohd. Subrati Alias Mohd. Karim v. State of West Bengal (1973) 3 SCC 250 : A.I.R. 1973 S.C. 207	Reinforces that preventive detention may be valid despite absence of prosecutorial proof at that stage.	Applied to show that absence of proven specific instances does not automatically invalidate a detention order.
Sum Mallick v. State of West Bengal (1975) 4 SCC 470 : A.I.R. 1974 S.C. 2305	Detention order can be valid even if no specific instances can be established for want of evidence or unwilling witnesses.	Cited to support the proposition that inability to establish particulars in a parallel prosecution does not nullify preventive detention.
T.A. Abdul Rahman v. State of Kerala (1989) 4 SCC 741 : A.I.R. 1990 S.C. 225	Delay in arrest and the question whether the link between prejudicial activities and detention purpose is snapped depends on facts; no hard and fast rule.	Used to state the general principle that whether delay invalidates detention depends on facts and circumstances; no universal guideline.
Abdul Salam alias Thiyyan v. Union of India (1990) 3 SCC 15 : A.I.R. 1990 S.C. 1446	Mere delay in arrest does not necessarily undermine the detaining authority's subjective satisfaction or genuineness of detention.	Applied to deny that passage of time alone vitiates the detention order and to caution against permitting evasion to defeat detention.
Shafiq Ahmad v. District Magistrate Meerut, A.I.R. 1990 S.C. 220	Failure to take action under section 7 (to deal with absconding persons) is not necessarily a ground to hold a detention order bad if the person was not available or could not be served.	Invoked to hold that non-use of section 7 in circumstances where the person may not have been available does not automatically invalidate the detention order.

Court's Reasoning and Analysis

The Court began by emphasising the sacrosanct nature of personal liberty under Article 21 and the need for strict construction and meticulous procedural safeguards in preventive detention cases. It characterised preventive detention as precautionary and anticipatory in nature (citing Rex v. Holliday) and noted that the primary questions were whether detention orders can be challenged before execution, and whether delay in execution undermines validity.

On the pre-execution challenge point, the Court relied upon the principle that interference at the pre-execution stage is exceptional (citing The Additional Secretary to the Government of India v. Alka Subhash Gadia). The Court held that in the present case the grounds of detention had not been served to the petitioner in accordance with section 8(1) of the Prevention Act and, because subsection (2) permits non-disclosure of certain facts in the public interest, the detenu was not entitled to characterise the unpublished grounds as extraneous or irrelevant before receiving them. The Court therefore found it premature and legally impermissible to direct the State to disclose the grounds at this stage.

Regarding the petitioner's reliance on pending proceedings under section 6-A of the Essential Commodities Act, the Court surveyed a line of authorities (including Haradhan Saha, Samir Chatterjee, Brij Mohan Gorey, Mohd. Subrati and Sum Mallick) establishing that pendency, discharge or acquittal in prosecution does not necessarily affect the validity of preventive detention. The Court treated the petitioner's contention that non-disposal of the section 6-A proceedings showed lack of substance as untenable: factual and legal tenability of grounds required adjudication and factual evaluation which the Court could not undertake in the writ petition.

On the delay/non-execution issue, the Court recognised (citing T.A. Abdul Rahman) that whether prejudicial activities were sufficiently proximate to the date of detention depends on specific facts, and no universal rule exists. The Court examined the petitioner's own documents and affidavits and found contradictory statements: representations indicating the petitioner had avoided detention, and the wife's representation indicating the petitioner had remained unavailable. The Court accepted precedent (Abdul Salam alias Thiyyan and Shafiq Ahmad) that mere delay in arrest does not automatically vitiate a detention order and that a person cannot take advantage of his own evasive action to challenge an order; failure to invoke section 7 of the Prevention Act in every instance is not determinative.

On balance, the Court concluded that (1) it was premature to entertain a challenge before grounds were served; (2) pendency of section 6-A proceedings or delay in prosecution did not, on the present material, invalidate the detention order; and (3) the petitioner's own conduct (appearing to avoid arrest) undermined his argument that delay in execution had fatally eroded the basis for detention. The Court therefore refused relief.

Holding and Implications

Holding: The writ application was dismissed. The Court concluded there was no merit in the petition and awarded no costs. (Smt. A.K. Padhi, J. concurred.)

Implications:

The Court reaffirmed that pre-execution interference in preventive detention matters is the exception and that the detenu must ordinarily be given the grounds of detention (section 8) before a full challenge may be entertained.
Pending proceedings under section 6-A of the Essential Commodities Act do not automatically invalidate a preventive detention order; factual adjudication is necessary before such a conclusion can be drawn.
Mere delay in execution (arrest) of a detention order does not per se render the detention invalid, particularly where the detenu's own conduct indicates avoidance of arrest; invocation or non-invocation of other statutory powers (e.g., section 7 of the Prevention Act) is not by itself determinative.
Direct effect on the parties: the detention order was not quashed and the writ petition was dismissed; the Court did not indicate that it was laying down any new or expansive precedent beyond its application of existing authorities.

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Padma Kumar Bhawsinka Petitioner. v. State Of Orissa, Represented Through The Secretary, Food & Civil Supplies Department, Bhubaneswar And Another Opp. Parties.

A. Pasayat, J.:— Personal liberty protected under Article 21 of the Constitution is always held to be so sacrosarct and so high in the scale of constitutional values that great anxiety for its protection has received expeditious attention. This liberty is by every reckoning the greatest of human freedoms and the laws of preventive detention receive strict construction and mandate meticulous procedure safeguards, however, technical. The right to life, a basic human right assured by Article 21 comprehends something more than mete animal existence, i.e, dignity of the individual, as observed by Field, J. in Munn v. Illinois, (1876) 94 U.S 113. The question that arises in this writ application which is of seminal importance is whether. the order of detention can be questioned even before the execution thereof. As a corollary it falls for adjudication whether delay in execution can be a ground for invalidating it and if so under what circumstances.

2. A preventive detention was held in Rex v. Holliday 1917 A.C 260 not to be punitive but precautionary measure. The object is not to punish a man for having done something but to intercept him before he does it and to prevent him from doing it. No offence is proved, nor any charge is formulated, and the justification of such detention is suspicion or reasonable probability and there is no criminal conviction which can only be warranted by legal evidence. In that sense it is an anticipatory action. Preventive justice requires an action to be taken to prevent apprehended objectionable activities.

3. The factual backdrop in which the present petition has been filed to pre-empt the detention is that the petitioner is a dealer in essential commodities and at the relevant time held a licence for purchase, sale or storage of free sale sugar. On 10-7-1989 certain officials of the Food and Supplies Department raided the godown of the petitioner and seized 231 bags of free sale sugar. A proceeding under section 6-A of the Essential Commodities Act, 1955 (10 of 1955) (in short ‘the Act’) was initiated which is still in cold storage and is pending adjudication before cpp. party No. 2. Again on 26-9-1989 several personnel of the Civil Supplies Department visited the business premises of the petitioner and seized 13 quintals of free sale sugar for alleged contravention of several conditions of the licence issued to the petitioner under the Sugar (Control) Order, 1966 (in short ‘the Order’) and the Orissa Sugar Dealers' Licensing Order, 1963 (in short ‘the State Order’). A prosecution report for initiation of proceeding alleging contravention of several provisions of the Act was submitted.

4. According to the petitioner, the allegations contained were factually incorrect, legally untenable and outcome of a motivated approach for bringing disrepute to the petitioner, another proceeding under section 6-A of the Act was initiated requiring the petitioner to show-cause against the proposed action; the petitioner has submitted his reply though no date was indicated for compliance; in this background, it is urged there is scope to come to the unerring conclusion that harassment was intended and with oblique motive the petitioner was pursued; the petitioner came to know that an order for his detention under the provisions of the Prevention of Blackmarketing and Maintenance of Supplies of I Essential Commodities Act, 1980 (in short ‘the Prevention Act’) has been passed; there was no basis for issuance of the order of detention and the real intent of the order was to deprive the petitioner of his personal liberty which is so sacrosanct the petitioner had to leave Orissa for Rajasthan in connection with various works both personal and professional and had to stay there for a long period; in his absence, however, his wife was making representations to various authorities explaining the bona fide of the petitioner and the non-desirability of the order of detention. It is also asserted that no genuine effort was made to arrest the petitioner and because of long passage of time the basis, if any, which weighed with the authorities for directing detention has evaperated and is nonexistent of present; particularly when no sincere effort was made to arrest the petitioner though he was in Orissa since October, 1990. The petitioner has, therefore, prayed for quashing the order of detention by declaration of the proceeding to be bad in law.

5. On behalf of the State, it has been urged that the petition in question is not maintainable and in any event no justifiable cause has been shown to entitle the petitioner to the relief claimed for. It has also been asserted that the non-arrest of the petitioner was because of his evasive tactics, and be cannot take advantage of his own wrong to get a declaration that the order of detention is invalid.

6. The power to interfere at the pre-execution stage has been delineated by the Supreme Court, Non-interference is the rule, and interference is the exception called for only in exceptional cases. This aspect has received attention of the Supreme Court on several occasions and as held by the apex Court in The Additional Secretary to the Government of India v. Smt. Alka Subhash Gadia 1990 (2) S.C.A.L.E 1352, the interference at the pre-execution stage should not be claimed as a matter of right and the discretion is to be exercised judicially in certain exceptional cases. Some illustrative indications thereof have been given in the said judgment. According to the petitioner, the Supreme Court recognised the right of a person sought to be detained to challenge the order where it was passed with a wrong purpose and on vague, extraneous and irrelevant grounds. In our view, the stage for such consideration has not come as yet in the present case. The grounds of detention have not yet been served. In terms of section 8(1) of the Prevention Act. When a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, but ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in writing not later than ten days from the date of detention, communicate to him the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order to the appropriate Government. Subsection (2) of section 8 is of greater relevance. It authorises the detaining authority not to disclose facts which it considers to be against the public interest. Therefore, the grounds of detention can be served within the time prescribed by section 8. Before even the grounds have been served, it is not open to the detenu to chacactecise??? them as irrelevant or extraneous. Petitioner asserts that the everments in the writ application have not been trammelled and therefore, it has to be accepted that the grounds of denten- tion were extraneous and irrelevant. On a perusal of the writ application, we find that the petitioner has tried to explain the allegations made in the proceeding under section 6-A. Whether these are only grounds on which a detention has been made or there are other grounds, are not known. We do not think it legally permissible to direct the State to disclose it, considering that it has the option of serving the grounds of detention within the stipulated period of five days and in case of exceptional circumstances and for reasons to be recorded in writing not later than ten days, and the protection given under sub-section (2) authorising non-disclosure of facts when it is considered to be against the public interest.

7. In paragraph 6-A of the writ application it has been stated that the essence of the grounds of detention as formulated has been indicated in the said paragraph. The petitioner has taken exception on the premises that such basis was the foundation of a proceeding under section 6-A of the Act and non-disposal of the proceeding itself was an indicator of the fact that the same was of no substance. We find it difficult to accept such a contention. As observed by a Division Bench of this Court in Brij Mohan Sharma v. District Magistrate, Cuttack, 71(1991) C L T. 755 (O.J.C No. 4942 of 1990 dt. 21-2-1991) (to which one of us Pasayat, J. was a party), mere favourable order in a procceeding under section 6-A is not sufficient to vitiate the grounds of detention. Supreme Court in Haradhan Saha v. The State of West Bengal (1975) 3 SCC 198 : A.I.R 1974 S.C 2154, held that pendency of a prosecution, or a discharge or acquittal does not affect the validity of preventive detention. Similar view was also expressed by the apex Court in Samir Chatterjee v. State Of West Bengal (1975) 1 SCC 801 : A.I.R 1975 S.C 1165, Brij Mohan Gorey v. State of West Bengal (1972) 2 SCC 550 : A.I.R 1972 S.C 2256 and Mohd. Subrati Alias Mohd. Karim v. State Of West Bengal (1973) 3 SCC 250 : A.I.R 1973 S.C 207. In Sum Mallick v. State of West Bengal : (1975) 4 SCC 470 : A.I.R 1974 S.C 2305,. the order of detention was held to be valid notwithstanding tbs fact that no specific instances were possible to be established against the detenu for want of evidence or because witnesses were not willing to depose. Therefore, even if we accept the petitioner's contention that the proceeding under section 6-A of the Act has not been disposed of, it would not be a ground to tilt the balance in favour of the petitioner's contention that the order of detention was mala fide, or, vague. The word “vague” can be considered as the antonym of definite. Whether the grounds alleging contravention are factually correct and/or legally tenable need adjudication and reference to documents, evidence of witnesses on which the authorities propose to rely as apparent from prosecution report (Annexure-3). It is impermissible to undertake such exercise while dealing with this writ application. Allegation of speculative transactions has been made, on the basis that inspection was avoided, but transactions were shown on a particular date. Resolution of the correctness of this allegation is also dependant on factual evaluation. As indicated above, we are not to undertake that exercise.

8. Coming to the residual question whether the nonexecution of the detention order for a long time has deprived it of its validity, we also find no basis or reason to accept the contention. The general view in case of delay in securing arrest of detenu after an order is passed can be summarised as follows. The question whether the prejudicial activities of a person necessitating to pass an order of detention is proximate to the time when the order is made or the live-link between the prejudicial activities and the purpose of detention is snapped depends on the facts and circumstances of each case. No hard and fast rule can be precisely formulated that would be applicable under all circumstances and no exhaustive guidelines can be laid down in that behalf. (See T.A Abdul Rahman v. State of Kerala (1989) 4 SCC 741 : A.I.R 1990 S.C 225).

9. The petitioner has asserted by an affidavit dated 5-4-1191 which was filed before us on 10-4-1991, that is the date of final hearing, that he was available at Cuttack since October, 1990 and made representations to various authorities; but no attempt has been made to arrest and detain the petitioner and the detaining authority has taken no step for detention of the petitioner till the date of affidavit. In this context, we shall refer to various documents filed by the petitioner along with the writ aplication and quota therefrom the relevant portions. The petitioner's assertion in paragraph 9 that immediately after the submission of the representation dated 7-10-1989, the petitioner left Orissa and proceeded to Rajasthan in connection with some business and remained there for months till his return in October, 1990, is exploded to be a myth by a bare look at the representation made by the petitioner himself on 30-7-1990 to the President, the Cuttack Chamber of Commerce (appearing at pages 70 and 71 of our briefs). At page 70 of our briefs, the following line shows that it was the petitioner who was avoiding the arrest. “Consequently I was forced to avoid the detention as this amounts to less my prestige and reputation in the market”. Very significant is the representation made by the petitioner's wife Lalita Devi Bhawsinka dated 22-1-1991 appearing at page 74-75 of our briefs, wherein the wife has stated as follows;

“I am in a very helpless condition since last 15 months (October, 1989) on account of the detention order my husband has not returned to house. This has caused disruption in the normal living of all our family members.”

10. It is strange that the petitioner has filed an affidavit asserting that from October, 1990 he had returned to Orissa and has been representing to different authorities, but till date no attempt has been made to arrest him; while the petition of his wife dated 22-1-1991 which has been annexed to the petition shows that till at least later part of January, 1991 the petitioner was claimed to be not available (even if such a plea is accepted to be correct). The plea that the petitioner was available and no sincere step was made to arrest him is not acceptable in view of apparently contradictory assertions made by the petitioner. On the other hand, the petitioner's statement referred to above by us clearly shows that he was avoiding arrest. A person cannot take advantage of his own evasive action to plead that there was delay in executing the order of detention and therefore, infirmity was attached to it. As observed by the Supreme Court in Abdul Salam alias Thiyyan v. Union of India (1990) 3 SCC 15 : A.I.R 1990 S.C 1446, mere delay in arresting the detenu pursuant to the order of detention does not whittle down the subjective-satisf action of the detaining authority and its genuineness cannot be questioned on that score alone. If mere delay in arrest would be a ground itself for vitiating the order of detention, then any resourceful person can successfully take away the effect of such order by concealing himself or making himself not available, or in other words avoiding arrest. That would encourage circumvention of the order of detention by making one non-available. It can never be the legislative intent which is further apparent from the power given under section 7 of the Prevention Act to the appropriate Government or Authority mentioned in sub-section (2) of section 3 to deal with the absconding persons. As observed by the Supreme Court in Shafiq Ahmad v. District Magistrate Meerut,, A.I.R 1990 S.C 220, if in a situation the person concerned is not available or cannot be served, then the mere fact that action under section 7 of the Prevention Act has not been taken, would not be a ground to say that the detention order was bad and failure to take action, even if there was scope for action under section 7 of the Prevention Act, would not be decisive or determinative of the question whether there was undue delay in serving the order of detention.

11. Before we part with the case, we would like to observe that if a proceeding under section 6-A of the Act has been initiated against a person, unusual delay in disposal thereof is not desirable. It is neither fair to the person against whom the proceeding has been initiated, nor the initiating authority. If there is a contravention, it is appropriate that the contravenor should be dealt with properly, so that the purpose for which the proceeding is initiated is not frustrated. If there is no contravention it would be inequitable to keep the party concerned in suspense. Since the cases involve dealing in commodities which are essential to the society, such expeditious action is not only desirable but also imperative.

12. The inescapable and irresistible conclusion is that there is no merit in the writ application, which is dismissed. No costs.

Smt. A.K Padhi, J.:— I agree.

Writ application dismissed.

Padma Kumar Bhawsink... v. State Of Orissa, Rep...