SATYA DEO PRASAD GUPTA versus THE STATE OF BIHAR & ORS.

SATYA DEO PRASAD GUPTA

THE STATE OF BIHAR & ORS,

November 27, 1974

[P. N. BHAGWATI AND N. L. UNTWALIA, JJ.]

Pa1ventive detention-Duty of Officers of Government 1101 to mi;/ead Court . -Unexplained ·delay in considering detenu's representation-Efjec1 of

Consfitution of India 1950, Art. 22(4)-Confirmation of detention wit/i •view to co11t!11ue beyo'!d 3 months-When should be made.

The District Magistrate issued an ordc:r of detention on June 11, 1974, under s. 3(2)(iii) of the Maintenance of Internal Security Act, 1971 directing the de!ention of the petitioner and reported the fact to the State Governme:nt. 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 detaln the p:ti· 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 Deputy Collector .on October 14, it was stated that th~ State Government had already conside.red .and rejected the petitioner's representation.

Allowing the petition challenging the petitioner's deteHtion,

HELD : (1) No words can be too strong to condemn the irre;ponsible .. attitude of such high placed Officer as the Depu.ty Collector in making false and misl4&ding statement on oath with view to wresting favourable decision from the Court. [858C-DJ

(2) Where .there is inordina\e delay 011 the part of the State Government 'in considering the representation of det11nu and no satisfactory explanation is offered by the State Government for such delay, the constitutional obligation 'is violated int.I the detention is rendered invalid. The constitutional · requi.re-ment of affording an opportunity to detenu to make representation against the order of detention is intended to provide safeguard aglinst improper or unjustified exercise of the power of detention and it is for this reason that 1 his Court has always insi»ted that the representation of the detenn should be considered promptly and without undue dday, so that, if it is found by the detaining authority, on :considering_ the repre:sentation. that the grounds on which the order of detention has been made are..i11..i;_orrect or non-existent or irrelev<int, the detaining authority itself may cancel the· order of detentieR at the earliest opportunity. [~58E-859A]

In the present case, there was an inordinate delay of 3 months on the part of the State Government in considering the representation of the petitioner ·am; the State 'Government had not offered any explanation for the delay. [8:i8E-F]

Jaya11araya11 Suku/ 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 view to continue it beyond period of 3 months, on receipt of the opinion of the ~dvisory Board, must be within 3 mont~s from the date of detention. But, 111 the present case, the order of confirmation was made lnyond 3 months from the date of detention and therefore, the order of dete,1tion must 'be held to be invalid. I859E-HJ

D. S. Ray v. The Slate of West. Bengal A.l.R. 1972 S.C. 1924, followed.

ORIGINAL APPELLATE JURI·sDICTION : Writ Petition No. 448 of 1974.

Peti.tion under Article 32 of ti.., Constitution. . ,

. D. P. SinJ?h. Raiesh Prasad SinJ?h and R. K. iain for the Peti-tioner:

0B 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 re-luctently compelled to set free from detention person believed to be an economic offender. We had occasion to point out in an earlier Judgment(') that economic offenders are menace to tli~ society and it is necessary in the interest of the economic well being of the com-munity to mercilessly stamp out such pernicious, anti-sacral 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 w0uld, therefore, naturally be l9ath ·.to interfere with •an order of detention which is calculated to put an econ.omic offender out of action by way of social rlefence. But here in the present case the attempt to ·curb this social menace has been frustrated and set at n~ught· by want of' due care, promptness and attention on the part of the State Governmert.t and the Court is left with no choice but to strike down- the .detention of the petitim'ler. If on,ly the State Government had properly applied its mind to the correct legal position ·as . laid down by various decisions of this Court ind 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 perS'ons who d1$rupt the social and ~conotnic life of the community are effectivelv prevented from carrying 'on their nefarious activities.

The petitioner is the karta of Joint Hindu family and as such kiu·ta 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 accomj)'anied by R. N. P. Dube, Executive· Magistrate, went to the shop of the petitioner and asked ·for certain medicines according to prescription made out by House Surgeon of the Medical College, Ranchi. The petitioner, who was present oat .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 medi-G cines to. them: Vijoy Shankar.and Dubt according!Y. visited the"shop again at 8.30 p.m. when the petitioner supplied most .of the medicines !lleutioned in the ·prescription. Among'st the mediciii'es so supplied were two ampoules of pathedine and one bottle of ether. The petitioner charged. for· these two ampoules .of p~thedine Rs. 3 /-'.-as ~gainst the price of 90 paise per empoule shown m the current pnce list an~ Jor the bottle of ether, which contained 450 grms., he charged Rs. 20/-H as against the price of Rs. 6.85. shown in the current price li~t. T?is

(I) Dwarika Prasad Sahu v. State ,of Bihm·, W. P. 346 of 1974, decided on J~-11-J974, L ,•-'·

was in contravention of paragraph 15 (2.) of the Drug (Price Contrnl) Order, 1970. The petitioner also refused to issue cash memo in res-pact of the two ampoules of pathedine. and one bottle of ether suppllied by him, though he was bound to do so under paragraph 22 of the Drng (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, group of persons claiming to be representatives o~ body known as Nao Nirman Samiti <;ame to the petitioner's shop, forcibly took him out and after placing garland of shoes aroun.d his neck and affixing placard displaiying the slogan : Main black marketeer hun. Chha-rupia ka ether bees rupia men bechta hun-Ropular Medical, Bariat-u," paraded him through the streets in rickshaw with oa rope tied around his waist. "The New Republic", local newspaper, published in its issut: dated 27th April, 1974, 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 blackmarketing and profiteering in such essential commodities as medicines and drugs. The District Magistrate, Ranchi thereafter issued an order of det1en-tion under section 3 ( 2) (iii) of the Maintenance of Internal Secw'ity 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 · necesS'ary so to do. with view tc> preventing him from acting in manner prejudicial to the maintenanr,e of supplies and services essc:n-tial to the community. This order of detention had, however, to be cancelled sinc:e the real na.me of the petitioner was Satya Deo Pras.oad 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 neces,ary to detain the petitioner with vfow to preventing him from acting in manner prejudicial to the mainWn· ance of supplies and services essential to the community. Pursuant to the order of detention the petitioner was arrestal on 11th July, 197 4 and at the time of his arrest, grounds of detention were served on him. Thc:se grounds related to the incident of 22nd April, 1974 when the petitioner had sold two ampoules of pathedine and one bottfo of ether at pric:es exceeding those shown in the current list of prices in contravention of paragraph ( 15) 2 of the Drug (Price Con-ttpl) Ort:ler, 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 011 the basis. of these grounds of detention that the Diis-trict Magistrate· had arrived at the requisite subiective satisfacticm leading to the making of the order of detention. The District Magi S-trate, immediately after making the order of detention, reportetl the fact to the State Government and the order of detention was an-proved by the State Government within the period prescribed lbv section 3, sub-section (3). The State Government thereafter plae<:d

the case of 'the petitioner ~fore 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 peti-tioner were · forwarded to it. Subsequently, however, on 16th 8 August, 1974 the representation of the petitioner was received an'CI 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 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 petitioaer and decided whether or not to confirm the order of detention under section 12, sub-section (1) but no such action was ta!cen by the .State Gqvernment tor some time. The petitioner, therefore, tiled the present petition challenging the valitlity 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 confirma-tion· within .reasonable time and the detention of the. Petitioner had, therefore. become invalid. Indeed Mr. D. P. SinJ!;h could not ad-vance arty other ground, since it was apparent that, if the allegations contained in the ~ounds of detention were true, the petitioner was 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 oetition oril?inallv came up for hearinfl: before Bench of this Court consistine of Chandrachml. J. and one of us (BhaJ!;Wati, J.) on 11th November. 1974. the attention of the Court was drawn· to statement made bv the Deputv Collector. Ranchi in paraJ!;faph 15 of his affidavit in reolv 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, becaµse oarairi'aoh 26 of the petition to which. this ~as reply iµ1eg-. ed that the State Government had not ''so far ' considered the repre-se.ntation of the"oetitioner "resultiri11' in clear violatl0n of the pro-visions of '.th~' Act". This statement was made in the affidavit in reply which was !nYom by the Deputy Collector,. Ranc\J.L.on J4~h October. 1974: Now. ordinarily. the Court would have acted <m this stati:meilt tnade by the Deputy Collector, Ranchi on oath, but no date was p;iven m ·the . affidavit. in reply as to when the representa.tion of .d!e . petitioner··wlls conSidered and reiected-bv tl:!e. $tate_,Government. and . the .. Co-urt. therefore. adiourned the hearil)Jl: of the :petition arid. dir~ct-ed :Mr.:tf ·p. Sin2h. learn(;d Advocate aweacinll: , cq~ behalf. of the li G0vernmenY itf Bihar. to produce the oril?inal r~cord of the case so . that the Court could satisfy itself that everythinA was done· accordi11g to taw. · · · ·

. 8-L346 S~p./75

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 ol' the case and on perusing the record, we found that the order re.iecting the representation or the petitioDer 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. Sinah to produce the original record before us. This was startlin11 revelation as it showed undoubtedly that the statement made bv the Deputy Collector, Ranchi· in para-graph 1 S of his affidavit in reply· that the State Government had "fully, ri!fhtly and sympathetically considere'd" 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 i~s matter of re~et that hijthly placed officer like the Deputy Collector should have made such false and misleading statement on ciath with view to wrestin11 favourable decision from the Court. This ·only shows how cavalierly and irrespon~ibly the executive authorities in the present case seem inclined to view questions concerning per-sonal liberty and betrays complete lack of candour and frankness with the Court. No words can be too stron~ to condemn such irre.sponsible attitude.

We have already referred to the ori~al record of the case and that clearly shows that thou11h the representation of the petitioner was received hv the State Government on 16th Aqi\)st, 1974 and the Advisory Board, after considering the case of the petitio11cr and takine into account his representation, gave its opinion on 20th August, 1974, the State Government slept over the matter for period of about three months arid 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 obviouslv inordinate delay on the 1>art of the State Governmea.t in considerin2 the representation of the petitioner .. There is no ex-planation fr\r this inordinate delay offered by the State Government. We asked Mr U. P. Sineh whether he was in position on behalf of the Stat1! Government to offer an explanation for thiS apparc:ntly. unreasonable delav. but he confessed his inability to do so. We fail to see wlw the State Government should not have been able to con· sider the representation of the petitioner for ab()ut three months. This onlv shows callous disre2atd of the constitutional provision which reauires that the reoresentation of detenu must be considered with- . out avoidable delay. The constitutional requirement of affording an opoortunity to detenu to make representation against the order of detention is intended to provide safeguard against im-prot>er or 11niustified exercise of the power of detention and it i:i for this reason that the decisions of this Court have alwavs insisted that the representation of t1ie detenu should be considered promptly and without undue delay. so that if it is found by the detaining authc>rity, . on consideri112 the reoresentation. that the grounds on which the order of detention has ·been maXle are incorrect or non-existent or irrelevaftt. the detainin2 authority itaelf may cancel the order o.f de-tention ancl the · detenu mav be freed from unjustified detention at . '

the earliest opportunity. Here, there was a~olutely 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 ~ecision of Bench of five Judges of this Court in Jayanarayan Sukul v. State of West Bengal(!) that where th.ere is inordinate delay on the part of the State Govern-ment in c.onsideri~ the representation of detemi and no satisfac-torv exolanation is offered by the State Government for such delay, the constitutional oblhtation is violated and the 'detention is rendered invalid. Ray, J., as he then was, speaking on behalf of the. Court, oointeli o.ut in . that case : · · . · ·

"In the oresent case, the State of West Ben_gal is guilty of infraction of the constitutional provision n9t only by in· ordinate delav of the consideration of the representation but also bv puttin11 oft 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 Suoerintendent who made the enquiry did not ·affirm ·an affidavit,. The State has given no information .as to whv this lon11 delav occurred. The inescapable c0nclusion in the oresent case is that the appropriate authority: failed to discharl?e its constitutional oblil!;ation by inactivity and Jack of independent judgment."

Therefore. on this 1?round alone. the detention of the peittioner .must .be held to be invalid.·

There is also another !?round which must result· in invalidation of .the detention of the petitioner. The l~w is now well settled as result of decision of this Court in D. S. Rov v. The Staie of West Bengal ([2 ]) that on proper interpretation of Art. 22, clause ( 4) of the Constituticrt. the confirmation of the detention with view to continue it bevond l>Criod 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 withfo three months from the date of detention. Here. in the oresent case; the oetitioner . was detained pursuant to ·the prder of detention on 11th Julv, 1974 and the order confiriuing the detention should, therefore. have been passed at the latest on llth October. 1974. But the State Government, though it received the opinion of the Advisorv Board as far back as 20th August, 1974, die! not bestir itself for well nil!;h three months and it was onlv on 15th November, 1974 that it suddenlv woke up to make t.he otder of confirmation. The order of confirmation was i;learly macje. beyond three months from the date of detention and there· is, therefore, no escaoe from the conclusion that the order of detention must be held to he invalid. We mav ooint. out that the deeision of this Court in D. S; Rov v. The State of ·West Bengal([2 ]) was given as .far back as

Ill

(I) (1970] 3 S.C.R. 225,

(2) A. 1. R. 1972 S. C. i924.

7th December, 1971 and vet the State. Government in the pres1:nt case aeted in contravention of the constitutional man'date enuncialted and explained in that decision. Taking charitable. view of the matter we mav t>resume that· the State Government was not aw.are 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 bv 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, 11f the executive authorities as soon as they are handed down so that the executive authorities know what is the law laid down bv thi:; 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 lib<:rty forthwith.

Petition allollred.