Madhya Pradesh High Court
Vijay Kukreja vs Union Of India on 24 May, 2021
Author: Prakash Shrivastava
1
WP. No.4859/2021
HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT
AT JABALPUR
Case No. WP No.4859/2021
Parties Name Vijay Kukreja
Vs.
Union of India and others
Date of Order 24/05/2021
Bench Constituted Division Bench:
Justice Prakash Shrivastava
Justice Vijay Kumar Shukla
Judgment delivered by Justice Prakash Shrivastava
Whether approved for No
reporting
Name of counsels for Shri Dheeraj Kumar Tiwari,
parties learned counsel for the petitioner.
Shri Ajay Pratap Singh, learned
Deputy Advocate General and
Shri Rahul Deshmukh, Panel
Lawyer for the respondents.
Law laid down -
Significant paragraph -
numbers
ORDER
24.05.2021
Per: Prakash Shrivastava, J.
By this petition, the petitioner has challenged the order
dated 18.02.2021 in respect of the preventive detention under
Section 3(2) of the National Security Act, 1980 (for short
'NSA') for a period of three months.
2. The case of the petitioner is that he is lawfully engaged in
the business of making 'deep liquid' which is used for the
purpose of religious activities, prayers and offering in religious
rituals. It is not an edible item and is only meant for non-human
consumption. The petitioner is registered manufacturer who has
obtained the trademark and has also obtained all the necessary
permissions and licences in this regard. Further case of the
WP. No.4859/2021
petitioner is that on 17.02.2021, he was taken into custody by
the respondents at Gwalior from Govind Ashram and he was
produced before the Magistrate on 19.02.2021 and has been sent
to jail. On 19.02.2021, the impugned order was supplied to the
relatives of the petitioner. Further case of the petitioner is that
earlier an unauthorised inspection of the petitioner's premises
was done by the concerned respondents, therefore, the petitioner
had filed application under Section 102 of the Cr.P.C. before the
Chief Judicial Magistrate, Jabalpur on 23.01.2021. On that
application, the Chief Judicial Magistrate had passed the order
dated 30.01.2021 which is partly in favour of the petitioner.
Further allegation of the petitioner is that the respondents during
the search and seizure had misappropriated certain amount and
had committed irregularities.
3. The respondents have filed their reply stating that on
09.02.2021 SHO Police Station Madhotal had forwarded the
report to Superintendent of Police, Jabalpur mentioning about
the information received from Food Safety Administration in
respect of manufacturing of adulterated ghee in the name of
'deep liquid' by the petitioner. The Superintendent of Police
thereafter had submitted the report to the District Magistrate on
11.02.2021. The District Magistrate on reaching the subjective
satisfaction has passed the impugned detention order dated
18.02.2021 and had served the same alongwith the grounds of
detention to the petitioner. It has further been disclosed that the
State Government has approved the order of detention on
24.02.2021 and 25.02.2021.
4. Learned counsel appearing for the petitioner submits that
the allegation of making adulterated ghee is only an assumption
and the petitioner is only manufacturing deep liquid which is
WP. No.4859/2021
used for offering prayers and in this regard he has referred to the
licences and permissions obtained by the petitioner. He further
submits that during the search of the premises, various
irregularities have been committed and in this regard has
referred to the order passed by the Chief Judicial Magistrate
under Section 102 of the Cr.P.C. and has also submitted that it is
a clear case of colourable exercise of power. He has also
submitted that earlier a case was registered in the year 2012 and;
thereafter, the present case has been registered and the
subjective satisfaction has wrongly been arrived at by the
District Magistrate.
5. Learned counsel for the State has opposed the writ
petition by submitting that in the year 2012 also similar samples
were taken and the samples were not found to be of ghee but of
mixture of Vanaspati Oil and flavour etc. and that the petitioner
is manufacturing adulterated ghee in the name of 'deep liquid'
and he has criminal antecedents as earlier also similar offences
were registered against the petitioner. He has also informed that
the authorities have recommended for the extension of the
detention period of the petitioner.
6. We have heard the learned counsel for the parties and
perused the record.
7. The Full Bench of this Court in its recent judgment dated
22.04.2021 passed in WP No.22290/2019 in the case of Kamal
Khare vs. State of M.P. and others, has considered the issue if
in case of violation of Food Safety and Standard Act, 2006
(FSSA), the provisions of NSA can be invoked. The Full Bench
has laid down that two Acts operate in different fields. Former is
based on the act already done by a person, the later is based on
WP. No.4859/2021
likelihood of his acting in a manner similar to his past acts and
preventing him for repeating the same. The Full Bench has also
reappreciated the distinction between law and order and public
order and has laid down that the degree of disturbance upon the
life of the community would determine whether it affects public
order. An act by itself may not be a determinative factor of its
gravity but it is potentiality of its effect on the even tempo of
the life of the community that makes its prejudicial to the
maintenance of public order. It has further been held that what
is material is the effect of the act and not the number of acts and
therefore what has to be seen is the effect of act on even tempo
of life of the people and the extent of its reach upon the society
and its impact. In this regard, the Full Bench in the case of
Kamal Khare(supra) has held that -
35. Adverting now to the question whether the offence
committed under Food Safety and Standards Act, 2006,
which contains penalty clause, under no circumstances
can form basis to make an order of preventive detention
of the offender whose activities are prejudicial to
maintenance of public order under the National Security
Act, 1980, the question referred to the larger Bench itself
contains the answer to it that if an offence committed by
an accused under Food Safety and Standards Act, 2006
whose activities are prejudicial to maintenance of public
order, can be detained under NSA. It would however
depend on the facts and situation of a given case. What
has been argued before us in the present case is that the
petitioner - Kamal Khare was booked for committing an
offence under Section 26(2)(ii) and Section 52 of the
FSSA on the basis of solitary incident in which certain
sample of cottage cheese (Paneer) collected from his
shop as per the report of food analyst was found not
confirming to the prescribed standard. In facts like this, it
could be then for the detaining authority to arrive at the
subjective satisfaction whether the activities of the
person sought to be detained under the NSA are
prejudicial to maintenance of public order. In other
words, whether the material grounds on which such
inference is sought to be drawn is really so compelling as
to arrive at the subjective satisfaction which is envisaged
in sub-section (2) of Section 3 of NSA that with a view to
WP. No.4859/2021
preventing him from acting in any manner prejudicial to
the maintenance of public order, his detention would be
necessary.
36. What would constitute the prejudice to the
maintenance of public order has been a matter of debate
ever since the inception of the law of preventive
detention. We shall now try to analyse the concept of
public order by survey of the decided case law on the
subject. In Dr. Ram Manohar Lohia Vs. State of Bihar
AIR 1966 SC 740 it has been observed by the Supreme
Court that :
"The contravention of law always affects order but before it can be
said to affect public order, it must affect the community or the
public at large. There are three concepts according to the
learned Judge (Hidayatullah, J) i.e. ''law and order'', "public
order" and "security of the State". It has been observed that to
appreciate the scope and extent of each of them, one should
imagine three concentric circles. The largest of them
represented law and order, next represented public order and
the smallest represented the security of the State. An act might
affect law and order but not public order just as an act might
affect public order but not the security of the State."
38. In S. K. Kedar Vs. State of West Bengal (1972) 3
SCC 816 the Supreme Court has observed as under:-
"The question whether a person has only committed a
breach of law and order or has acted in a manner likely to
cause a disturbance of the public order is one of degree
and the extent of the reach of the act upon the society. An
act by itself is not determinative of its own gravity. In its
quality it may not differ from another but in its potentiality
it may be very different. Similar acts in different contexts
affect differently law and order on the one hand and public
order on the other. It is always a question of degree of the
harm and its effect upon the community. Public order is
the even tempo of the life of the community taking the
country as a whole or even a specified locality. It is the
degree of disturbance upon the life of the community
which determines whether the disturbance amounts only to
a breach of the law and order".
39. In Kanu Biswas Vs. State of West Bengal (1972) 3
SCC 831 while discussing the meaning of word 'public
order' the Supreme Court held that the question whether
a man has only committed a breach of law and order or
has acted in a manner likely to cause a disturbance of
the public order, is a question of degree and extent of the
reach of the act upon the Society. Public order is what
the French call "ordre publique" and is something more
than ordinary maintenance of law and order.
WP. No.4859/2021
40. The Supreme Court in Kanchanlal Meneklal
Chokshi Vs. State of Gujarat and others (1979) 4 SCC
14 on the issue observed thus:-
"The ordinary criminal process is not to be circumvented or
short circuited by ready resort to preventive detention. But,
the possibility of launching a criminal prosecution is not an
absolute bar to an order of preventive detention. Nor is it
correct to say that if such possibility is not present to the
mind of the detaining authority the order of detention is
necessarily bad. However, the failure of the detaining
authority to consider the possibility of launching a criminal
prosecution may, in the circumstances of a case, lead to the
conclusion that the detaining authority had not applied its
mind to the vital question whether it was necessary to make
an order of preventive detention. Where an express allegation
is made that the order of detention was issued in a
mechanical fashion without keeping present to its mind the
question whether it was necessary to make such an order
when an ordinary criminal prosecution could well serve the
purpose, the detaining authority must satisfy the Court that
question too was borne in mind before the order of detention
was made. If the detaining authority fails to satisfy the Court
that the detaining authority so bore the question in mind the
Court would be justified in drawing the inference that there
was no application of the mind by the detaining authority to
the vital question whether it was necessary to preventively
detain the detenu."
41. The Supreme Court has further observed in Ashok
Kumar Vs. Delhi Administration and others (1982) 2
SCC 403 as under: -
"The true distinction between the areas of 'public order and 'law
and order' lies not in the nature of quality of the act, but in the
degree and extent of its reach upon society. The distinction
between the two concepts of 'law and order' and 'public order' is
a fine one but this does not mean that there can be no
overlapping. Acts similar in nature but committed in different
contexts and circumstances might cause different reactions. In
one case it might affect specific individuals only and therefore
touch the problem of law and order. The act by itself therefore is
not determinant of its own gravity. It is the potentiality of the act
to disturb the even tempo of the life of the community which
makes it prejudicial to the maintenance of public order".
42. In State of U.P. Vs. Hari Shankar Tewari (1987) 2
SCC 490 the Supreme Court held as under:-
"Conceptually there is difference between law and order and
public order but what in a given situation may be a matter
covered by law and order may really turn out to be one of
public order. One has to turn to the facts of each case to
ascertain whether the matter relates to the larger circle or the
smaller circle."
WP. No.4859/2021
43. The Supreme Court in State of U.P. and another
Vs. Sanjai Pratap Gupta Alias Pappu and others (2004)
8 SCC 591 has held as under:-
"7. The crucial issue is whether the activities of the detenu
were prejudicial to public order. While the expression 'law
and order' is wider in scope inasmuch as contravention of
law always affects order. 'Public order' has a narrower
ambit, and public order could be affected by only such
contravention which affects the community or the public at
large. Public order is the even tempo of life of the
community taking the country as a whole or even a
specified locality. The distinction between the areas of 'law
and order' and 'public order' is one of the degree and
extent of the reach of the act in question on society. It is the
potentiality of the act to disturb the even tempo of life of
the community which makes it prejudicial to the
maintenance of the public order. If a contravention in its
effect is confined only to a few individuals directly involved
as distinct from a wide spectrum of public, it could raise
problem of law and order only. It is the length, magnitude
and intensity of the terror wave unleashed by a particular
eruption of disorder that helps to distinguish it as an act
affecting 'public order' from that concerning 'law and
order'. The question to ask is: "Does it lead to disturbance
of the current life of the community so as to amount to a
disturbance of the public order or does it affect merely an
individual leaving the tranquility of the society
undisturbed"? This question has to be faced in every case
on its facts.
8. "Public order" is what the French call 'ordre publique'
and is something more than ordinary maintenance of law
and order. The test to be adopted in determining whether
an act affects law and order or public order, is: Does it
lead to disturbance of the current life of the community so
as to amount to disturbance of the public order or does it
affect merely an individual leaving the tranquility of the
society undisturbed? (See Kanu Biswas v. State of West
Bengal) (supra).
9. "Public order" is synonymous with public safety and
tranquility: "it is the absence of disorder involving
breaches of local significance in contradistinction to
national upheavals, such as revolution, civil strife, war,
affecting the security of the State". Public order if
disturbed, must lead to public disorder. Every breach of the
peace does not lead to public disorder. When two
drunkards quarrel and fight there is disorder but not public
disorder. They can be dealt with under the powers to
maintain law and order but cannot be detained on the
ground that they were disturbing public order. Disorder is
no doubt prevented by the maintenance of law and order
also but disorder is a broad spectrum, which includes at
one end small disturbances and at the other the most
serious and cataclysmic happenings. (See Dr. Ram
Manohar Lohia v. State of Bihar and Ors (1966 (1) SCR
709).
WP. No.4859/2021
10. "'Public Order", "law and order" and the "security of
the State" fictionally draw three concentric circles, the
largest representing law and order, the next representing
public order and the smallest representing security of the
State. Every infraction of law must necessarily affect order,
but an act affecting law and order may not necessarily also
affect the public order. Likewise, an act may affect public
order, but not necessarily the security of the State. The true
test is not the kind, but the potentiality of the act in
question. One act may affect only individuals while the
other, though of a similar kind, may have such an impact
that it would disturb the even tempo of the life of the
community. This does not mean that there can be no
overlapping, in the sense that an act cannot fall under two
concepts at the same time. An act, for instance, affecting
public order may have an impact that it would affect both
public order and the security of the State. [See Kishori
Mohan Bera v. The State of West Bengal (1972 (3) SCC
845); Pushkar Mukherjee v. State of West Bengal (1969 (2)
SCR 635); Arun Ghosh v. State of West Bengal (1970 (3)
SCR 288); Nagendra Nath Mondal v. State of West
Bengal (1972 (1) SCC 498)."
44. What can therefore be culled out from all the
afore-discussed judgments is that whether an act would
constitute simple breach of law and order, or breach of
public order, would solely depend on the degree and
extent of its reach and effect upon the society. Public
order is even tempo of the life of the community of an
area or even a locality, as a whole. Degree of
disturbance upon the life of the community would
determine whether it affects public order. An act by itself
may not be a determinative factor of its gravity, but it is
potentiality of its effect on the even tempo of the life of
community that makes it prejudicial to the maintenance
of public order. If the effect of act is restricted to certain
individuals or a group of individuals, it merely creates a
law and order problem but if the effect, reach and
potentiality of the act is so deep and pervasive that it
affects the community at large and disturbs the even
tempo of the community that it becomes a breach of the
public order. It therefore cannot be said that a single act
would in all and every circumstances not be sufficient to
affect public order or even tempo of the society. What is
material is the effect of the act and not the number of
acts and therefore what has to be seen is the effect of the
act on even tempo of life of the people and the extent of
its reach upon society and its impact."
It has further been held that -
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"48. While therefore keeping the above referred to
principles of law in view, the detaining authority is under
an obligation to ensure that personal liberty of an
individual is the most precious and prized right
guaranteed under the Constitution. The State has been
granted the power to curb such rights under criminal
laws as also under the laws of preventive detention which
are required to be exercised with due caution as well as
upon a proper appreciation of the facts as to whether
such acts are indeed in any way prejudicial to the interest
and the security of the State and its citizens, or seek to
disturb public law and order. If the offences complained
of against the person are of a nature which can be dealt
with under the ordinary law of land, taking recourse to
the provisions of prevention detention would be contrary
to the Constitutional guarantees enshrined in Articles 19
and 21 of the Constitution of India. It is trite that
personal liberty protected under Article 21 of the
Constitution of India is so sacrosanct and so high on the
scale of Constitution values that it casts an obligation on
the detaining authority to show that the order of
preventive detention it has passed meticulously accord
with the procedure established by law. Individual liberty
is a cherished right which is one of the most valuable
fundamental rights guaranteed by our Constitution to the
citizens of the country. Article 21 of the Constitution
provides that no person shall be deprived of his life and
personal liberty except according to procedure
established. Therefore, in the scheme of the Constitution,
utmost importance has been given to life and personal
liberty of the individual. In the matter of preventive
detention there is deprivation of liberty, therefore,
safeguards provided by Article 22 of the Constitution of
the India have to be scrupulously adhered to."
8. Examining the present case in the light of the aforesaid
parameters, it is noticed that grounds of detention mentions that
during the search and seizure on the spot manufacturing and
packing of 'deep dravy' was found and the raw material for
manufacturing 'deep dravy' such as palm oil, vanaspati
flavouring essence was found and its samples were collected.
The order reflects that a mere suspicion was expressed that since
a mixture of these material gives the fragrence of ghee,
therefore, there is a possibility of the users being confused. The
petitioner has enclosed alongwith the petition Trademark
WP. No.4859/2021
Certificate in respect of 'Dhoop' and 'Agarbatti', 'Mehndi',
'Havan/Poojan Samagri' (material for worship purpose) non-
edible fat made by mixture of hydrogenated vegitable oil, non-
hydrogenerated vegitable oil and flavouring substance and deep
liquid for worship(pujan). The Registration Certificate under
the Food Safety and Standard Act, 2006 in respect of food items
fat and oils and fate emulsions has also been placed on record
which have not been disputed by the respondents. Though there
is an allegation that the petitioner was making adulterated ghee
but nothing reliable has been pointed out by the respondents to
show that the petitioner was manufacturing anything other than
the one for which he is registered and licenced. The order also
does not reflects any instance when any user had confused the
'deep liquid' manufactured by the petitioner with pure ghee or
anybody was found using it as pure ghee. Even otherwise, there
is no material to show that the activity of the petitioner had
disturbed the even tempo of life or had caused any disturbance
in public order. The grounds of detention mentioned about the
registration of similar case in the year 2012 but thereafter
substantial period has lapsed. The counsel for the petitioner has
also pointed out that out of the three cases of violation of food
safety, two were registered on the same date and they have no
link with the present case.
9. Having regard to the circumstances of the case, we are of
the opinion that material pointed out in the matter may make out
a case for taking action under the provisions of Food Safety
Standard Act if any violation thereof has been found but it is not
a case where the provisions of NSA should be invoked. The
impugned order passed by the District Magistrate suffers from
the lack of appropriate subjective satisfaction in respect of the
WP. No.4859/2021
detention of the petitioner. Hence, the impugned order of
detention cannot be sustained and is accordingly set aside.
10. The writ petition is accordingly allowed.
(PRAKASH SHRIVASTAVA) (VIJAY KUMAR SHUKLA)
JUDGE JUDGE
YS
Digitally signed by YOGESH KUMAR
SHRIVASTAVA
Date: 2021.05.25 12:49:23 +05'30'
