Badri Prasad Basediya vs The State Of Madhya Pradesh
2023 Latest Caselaw 7215 MP

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      IN THE HIGH COURT OF MADHYA PRADESH
                   AT GWALIOR
                             BEFORE
           HON'BLE SHRI JUSTICE ROHIT ARYA
                               &
     HON'BLE SHRI JUSTICE SATYENDRA KUMAR SINGH
                   ON THE 3rd OF MAY, 2023
              WRIT PETITION No. 2914 of 2023

BETWEEN:-

BADRI PRASAD BASEDIYA S/O SH.
RADHE SHYAM SHARMA, AGED : ABOUT
48 YEARS, O/C : AGRICULTURIST, R/O
VILLAGE CHAMHEDI, TEHSIL GOHAD,
BHIND (MADHYA PRADESH)
                                           ........PETITIONER

(BY SHRI PRASHANT SHARMA- ADVOCATE ALONG-WITH SHRI
AKRAM KHAN-ADVOCATE)

AND

1.      STATE OF MADHYA PRADESH
        THROUGH COLLECTOR/DISTRICT
        MAGISTRATE, DISTRICT BHIND
        (MADHYA PRADESH)

2.      DISTRICT    SUPPLY     OFFICER,
        DISTRICT    BHIND      (MADHYA
        PRADESH)

                                          ........RESPONDENTS

(BY SHRI M.P.S.RAGHUVANSHI-ADDITIONAL ADVOCATE GENERAL
FOR STATE)
 2

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        This petition coming on for admission this day, JUSTICE
ROHIT ARYA passed the following:
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                                  ORDER

This writ petition by a detenu, under Article 226 of the Constitution of India, is directed against the order dated 06.01.2023 passed by District Magistrate District Bhind in exercise of powers under Clause (1) of Section 3 of the Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act, 1980 (hereinafter referred to as, ''the Act'') to prevent the petitioner from acting in any manner prejudicial to the maintenance of supplies essential to the community and with a view to making gain in any manner which tend to defeat the provisions of the Essential Commodities Act, 1955.

(2) Along with the order, petitioner has also been served with the grounds of detention on same date i.e. 06.01.2023 as well as other material; a detailed report with enclosures of District Supply Officer, district Bhind addressed to District Magistrate, District Bhind dated 05.01.2023.

(3) On perusal of the documents supplied to the petitioner, it appears that about 12 quintals of rice, packed in 24 sacks (each containing 50 Kgs), bearing seal of MP Civil Supplies

Corporation stitched and tagged in the name of M/s. Ganesh Trading Corporation, Bandha Road Gohad were found on the doorstep of the petitioner's house. It is alleged despite queries raised about the same, no explanation much less satisfactory explanation was given either by the petitioner or members residing in his house.

(4) Under such circumstances, an opinion was formed that petitioner has indulged in black-marketing of essential commodities warranting action of detention against him under Clause (1) of Section 3 of the Act.

(5) Petitioner was detained in jail on 10.01.2023. (6) It further appears that information in that behalf was sent to the State Government on 12.01.2023 and the same was confirmed on 16.01.2023 as required under Section 3 (3) of the Act. Thereafter, reference was made to the Advisory Board under Section 10 of the Act. The Advisory Board has opined justifying the detention. Thereafter, the State Government has passed an order on 13.02.2023 that the petitioner shall remain under detention for six months w.e.f.11.01.2023.

(7) The aforesaid facts are not disputed.

(8) As such, the petitioner is in detention for about last four months.

(9) Shri Prashant Sharma along-with Shri Akram Khan, learned counsel for the petitioner while taking exception to the

impugned action and also that of the order passed on 13.02.2023 has submitted that it is the settled law that the competent authority while exercising powers under the Act in the matter of ordering detention of a person, is required to record its satisfaction based on relevant material. The word ''consideration'' used in the relevant provision connotes the concept of meaningful consideration and not a mere formation of opinion simplicitor. The record suggests that the competent authority formed the opinion to pass the impugned order in hot-haste and a slipshod manner inasmuch as without verification of the factum of possession of the alleged number of sacks of rice found on the doorstep of the house of petitioner, he reached the conclusion that the same belongs to the petitioner although petitioner was not present on the spot and the material available before him only contemplated (pratit hota hai). As such, the detaining authority has not applied it's mind in right earnest and, therefore, the impugned action of detention lacks bonafide. While further elaborating submissions on the concept, meaning, scope and dimensions of the word "consideration" in the context of the Act in hand or similar Acts whereunder a person's personal liberty is curtailed, he refers to the judgment of the Hon'ble Supreme Court in the case of Union of India and Others Vs. Saleena, reported in, (2016) 3 SCC 437, where it has been held as under :

"21. From the aforesaid authority in Haradhan Saha v. State of W.B., (1975) 3 SCC 198, it is

clear as day that while rejecting the representation, a speaking order need not be passed and what is necessary is that there should be real and proper consideration by the Government and the Advisory Board. The Constitution Bench has limited the application of principles of natural justice to the sphere of deliberation. It has confined it to real and proper consideration; application of mind. Dealing with the concept of fairness, it has been observed that fairness denotes abstention from abuse of discretion. Understanding the said principle correctly, it can be said that the use of discretion has to be based on fairness of approach. The authority concerned may not give reasons but there has to be application of mind.

27. This being the position of law, when there is allegation that there has been non-application of mind and the representation has been rejected in a laconic or mechanical manner by the competent authority, we are disposed to think, the Court can always call for the file and peruse the notes and the proceedings whether there has been application of mind by the competent authority or not. Our said conclusion gets support from the decision in Ashok Narain v. Union of India, (1982) 2 SCC 437. In the said case, this Court on perusal of file has expressed its opinion that there had been no tardiness on behalf of any one and, therefore, the detention in no manner was illegal.

28. We are absolutely conscious that liberty of an individual is sacred. The individual liberty has to be given paramount importance. But such liberty can be controlled by taking recourse to law. Preventive detention is constitutionally permissible. The Courts can interfere where such

detention has taken place in violation of constitutional or statutory safeguards....."

According to learned counsel for the petitioner, the impugned order in the obtaining facts and circumstances deserves to be quashed.

In the alternative, learned counsel for the petitioner submits that regard being had to the nature of allegation made against the petitioner and in the obtaining facts and circumstances of the case, since the petitioner has already undergone four months custody in jail by force of the detention order, therefore, no further detention is warranted and he deserves to be released applying the principles/concept underlying doctrine of proportionality as well acknowledged and practiced by judicial forums including Hon'ble Supreme Court of India while examining the nature of the punishment either in judicial or quasi judicial proceedings. (10) Per contra, Shri M.P.S. Raghuvanshi, Additional Advocate General made following submissions :

The Act No.7 of 1980 has been enacted for the purposes of detention in certain nature of cases for the purpose of preventing of black marketing and maintenance of supplies of commodities essential to the community and for matters connected therewith. Provisions contained thereunder are required to be interpreted strictly as the same are intended to arrest mischief in the matter of dealing with the essential commodities regulated under the

Essential Commodities Act, 1955. Though the word "black- marketing" itself is not defined under the Act but the activities in a given case if found to be in any manner prejudicial to the maintenance of supplies essential to the community and to ensure that no one make any gain in any manner which may tend to defect the provisions of Essential Commodities Act, the competent authority upon due advertence to the material collected may pass the order for detention. In the instant case, sufficient material is on record to justify the detention as the family members despite being questioned had no explanation for the numbers of sacks (24) of rice found on the doorstep of the petitioner meant for supplying essential commodities to the public with the seal of M/s Ganesh Trading Corporation etc. Conspicuous absence of the petitioner from spot indeed is uncanny and has given rise to the formation of the opinion by the authority for detention of the petitioner as the same was found to be falling within the mischief of Clause (1) of Section 3 of the Act.

Learned counsel further submits that the scope under Article 226 of the Constitution of the India is limited in nature. Neither this Court can assess sufficiency of the material nor justifiability of the opinion formed but can only see the relevancy of the material to adjudge the action on the touchstone of concept of objectivity and bonafide. This Court, therefore,

cannot substitute its views for the opinion formed by the competent authority. Since the detaining authority has acted bonafidely, no exception can be taken to the impugned detention order, which is confirmed by the Advisory Board under Section 12 of the Act.

(11) Heard.

(12) After due and conscious consideration on the rival contentions advanced by the learned counsel for the parties, though we are in agreement with Shri Raghuvanshi on the question of exercise of powers by detaining authority under clause (1) of Section 3 of the Act, regard being had to the facts and circumstances as detailed in the grounds of detention, the report of the District Supply Officer addressed to the Collector and other materials, however, a solemn question arises as regards justifiability of keeping the detenu in detention for maximum period of six months with no exception, although the State Government or Central Government have the power to keep a detenu on detention for a lesser period by way of review or modification as contemplated under Sections 12 and 14 of the Act.

(13) For ready reference, Section 12 & 14 of the Act is reproduced below:-

12. Action upon the report of Advisory Board.- (1) In any case where the Advisory Board has reported that there is, in its opinion,

sufficient cause for the detention of a person, the appropriate Government may confirm the detention order and continue the detention of the concerned for such period as it thinks fit. (2) In any case where the Advisory Board has reported that there is, in its opinion, no sufficient cause for the detention of the person concerned, the appropriate Government shall revoke the detention order and cause the person to be released forthwith.

14. Revocation of detention orders.-(1) Without prejudice to the provisions of section 21 of the General Clauses Act, 1897 (10 of 1897), a detention order may, at any time, be revoked or modified-

(a) notwithstanding that the order has been made by an officer of the State Government, by that State Government or by the Central Government;

(b) notwithstanding that the order has been made by an officer of the Central Government or by a State Government, by the Central Government. (2) The revocation or expiry of a detention order shall not bar the making of a fresh detention order under section 3 against the same person in any case where fresh facts have arisen after the date of revocation or expiry on which the Central Government or a State Government or an officer, as the case may be, is satisfied that such an order should be made.

(14) It is relevant to observe that two facets flow from the provisions of Section 3 of the Act: (i) bonafide exercise of powers to order detention of detenu and (ii) period of detention of detenu pursuing to said order.

(15) Indeed in the former case, the Court is required to ascertain whether the detaining authority has given due consideration of the material placed before it to justify detention order as well explained by the the Hon'ble Supreme Court in Saleena (Supra). In the later case, the Authority is required to assess and reassess justifiablity of further detention of the detenu to the extent of maximum six months, if a detenu is detained for less than six months.

(16) Upon consideration of the scheme of the Act, aims and objects and various provisions particularly in Section 12 & 14, we are of the view that doctrine of proportionality as well acknowledged in judicial parlance while dealing with nature and gravity of punishment can also be applied in the matter of adjudging period of detention of detenu under the Act. (17) Though as we have observed earlier that we do not find fault with the order of detention passed, but taking into consideration the period of detention of four months undergone by the petitioner and regard being had to the nature of allegations and material collected, we are of the view that further detention of the petitioner by force of impugned order shall indeed be disproportionate and shock the conscious of this Court keeping in mind the concept of justice, equity and good conscience. (18) We, in exercise of our extraordinary Constitutional jurisdiction under Article 226 of the Constitution of India, invoke

the doctrine of proportionality and hold that further detention of petitioner shall impede the course of justice and, therefore, we hereby order that the order dated 13.02.2023 shall stand modified to the extent of period of detention which has already been undergone by the petitioner. Now, the petitioner shall be released forthwith.

(19) With the aforesaid, the petition stands disposed of.

                                    (ROHIT ARYA)                     (SATYENDRA KUMAR SINGH)
                                       JUDGE                                 JUDGE
          Aman
Digitally signed by AMAN TIWARI
Date: 2023.05.04 13:00:57 +05'30'