S. Badri Narayan Patro v. State Of Orissa
V. Gopala Gowda, C.J:— This Writ
Petition has been filed by the Petitioner-detenu praying to quash the order of
detention dated 11.8.2010 (Annexure-1) passed by the Collector
& District Magistrate, Ganjam u/ss 3(1) & 3(2) of the Prevention of
Black Marketing & Maintenance of Supplies of Essential Commodities Act,
1980 (hereinafter referred to as ‘the Act’) as well as the Order Dated 23.9.2010
(Annexure-4) passed by the State Government u/s 12(1) r/w Section
13 of the aforesaid Act confirming the order of detention passed by
the Collector & District Magistrate against the Petitioner urging various
legal contentions.
2. The facts of the case are that the
Petitioner is the Managing Director & proprietor of Simla Silk Sortex Rico
Mill & Biswanath Rice Mill located at Surada in the district of Ganjam. The
aforesaid two mills deal in rice & paddy as Miller Agent-cum-Custom Miller
for different Government agencies including Orissa State Civil Supplies
Corporation Ltd. for delivery of common raw rice. On the basis of allegation
that the Petitioner is involved in illegal dealing in essential commodities
like rice & paddy, the allegation was enquired into by a team of officers
which conducted raid in the godown & premises of the aforesaid two Mills on
7.6.2010 During raid, one of the workers present produced six numbers of
purchase & stock registers of both the Mills but he failed to produce other
relevant & required documents for verification. The team found entries of
purchase of paddy in the Purchase Register of Simla Silk Sortex Mill. They also
verified some of the receipts as per the said register regarding purchase &
payment of minimum support price to the farmers named therein. To ascertain the
genuineness of the entries, the named farmers were contacted but they denied to
have sold any paddy or to have received any cheque from the Petitioner that has
been mentioned in the register to have been issued to them. The team further
found that Biswanath Rice Mill is a Boiler Plant, which was found to be in
operational condition & producing both common raw rice & common boiled
rice in the mill without any permission for producing the same. There was also
boiled paddy on the drying yard & boiling tank & huge stock of boiled
rice in heaps at the rice milling outlet point of the Mill from which the team
was of the opinion that the Petitioner had indulged in illegal trading of
boiled rice when he was appointed as custom miller for common raw rice. He had
also not maintained separate registers for each mill which according to the
team was apparently done to avoid inspection by higher authorities. In the
register the Petitioner had shown to have issued four cheques in favour of the
farmers in token of payment of minimum support price but the concerned farmers
denied to have received the cheques. Also the cheques had not been presented
for encashment till the order of detention was passed. The team also found that
there was no signature of the farmers on the vendor receipts issued by the
Petitioner. On verification of the stock, the team found that there was
shortage of Q. 342.87.200 of paddy & excess of (3.85.00 of common raw rice.
Therefore there was contravention of the provisions of Clauses 4,7,9,10
& 14 of the Orissa Rice & Paddy Procurement (Levy) &
Restrictions on Sale & Movement Order, 1982. Accordingly, action u/s
6(A) of the Essential Commodities Act was initiated & prosecution
report u/s 7 of the said Act was filed. Further the investigating officer filed
report for detaining the Petitioner u/s 3(1) of the Act so as to prevent him
from acting in a manner prejudicial to the maintenance of supplies of
commodities-essential to the community. On the basis of the aforesaid, the
Collector & District Magistrate was satisfied that the Petitioner has been
committing offence punishable under the provisions
of the Essential Commodities Act r/w the Orissa Rice & Paddy
Procurement (Levy) & Restriction on Sale & Movement Order, 1982. Being
satisfied that the detention of the Petitioner was necessary to prevent him
from acting in a manner prejudicial to the maintenance of supplies of the
commodities essential to the community at large, the Collector & District
Magistrate passed the order of detention in exercise of the power conferred on
him u/ss 3(1) & 3(2) of the Act referred to supra. The said order was
confirmed by the State Government vide Annexure-4. Counter affidavit has been
filed by the detaining authority traversing the petition averments. With regard
to the allegation of non-consideration of the Petitioner's representation, it
is stated that the representation dated 26.8.2010 of the Petitioner was
forwarded to the State Government on 2.9.2010 & the State Government
referred the matter to the Advisory Board & in conformity with the opinion
of the Advisory Board, the Government confirmed the order of detention. No
counter has been filed on behalf of the State.
3. The first ground of attack is that
the representation made by the Petitioner to the State Government against the
order of detention as required u/s 8 of the Act has not been considered by the
State Government & no order of rejection has been communicated to him.
Non-consideration of the representation violated the constitutional right
guaranteed under Article 22(5) of the Constitution of India. Therefore,
the order of detention is void in law as held by the Supreme Court in the case
of Rahmattulah v. State of Bihar, (1981) 4
SCC 559 : AIR 1981
SC 2069 & K.M Abdullah Kunhi v. Union of India, AIR
1991 SCW 362 wherein the Supreme Court has held that clause (5) of
Article 22 by necessary implication guarantees the constitutional right to a
proper consideration of the representation. The obligation of the Government to
afford to the detenu an opportunity to make representation is distinct from the
Government's obligation to refer the case of the detenu along with the
representation to the Advisory Board to enable it to form its opinion &
sent a report to the Government. Therefore, it is implicit in clauses
(4) & (5) of Article 22 that the Government while discharging its
duty to consider the representation cannot depend upon the views of the Board
on such representation. It has to consider the representation on its own
without being influenced by any such view of the Board. Learned Counsel for the
Petitioner has also placed reliance upon an unreported decision of this Court
in Pankaj Kumar Tibrewal v. Government of Orissa, O.J.C No. 3550 of
2002 disposed of on 17.6.2002 On similar facts of the case after referring to
the decisions of the Supreme Court in Jagan
Nath Biswas v. State Of West Bengal ., (1975) 4
SCC 115 : AIR 1975
SC 1516, Sk.
Serajul v. State Of West Bengal., (1975) 2
SCC 78 : AIR 1975
S.C 1517, T.A Abdul
Rahman v. State of Kerala, (1989) 4
SCC 741 : AIR 1990
S.C 225 & Pradeep
Nilkanth Paturkar v. S. Ramamurthi, 1994 Crl. L.J 620, this
Court held that the delay in initiating the proceeding is bad in law & on
that ground itself the order of detention is liable to be quashed. The Division
Bench in the aforesaid unreported decision referred to the decision of the
Supreme Court in Kundanbhai Dulabhai Shaikh v. Dist. Magistrate,
Ahmedabad, 1996 Crl. L.J 1981 wherein the Supreme Court
quashed the detention order on the ground of delay in disposing of the
representation & quashed the order of detention. Mr. Lal, Learned Senior
Counsel appearing for the Petitioner, submits that the said decision with all
fours is applicable to the case on hand. Therefore, the detention order is
liable to be quashed. Another ground of attack is that the allegations made in
the ground of detention can at best relate to contravention of the Levy Control
Order for which normal action/proceedings can be taken in appropriate Court of
law instead of exercising the drastic power under the Act. Therefore, the
detention order is an abuse of the process of law inasmuch as the grounds of
detention show that the acts alleged against the Petitioner are prejudicial to
the maintenance of supplies of commodities essential to the community for the
reason that (a) the levy order has nothing to do with the common man, (ii) the
levy order is intended to offer minimum support price to the farmers while paddy
is procured by any rice mill (iii) every Miller is obliged to pay levy of 75%
of the total quantity of rice of each variety confirming to specification
milled by him everyday out of the stock of paddy owned by him & (iv) a rice
miller can be a custom miller for milling of paddy not belonging to the mill.
Other restrictions contained in the levy order have been done away with by the
Central Government by issuing notification GSR No. 104(E) dated 15.2.2002 It
was next contended that the grounds of detention were vague, indefinite,
irrelevant & extraneous & there was no proper application of mind by
the Collector & District Magistrate in passing the order of detention as
also there was no subjective satisfaction of the Collector for passing the
order of detention.
4. Learned Government Advocate with
reference to the record sought to justify both the orders contending that the
District Magistrate after applying his mind to the records/materials which were
seized at the time of raid & spot verification which revealed that so many
illegalities were committed by the Petitioner which are prejudicial to the
maintenance of supply of commodities essential to the community passed the
order of detention. The grounds are in details set out in the grounds of
detention which was communicated to the detenu & the same has been perused
by the State Government which passed the order of confirmation under
Sub-Section (4) of Section 3. Thereafter the State Government has discharged
its function in communicating the same to the Petitioner & given
opportunity to submit his representation. All the materials were placed before
the Advisory Board which considered the same in details & after calling for
further information from the appropriate Government submitted its report holding
that there is sufficient cause for the detention of the Petitioner. On the
basis of the said report, the State Government confirmed the order of
detention. The representation submitted by the Petitioner was placed before the
Advisory Board for consideration which has been carefully considered by the
Advisory Board which in its report opined that the order of detention passed
against the Petitioner is on valid grounds. The State Government has accepted
the same & passed the order of confirmation. Therefore, Learned Government
Advocate submits that no ground is made out for interference with the order of
detention.
5. With reference to the above said
rival legal contention, we have carefully examined the order of detention
passed by the Collector & District Magistrate & the State Government.
The District Magistrate has no doubt passed the order on 11.8.2010 on which
date the stock verification was completed. On the same day the order of
detention was passed. So there was little time left for the detaining authority
to apply his mind to the various grounds mentioned in the grounds of detention.
The Supreme Court in the case of Dhananjaya Das v. District Magistrate, (1982) 2
SCC 521 : AIR 1982
SC 1315 held that the grounds of detention must be in existence on the
date when the order was passed & the authority concerned has to be
satisfied about the grounds of detention on the date of the order & the
satisfaction of the detaining authority must be clear on the face of the
grounds of detention. The order of detention is dated 11.8.2010 The grounds of
detention are signed on 12.8.2010 as it appears from the date below the initial
of the detaining authority. Under Sub-Section (3) of Section 3 of the Act, the
detaining authority is obliged to forthwith report the fact of detention to the
State Government together with the grounds on which the order has been made. We
have perused the relevant file produced by the Learned Government Advocate. The
note dated 12.8.2010 of the Under Secretary reveals that the Collector has not
furnished the grounds of detention along with other papers for approval of the
State Government.
6. It is the case of the Petitioner
that he submitted a detailed representation pointing out that the allegations
made in the grounds of detention do not call for resort to the drastic
provisions of the Act. It is his further case that the State Government
confirmed the order of detention without considering his representation. We
have perused the Government file from which it appears that on 4.9.2010, the
representation of the detenu was ordered to be placed before the Advisory
Board. On 22.9.2010, the Advisory Board opined that there are sufficient
grounds for detention of the detenu, i.e, the Petitioner. From the file it
further appears that on 23.9.2010 suggestion was given to reject the
representation of the Petitioner as the same has been found by the Advisory
Board to be unsatisfactory. On the same day, order was passed to reject the
representation. It therefore appears that the State Government has neither
applied mind nor independently considered the representation of the Petitioner
but rejected the same being influenced by the opinion of the Advisory Board. At
this stage it is profitable to note what the Apex Court said in Rahamatulah
case (supra):
“The law is well settled that in case
of preventive detention of a citizen, the obligation of the appropriate
government is two fold (1) to afford the detenu the opportunity to make a
representation & to consider the representation which may result in release
of the detenu & (ii) to constitute a Board & to communicate the
representation of the detenu along with other materials to the Board to enable
it to form is opinion & to obtain such opinion. The former is distinct from
the latter. As there is a twofold obligation of the appropriate government, so
there is a two fold right in favour of the detenu to have his representation
considered by the appropriate government & to have the representation once
again considered by the Government in the light of the circumstances of the
case considered by the Board for the purpose of giving its opinion…The
opportunity of making a representation is not for nothing. The representation
if any submitted by the detenu is meant for consideration by the appropriate
authority without any unreasonable delay, as it involves the liberty of a
citizen guaranteed by Article 19. The non-consideration or an unreasonably
belated consideration of the representation tantamounts to non-compliance of
Clause (5) of Article 22…Where the State Government waited till the receipt of
the Advisory Board's opinion & there was an unexplained period of twenty
four days on non-consideration of the representation & thus there was no
independent consideration of the representation by the State Government, there
was clear non-compliance of Article 22(5) & detention was, consequently,
liable to be quashed.”
7. Similar view was also taken by the
Constitution Bench of the Supreme Court in K.M Abdullah Kunhi's case (supra)
wherein the Supreme Court observed as under:
“It is not beyond the pale of
controversy that the constitutional right to make representation under Clause
(5) of Article 22 by necessary implication guarantees the constitutional right
to a proper consideration of the representation. Secondly, the obligation of
the Government to afford to the detenu an opportunity to make representation is
distinct from the Government's obligation to refer the case of detenu along
with the representation to the Advisory Board to enable it to form its opinion
& send a report to the Government. It is implicit in clauses (4)
& (5) of Article 22 that the Government while discharging its duty
to consider the representation cannot depend upon the views of the Board on
such representation. It has to consider the representation on its own without
being influenced by any such view of the Board. The obligation of the
Government to consider the representation is different from the obligation of
the Board to consider the representation at the time of hearing of the
reference… The consideration by the Board is an additional safeguard & not
a substitute for consideration of the representation by the Government. The
right to have the representation considered by the Government is safeguarded by
Clause (5) of Article 22 & it is independent of the consideration of the
detenu's case & his representation by the Advisory Board…”
8. The file does not reveal that
there was any independent consideration of the representation of the Petitioner
by the State Government. Rather from the notes in the file it appears that
since the Advisory Board found the representation unsatisfactory, suggestion
was made to reject the representation. Of course, no reason has been assigned
to reject the representation. From the file it appears that the representation
of the Petitioner was sent to the State Government by the Collector &
District Magistrate on 2.9.2010 & the representation was rejected on
23.9.2010 No reason has been ascribed for the delay in disposing of the
representation. The State Government has also not filed counter affidavit
explaining the delay.
9. In view of the aforesaid, we are
of the opinion that there was no independent consideration of the
representation of the Petitioner by the State Government &
non-consideration of the representation & non-communication of the order on
the representation by the State Government independent of any opinion of the
Advisory Board constitutes violation of the constitutional right given
under Article
22 of the Constitution of India & failure to discharge the
statutory function of the State Government u/s 8 of the Act. Therefore, for
this reason alone the Writ Petition must succeed. Accordingly, the Writ
Petition is allowed & the impugned orders Annexures-1 & 4 are quashed.
The Jail authorities are hereby directed to release the detenu-Petitioner
forthwith if his detention is not required in connection with any other
criminal case pending against him. There would be no order as to costs.