DWARIKA PRASAD SAHU v. THE STATE OF BIHAR & Ors.
Case at a glance
- Decided
- 12 Nov 1974
- Bench
- ANDRACHUD, P N BHAGWATI
Provisions considered
Key paragraphs
- Para 66. That on physical verification of his stock by Shri . R. D. Singh A.D,S.O. and L. Sawaya, Sub-Deputy' Collector' on 7-3-197 4 his stock of the said .4lil was found to be excess by 357 litres from the book balance which is undis putedly…
Judgment
HELD: The conclusion is inescapable that since ground no. 5 was wholly mis conceived, non-existent and not available under the law the order of detenlion must be held to be invalid. If there is one principle more firmly established than any other in this field of jurisprudence, it is that even if one of the grounds or reasons which led to the subjective satisfaction of the detaining authority is non existent, misconceived ~ irrelevant the order of detention would be invalid and it would not .avail the detaining authority to contend that the other grounds or reasons are good and do not suffer from any such infirmity because it can ne:ver be predicated to what extent the bad grounds or reasons operated on the mind ()f the detaining authority or whether the detention order would have been made at all if the bad grounds or reasons were excluded and the good grounds or reasons alone were hefore the detaining authority. [707F; C-D] Shlbba11 T.Al Saxena v. ;T/ie State of Ull'ar Pradesh, (1954] S.C.R. 418, Dr.
Ram Manohar Lohia v. State of Bihar & Ors., [1966] 1 S.C.R. 709, Pushkar Mukhariee & Ors. v. Tlze State of We.<t BenRal, [1969] 2 S.C.R. 635 and Blram Chand v. State of Uttar Pradesh, A.LR. 1974 S.C. 1161, followed. I· In the i111tant case if only the District Magistrate had applied his mind pro· infirmity perly and carefully and acted with a greater sense of responsibility, the vitiating the or11er of detention could have been easily avoided. Not mentioning G in the cash memos was no longer a the names and addresses of the customers breach of cl. 7 of the licence and it could not support an inference that the sales covered by the cash memos were to fictitious persons. The District Magistrate mechanically subscribed to the grounds of detention without even caring to exa· mine whether g:round no. 5 w:Ls correct or not and proceeded to make the order of detention. [706H] Ground l disclosed yet another instance of non-apnlication of mind on the part of the District Magistrate.
This circumstance also is indicative of the rather to make the order of casual manner in which detention without proper application of mind and it could have an invalidating consequence on the order of detention. the District Magistrate proceeded [707H; 708A] 11 D. P. SAHU V. BIHAJt (Bhagwati, /.) 703 A ORIGINAL JURISDICTION : Writ Petition No. 346 of 1974. Under Art. 32 of the Constitution of India. G. K. Daphtary, K. K. Sinha and S. K. Sinha, for the petitioner. U. P. Singh, for the respondents. B The Judgment of the Court was delivered by c D E BHAGWATI, J.-It is with utmost reluctance, and we might almost say regretfully, that we allow this petition directed against the vali dity of an order of detention made by the District Magistrate, Ranchi under secti()n 3(2}(iii) of the Maintenance of Internal Security Act, If only the District Magistrate had applied his mind properly 1971. and carefully and acted with a greater sense of responsibility, the infirmj.ty vitiating the order of detention could have_ been easily avoided.
We are painfully conscious of the fact that economic offen ders are a menace to the community and it is nece5sary in the interest of the economic. well being of the society to mercilessly stamp out sooh pernicious, anti-social and highly reprehensible activities as hoard· ing, black-marketing and profiteering which are causing havoc to the economy of the country and inflicting untold hardships on the com mon man and to carry on a relentless war against such economic offenders with a view to putting them out of action. But in the pre sent case the attempt to curb this social menace has been frus~ated and set at naught by want of due care and application on the part of the District Magistrate. We hope and trust that, in future, in view of the social objectives inteRded to be achieved by the use of the Act against economic offenders, the District Magistrates will show greater care and attention in ~xercising .the vast powers qonferred upon them under the Act, both in the interest of personal liberty_ which is ODe of our cherished freedolllS as also in the interest of firm and effective action against those who are undermining the foundations of our social and economic structure.
It appears The petitioner is a dealer in high speed diesel oil holding-a licence under the Bihar Motor Spirit and High Speed Diesel Oil Dealers' Licensing Order, 1966. that certain complaints were - received against the petitioner from local truck owners that he was not supplying high speed diesel oil to them according to their require ments and even when he supplied a little, he made it a c\>ndition that they should also buy from him other commodities, such as grease, brake oil, filter oil etc., but so far as outside truck owners are con cerned, he supplied them as much quantity of high .speed diesel oil as they liked at prices higher than the controlled price. The third res pondent, who is the Sub-Divisional Officer, thereupon sent respon dents Nos. 4 and 5 to the petrol pump of the petitioner with a view to checking the accounts and verifying the stock of high speed diesel oil with the petitioner.
Respondents Nos. 4 and 5 found on physical verification that there was a total stock of 1957 litres·in the two tanks of the petitioner as against a balance of 1597 litres· appearing in the books of account, with the result that there was an excess ~k of 13-L319 sup. Cl{75 G H 704 SUl1P.EME COURl'. _RljPOllTS H975J 2 ~.C.R. 350 litres, The District Magistrate thereafter, on the materials placed before him, made the order of petention impugned in the present peti ticn. the order of detention was based on the subjective satisfaction of the District Magistrate that with a view to preventing the petitioner from acting in any manner prejudicial to the maintenance of supplies and services essential. to the community it was necessary to detain the petitioner. Pursuant to the order of detention the petitioner was arrested and at the time of his arrest .he _was served with the grounds on which the ·order of detention was made. The grounds of detention s.erVcd on the petitioner· set out six grounds which were in the follow ing terms : "
That he being the proprietor of M/s Sahu Brothers Caltex petrol dealers at Gumla, his cash Memo No. 70996 dated 14-2-74 sh~ a sale of 120()-Jitres of High Speed Diesel oil to one Mr. -Griffiths of Tung Tola P. S: Raidih. The srud quantity is much beyond the capacity of any trans port vehicle and thereby by the said ·alleged sale he not only aggravated the scarcity of an essential commodity i.e. high speed diesel oil bl;i~ he also supplied the said Mr: Grilfths the said oil in tins or barreals exceeding 37 litres (8 imperial gallons) otherwise than in the tank of a Motor vehicle, without obtaining a written permission District 'Magistrate or the Sul>-Divisional Magistrate, autho rising t1:1e said Mr. Grifftlis ·to do so in . contravention of section 7 of Bihar Motor Spirit and High Speed Diesel Oil Licensing Order 1966.
1bat the said Mr. Griffths in his show cause submit ted to the Sub-Divisional Magistrate Qumla and in his state ment recorded by Executjve Magistrate, has denied to have purchased 1200 litres oif high speed diesel oil at a time at any time.
That thus it is qui, te apparent ·that by the said cash Memo No. 70996 no sale of the said oil was made and the said cash Memo was fabricated entirely with the object of disposing of 1200 Iitrc:s of the said oil in a clandestine way in black market.
That he being the proprietor of M/s Sahu Brothers Gumla supplied 300 litres of said oil fu Truck No. BR 662 on 26-2-74 and 300 litres to Truck No. MPL 5521 on 1-3-1974 and 400 litres 'in truck No. MPL 1008 1-3-1974 350 litres to truck. No. MPL 2135 on 1-3-74 and thereby he was not only aggravating the scarcity of essen tial commodity, i.e. the High Speed Diesel oil but also sup~ plied more than 37 litres (eight Imperial gallons) of Ute said oil in tin or barrel to be kept or stored othetwise than in the tank of a motor vehiele without obtaining a written .per the Sul>-Divisional mission of the District Magistrate or A 8 c ii Magistrate authorising storage in contravention "Of s~ction 7 of the· Bihar Motor Spirit and High Speed Diesel Oil Dealers Licensing Order, 1966.
That he supplied 7 62 litres of the said oil . as per Cash Memos fully described in ~hedule l annexed hereto without giving the . name and llfldresses of the pll!Chasers not only in contravention of clause 7 of the license but the fictitious supply by the said cash memos were shown persons. ·
That on physical verification of his stock by Shri . R. D. Singh A.D,S.O. and L. Sawaya, Sub-Deputy' Collector' on 7-3-197 4 his stock of the said .4lil was found to be excess by 357 litres from the book balance which is undis putedly indicative of the fact that he has been showing ficti- · tious sales. " · The usual procedure prescribed by thei provisions of the Act. was thereafter followed and the order of detention was approved by . the. State Government, the representation of the petitioner was considered and rejected, the case of the petitioner was placed · before. Advisory Board and ultimately on receipt of the opinion of Advisory Board; the order of detention was confirmed by the State Government. The main ground. on which the validity of the order of detention was challenged .on behalf of the petitioner was that ground 5 . was misconceived and betrayed total ·lack of application of mind on t)le part of the District Magistrate and that vitiated the order of deten" tion.
The petitioner pointect out that though clause. (7) of the Licence .Diesel issued to. him under the Bihar Motor Spirit and High Speed the names and· Oil Dealers' ;Licensing Qrder, 1966 provided that addresses of the purchasers must be mentioned in the cash memos, an order No. 12706/S.C., dated 11th July, 1966 was issued by the State Government which dispensed with this requirement until further orders and it was, _therefore, ~o longer necessary to set out the names and addresses of the purchasers in tfie cash memos issued to them and the ground that the petitioner supplied 762 litres of high speed diesel oil under various cash memos without giving the names and addresses of the purchasers in contravention of clause (7) of Licence was, therefore, wholly unfounded. It was also urged on be half of the petitioner that if .there was no requirement of setting out the names and addresses of the purchasers in the cash memos, no inference could rationally be drawn by the District Magistrate from the absence of the names· and addresses of the purchasers in the cash memos issued by the petitioner that the purchasers were fictitious persons.
The petitioner urged that in the circumstances it was clear that this ground was based on a complete misapprehension of correct situation and showed that the District Magistrate had_ totally failed to apply his mind and the subjective satisfaction of the District Magistrate based inter a1ia on this ground was, therefore, vitiated and it rendered the order of detention invalid. We think there is great force in this contention urged on behalf of the petitioner and the order of detention must on the basis of this contention alone be hi:ld to be bad. The gravamen of the charge a,gainst the petitioqer in ground No. 5 was that he supplied 7 62 litres of high speed diesel oil under several cash memos described in Schedule I to the grounds of deten tion without giving the names and addresses of the purchasers and this was not only in contravention of clause (7) of the licence, but it also indicated that the suf>plies under these cash memos were made to fictitious persons.
Now, it is true that clause (7) of the licence issued to the petitioner provided that th<: licensee shall issue to every customer a con·ect receipt or invoice, as the case may be, giving inter alia the name and address of the customer and, therefore, if this requirement prescribed by clause (7) were operative at the material time, there can be no doubt that the action of the petitioner in issu ing cash memos to the purchasers without giving their names and addresses would have been in contravention of clause (7) and it might have been a legitimate inference for the District Magistrate to draw that the sales were to fictitious persons, because otherwise their names and addresses would have been mentioned in the cash memos required by clause (7). But the order bearing No. 12706/S.C~ dated 11th July, 1966 was issued by the State Government providing that "as regards high speed diesel oil,, the enforcement of the following condition of the licence shall be waived until further orders" and one of such conditions was : · "In the cash memo to be issued to the custo mers the names and addresses of the customers need net be men registration number of tioned and it will be sufficient if only the motor vehicles is noted in the cash memo".
The requirement of clause (7) of the licence to mention the names and addresses of the custo mers in tlie cash memos was, therefore, dispensed with by the State Government with effect from 11th July, 1966 until further orders and this dispensation was in force at the time when sales were made by the petitioner under the cash memos described in Schedule f to the grounds of dete.ntion. The absence of mention of the names and addresses of th1r purchaser~ in these cash memos did not, therefore, constitute contravention of clause (7) of the licence and no inference could rationally be drawn by the District Magistrate, from mere absence of names and addresses of the customers in the cash memos without anything more, that the sales under the cash memos were t~ fictitious persons. Ground No. 5 was, therefore, wholly unfounded. It was based on a coJ11plete misapprehension of what was required to be set out in the cash memos.
It is rather surprising that the District Magistrate should not have known that the requirement of clause (7) of .the licence in regard to mention of names-and addresses of customers in the cash memos hacj been dispensed with by the State Government as far back as 11th July, 1966. If only the District Magistrate had properly applied his mind and made the necessary inquiries for the purpose of satisfying himself in regard to the charge in ground No. 5, he would have immediately realised that not men tioning the names and addresses of the customers in the .cash memos _, D. P. SAHU V. BlllAR (Bhagwati, /.) 707 was no longer a breach of clause ( 7) of ·the licence and it could not support an inference that the sales covered by the cash memos were to fictitious persons. ~ut it appears that the District Magistrate mecha nicaly subscribed to the grounds of detention without even caring to examine whether groun~ ~o.
5 was correct or not and proceeded to make the order of detention. We have tried to see whether we could. even by taking a liberal or indutgent view, susta.iri grawid No. 5, but we find it impossible to do so. In fact the learned counsel appearing on behalf of the State frankly conceded that it was not possible for him to support this ground. If there is one principle more firmly established than any other in this field of jurisprudence, it is that even if one of the grounds or reasons which led to the subjective satisfac tion of the detaining authority is non-existent or misconceived or irrelevant, the order of detention would be invalid and it would not avail the detaining authority to contend that the other grounds or reasons are good end do not suffer from any· such infirmity, because it can never be predicated to what exten,t the. bad grounds or reasons operated on. the mind of the detaining authority or whether the deten tion order would have been made at all if the bad ground or reason were excluded and the good grounds or reasons alone were. before the detaining authority.
See the decisions of this Court in Shibban Lal Saxena v. The State of Uttar Pradesh,(1) Dr. Ram Manohar Lohia v. State of Bihar & Ors. (2 ) and Pushkar Mukherjee & Ors. v. The State of West Benga/.(B) Even as recently as this year a Division Bench of this Court pointed out in Biram Chand v. State of Uttar Pradesh(•) that "It is well settled that in an order under the present Act the decision of the authority is a subjective one and if one of the grounds is non-existent or irrelevant or is not available under the law, the entire detention order will fall since it is not possible to predicate as' to whether the detaining authority would have made an order for detention even in tlie absence of non-existent or irrelevant ground". The conclusion is, therefore, inescapable that since ground No. 5 was wholly misconceived, non-existent and "not available under the law'', the order of detention must be held to be invalid.
Though, on this view we are taking as regards the invalidity of ground No. 5, it is not necessary for us to say anything in regard to the other grounds, we think WC( ought to draw the attention of detaining authority to one other infirmity, so that the detaining autho rity can, while exercising the power of detention in future, avoid such infirmity. That infinnity is to be found in ground No. 1 and it dis- closes yet another instance of non-application of mind on the part of the District Magistrate. The allegation in ground No. 1 was that cash m~mo No. 70996, dated 14th February, 1974 showed a sale of 1200 litres of high speed diesel oil to one Mr. Griffiths, but this allegation was patently incorrect as the cash memo in fact, as frankly admitted · on behalf of the respondents, related only to the sale of 200 litres of high speed diesel oil to· Mr. Griffiths and for the sale of further 1()00 litres of high speed diesel oil to Mr.
Griffiths. there was another cash (I) [19541 S. C. R. 418. (3) (1969) 2 S.C.R 635 (4) A.l.R. 1974 S.C. 1161. (2) (1956] 1 S. C.R. 709. 108 SOPRBMF. COT.JRT REPORTS [1975] 2 s.c.R. memo No. 71120, dated 16th February, 1974 which did not Jind . mention in ground No. 1. This circumstance .also is mdicative of the rather casual manner in which the District Magistrate proceeded . to make the order of detention without proper application of mind and it could have an invalidating consequence on the order of detention. We hope and 1rust that the District Magistrate will be more careful in the future when he has occasion to exercise the .enormous powers . of preventive detention entrusted to him by the Parliament. We . acccirdfugly quash 'and set aside the order of detention and direct that the petitioner be set at liberty forthwith. · A B P.B.R. Petitio11 allowed.
Questions this judgment answers
Which statutory provisions did this judgment involve?
Internal Sernrity Act, 1971; Internal Security Act, 1971; Constitution of India — art. 32; Maintenance of Internal Security Act.
Which court decided this case, and when?
Supreme Court of India, on 12 Nov 1974. The bench was ANDRACHUD, P N BHAGWATI.
Precedent status how later indexed judgments have treated this case
No known negative treatment found in the Courts & Cases corpus.
This is a result about the indexed corpus, not a finding that the judgment remains good law. Coverage may be incomplete.