- (1.) THIS is a petition under sec. 491 of the Code of Criminal Procedure and Art. 226 of the Constitution of India praying for a writ, order or direction for the release of Hari Ram Loharia (hereinafter called 'the detenu') detained under sec. 3 (l) (a) (iii) of the Maintenance of Internal Security Act, 1971 (hereinafter called 'the Security Act') by the order of the District Magistrate, Sikar (hereinafter called 'the D. M. ') dated 25 9-1973.
(2.) ON a report by the Assistant District Supply Officer to the Sadar Police Station, Sikar, dated 7 9-73 a search was made of the premises of Jagdamba Oil and Dal Mills, Sikar, and the Inspector found 2808 bags of cement while the stock register showed a balance of 2689 bags only The excess of 119 bags according to the police was due to admixture of sand in cement bags and in a garage some labourers were engaged in the process of adulteration and they made statements to this effect. A case under sec. 420 IPC and sec. 3/7 of the Essential Commodities Act was registered, the detenu was arrested on 22-9-73 and released by the police on a bail in the sum of Rs. 55,000/ -. The D. M. , however, by his order dated 25-9-1973 (Ex. 1) exercising his powers under the Security Act detained the detenu "with a view to preventing him from acting in any manner prejudicial to the maintenance of supplies and services essential to the community". The grounds for detention (Ex. 3) were supplied to the detenu on 26-9-1978. According to the detenu the grounds are mala fide, irrelevant, incorrect and vague and, therefore, it is prayed that the detention be set aside. The State has filed an answer and certain documents. It is admitted that the detenu has been detained and the order (Ex. 1 ) has been detained and the order has been approved by the State Govt. by its order dated 3-10-1973 (Ex. B/3 ). It is, however, submitted that the deteue is a partner of of the Firm Kailashchand Ramesh Kumar, who is the cement stockist of Sikar under a licence. The plea of mala fide is stoutly denied. It is averred that the fundamental rights covered by Art. 19 of the Constitution of India stand suspended and no grievance can be made on that account. It is also submitted by an affidavit of the District Supply Officer, Sikar. Mr. Bhargava, learned counsel for the petitioner, urged that cement was a commodity, the supply of which was not essential to the community; houses were being made of mud and other alternative material and even assuming that cement was being adulterated it was not acting in any manner prejudicial to the maintenance of supplies essential to the community. He placed reliance on Misrilal vs. The State (l ). Let us read the material words of the statute. Sec. 3 (1) (a) of the Security Act, reads: " 3. Power to make orders detaining certain persons. (1) The Central Government or the State Government may (a) if satisfied with respect to any person (including a foreigner) that with a view to preventing him from acting in any manner prejudicial to (iii) the maintenance of supplies and services essential to the community. " (b ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . it is necessary so to do, make an order directing that such person be detained. The important words are "preventing him from acting in any manner prejudicial to the maintenance of supplies essential to community. " The word "supplies" as distinguished from the word "services" means the act of supplying the commodity. The dictionary meaning of the word 'supply' is. . . . . . . . . the amount or the quantity available for use, stock, store. . . . . . . . . " (See Webster's New Twentieth Century Dictionary ). If a person acts in any manner prejudicial to the supplying of an article essential to the community in order to prevent him from so acting, such person can be detained under the Security Act. The learned counsel's argument is that cement is not an essential article for the community because in villages houses are made and can be made of mud and there are other alternative material to replace cement. Who is to determine what is essential to the community at a given point of time? It will be relevant in our opinion to refer to the Essential Commodities Act, 1955 which extends to the whole of India and sec. 2 (a) (xi) whereof provides any class of commodity which the Central Government may, by notified order, declare to be an essential commodity is entitled to that status. By S. O. No. 3594 dated 24-11-1962 cement was declared to be an essential commodity. There is no substance in the argument that an article ceases to be essential because it has alternatives. By this process of reasoning drinking water may become unessential on account of fruit juice and bicycle unessential on account of bullock cart, or to borrow the historic argument of Marie Antoinetee, who had said that bread was not essential because there was the classic alternative of cake. What is essential to a community is regulated by the current needs of the society. Could we say that mud plaster is as strong and protective as cement ? Cement is a versatile article and today it serves the essential purposes of bridges, dams, towers, reservoirs, sky-scrapers, bunkers, and so on. Let us now examine the Patna Full Bench case (l ). The detenus in that were engaged in the activities of mixing stone powder with Ata (flour ). Their houses were raided and evidence of the activity was collected including 35 bags of stone powder. Imam, J. , as he then was, observed that the conduct of the detenus was "highly reprehensible" but after ascertaining the dictionary meaning of the word "supply" he held "i do not think that the words 'maintenance of supplies and services essential to the community' could reasonably carry the meaning that any one who adulterated foodstuffs would be acting in a manner prejudical to the maintenance of supplies or the continuity of supplies. It is true that adulterated food-stuff supplied to the community may be harmful to its health, but supplying such adulterated foodstuff would not be prejudicing the maintenance of supplies. The Act does not speak of profiteering, much less profiteering at the expense of the health of the community. " We have given our earnest consideration to the aforesaid observations of the learned Judge but we regret our inability to agree with them. In our opinion the crucial words of the statute are"acting in a manner prejudicial to the maintenance of supplies". The burden is not on maintenance as it merely imports continuity. The essence of the matter is that the act should not be prejudicial to the supply. A person is said to act to the detriment or acts injuriously. The next question is supply of what? We have already said the commodity which is essential to the community. Ata (flour) is certainly one of such articles and probably the most basic for keeping the soul and body together. If Ata is adulterated with stone powder, what is supplied is not a commodity essential to the community but its counterfeit. The object of the Security Act is to deal effectively with the threats to the organized life and to the security of India. If the stone powdered Ata was supplied to the defence personnel with its undoubted deleterious effect on their system and they lose a battle and perhaps a chunk of our territory, could we still say in good conscience and reason that the maintenance of the supply was not prejudiced and the security of India was not endangered on account of Ata being mixed with stone powder? To take the case before us if the cement adulterated by ordinary clay was to be utilised for the construction of a culvert strategic for the defence of the country and it collapsed could we say that the supply of cement was not prejudiced? In essence we regret to have to repeat that supply means the supply of essential commodity and not its counterfeit and those who are engaged in the process of counterfeiting an essential commodity are certainly acting prejudicially to the maintenance of the essential commodity. In our opinion, therefore, adulterating an essential commodity is acting prejudicially to the maintenance of its supply and the provisions of sec. 3 (l) (a) (iii) are clearly attracted.
(3.) MR. Bhargava next urged that if any of the grounds supplied to the detenu suffers from the vice of vagueness, irrelevancy, non-existence, then the order which follows those grounds falls to the ground. Sec. 8 of the Security Act provides that if a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, but ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in writing, not later than fifteen days from the date of detention, communicate to him the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order to the appropriate Government. The furnishing of grounds, therefore, is to provide an opportunity to the detenu to make a representation against his detention. Therefore it is obvious that the grounds must be clear to a lay man who can effectively make a representation. In Naresh Chandra Ganguli vs. The State of West Bengal (2) it has been considered as * to what should be the contents of the grounds. They have been divided in two parts. The order of detention to be served on the person detained should contain firstly the recitals in terms one or more of the sub-clauses of clauses (a) and (b) of sec. 3 (1), which has been characterised by the Supreme Court as the 'preamble' and secondly, the grounds contemplated by sec. 8, namely, the conclusions of fact which have led to the passing of the order of detention, informing the detenu as to why he was being detained. If the grounds do not contain all the particulars necessary for enabling the detenu to make his representation against the order of his detention, he may ask for further particulars of the facts, and the authority which passed the order of detention is expected to furnish all that information. In Sushanta Goswami vs. The State of West Bengal (3) the Hon'ble Judges of the Supreme Court observed in para 4 that if same of the grounds which are given are irrelevant the order of detention cannot be upheld because the court cannot predicate what the subjective satisfaction of the authority would have been on the exclusion of those reasons and the order of detention has been set aside for that reason. In Mintu Bhakta vs. The State of West Bengal (4) the Hon'ble Judges of the Supreme Court in para 9 have observed "it is by now well-settled that in cases dependent on subjective satisfaction if it is found that one of the grounds for detention is extraneous or is factually baseless, the order must fail, since it is impossible in such cases to predicate upon which of the grounds the concerned authority had reached its satisfaction without or irrespective of the ground which fails. " In Rameshwar Lal Patwari vs. The State of Bihar (5) it was held that if a vital ground is shown to be non-existing so that it could not have and ought not to have played a part in the material for consideration, the Court may attach some importance to this fact. Detention will not be justified where some grounds are found to be non-existent in fact. In Dr. Ram Krishan Bhardwaj vs. The State of Delhi (6) one of the grounds supplied to the detenu was that he had been organizing the movement by enrolling the volunteers among the refugees in his capacity as President of the Refugee Association of Bara Hindu Rao, a local area in Delhi. The learned counsel argued in this case that it was extremely vague and the learned Attorney General endeavoured to show that if this ground was read in conjunction with the preceding ones it could be intelligible. Patanjali Sastri C J. , who spoke for the Bench, made the following significant observations ". . . . . . . . the petitioner, who is a layman not experienced in the interpretation of documents, can hardly be expected without legal aid, which is denied to him, to interpret the ground in the sense explained by the Attorney-General. Surely, it is up to the detaining authority to make his meaning clear beyond doubt, without leaving the person detained to his own resource for interpreting the grounds. We must, therefore, hold that the ground mentioned in subpara (e) of para 2 is vague in the sense explained above. " These are some of the authorities that are relevant for the consideration of the case before us. We need not cite other decisions. The grounds supplied to the detenu in our case read as follows. We are not translating them in the interest of exactitude. *** The learned Additional Advocate General urged that it is only the first two paragraphs without number in the aforesaid grounds that constitute the real grounds and the grounds which are mentioned at Nos. 1 to 4 are mere illustrations. We have no difficulty in rejecting this argument. The endeavour of the D. M. has been to inform the detenu that not only he was responsible for mixing sand with cement but he was otherwise involved in several other illegal activities. It cannot be said that the D. M was interested in recounting of the alleged mis-deeds of the detenu but he only mentioned those which apparently influenced his mind to act under sec. 3 (l) (a) of the Security Act. The words ;