P.P. ENTERPRISES ETC. ETC.

UNION OF INDIA & OTHERS ETC.

March !6, 1982

(S. MURTAZA FAZAL ALI AND RB. MISRA, JJ.]

Sugar (Control) Order 1966, clause 5 read with Order No. G.S.R. 410 E/Ess. Com./Sugar dated 14-7·1980-0rdtr prescribing maximum quantity of sugar (Vacuum J!an Sugar) and Khandsari (Open Pan Sugar) to be kept in stock, whether violativt of Artie/ts 14 and 19(J){g) of th• Constitution and also ultra vires section 3 of the Essential Commodities Act, 1955.

Jn exercise of powers conferred by section 3 of the Essential Commodi ties Act, 1955, Sugar Control Ordc~ 1966 was issued by the Government of India, Ministry of Agriculture Clause S of that Order empowered the Central Government to issue directions, inter a/J'a, to recognised dealers regarding production, maintenance of stock, storage, sale, grading, packing, making weighment, disposal, delivery and distribution of sugar.

By Order No. GSR-410-E/Ess. Com./Sugar dated 14·7·1980, the Central Government issued directions to the effect that no recognised dealer shall keep in stock at anytime (a) Vacuum pan sugar in excess of, (i) in Calcutta and other - extended area recognised dealers who irnport sugar from outside West Bengal? 3500 quintals; other recognised dealers 250 quintals; (ii) in other places in cities and towns with a population of one lakh or more 250 quintals and with a population of less than one lakb 100 quintals and (b) Khandsari (open pan sugar) 250 quintals. Further no recognised dealer shall hold any stock of vacuum pan sugar or khandsari (open pan sugar) for a peripd exceeding 10 days from the date of receipt by hi.m of such stock of sugar or khandsari.

The recognised dealers, therefore, assailed the constitutional validity of the said Order on three groundS : (1) the impugned order is not covered by section 3 of the Essential Commodities Act and is ultrtJ vtres; (2) the impugned order imposes unreasonable restrictions on the right of the petitioners to carry on their trade and so it is violative of Article 19 (1) (g) of the Constitution: (3) the impugned order is also violative of Article 14 of the Constitution for two reasons: (a) the petitioners have been singled out for hostile treatment from other dealers of sugar at Calcutta: (b) the impugned order is unreasonable and impracticable.

Dismissing the petitions, the Court

HELD: 1, The order dated 14·7·1980 is not ultrq vires section 3 of the Essential Commodities Act, 1955. The expression "to secure their equitablo

).-

-;.

, ..

~ I

P.P. BNTERPRUBS v. UNION 511

distribution and availability at fair prices", is wide enough to cover the impugned order. Likewise, the expression ''storage and distribution" used in clause (d) of sub-section (2) of section 3 of the Essential Commodities Act, 1955 should be given a liberal construction to give effect to the legislative intent of public welfare. Sugar, which term includes khaodsari, is an essential commodity and over the years it has become a scarce commodity.

In the public interest it became essentialto pass the order tci secure its eq:.1itable distribution and availa~ bility at fair prices. To that end it became ; nocessary to prevent hoarding and black-marketing. (515 F-H, 516 A-El

2. Restrictions put by the impugned order can by no means be said to be unreasonable, lt is only regulatory and not prohibitory. The direction erijoineci a recognised dealer not to keep sugar in stock at a, ay time in excess of the q\iantity specified therein. It only s'eeks to regulate the limit of storage of sugar and does not prohibi.t its storage. By the impugned order the Central Government sought to prevent hoarding and blackmarketing, and to ensure equitable distri bution and availability of sugar at fair prke:i in th;! op;!n market. [516 B, Sl9 DJ

A person has a right to carry on any occupation, trade or business and the only restriction on this unfettCred right is the authority of the-State to make a law imposing reasonablC restrictions under clause (6). The expression 'reasonable restrictions' signifies that the limitation imposed on a person in enjoyment of that right should not be arbitrary _or of an oxcessive nature beyond what is required in the interest of the public. No cut and dry test can be applied to each individual statute impugned, nor an abstract standard or general pattern of reasonableness can be laid down as applicable in all caseS. The Supreme Court in each case hasto strike a proper balance between the freedom guaranteed by Article 19 (l) (g) and the soda! control pr1nitt"d by clause (6) of Article

19. [516 B-D]

State of Mysore v. H. Sanjeeviah, [1967] 2 SCR 360, explained and distinguished.

M/s. Laxmi Khandsari & Ors. v. State of U.P. & Ors., [1981] 2 SCC 609, followed.

3. The order is not violative of Article 14 of the constitution. The fixation of limits fqr storing sugar in Calcutta and other places is not arbitrary but is . based on reasonable classiil.cation. The government is the best judge of the situation in a particular State and what quantity of sugar will meet the exigencies of the situation at a particular place is purely a governmental function. For one, Calcutta serves as a feeder line to meet the requirements of sugar to the eastern

art of the country, and therefOre, the stocks or sugRr to be held by th~ dtalers tn Calcutta are not required for consumption in Calcutta alone. Besides, Calcutta being far away from the sugar manufacturing_ units in Bihar and Uttar Pradesh from where bulk of supplies are obtained, sugar is transported by the wholesal~ dealers tn railway wagons which take sometime unusually longer time in transit.

These and various other factors have been taken into consideration by the Government while fixing the storage limits of sugar for the dealers in Calcutta. [519 F-ll, S20 A]

SUPREME COUR1 REPORTS

I 1982] 3 S.C.R.

The fact that over the. years sugar has become a scarce commodity and people have to purchase it even at a prohibitive price, the dealers would be able to sell the sugar in their stock without difficulty at any time at the prevalent market price. In a rare exceptional case there may be some hardship on that score but it cannot be said, on that account, that the order is violative of Article 14 of the Constitution. In such cases, we hope and trust that the concern ed Government would allow a reasonable time within wb ich the dealers could dispose of the excess quantity of sugar, if any. [520 G, 521 A-CJ

Suraj Mal Kaia1h Chand & Ors. v. Union of India & Anr., Writ Petitions Nos. 8334-48 of 1981 decided on September 25, 1981 (unreported case): Bishambhar Dayal Chandra Mohan & Ors, etc. v. Stat1 of Uttar Pra"sh & Ors. etc., Writ Petitions Nos. 2907~2908 of 1981 and conoec!ed writ petitions (a group of

SOS writ petitions) decided on November 5, 1981, followed.

ORIGINAL

JURISDICTION : Writ Petition Nos. 3846/81, 6454-55/80, 230-249, 502-510, 524, 726-27, 777-96, 803, 1069, 1207-09, 1326, 439-40, 1607, 1691-93, 1702, '1703-7, 1734·36, 1737-40, 1759-72, 1789-90, 1879, 1946-47, 1948, 1959, 1972-97, 2012-17, 2027-39, 2076, 2077-78, 2125·83, 2194.95, 2204-11, 2284-2326,' 2361-62, 2363-64, 2365-2404, 2405-26, 2444-58, 2459·88, 2497-2501, 2503·05, 2513-19, 2520-25, 2542-73, 2597, 2616-41,2642-48, 2661-63, 2665-66, 2698-2700, 2702-21, 2723-26, 2730-44 2756-62, 2766-76, 2779-2802, 2803-15, 2818-26, 2847-55, 2856-67, 2885-96, 2897 98, 2912-15, 2917-26, 2968-76, 2980-3001, 3002-46, 3047-52, 3070-87, 3088-3102, 3165-3205, 3210-17, 3259-64, 3268-77, 3286, 3305-11, 3312-22, 3325, 3346, 3355, 3357-70, 3371-91, 34f\3, 3477-82, 3484·88, 3492-3504, 3505-15, 3516, 3517-34, 3560, 3572-79, 3637, 3693-3730, 3732-36, 3757-75, 3899-3912, 4053·69r 4192"4229, 4261, 4329, 4495, 4496-4508, 4606-09, 4617-21, 4622-69, 4846-75, 4978-86, 5218, 5349, 5533-43, 5597-5609, 5623, 5626-42, 5728, 5746, 6577-81, 6814, 6934·42, 7203, 7217-20, 7409, 7454-56, 7484, 7641, 7659, 7773, 7943, 7944, 8084, 8089, 8090, 8192, 8195, 8201, 8431, 8436, 8834, 8862, 8878·8!, 8924 & 8979 of 1981.

G (Under Article 32 of the Constitution)

Shanti Bhushan, V.M. Tarkunde, P.A. Francis and G.N.

Dikshit.

R.K. Jain, P.K. Jain, Pankaj Kalra, S. Millar, M.G. Gupta, B.R. Kapoor, Miss Bhajan Ram Rakhyani, S.R; Srivastava, B.V.

Tawakley, Shobha Dikshit, B. Dutta, B.D. Sharma, Miss A. Subhashinl,

; w \..

"----. , "

N.N. Sharma, T.C. Sharma, A, Ghosh, S. V. Tambwekar and Girish Chandra for the appearing parties.

The Jud;; ment of the Court was delivered by

MrSRA J. In exercise of powers. conferred by section ' of the Essential Commodities Act, 1955, Sugar Control Order 1966 was issued by the Government of India, Ministry of Agriculture.

Clause ' of that Order empowered the Central Government to issue directions, inter alia, to recognised dealers regarding production, maintenance of stock, storage, sale, grading, packing, making weighment, disposal, delivery and distribution of sugar.

By Order No. GSR-410-E/Ess. Com./Sugar dated the 14th of July, 1980 the Central Government issued the following directions :

''In exercise of the powers conferred by clause 5 of the Sugar (Control) Order, 1966, and in supersession of the order of the Government of India in the ivlinistry of Agticultuie (Department of Food) No. GSR-60 (E)/Ess.

Com./Sugar, dated the 26th February, 1980, the Central Government hereby directs that no recognised dealer shall• keep in stock at any time-

(I) Vacuum pan sugar, in the places mentioned below; in excess of the quantities mentioned against each-

(i) in Calcutta and extended area-

(a) recognised dealers who import sugar from outside West Bengal-'-3,500 quintals;

(b) other recognised dealers-250 quintals;

(ii) in other places"-

(a) in cities and towns with a population of lakh or more-250 quintals; one

(b) in other towns with a population of less than one lakh-100 quintals.

SUPREME COURT REPORTS

[1982] 3 S.C.R.

(2) Khandsari (open pan sugar) in excess of 250 quintals.

Provided that no recognised dealer shall hold any stock of Vacuum pan sugar or Khandsari (open pan sugar) for a period exceeding ten days from the date of receipt by him of web stock of sugar or Khandsari.

Provided further that nothing in this Order shall apply to the holding of stocks of sugar-

(i) on Government account ; or

(ii) by the recognised dealers nominated by a State Government or an officer authorised by it to hold such stock for distribution through fair price shops; or

(iii) by the Food Corporation of India.

Explanation :-For the purpose of this Order, "Calcutta and extended area" means the areas specified in the

Schedule to the notification of the Goyernment of West Bengal No. 7752 F.S./14-R-92/61, dated the 16th December, 1964."

The petitioners in this groups of petitions, who are dealers in sugar, seek to challenge the constitutional validity of the said order on three grounds ; (I) the impugned order is not covered . by section 3 of the Essential Commodities Act and is ultra vires;. (2) the • impugned order imposes unreasonable restrictions on the right of the petitioners to carry on their trade and so it is violative of Article 19 '.:) (g) of the Constitution; (3) the impugned order is also violative of Article 14 of the Constitution for t,\, o reasons : (a) the petitioners have been singled out for hostile treatment from other dealers of sugar at Calcutta, (b) the impugned order is unreasonable and impracticable.

G Shri Shanti Bhushao, senior counsel appearing in one of the

petitions viz., Writ Petition No. 3846 of 1981, took up the first point and urged that the impugned order is not covered by any of the clauses of section 3 of the Essential Commodities Act.

Section 3 of the Essential Commodities Act, 1955, insofar as it is material for the purposes of this case, reads :

P. P. ENTERPRISES v. UNION (Mi!llll, J.) 515

"3. (I) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, or for securing any essential commodity for the defence of India or the efficient conduct of military operations it may, by order, provide for regulating or prohibition the production, supply and distribution thereof and trade and commerce therein

(2) With prejudice to the generality of the powers conferred by subsection (!), an order made thereunder may provide'......

(a) ...•••...... (b) .......... . (c) ......... .

(d) for regulating by licences, permits or otherwise the

storage, transport, distribution, disposal, acquisition,

D . use of consumption of, any essential commodity."

The language of section 3 (l) coupled with clause (d) of subsection (2) of section 3 is wide enough to cover the impugned order.

Section 3 (I) authorises the Central Government to pass an order fonegulating or prohibiting the production, supply and distribution of an essential commodity and trade and commerce therein if it is of opinion that it is necessary or expedient to do so for securing the equitable distribution and availability at a fair price of the essential commodity. The same power has been made more specific by clause !dl of sub-section (2) of sectin 3, which provides for regulating by licences. permits or otherwise, the storage, transport, distribution, disposal, acquisition, use or consumption of, any essential commodity. Sugar, which term includes khandsari, is an essential commdity and over the years it has become a scarce commodity.

In the public interest it became essential to pass the impugned order to secure its equitable distribution and availability at fair prices. To that end it became necessary to prevent hoarding and black-marketing. The expression "to secure their equitable distribution and availability at fair prices" is wide enough to cover tbe impugned order. Likewise, the expression "storage and distribution" used in clause (d) of sub.section (2) of section 3 should be given a liberal construction to give effect to the legislative intent of public welfare.

So construed, the impugned order is fully pro-

516 SUlliREME COURT REPORTS

[ 1982] 3 S.C.R.

tected and is not ui1ru vires section 3 of the Essential Commodities Act, 19:05.

This leads us to the second contention, namely, the impugned order being violative of Arricle 19 (I) (g) of' the C.mstitution inasrn11ch as i1 imposed unreasonable restriction on the right of the petitioners to carry on trade or business.

A person has a right to carry on any occupation, trade or business and unl.v restriction on this unfettered right is the author, ty of the State to make a law imposing resonable reastrictions under clause (6).

The expression 'reasonable restrictions' signifies that the limitation imposed on a person in enjoyment of that ri (ht should not be arbitrary or of an ncessive nature beyond what is required in the interest of the public.

No cut and dry test can be applied to each individual statute impugned, nor an abstract standard or general pattern of reasonableness can be laid down as applicable in all cases.

The Court in each case has to strike a proper balance between the freedom guaranteed by Article 19 (I) (g) and the social control permitted by clause (6) of Article 19.

By the impugned order the <;:entral Government has only put an embargo on the dealers on keeping sugar in excess of the quantity specified.

It was passed only with a view to preveat hoarding and black-marketing, and to ensure equitable distribution and availability of sugar at fair prices in the open market.

Reliance was placed by Shri Shanti Bhushan. on State of Mysore v, H. Sanjeeviah.(1) In that Case the State Government of Mysore had framed rules to regulate the transit of timber, firewood, charcoal and bamboos from all lands in exercise of powers C<•nferred by section 37 of the Mysore Forest Act 11 of

1900.

By rule 2 framed on October 13, 1952, it was provided that no person shall import forest produce into, export forest produce from, or move forest produce within, any of the areas specified in Schedule A miless such forest produce is accompanied by permit prescribed in rule 3.

On April 15, 1959 the State of Mysore issued . a notification adding a proviso to rule 2 which read as follows :

-·).

"Provided that no such permit shall authorise any person to transport forest produce between sun set and sun-rise in any of the areas specified in Schedule A."

By another notification dated September_l4, 196: the State Government introudced the second proviso to rule 2 which read : 8

"Provided further that permission may be granted to timber merchants on their request to transport timber upto 10 p.m. (22 hrs) under the following conditions:

(i) the party who wishes to avail of the concession should

pay a cash deposit of Rs. IOOO as security for the compliance with the timber transit rules as in force;

(ii) that the deposit may be forfeited to government for breach of any of the conditions of the timber transit rules."

The dealers in timber challenged the two provisos on the grounds inter alia that they were beyond Jhe rule making authority conferred upon the State Government by section 37 of the Myaore Forest Act 11 of 1900 and in any event the provisos imposed unauhorised restrictions 'on the freedom of trade, commerce and intercourse. The High Court held that the State Government while seeking to regulate the transport of timber stopped transport altogether. This Court upholding the order of the High Court observed :

"Power to impose restrictions of the nature contemplated by the two provisos to r. 2 is not to be found in any of the clauses of sub-s. (2) of s. 37.

By sub-s. (I) the State Government is invested with the power to regulate transport of forest produce "in transit by land or water." The power which the Stale Government may exercise is however power to regulate transport of forest produce, and not the power tel prohibit orrestrict transport.

Prima fade, a rule which totally prohibits the movement of forest produce during the period between sun-set and sun-rise is prohibitory or restrictive of the right to transport forest produce.

A rule regulating transport in its essence permits transport, subject to certain conditions devised to promote transport."

(1982] 3 S.C.R.

This Court further observed :

"If the provisos are in truth restrictive of the right to transport the forest produce, however, good the grounds apparently may be for restricting the transport of forest produce, they cannot . on that - account transform the power conferred by the provisos into a power merely regulatory."

The facts of the present cases are materially different from the facts of H. Sanjeeviah's case (supra).

In that case the impugned provisos to rule 2 completely prohibited the trans port of the fore st produce between sun-set and sun-rise. But in the cases in hand the direction enjoined a recognised dealer not to keep sugar in stock at any time in excess of the quantity specified therein. It only seeks to regulate the limit of storage of sugar and does not prohibit its storage.

The case of H. Sanjeeviah, therefore, is not of much help to the petitioners herein.

In M/s. Laxmi Khandsari & Ors. v. State of U.P . . & Ors.(1) this Court made the following observations about reasonable restrictions on the right conferred by Article .19 (I) (g) of the Constitution in the followi.ng terms :.

"As to what are reasonable restrictions would naturally depend on the nature and circumstances of the case, the character of the statute, the object which it seeks to srve, the existing circumstances, the extent of the evil sought to be remedied as also the nature of restraint or restriction placed on the rights of the citizen. It is difficult to lay down any hard and fast rule of universal application but in imposing such restrictions the State must adopt an objective standard amounting to a social control by restric ting the right of the citizens where the necessities of the situation demand.

The restrictions must be in public interest and are imposed by striking a just balance between the deprivation of right and the cianager or evil sought to be avoided.

If the restrictions imposed appear to be consistent with the directive principles of State policy they would have to be upheld iis the same would be in public

c11 [198IJ 2 sec 600.

' "

P. P. ENTER•RISBS v. UNION (Misra, J.) 519

interest and manifestly reasonable.

Further, restrictions may be partial, c.omplete, permanent or temporary but they must bear a close nexus with the object in the inter.est of which they are imposed.

Another important test is that restriction should not be excessive or arbitrary. The court must examine the direct and immediate import of the restrictions on the rights of the citizens arid determine if the restrictions are in larger public interest" while deciding the question that they contain the quality of reasonableness. In such cases a doctrinaire approach should not be made but care should be taken to see that the real purpose which is sought to be achieved by restricting the rights of the citizens is subserved.

At the same time, the possibility of an alternative scheme which might have been but has not been enforced would not expose the restrictions to challenge on the ground that they are not reasonable."

Judged in that light and on an overall consideration of the various D aspects of the matter, restrictions put by the impugned order can by no means be said to be unreasonable. It is only regulatory and not prohibitory.

We now take up the last contention, namely, the impugned order being violative of Article 14 of the Constitution. The learned E counsel seeks to invoke Article 14 on two grounds: (1) the impugned order applies two standards, one for the dealers, at Calcutta, who had been authorised to keep 3,500 quintals at one time, while the dealers at other places have been authorised to keep only 250 quintals in cities with a population of one lakh or more, a)ld only 100 quintals in other towns with a population of less than one lakh.

The fixation of limits for storing sugar in Calcutta and other places is not arbitrary but is based on reasonable classification. The government is the best judge of the situation in a particular State and that quantity of.sugar will meet the exigencies of the situation at a particular place is purely a governmental functio~. For one, Calcutta serves as a feeder line to meet the requirements of sugar to the eastern part of the country, and therefore, the stocks of sugar to be held by the dealers in Calcutta are not required for consumption in Calcutta alone.

Besides, Calcutta being far away from the sugar manufacturing units in Bihar and Uttar Pradesh, from whwo bulk of t1uppliaa are obtained, llOpr is transported by tho whol•I•

SUPREME COURT REPORJ;

[I 982J 3 S.C.R

dealers in railway wagons which take sometime unusuallv !on•er time in transit.

These and various otber factors have ben taken into consideration by the Government while fixing the storage limits of sugar for the dealers in Calcutta.

His second ground for invoking Article l 4 of the Constitution is that the impugned order is unreasonable and impracticable in that no dealer can be sre of the sale of sugar on any particular day. If per chance a dealer is not able to disp<Jse of the excess sugar on a particular day be would expose himself to punishment under the Act.

No provision has been made in the order or in the rules for the purchase by the Government of the excess sugar.

For the State it was contended that similar orders witl1 regard to wheat came up for consideration in this Court in Suraj Mal Kaifosh Chand & Ors.

v. Union of India & .4nr.(1) and Bishambhar Dayal Chandra Mohan & Ors. etc. v. State of Uttar Pradesh & Ors. etc.(2) when this Court upheld the validity of these orders.

In view of the decision of this Court in those cases it is not open to Shri Shanti Blmshan to challege the constitutional validity of the impugned order.

Shri Shanti Bhushan, however, refutes the argument and says that those decisions do not stand in the way of the petitioners.

The situation with regard to wheat was quite different inasmuch. s clause 25 of the impugned order in Surnj Mal's case

(supra) provided that the State Government or the Collector or the Licensing Authority may issue directions to any dealer wirh regard to purchase, sale, disposal, storage or exhibition of the price and stock list of all or any of the trade articles.

But there is no such provision in the impugned order in the instant case and, therefore, the dealers can expose them, dves to punishment merely because at any particular pofot of time the stock was in excess of the prescribed limits.

Bishambhar Duya/'s case (supra) also related to wheat.

There was a scheme for the procurement of wheat by the State Government but there is no such scheme in respect of sugar. fhis fact distinguishes the present case for the facts of the aforesaid decision.

The argument though attractive cannot be accepted.

Over the years sugar has become a scare commodity and people have to

(I) Writ Petitions Nos. 8334-48 of 198t decided on Septernber.25, 1981 (unreported case) (2) Writ Petitions Nos. 2907-2908 of 1981 and connected Writ Petitions

{i group of 505 writ petitions) decided on November 5, 1981,

"Purchase it even at a prohibitive price. In the circumstances it cannot be expected that the dealers would not be able to sell the sugar in their stock. There is absolutely no difficulty in selling the sugar at any time at the prevalent market price. If in a rare case there is difficulty on that score we hope and trust that the concerned Government would allow a reasonable time within which the . petitioners are permitted to dispose of the excess quantity of sugar, if any. In any case, in some given case there may .be some hardship but it cannot be said on that account that the impugned order is violative of' Article 14 of the Constitution.

For the foregoing discussion the writ petitions inust fail. They are accordingly dismissed. In the circumstances of the case there shall, however, be no order as to costs.

S.R.

Petitions dismissed,

P.P. ENTERPRISES ETC. ETC

UNION OF INDIA & OTHERS ETC

S. MURTAZA FAZAL ALI

RB. MISRA, JJ.

clause 5

section 3

Essential Commodities Act, 1955

section 3

Essential Commodi ties Act, 1955

Government of India

Central Government

Calcutta

West Bengal

section 3

Essential Commodities Act

Article 19

Article 14

section 3

Essential Commodities Act, 1955

section 3

Essential Commodities Act, 1955

Supreme Court

Article 19

Article

19

[1967] 2 SCR 360

Article 14

Bihar

Uttar Pradesh

Article 14

Article 32

V.M. Tarkunde

P.A. Francis

G.N.

Dikshit

R.K. Jain

P.K. Jain

Pankaj Kalra

S. Millar

M.G. Gupta

B.R. Kapoor

Bhajan Ram Rakhyani

Srivastava

B.V.

Tawakley

Shobha Dikshit

B. Dutta

B.D. Sharma

A. Subhashinl

N.N. Sharma

T.C. Sharma

A,

Ghosh

S. V. Tambwekar

Girish Chandra

Essential Commodities Act, 1955

clause 5

West Bengal-'-3,500

Food Corporation of India

16th December, 1964

section 3

Essential Commodities Act

Article 19

Article 14

Shanti Bhushao

section 3

Essential Commodities Act

Section 3

Essential Commodities Act, 1955

India

section 3

section 3

Section 3

section 3

section 3

Essential Commodities Act

Article 19

Article 19

Shanti Bhushan

State Government of Mysore

section 37

October 13, 1952

April 15, 1959

State of Mysore

section 37

s. 37

H. Sanjeeviah

sec 600

Misra

Article 14

Article 14

Bishambhar Dayal

Shanti Blmshan

clause 25

Surnj Mal

Bishambhar Duya/

Septernber.25, 1981

November 5, 1981

Article 14


A 522

VIJAY KUMAR

STATE OF J & K & OTHERS

March 17, 1982

[D.A. DESAI AND BAHARUL {SLAM, JJ.)

Jammu & Kashmir Public Safety Act, 1978~Section 13(1)-Detaining _authprity must gi¥t the dttenu earliest opportunity of making reprtsentation- Forwarding detenu's representation to Goternment-Jail authorities-Mere channel of commqnication-Delay in transit-No excuse for delay in dealing with representation-Unexplained delay-Invalidates order of detention.

The petitioner has arrested on June 26, 1981 under the Enemy Agent Ordinance. The Chief Judicial Magistrate rejected his application for bail on the ground that he had no jurisdiction to try him. Tho Addi. Sessions Judge rejected his bail application on the ground that as he was by then ordered to be detained under the J & K Public Safety Act tho bail application has become infructuous.

The detention order dated July 11, 1981 was served on the detenue in Jail on July 15, 1981. His representation dated July 29, 1981 was forwarded to the E State Government on July 29. 1981 and simultaneously a wireless message was sent"on the same day. The representation was received by the Government on August 12, 1981. After investigation. the file was put up to tho Chief Minister on August 28, 1981 for approval. The Chief Minister rejected the representation on August 31, 1981 which Was communicated to the petitioner in jail on Septem~ ber 1, 1981. The detenu's case was referred to the Advisory Board on August 3, 1981. Its report was submitted on September 4, 1981.

In this petition under art. 32 of the Constitution it was contended before this Court on behalf of the petitioner that as section 13 (1) of the Jammu & Kashmir Public S<ifety Act 1978 imposes an obligationon the detaining authority to give the detenu the earliest oppOrtunity of making a representation against the detention order the long unexplained delay in this case had invalidated the order of detention.

Allowing the petition,

HELD : The petitioner's representation had not been dealt with as expeditiously as possible. There was therefore contravention of section 13 of the Act which invalidated the detention. [532 D]

Preventive detention, unlike punitive detention, does not afford all opportunity to \he detenu to explain his sid~ Qf \11• matter l?efoi~ !I~ is .deprive4 t

VIJAY KUMAR v. J & K STATS 523

or his liberty and therefore the statute makes it obligatory on the authorities to

afford him ttie earliest opportunity to represent his case and a corresponding obligation on the autho'rity to consider the representation. The word "earliest" which qualifies the term "opportunity" must equalliqualify the corresponding obligation of the State to deal with the representation iC and when made as expeditiously as possible. [529 H; 530 A-Bl

The jail authorities who are merety a communicating channel have to move with promptitude so that sufficient guarantee of affording earliest opportu .. nity of making the representation and the same reaching the Government is translated into action. The corresponding obligation of the State to consider the representation cannot be whittled down by merely saying that time was lost in transit. The State Government must aear up its own machinery to see that In these cases the representation reaches the Government as early as possible and is considered by the authorities with equal promptitude. Any unexplained delay would bo denial of the statutory protection given to tho dotonu. [530 0-G]

Ill the instant case there were two time lags : the representation handed in to the Jail Superintendent on July 29, 1981 reached the Government on August 12, 1981 after a time lag of fourteen days and tho representation was disposed of on August 31, 1981 after a time lag of nineteen days and the delay has not been explained on any convincing ground. [531 F, 532 BJ

Khudi Ram Da.t v. Stat• of W••I Bef18a/, [1975) 2 SCC 81, referred to.

' Preventive detention is resorted to~ to thwart future action. lf the dctenu is already in jail charged with a serious offence, he is thereby prevented from acting in a manner prejudicial to the security of the State. Where there is need to Order preventive detention of a person already in jail the detaining authority mu1t disclose awareness of the fact that the rson against whom an order of preventive detention is being ruade is to the knowledge or the authority already in jajl and yet for compelling reasons a preventive detention ofder needs to be made. L528 F-GJ

In the instant case there is nothing to indicate awarenw of the detaining authority that the detenu was already in jail for more than 16 days and yet the

impugned order was made. This clearly exhibits non-application of mind and would result in invalidation of the. order. But the Court did not base its order on this ground. [528 G-H]

ORIGINAL JuR1smcrloN: Writ Petition (Ciminal) No. 9516 G of 1981.

(Under article 32 of the Constitution)

Bhim Singh, P.D. Sharma & Subash Sharma fot the Petitioner.

M.N. Phadke and Alta/ Ahmed fqr the Respondeqt1,

SUPREME COURT REPORTS [1982) 3 s:c.R.

. The Judgment of the. Court was delivered by

DESAI, J. On February 9, 1982 we made an order quashing the detention order dated July 11, 1981 made by the District Magistrate, Jammu in exercise of' the power conferred by Section 8 of The Jammu and Kashmir Public Safety Act, 1978 ('Act' for short) and we announced that the reasons would follow.

Here are the reasons.

The detenu Vijay Kumar was arrested on June 26, 1981. A petition wa~ moved on his behalf bfore the Chief Judicial Magistrate Jammu praying for releasing the detenu, on bail. This petition for bail appears to have come up before thi: learned Magistrate on July 4, 1981 when the following. order was made:

"I have heard the advocate for the applicant and perused the C.D. File. Put up for orders on 6.7.81."

When the matter again came up on July 6, 1981, the learned Magistrate made the following order :

"Although there was nothing in the C.D. File about his (Petitioner) involvement in E.A.O. (Enemy Agents Ordinance) on 4.7.81, but today a detailed report has been presented in which one of the offences of which he is charged is u/s 3, E.A.O. which this Court is not competent to try. Hence this application is returned to the applicant for presentation to the proper court alongwith report."

The detenu thereupon moved an application for releasing him on bail before the learned Additional Sessions Judge, Jammu, who, we are informed, was competent to try the accused charged with an offence under Enemy Agents Ordinance.

His petition for hail came up before the learned Additional Sessions Judge on July G 11, 1981 when the following order was made:

"This application pertains to Vijay Kumar accused who is involved for an offence under the Enemy Agents Ordinance which is being investigated by the Counter H Intelligence Police, Jammu. The learned Chief Prosecuting Officer and the learned counsel for the accused have been heard,

) )

/ vi!AY KUMAR v. 1 & K STATE (Desai, i.)

During the course of arguments an order has been shown. to me by the police that said Vijay Kumar accused has now been ordered to be detained under the Pliblic Safety Act.

In view of this order, this bail application has become B infructuous which is disposed of accordingly."

The detemi was served with the detention order dated July 11, 1981 on the same day in jail because he was already in jail from June 25, J.981. The grounds for detention were served on him on July 15, 1981. The deienu submitted his representation dated July 29, 1981 addressed to the Secretary the Government Home Department to the Superintendent, Central Jail, Jammu where the detenu was detained. One .Shri K.D. Sharma, Incharge Superintendent, Central !ail Jammu bas stated in bis affidavit dated February. 6, 1982 that the representation of the detenu dated July 29, 1981 was forwarded to the.Government at Srinagar vide Office letter , No. 2595 dated July 29, 1981 and simultaneously a wireless message No. 2596 on the same day was also sent to the Government intimating that the representation of the detenu bad been forwarded to the Govern ment for appropriate action. Mr. K.S. Salathia, Deputy Secretary to the Government of Jammu .and Kashmir, Home Department, Jammu, in bis affidavit dated °February 9, 1982 has stated that the representation of the detenu was received from the Superintendent, Central Jail, Jammu in the office of the Home Department at Srinagar on August 12, 1981. . The department also received the comments of S.P., C.l.D. Counter Intelligence, Jammu and there- . after the case was processed on August 24, 1981 in the office of the Home Department at Srinagar a.nd the file was placed before the Home Secretary on August 25, 1981, who recommended the same. for approval on August 28,1981 to the Chief Minister (Home) From the same affidavit, it further transpires that the Chief Minister rejected the representation on August 31, 1981 an'ci the same was communicated to the detenu on September 1, 1981. In the meantime, the case of the detenu was referred to the Advisory Board on August 3, 1981. The Advisory Board submitted its report to the Government on September 4, 1981.

One Rattanlal, the brother of the detenu moved Petition No. 31 of 1981 for writ of Habeas Corpus in the High Court of Jammu and Kashmir at Jammu. The petition came up for hearing before

G .. ,.

~·.

siJPkEME cOVRT REPORTS ( 1982] j s.C.lt.

A the learned Single Judge, who by his judgment dated December 7, 1981 rejected the same. Thereafter the detenu by the present writ petition; moved this Court under Article 32 of the Constitution for a writ of Habeas Corpus.

Section 8 of the Act prescribes grounds for detention, one such ground being to prevent any person from 'acting in any manner prejudicial to the security of the State. The impugned order of detention recites that the detenu is detained with a view to preven ting him from 'acting in any manner prejudicial to 'the security of the State.' The expression 'acting in any manner prejudicial to the security of the State' has been defined in Section 8 (3) of the Act to mean making preparations for using, or attempting to use, or using or ins\igating, inciting, provoking or otherwise abetting the use of force, to overthrew or overawe the Government established by the law in the State. The detenu contended before the High Court that accepting all the activities attributed to the detenu in the grounds of detention at their face value. the alleged prejudicial activity would not fall within the ambit of the expression 'acting in any manner prejudicial to the security of the State.' The definition of the expression as hereinbefore extracted indicates that the person accused of 'acting in any manner prejudical to the security of the State' must be shown to be making preparations for using, or attempting to use, or using or instigating, inciting or provoking or otherwise abetting the use of force, and the intention or motive for the activity must be to overthrow or overawe the Government established by law in the State. The learned judge of the High Court following an earlier Division Bench judgment of the same High Court in Kharatilal v. State,(') negatived this contention ob- . serving that where the Government accusation against the dctenu is that he had been indulging in supplying information for Pakistan Army Intelligence and was passing on vital information pertaining to the Army deplopmen.t etc. to that Agency, such activities were likely to assist Pakistan in any armed aggression against the State and were a threat to the security of the State. This view needs examination but as the argument was not pressed before us, we refrain from examining the same.

Number of contentions were advanced at the hearing of this petition but we propose to deal with only two of them which in our

(I) 1981 K.L.H. 71 •

ViiAY ltul.!AR v. J & It STATE (besai, J.)

opinion go to the root of the matter and which, wheh accepted, in our opinion, would result in invalidation.of the order .

The first contention is that the order of the District Magistrate suffers from non-application of mind inasmuch as the date on which he passed the impugned order of detention dated July 11, 1981, the detenu was long before arrested and locked up in Jail on the allegation tha\ he was suspected to have committed some offence under the Enemy Agents Ordinance 8 of Samvat Year 2005, and, therefore there was no present apprehension that the detenu, if not detained, was likely to act in any manner prejudicial to the security of the State.

The District Magistrate passed the impugned order of detention on being satisfied that with a view to preventing the detenu from -acting in a manner prejudical to the security of the State it was necessary to detain him. The order ex facie does not show that the deiaining authority was aware that the detenu was already arrested and kept in jail. If the detaining authority was conscious of the fact that_ the dctenu was already arrested and confined in jail, the order ex facie would have shown that even though the detenu was in jail, with a vic\v to preventing him from acting in a manner prejudicial to the security of the State it was necessary to detain him. There is a foot note in the order that the order was forwarded to the S.P., C.I.D.- Counter IntelHgence, Jammu for execution of the order under section 3 of the Act. The further direction was that notice of the order shall be given to Vijay Kumar s/o Anant Ram, r/o-H. No. 609, Peer Mitha, Jammu, by reading over and explaining the same to him in language he understands.

The detention order docs not give , the sligbteit indication that the detaining authority was aware that the dctcnu was already in jail yet on the material placed before him he was satisfied that a detention order ought to he made. There is nothing in the order to show that to the knowledge of the detaining authority the detenu was already in jail for a period of more than 1 b days before the date on which he passed'the order and that such detention in the opinion of the detaining authority was not sufficient to prevent the detenu from acting in a manner prejudicial to the security of the State,

and therefore power under section 8 of the Act is required io be exercised,

The detenu in para 3 of his petition before this Court has specifically averred that he was arrested on June 26 1981, the correct

528 s~PRllME cOURt RllPOtlts ! 1982) 3 s.c.tl.

date being June 25, 1981, unde( a false and fabricated charge. Shri K.S. Salathia, Deputy Secretary to Government of Jammu & Kashmir, Home Department, who has filed the counter affidavit has with reference to the averments made in para 3 of the petition made a very very ambiguous statement that 'for the purpose of J iind K Public

Safety Act the petitioner was arrested on July 11, 1981, pursuant to the detention order. It is no where suggested that the detaining authority was awa.re of the fact that the detenu was already. in jail and _that

keeping in view the fact the detenu was already locked up in jail yet it was considered necessary for preventing him from acting in a manner prejudicial to the security of the State to pass the detention order. It may further be pointed out that Shri A. Sahasranaman, the District Magistrate of Jammu who has made the impugned detention order, filed an affidavit on February 7, 1982. Of course, in fairness to him it must be stated that this affidavit was for the limited purpose of pointing out as to how he dealt with the case of Hans Raj, another detenu whose detention was quashed by this Court. subsequent to the order of this Court. It may be noticed ia passing that Hans Raj and the detenu were involved jointly in the activity, which led to the detention of the detenu.

Even though this affidavit was filed for the limited purpose, it came on record after the case was taken up for hearing by this Court and the affidavit at least does not throw any light on the vexed question whether the detaining authori:y was aware of the fact that the detenu on being suspected of having committed a serious offence, was already in jail for a priod of more than a fortnight before the date of the impugned detention order. Preventive detention is resorted to, to thwart future action. If the detenu is already in jail charged with a serious offence, he is thereby prevented from acting in a manner prejudicial to the security . of the State. May be, in a given case there yet may be the need to order preventive detention of a person already in jail. But in such a situation the detaining authority must disclose awarness of the fact that the person against whom an order of preventive detention is being made is to the knowledge of the authority already in jail and yet for compelling reasons a preventive detention order needs to be made. There is nothing to indicate, the awarer.fss of the detaining authority that detenu was already. in jail and yet the impugned order is required to be made. This, in our opinion, clearly exhibits non-application of mind and would result in invalidation of the order. We,· however, do not base our order ?n this ground.

VliA\' KUMAil v. 1 & K STATE (Desai, J.)

The second contention which in our opinion goes to the root of the matter is that there has been a violation of section 13 of the Act. Section 13 provides as under :

"13. Grounds of order of detention to be disclosed to persons affected by the o.rder : -(!) When a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, but not later than.five 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 Government."

x x x

The provision contained in section 13 (I) is on par with the constitutional protection conferred by Article 22 (5) of the Constitution of India. The contention is that the obligation on the detaining authority to afford to the detenu the earliest opportunity of making representation against the order of detention, in order not to render it illusory simultaneously obliges the authority to whom the representation is made to consider the same expeditiously. Suboiission is that a statutory right conferred on the detenu enabling him to make a representation which of necessity must be giving an opportu'nity to point out. to the Government as to why the detention order was not justified and that it must be revoked and the personal liberty deprived under the detention order must be restored; is to convince the Government to take into consideration the facts and contentions set out in the representation, which must imply that the Government must consider the same. The earliest. opportunity to be afforded for making representation inheres 'the correspondiag duty of the Government to consider the representation so received expeditiously. The reason behind enacting this provision is manifest.

When power to detain without trial isexercised, the authority exercising the power must afford an opportunity to the detenu to convince the Go.vernment/detaining authority that the power was not justifiably ex.ercised or no occasion. arose for exercise of the power.

In a punitive detention which is the end product of a trial in which the convict participates and has lull opportunity to present his side of the case while preventive detention ordinarily described as jurisdiction based on suspicion does not afford any opportunity to the. detenu to explain his side of the matter before

( 198~1 s.e.i.

he is deprived of the liberty and; therefore, so soon after the detenu is deprived of biS personal liberty the statute makes it obligatory on the authorities concerned to afford him an earliest opportunity to represent bis side of the case and which inheres the corresponding obligation on the authority to consider the same.

The word 'earliest' which qualifies the opportunity must equally qualify the corresponding obligation of the State to deal with the representation if and when made, as expeditiously as possible. The opportunity contemplated by the section is the . opportunity to make a representation against the detention order to. the Government and therefore ex hypothese soon after the person isdeprived of his personal liberty be must be afforded the earliest opportunity to make a representation.

The representation is to be made to the Government. Therefore the detenu who bas already been served with the detention order and thus deprived of his liberty would ordinarily be in a position to send his representation tbrough the jail authorities. The jail authority is merely a communicating channel because the representation has to reach the Government which enjoys the power of revoking the detention order. The intermediary authorities who are communicating authorities have also to move wit}! an amount of promptitude so that the statutory guarantee of affording earliest opportunity of making the representation and the same reaching the Government is translated into action. The corresponding obligation of the State to consider the representation cannot be whittled down by merely saying that much time was lost in the transit. If the Government enacts a law like the preseni Act empowering certain authorities to make the detention order and also simultaneously makes a statutory provision of affording the earliest opportunity tci the detenu to make bis representation against his detention, to the Government and not the detain log authority, of necessity the State Government must gear up its own machinery to see that in these cases the representation reaches the Government as quickly as possible and it is considered by the authorities with equal promptitude. Aoy slackness in this behalf not properly explained would be denial of the protection conferred by the statute and would result in invalidation of the order.

Reverting to the "facts of this case, the detenu who in jail from June 25, 1981, was served with a detention or(ler on July 11, 1981, the very day on which the detention order was made. The grounds of detention were served upon him on July 15, 1981. Admittedly the detenu submitted his representation to the Superintendent of Jail on foty 29, 1981. One K.D. Sharma, Medical Officer, Central Jail,

-~-

l '

__ ,

--"

VIJAY KUMA!l v. J & K STATE (l>esai, J.) 531

• Jllll)mu, Incharge Central Jail, Jammu who has filed his affidavit dated February 6, 1982, has admitted that the detenu submitted his represtntation addressed to the Secretary to the Government, Home Department, on July 29, 1981. He proceeds tp assert that the said representation in original was forwarded by post to the Government in Srinagar vide his office No. 2595 dated July 29, 1981. He further adds that a wireless message No. 2596 dated July 29, 1981, was alo sent to the Government to intimate that the representation of the detenu had been forwarded to the 'Government for appropriate action. Postal communication from

Jammu to Srinagar hardly takes two days unless it is pointed out that there was some break down of communication. Nothing to that effect was brought to our notice. Now, Shri Salathia has stated In

his counter affidavit that as no representation was received a wireless message was sent on August 6, 1981, making reference to the wireless communication from the Superintendent of Jail.that the representation referred to in the wireless message of the Jail Superintendent bas still not been received at Srinagar. He requested the Superintendent to send a duplicate copy of the same by air consignment, and gave a further direction that in future all such communications should be sent through air consignment. Be that as it may, be says that the representation was received in the office on August 12, 1981. The comments from S.P., C.l.D., Counter Intelligence were called for on August 14, 1981. He.does not state the date on which they were received but be says that the case was examined and processed on August 24, 1981 i~ the office and the file was placed before the Home Secretary on August 25, 1981, who recommended the same for approval on August 28, 1981, and the Chief Minister (Home) rejected the representation on August 31, 1981, and the facto( rejection of the representation was communicated to the detenu on September 1, 1981. There arc two time lags which may De noticed. Representation admittedly handed in the Superintendellt of Jail on July 29, 1981 to at Jammu reached Srinagar, the summer capital of the State on August 12, 1981, which shows a time lag of 14 days. The second time lag is, from our point of view,.more glaring. Even though the concerned office was made aware of the fact by the wireless message of the Superintendent of Jail, Jammu, dated July 29, 1981, that a representation of the detenu has been sent by post, the first query about its non. receipt came as per the wireless message dated August 6, 1981.

That can be overlooked, but it has one important message. The concerned office was aware of the fact that a representation .has

532 StJPIU!Mll c:OtJRT IU!MR1'S , . [I §81] 3 s.c.R.

already been made and a duplicate was sent for.

With the background of this knowledge trace the movement of the representation from the date of its admitted receipt being Augu5t 12, 1981.

I(the representation was received on August 12, 1981, and the same office disosed it of on August 31, 1981, there has been a time lag of 19 days and the explanation in that behalf in the affidavit of Shri Salathia is far from convincing. In . our opinion, in the facts of this case this delay, apart from being inordinate, is not explained on any convincing grounds.

In Khudi Ram Das v. State of West Bengal,(') this Court held that one of the basic requirements of clause (5) of Article 22 is that the authority making the order of detention must afford the detenu the earliest opportunity of making a representation against the order of detention and this requirement would become illusory unless there is a corresponding obligation on the detaining authority to cbnsider the representation of the detenu as early as possible. Thus, in the facts of this case we are not satisfied that the representation was dealt with as early as possible or as expeditiously as possible, and, there-· fore, there would be contravention of section 13 of the Act which would result in the invalidation of the order.

These are the reasons which had prompted us to quash and set aside the detention order.

P.B.R.

Petition allowed •.

(1) [197S] 2 s.c.c. 81. 1

522

VIJAY KUMAR

STATE OF J & K & OTHERS

D.A. DESAI

Kashmir Public Safety Act, 1978

Section 13(1)

Public Safety Act

July 11, 1981

July 15, 1981

July 29. 1981

12, 1981

August 28, 1981

August 31, 1981

Septem~ ber 1, 1981

August 3, 1981

September 4, 1981

art. 32

section 13

section 13

July 29, 1981

August 12, 1981

article 32

Bhim Singh

P.D. Sharma

Subash Sharma

M.N. Phadke

Alta/ Ahmed

DESAI

Section 8

Chief Judicial Magistrate Jammu

Enemy Agents Ordinance

s 3

Additional Sessions Judge, Jammu

Enemy Agents Ordinance

July G 11, 1981

Vijay Kumar

Jammu

June 25, J.981

K.D. Sharma

Srinagar

K.S. Salathia

Government of Jammu .and Kashmir

February 9, 1982

September 1, 1981

Rattanlal

December 7, 1981

Article 32

Section 8

Section 8

Pakistan

besai

section 3

Anant Ram

section 8

K.S. Salathia

Government of Jammu & Kashmir

Safety Act

A. Sahasranaman

District Magistrate of Jammu

February 7, 1982

Hans Raj

Desai

section 13

Section 13

section 13

Article 22

Constitution of India

June 25, 1981

Salathia

August 6, 1981

August 14, 1981

August 24, 1981

August 25, 1981

Article 22

section 13


~--

'/ .. }

• ; j"

ANIL YADAV. & _ORS.'

' v.

.'_;--;:.I ·.' l.

. STATE OF BIHAR & ANR.

. •, ,,- .•.. ., . ·.· , , March 23, 1982; ·-; ,"-;.··

".-· .. V'.

[Y.V. CJIANDRACHUD, C.J., A.' v ARADARAJAN AND

A!llARENDRA NATH SEN, JI.] -. . .

_, .. _ ..

. •• f

 ...

, ..

. __ . ConJt/tullon oflmlia 1950, Art.32-Habea• CorpuJ petltlon-&•pondmt a go1ernment official directed tO file Oj/idarit..:...OffiClal' 1usp•nded by; government-

Susptn1/011 Order whether Can be challenged in /11cldental Proceedt,, Z8. · -

The second respondent who was the Superintendent or the BbagaJpur Central Jail was suspended by the State Government on the groand that he was negligent in providing~ propel- -medicai aid to the blinded undertrial prisoners inside the jail and that he bad failed to make entries in the jail register as regrds

the physical condition or the ui:tdeririat prisoners.': I In a Mlscellaneous Petition filed by him he claimed that bis order of suspeOsion be quashed as itwas passed ma/a fide. with the object ol preventing him from tiling the affidavit as directed by the cOurt. ; ..

The. State GovemiDent contested the petitiO~ cOntendi.iig that the respondent was suspended for his failure to Comply with the requirements of Rule 474

(1) of the Bihar Jail Manual in that he -did iiot scrutinise and sign the entries made in the Admission Register maintained at the jail to satisfy himself whether those entries were correct and whether the relevant rules in regard to the admission of the prisoners were complied with.· He_ did_ not. aJso record any 'special" . ofdei under Rule 474 (2) regarding the medical treatmeiit given or to be given to the blinded prisoners with the reslllt that they were not sent for examination to any eye specialist. He did ... not make 3. report on the blindings of the prisoners and. he ~pplied .to newsP_aper_s bis own version of the blindings •

. , .

Dismissing the petitions;-, ' ,--. : ",

HELD: . OrdinarilY 30: older or sus~D.Sion cailliot be haunied i~. I.a inCideiltal proceeding but it was heaid Since the allegation was th3t the petitioD.Cr was suspended in order 10 defeat the order passed _by this Court. [539 E] · , ·:

< - ' ~

~ . . .. 2. The Order of, suSpension. was -not._ passed: by the GoveiUment ma/a

J; j~ as a couuterblast to the order passed b)' this Coor! on December l, 1980

lliid 10 c!efct it. (540 FJ · ·

3. The allegation that the motive behind the order was to frustrate the purpose of the Court's direction calJing upon the petitioner to file an affidavit is not proved. The evidence on record indicates that the State Government officials were enquiring into the blindings of the under-trial prisoners and there is a report in the- Government files recommending that the petitioner be suspended for dereliction of duty, It cannot be said that this report was prepa1ed later and antedated to justify the order of suspension. [540 G-H; 541 A-BJ

4. By placing the petitioner under suspension the State Government could not prevent him from filing an affidavit in Court. He was free to file bis affidavit and in fact he filed an affidavit after suspension. [541 CJ

The petitioner will be at liberty to challenge the order of suspension in a properly constituted proceedings on such grounds as may be open to him including the ground that the order was passed ma/a fide. [541 Fl

ORIGINAL JURISDICTION : Criminal Misc. Petitions Nos. 8774 of 1980 & 2581of1981. ~-,

Writ Petition No. 5352 of 1980.

(Under Article 32 of the Constitution)

B.L. Das Petitioner-in-person.

K.G. Bhagat and D. Goburdhan for the Respondent (State).

R.N. Poddar for the Res, Pondent (CBI).

The Order of the Court was delivered by

CHANDRACHUD, CJ. These Misc. Petitions are an off-shoot of the blindings of undertrial prisoners at Bhagalpur in the State of Bihar. Truth has a strange habit of revealing itself and in spite of the veil of secrecy behind which the blindings of those prisoners lay concealed or suppressed, this Court and the country awoke one day to the incredible fact that, in Bhagalpur, undertrial 'prisoners were subjected to the most inhuman torture imaginable : their eyes were pierced with needles and acid poured into them. Whether these barbarous acts were committed by members of the public after the prisoners were caught or by the police after they were arrested, is not a matter directly in issue before us. The greater probability

i' th11t thes~ a~\s mat have been ommitted mostly by the poli~.

But this much is certain, that six prisoners were thus blinded between

October 1979 and May 1980 and twelve between lune 11 and July 25, 1980. The petitioner Bacbcho Lal Das, who has filed the11e Misc. Petitions, had assumed charge as the Superintendent of the Bhagalpur Central Jail.on April 19, 1979.

On October 26, 1979 a prisoner by the name of Arjun Goswami was sent to the Bhagalpur Central Jail. On November 20, 1979 he addressed an application to the Chief Judicial Magistrate, Bhagalpur, asking that an inquiry be held into the torture infticted upon him, especially the blinding of his eyes. That application was forwarded by the petitioner to the Chief Judicial Magistrate.

Later, eleven prisoners made similar complaints which were forwarded by the petitioner to the learned Sessions Judge, Bhagalpur, on July ~O, 1980. The complaints made by these prisoners unquesionably demanded the most prompt and careful attention. But, instead of directing a full and proper inquiry into the allegati-Ons matle by the undertrial prisoners, the learned Sessions Judge, on August 5, 1980, sent a cold and indifferent reply to the petitioner's covering letter, saying that "there is no provision in the Cr. P.C. to provide a lawyer to any person for prosecuting a criminal case as a complaint" and that the petitions of the prisoners Were forwarded. to the Chief Judicial Magistrate, Bhargalpur, "for needful in accnrdance with Jaw."

On October 9, 1980, ten blinded prisoners filed a Habeas Corpus petition in this Court (Criminal Writ Petition No. 5352 of

1980) asking that : (I) they should be produced in the Court, (2) they should be examined by a Medical Board, (3) they should be paid compensation for the damage done to their eyes and that (4) .the police officers guilty of committing atrocities upon them should be suitably punished. On October 10, 1980 a Bench 'of this Court consisting of one of us, (the Chief Justice), and Justice A.D. Koshal passed the following order in that petition :

"We direct that the petitioners shall be. examined. by the Jail Doctor forthwith and a report shall be submitted to this Court expeditiously in regard to the allegation in the petition that their eyes haye been damaged by certain police officers by putting acid therein. The report shall be submitted within four weeks from today. The W.P. be listed for hearing after \he report is rec; eiv~4,"

By hisJettCli, dated October 31, 1980 the petitioner, who is respon dent 2 in the Habeas Corpus petition, forwarded to this Court the report of the Jai.1 Doctor on the condition of the eyes of the prisoners. The remaining 2 prisoners were already rele.ased and could not therefore be examined. The report of the Jail Doctor in regard to one of the prisoners, Anil Yadav, is representative of the conclhion of all the eight of them and may be extracted here :

"(!) Presence of old burn scar around both the eyelids of both the eyes and on left cheek.

(2) Collapse of both the eye balls.

(3) Perception of light and projection of rays abseat in both the eyes.

(4) Eye sight of both the eyes lost.

The cause is perforation of eye balls by burn with some corrosive substance and puncture by some sharp and pointed weapon.

From the records of Jail Hospital it is known that he was admitted in Jail Hospital on 8. 7 .1980 for acid burn injury of both the eyes."

On December I, 1980, the Court (the Chief Justice and Chinnappa Reddy, J.), while directing that the prisoners be brougltt to Delhi the following week and be examined at the Dr. Rajendra Prasad Opthalmic Institute, New Delhi, passed the following order :

"The report of the doctor which we had called for by our Order dated October 10, 1980 shows that eight out of the ten petitioners before us have lost their eye-sight totally or partially. The report submitted by Dr. K.S. Roy in each individualcase shows that :

(i) most of the petitioners are suffering from collapse of one or both of the eye-balls ;

(ii) the sighi of one or both of their eres is lost ;

(iii) there is perforation of .their eye-balls by burn with a corrosive substance and that

(iv) their eyes have been punctured by some sharp and pointed weapon.

The remaining two petitioners have been released and therefore no report could be sent regarding them.

The report of the doctor will shock the conscience of mankind. There has been the most flagrant violation of the safeguards provided by Articies 19 and 21 of the Constitution. There is ndthing that the Court can do to restore the physical demage, which seems irreparable.

But the offenders must at all events be brought to book, at least in the hope that such brutal atrocities will not be committed again.

With that end in view, we direct the Superintendent D of the Bhagalpur Central Jail to file an affidavit in this Court within two weeks from to-day stating :

(a) the names of convicts and nndertrial prisoners in the jail whose eyes have been damaged or impaired bfore or after their lodgement in Jail ; E

(b) the names of policemen, police officers and the members of the.jail stJff who were in charge of those prisoners at the relevant time ;

(c) the names of doctors who were in charge of the jail

dispensary or hospital at the relevant time ; and

(d) the names of doctors who have examined, from time to time, the petitioners and other prisoners whose eyes have b.een damaged or impaired after their lodgement in jail:

We direct that the Registrar of the Supreme Court and one other officer of the Court shall visit the Bhagalpur Central Jail during this week and obtain first-hand the

version of the petiticiners and other prisoners similarly ff situated as regards the impairment or blinding of their eyes.

The two. officers of the Court hall. be anted everr facilit¥

to meet the prisoners, to talk them beyond the hearing of any jail officer or police officer and to record the statemepts of the prisoners. We direct the Jail Superintendent to ensure due and full complince with these directions.

Issue notice to the State of Bihar asking it to show cause on the petition as also as to why the petitioners should not be released on bail on their personal recognizance."

Shri R. Narasimhan, Registrar (Judicial) and Shri Y. Lal, Assistant Registrar of this Court visited the Bhagalpur Central Jail on December 3 and 4, 1980 and recorded the statements of 17 prisoners who were blindeg. These statements show that 15 out of the 17 prisoners were blinded by the police and the remaining 2, whose names appear at Serial Nos. 14 and 15 of the report of the Registrar, were blinded by the members of the public.

The method adopted for blinding the undertrial prisoners, as described by the prisoners themselves, was that a 'takwa' (a long needle used for stitching gunny bags) or a barber's nail-cqtter or a cycle spoke was poked into tb&ir eyes and acid was poured into the eyes, sometimes with the help of a dropper, sometimes with a syringe and sometimes directly from a bottle. It is alleged that the prisoners were held firmly on the ground by policemea who either pulled the ropes tied to their feet or sat upon their feet.

The Registrar questioned the Petitioner, Bachcho Lal Das, in Delhi. The petitioner stated to him that as many as 31 blinded prisoners were brought to the Jail under orders of remand issued by the Magistrate and that they were given medical treatment by the Jail Doctor. According to the petitioner, he got a blinded prisoner Umesh Yadav examined by the Jail Doctor, since the report of the doct<•r was required by the learned District .and Sessions Judge, Bhagalpur, in connection with a bail application filed by the prisoner. The petitioner disclosed to the Registrar that be bad made inquiries from Umesh Yadav, who told him that V.K. Sharma, D.S.P., had thrust a long needle in both of his eyes and had poured acid into the eyes. The other blinded persons appear to have taken a cue from Umesh. Yadav and submitted similar petitions for being forwarded to the District and essions Judge. The petitioner disclosed to the Registrar the names of the police officer3 who

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were involved by the prisonem as being responsible for their blindings. ·

It may be recalled that thi.s Court by its order dated December I, 1980 had directed the petitioner, who was then the Superintendent of the Bhagalpur Central Jail, to file an affidavit within two weeks on Points (a) to (d) mentioned in that order. On that very day, the petitioner was suspended by the Government of Bihar on the grour, d the he was negligent in providing proper medical aid to the blinded nndertrial prisoners inside the Jail and that . he had failed to make proper entries in the Jail Register as regards the physical condition of the undertrial prisoners. On December 10, 1980 the petitioner filed the main Misc. Petition in this Court in the Writ Petition filed by the blinded prisoners. He prays that the order of' suspension dated December I, 1980 l!e quashed, since at was passed by the State of Bibar mala fide with the object of preventing him from filing an affidavit in pursuance of the direction issued by this Court on December I, 1980.

We would not have entertained I\ petition of this nature in the normal circumstances, because an order of suspension cannot be challenged in this manner in an incidental proceeding. We, however, decided to hear the Misc. Petitions filed by the petitioner for quashing the order of suspension, since he alleged which, at first blush, seemed plausible, that he was suspended in order to defeat the order passed by this Court on December I, 1980.

The petitioner appeared in person before us and argued his case at great length. We gave him all reasonable facilities to substantiate his contentions, which he did with the help of the voluminous record prepared by him. Having considered the submissions of the petitioner and .those of Shri K.G. Bhagat, who appeared on behalf of the State of Bihar, we are of the opinion that there is no merit in the complaint of the petitioner that he was suspended on December l; 1980 in order to prevent him from complying with the order passed by this Court on that day and with the ulterier object of defeating that order.

Shri Ambik .. iasad Poddar, Assistant Inspector General of Prisons, Bihar, has filed an affidavit in this Court, settling out the circumstances in which and the reasons for which the petitioner was suspended by the Government Qf :Qihar. The cae ma, ge 011t in tha, t

affidavit is that the petitioner failed to discharge his official functions enjoined upon him by Rule 474 (I) of the Bihar Jail Manual, in that he did not scrutinise and sign the entries made in the Admission Register maintained. at the Central Jail, in order to satisfy himself whether those entries were correct and whether the relevant rules in regard to the admission of the prisoners were complied with. It is stated in the affidavit that contrary to Rule 474 (2), the petitioner failed to record any 'special order' regarding the medical treatment given or to be given to the . blinded prisoners, with the result that they were not sent for examination to any eye specialist either in the Jail or at the Bhagalpur Medical College Hospital.

Though the District Magistrate, Bhagalpur, had given his approval on October 21, 1980 to the proposal for sending the blinded prisoners for specialised treatment at the Bhagalpur Medical College Hospital, the petitioner;· it is alleged, neglected to discharge his duty and sent the prisoners f9r medical .treatment to the Hospital ten days later on October 31, 1980. According to Shri Ambika Prasad, Poddar, the petitioner omitted to make a report on the blindings of prisoners lodged in the Jail which was under his charge, he did not hold a parade of the prisoners nor did he make the weekly inspection of the Jail, and on the top of it all, he supplied to newspapermen his own onesided •version of the blindings. The suspension order, according to Shri Poddar, was passed on the basis of the various rules and notifications governing the conditions of the petitioner'sservice and was not passed in order to frustrate or defeat the order passed by this Court on December 1, 1980,

On a careful consideration of the aforesaid affidavit and the arguments advanced before us by the parties, we find it difficult to accept the petitioner's contention that the order of suspension was passed by the Government of Bihar ma/a fide, that is to say, as a counterblast to the order passed by this Court on December I, 1980 and to defeat it. The question for inquiry in these Miscellaneous Petitions is very narrow and limited. The question is not even whether the order of suspension is ma/a fide in a broad and general sense, covering the entire gamut of extraneousness. The question before us is whether the motive behind the order was to frustrate the purpose of our direction calling upon the petitioner to file an affidavit, That charge is not substantiated and is difficult to accept.

It. appears that officers of the State Government91e enquiring into the blindings of the undertrial prisoners at least from November 27,

1980, There is a report <late<l Peceml;>er 1, 1980 in the Govermen~

11,

Aidt YADA'v v. BillAR (Chandrachud, t.J.), 54!

files, which was produced before us by Shri K, G. Bhagat, by which Shri L.V. Singh, Deputy I.G.P. (Prisons), recommended that for reasons of dereliction of duty the petitioner should be suspended.

We find it quite difficult to accept the petitioner's contention that the report of Shri Singh was prepared later and was antedated in order to justify the order of suspension.

We are also unable to appreciate how the State Government could prevent the petitioner from filing an affidavit as directed by this Court, by placing him under suspension. The petitioner would be free to file his affidavit in spite of the order of suspension and in fact he has filed an affidavit in this Court after he was suspended.

During the course of arguments before us, he produced photostat copies of quite a few documents, which also show: that the order of suspension is not calculated to interfere with the direction given by this Court, asking the petitioner to file his affidavit. If we had found that by reason of the order of suspension the petitioner was prevented from filing his affidavit, we would not have hesitated to ask the Government of Bihar to supply copies of necessary documents to the petitioner in order to enable him to file a full and complete affidavit in compliance with our order.

The Miscellaneous petitions have therefore to be dismissed. We would, however, like to state that we are not called upon to consider in tbe, se incidental proceedings, and we have in fact not considered, the question of the validity of the order of suspel.li!on dated December I,1980. The petitioner will be at liberty to cb!lenge that order, if so advised, in a properly constituted proceedings, on such grounds as may be open to him including the ground that the order was passed ma/a fide.

We have only dealt with the narrow question as to whether the order of suspension was passed with the object of preventing the petitioner from filing an affidavit in this Court and on that question we have rejected the petitioner's contention that the order of suspension was passed for that purpose.

We have not inquired into the question whether the order of suspension is vitiated by ma/a fa/es for any other reason,

It ls desirable and but proper that the State Government ought not to visit the petitioner with any penalty or punishment for app-

542 SUPREME COURT REPoRTS

(1982) 3 S.C.R.

roaching this Court or for having attempted to lay before this Court, what according to the petitioner, was the truth of the matter in regard to the bizarre blindil)gs of the under trial prisoners.

Order accordingly.

N.V.K.

Petitions dismissed.

- ----

ANIL YADAV. & _ORS

STATE OF BIHAR & ANR

A!llARENDRA NATH SEN

Article 32

B.L. Das

K.G. Bhagat

D. Goburdhan

R.N. Poddar

CHANDRACHUD

Bhagalpur

July 25, 1980

Bacbcho Lal Das

April 19, 1979

October 26, 1979

November 20, 1979

Chief Judicial Magistrate, Bhagalpur

Chief Judicial Magistrate

August 5, 1980

Chief Judicial Magistrate, Bhargalpur

October 9, 1980

October 10, 1980

A.D. Koshal

October 31, 1980

Anil Yadav

8. 7 .1980

I, 1980

Chinnappa Reddy

Delhi

K.S. Roy

Bhagalpur Central Jail

Supreme Court

State of Bihar

R. Narasimhan

Y. Lal

December 3 and 4, 1980

Bachcho Lal Das

Umesh Yadav

District .and Sessions Judge, Bhagalpur

V.K. Sharma

Umesh. Yadav

Government of Bihar

December 10, 1980

December I, 1980

State of Bibar

K.G. Bhagat

Ambik .. iasad Poddar

Bihar

Bhagalpur Medical College Hospital

District Magistrate, Bhagalpur

October 21, 1980

Ambika Prasad

Poddar

Poddar

December 1, 1980

K, G. Bhagat

L.V. Singh

Singh