H. Raghunadha Rao, Detenue reptd. by his brother in-law, J.V. Subba Rao vs Government of Andhra Pradesh

Alladi Kuppuswami, J.—The petitioner is the secretary of Co-operative Rural Bank, Vanapalli, Kothapet Taluk in East Godavari District. The Bank is a dealer within the meaning of clause 2(b) of the Andhra Pradesh Fertilizers Distribution and sale by dealers) order, 1974 referred to in this judgment as the Order. An order of detention was served on the petitioner on 14-2-1975 under the Maintenance of Internal Security Act, 1971 (referred to in this judgment as the Act). In the grounds of detention it was stated that the petitioner had received 200 bags of urea on 26-1-1975 and another 200 bags of urea on 27-1-1975 from the District Co-operative Marketing Society, East Godawari and he sold of his own accord 260 bags of urea on 19-1-1975 to certain individuals without intimating the receipt of the fertilizer from the Marketing Society to the Panchayat Samithi, Kothapet and without obtaining allocation of fertilizers to the village from the Panchayat Samithi Level Committee and thereby violating the provisions of clause 4(1) of the Order and preventing the Panchayat Samithi Level Committee from arranging equitable distribution of urea to different villages in its limits by way of issuing allocation order and acting prejudicially to the maintenance of supply and services essential to the community. The second ground of detention was that he sold to five card-holders mentioned in the order, urea in excess of the quantity for which they were eligible, thereby violating the provisions of clause 6 of the order. The third ground was that he disposed of clandestinely 88 bags of urea without intimating the receipt of the urea bags from the Marketing Society to the Panchayat Samithi, Kothapet and obtaining allocation of fertilizers to the Panchayat Samithi Level Committee, thereby violating clause, 4(1) of the Order. It was further stated that when the above fraud was detected, the petitioner fabricated false entries in a new bill book in order to camouflage his illegal transactions. It was therefore stated that the was acting prejudicially to the maintenance of supplies and services essential to the community and as the District Magistrate was satisfied that he was so acting and that it was necessary to detain the petitioner to prevent him from further acting in such a manner, the order of detention was passed. The petition herein has filed this writ petition praying for the issue of a writ of Habeas Corpus directing the State of Andhra Pradesh to release the petitioner.

It is contended that the order of detention is illegal and void. The main contention is that the first ground of detention is a non-existent ground, and at any rate it is vague. Even assuming that ground 2 and 3 are valid. If ground No. 1 is non-existent or vague, the entire detention order is liable to be set aside. As far as ground No. 2 is concerned, it is not denied that the petitioner has sold urea in excess of the quantity mentioned in the cards of the various card-holders enumerated in the order and the petitioner has thereby violated clause 6 of the order. It was however, stated in the petition that it was shade under the directions of the Board of Directors and also or the assurance of the card-holders that they would take lesser quantity in the next instalment. But this is not a matter which can be gone into in this Writ Petition and as long as it is admitted that there was sale of urea in excess of the quantity contained in the cards issued to the card-holders, there is a violation of clause 6 of the order. Hence, it cannot be contended that ground No. 2 is in any way invalid. Similarly, as far as ground No. 3 is concerned, it is also admitted that 88 bags of urea were sold without bills and no serious arguments were advanced questioning the validity of this ground. Therefore, the only question that remains for consideration is, whether ground No. 1 of the detention order is valid and it it is invalid, whether the entire order is liable to be set aside on that ground.

From the first ground which has already been set out it is seen that the gravemen of the charge is that the petitioner has sold 260 bags of urea to certain individuals without intimating the receipt of the fertilizer bags from the District Co-operative Marketing Society to the Panchayat Samithi and without obtaining allocation of fertilizers to the villages from the Panchayat Samithi Level Committee and thereby the provisions of clause 4 (1) of the Order have been violated. It is contended by Sri Padmanabha Reddy, the learned counsel for the petitioner that the mere fact that the petitioner did not intimate the receipt of the fertilizer bags to the Panchayat Samithi does not constitution a violation of Clause 4 (1) of the Order, nor is there any obligation on the part of the petitioner to wait for allocation of fertilizers by the Panchayat Samithi Level Committee According to him, all that is required under clause 4 (1) is, that the should distribute the fertilizers to the card-holders and as it is admitted that the urea referred to in this ground was distributed only to card-holders, there is no violation of Clause 4 (1) of the order.

In order to appreciate his contention it is necessary to set out Clause 4 (1) of the order which is in the following terms.

"No dealer shall, after the commencement of this order, sell of otherwise dispose of, or offer to sell or otherwise dispose of, any stock of fertilizers, pool and non-pool, held by him, to any person or authority except in accordance with the fertilizer card issued by the issuing authority in pursuance of the orders issued by the concerned Panchayat Samithi Level Committee under clause 3 (2)".

Clause 3 (2) provides that a Panchayat Samithi Level Committee may from time to time by order, direct a dealer within its jurisdiction to distribute the fertilizers pool and non-pool, held by him for sale to such person, in such quantities and at such times, as may be specified in the order made in this behalf. "Issuing authority is defined by clause 2 (e) as meaning "The Tahsildar having jurisdiction or other officer of the Revenue Department not below the rank of a Deputy Tahsildar empowered by the District Collector to exercise the powers and perform the functions of the issuing authority under this order in relation to the fertilizer cards issued by him ; and until such fertilizer cards are so issued the Asst. Agricultural Officer of the Panchayat Samithi having jurisdiction, in relation to the fertilizer permits issued by him on the recommendation of the Panchayat Samithi Level Committee." In this case the cards were issued by the Tahsildar. Who is the issuing authority under the first part of clause 2 (e) of the Order. Under clause 4(1), the prohibition is against a dealer selling or otherwise disposing of fertilizers to any person or an authority except in accordance with the fertilizer card issued by the issuing authority in pursuance of the orders issued by the concerned Panchayat Samithi Level Committee under clause 3 (2). It is therefore argued that as the petitioner has disposed of the fertilizers in accordance with the fertilizers card issued by the issuing authority namely, the Tahsildar there is no violation of clause 4 (1) of the order. Under clause 2 (3), if the issuing authority is the Tahsildar, it is not required that there should be any direction by the Panchayat Samithi Level Committee. It is only when the Assistant Agricultural officer exercises this function, that it has to be made on the recommendation of the Panchayat Samithi Level Committee. In this case, as the card was issued by the Tahsildar it is not necessary for him to have any directions or recommendation of the Panchayat Samithi Level Committee. It is therefore argued that the last part of clause 4 (1) viz. "in pursuance of the orders issued by the concerned Panchayat Level Committee under clause 3 (2)" has no meaning and has to be ignored when the issuing authority is the Tahsildar and taking into account the remaining part of clause 4 (1) it is found that there is no contravention of clause 4 (1) as the petitioner had disposed of the fertilizer only in accordance with the fertilizer card issued by the issuing authority.

On the other band, it is contended on behalf of the State by the learned Government Pleader that it is not proper to read clause 4 (1) in the manner in which it is sought to be read by the learned Advocate for the petitioner. According to him, the proper way to read clause 4 (1) is that the dealer cannot dispose of the stock of fertilizer except in accordance with the fertilizer card issued by the issuing authority and except in pursuance of the orders issued by the concerned Panchayat Samithi Level Committee under clause 3 (2) of the Order. In this case, it is admitted that no orders were issued by the concerned Panchayat Samithi Level Committee under clause 3 (2) of the Order. Therefore, the petitioner violated clause 4 (1) when he disposed of the fertilizers to the card--holders in the absence of such orders. In other words, the learned Government Pleader submits that the word "and" is missing between the phrases "except in accordance with the fertilizer card issued by the issuing authority" and the phrase "in pursuance of the orders issued by the concerned Panchayat Samithi Level Committee under clause 3 (2)". In our view, this construction of clause 4 (1) appears to be more acceptable. It is seen from clause 3 (2) that the Panchayat Samithi Level Committee may direct a dealer to distribute the fertilizers held by him for sale to such persons, in such areas and in such quantities and at such times, as may be specified in the Order made in this behalf. Thus the direction by the Panchayat Samithi Level Committee under clause 3 (2) is only to a dealer and not to the issuing authority. If clause 4 (1) is to be read in the manner suggested by the petitioner, it would mean that the card issued by the issuing authority is in pursuance of the orders issued by the concerned Panchayat Samithi Level Committee under clause 3 (2) of the Order. As under clause 3 (2) no orders are issued by the Panchayat Samithi Level Committee to the issuing authority in regard to the issue of cards it is obvious that the last part of clause (1) cannot have reference to or qualify the phrase "fertilizer card issued by the issuing authority". The said clause will have meaning only if we read the clause as containing two independent conditions, namely, that the disposal of the fertilizer should be in accordance with the fertilizer card issued by the issuing authority and it should further be in pursuance of the order issued by the concerned Panchayat Samithi Level Committee under clause 3 (2). It is no doubt true that the general rule is that the court should not import into a statute words which are not there. But if the alternative is between supplying words which have been accidentally ommitted or adopting a construction which deprives the existing words of all meaning, it is permissible for the court to supply the words to make the statute intelligible. We are of the view that unless the word "and" is read into clause 4 (1) between the two phrases referred to above at the end of the clause, the last part of clause 4 (1) would be unintelligible.

If clause 4 (1) is so read, as stated above, it would follow that the dealer shall not dispose of fertilizer except in accordance with the fertilizer card issued by the issuing authority and in pursuance of the order issued by the concerned Panchayat Samithi Level Committee under clause 3 (2). Though the first condition is satisfied, the second condition has not been satisfied in this case. As a matter of fact it is admitted that the receipt of the stock from the Marketing Society was not intimated to the Panchayat Samithi Level Committee and therefore the Panchayat Samithi Level Committee could not make any allocations. In this connection, it may also be noted that by a circular dated 21-1-1975 the dealers were directed to intimate receipt of the stock to the B.D.O. A.E.O. of their Block and Deputy Director of Agriculture promptly.

In the view we have taken, it follows that there is a violation of clause 4 (1) of the Order and ground No. 1 cannot therefore be said to be a non-existent ground.

It is further contended that the ground is vague, as it is stated that the urea bags were sold to certain individuals without naming the individuals. But as has been seen already, the charge is selling to card-holders without obtaining allocation of the fertilizers from the Panchayat Samithi Committee and without informing the receipt of the fertilizers to the Panchayat Samithi. If the bags have been disposed of without obtaining ..... allocation of fertilizers it is irrelevant as to whom the fertilizers were disposed of. It is unnecessary therefore to inform the names of the individuals to whom the fertilizers v>ere sold in order to make out the charge though it would have been desirable to do so. It cannot therefore be said that the failure to give the names of the individuals renders the grounds of detention in any way vague. We do not therefore agree with this contention also.

Towards the end of the arguments, it was brought to our notice that the Collector gave a telegram to the petitioner stating that his fertilizer licence was ordered to be cancelled and directing him to stop fertilizer sales and to surrender the stocks to the Fertilizer Inspector concerned. This was followed by a memorandum of the same date confirming the telegram. In that, it was stated that the Assistant Director of Agriculture, Rajahmundry was directed to cancel the licence. The petitioner was instructed to stop further sales of fertilizers and surrender all stocks to the Fertilizer Inspector of his area It was also mentioned that action was being taken by the Fertilizer Inspector to launch a prosecution against the petitioner. Apparently in pursuance of the directions of the Collector, the Assistant Director of Agriculture also issued a notice dated 2-2-1975 asking the petitioner to show cause why the licence should not be cancelled besides launching prosecution. The petitioner was also directed not to conduct any business and all the stocks held by the society should be banded over to the Assistant Agricultural Officer concerned, until further orders.

Having regard to these events which happended more than 10 days before the impugned order of detention, it is argued by Sri Padmanabha Reddy that the order of detention was not justified. In the order of detention, it is specifically stated that the detention was necessary in order to prevent the petitioner from further acting in a manner prejudicial to the maintenance and supply of essential commodities. In view of the fact that steps for cancelling the licence have been taken, further sales have been stopped and all stocks are directed to be surrendered to the Fertilizer Inspector, it was argued that there is no possibility at all for the petitioner further acting in contravention of the Fertilizer Control Order. In this connection it has to be remembered that these fertilizers are commodities, which cannot be sold in the open market and the dealers have to be supplied the necessary fertilizers by the institutions concerned and have to dispose of the fertilizers to persons to whom allotment is made. Our attention was drawn to recent decision of a Bench of this Court in K. Ramulu Vs. The Govt. of Andhra Pradesh and Another, In that case, the petitioner was doing business of an authorised fair price shop. Immediately after the order of detention, an order suspending the authorisation issued to the petitioner to run the fair price shop and directing him to surrender all books and stocks to the Assistant Rationing Officer was passed. In those circumstances, it was held that the effect of the latter order was to make the petitioner important as it were to cut the ground under his feet. Even if he is not detained, he cannot any longer indulge any activity prejudicial to the maintenance of supplies such as that for which he showed a proclivity. If was submitted that the present case is an a fortiori case for the order directing him to surrender his stocks and stating that stern for launching prosecution and cancellation of licence were taken long before the order of detention.

Though this ground was not raised in the petition, a supplemental affidavit has been filed bringing to our notice the facts stated above.

We do not find it possible to law down as a general proposition of law that in every case where a licence is cancelled and the stocks are directed to be surrendered, an order of detention would be illegal for the reason that the dealer would no longer be in a position to indulge in any activity prejudicial to the maintenance of supplies. Accepting such a contention would in effect amount to holding that no order of detention at all can be made if a licence is cancelled or the stocks seized and if it is made it would cease to be legal the moment the licence is cancelled and the goods seized. In our view it depends on the circumstances of each case whether an order of detention can be justified. In this case, long before the order of detention was made steps were taken to cancel the licence and all stocks were directed to be surrendered. It is not a case where the petitioner is dealing in any other commodity which, it may be feared, may be sold in a manner prejudicial to the maintenance of supplies. Having regard to the nature of the commodity, and the conditions under which it could be sold, no reasonable person could ever entertain the apprehension that the petitioner could further act in a manner prejudicial to the maintenance of supplies. We are therefore of the view that the order of detention is liable to be set aside for the above reasons. The writ petition is allowed and the petitioner is directed to be released forthwith. There will be no order as to costs. Advocates''s fee Rs. 250/-