Ram Avtar And Others vs State Of MP & Others

Sujoy Paul, J

In these petitions filed under Article 226 of the Constitution, the Petitioners have called in question the legality, validity and propriety of order dated

17/05/2021 whereby the corpus have been detained in exercise of power under Section 3 of The Prevention of Blackmarketing and Maintenance of

Supplies of Essential Commodities Act, 1980 (hereinafter called “the Blackmarketing Actâ€​) by the District Magistrate.

2) Since both the matters are similar in nature, on the joint request of the parties, matters were analogously heard and decided by this common order.

3) The facts are taken from WP No.11008/2021.

4) It is averred that the case of the other side is that the petitioners were indulging in the activity of selling the remedesivir injections to the customers

on higher price during the pandemic period because of which a FIR No.260/2021 (Annexure P/1) was lodged against them. Thereafter the

Superintendent of Police by communication dated 17/05/2021 recommended the District Magistrate to detain the Petitioners under the Blackmarketing

Act. In furtherance thereof, by order dated 17/05/2021, the petitioners were detained under the Blackmarketing Act.

5) Learned counsel for the petitioners advanced three fold submissions:-

(i) In the impugned order dated 17/05/2021, the District Magistrate has not mentioned it that petitioners have a right to prefer representations against

the detention order before the District Magistrate and hence in view of judgment of Full Bench in WP No.22290/2019 (Kamal Khare vs. State of

MP), the detention order is liable to be set aside.

(ii) In the detention order, it is not mentioned that petitioners were already in custody and in absence thereof, the detention order runs contrary to a Full

Bench judgment of this Court in Ajay Dhakad vs. State of MP reported in 1990 CRLJ 1738.

(iii) The petitioners have no past record of blackmarketing of remedesivir injection and hence the detention order is passed without application of mind.

6) Shri Pushyamitra Bhargav, learned Additional Advocate General for the State supported the impugned order and urged that the grounds raised by

learned counsel for the petitioners are not available to him in the facts and circumstances of the case.

7) No other point is pressed by learned counsel for the parties.

8) We have heard the parties at length and perused the record.

9) The Supreme Court answered and interesting and challenging quagmire relating to maintaining balance between liberty and licence in most

appropriate words which reads as under :-

“K.K. Methew, J. in 1975 (Supp.) SCC 1 (Smt. Indira Nehru Gandhi vs. Raj Narain) stated that the major problem of human society is to

combine that degree of liberty without which law is tyranny with that degree of law without which liberty becomes licence; and the difficulty

has been to discover the practical means of achieving this grand objective and to find the opportunity for applying these means in the ever

shifting tangle of human affairs.â€​

10) Justice M.N. Venkatchaliah in (1989) SCC 374 (Ayya Ayub vs. State of UP) held as under:-

“…………the actual manner of administration of the law of preventive detention is of utmost importance. The law has to be justified

by the genius of its administration so as to strike the right balance between individual-liberty on the one hand and the needs of an orderly

society on the other. But the realities of executive excesses in the actual enforcement of the law have put the courts on the alert, ever-ready

to intervene and confine the power within strict limits of the law both substantive and procedural. The paradigms and value judgments of the

maintenance of a right balance are not static but vary according as the ""pressures of the day"" and according as the intensity of the

imperatives that justify both the need for and the extent of the curtailment to be individual liberty. Adjustments and readjustments are

constantly to be made and reviewed. No law is an end in itself. The ""inn that shelters for the night is not journey's end and the law, like the

traveller, must be ready for the morrow.

Emphasis supplied

11) Justice Savyasachi Mukherjee in (1986) 4 SCC 407 (Raj Kumar Singh vs. State of Bihar) held as under:-

“Preventive detention as reiterated as hard law and must be applied with circumspection rationally, reasonably and on relevant

materials. Hard and ugly facts make application of harsh laws imperative.â€​

Emphasis supplied

12) So far first question is concerned, it is apt to quote the relevant portion of the impugned order dated 17/05/2021 (Annexure R/6):-

“ , ,

,

â€​

13) A plain reading of reproduced paragraph of the detention order makes it clear that contention of counsel for petitioners is factually incorrect that

no opportunity was given to submit representation before the District Magistrate. Indeed, it was explicitly made clear to the detenue that there exists a

right to prefer representation before the District Magistrate. Thus, judgment of Kamal Khare (supra) is of no assistance to the petitioners and in fact

the first point raised by the petitioners’ amounts to misrepresentation of fact.

14) So far second point is concerned, in Ajay Dhakad (supra), a Full Bench of this Court framed a question whether the detaining authority was aware

of detenus’ previous arrest or not? In fact, this point is no more res integra and was considered with sufficient detail in WP No.9846/2021

(Manikant Asati vs. State of MP). The relevant portion of said order reads as under :-

“7) This Court considered the question of permissibility of detention of a person, who is already under arrest in extenso in Yatindra Verma (supra).

The relevant portion reads as under:-

“29) In (2012) 7 SCC 181 (Konungjao Singh vs. State of Manipur & Ors.) it was again held that while detaining a person, who was already

arrested, due care should be taken and it must be shown (i) regarding knowledge of detaining authority about detenu custody, (ii) real possibility of

detenu's released on bail and (iii) necessity of preventing him from indulging in activities prejudicial to the security of State maintenance of public order

upon his release on bail.â€​

8) Shri Tiwari, learned counsel for the petitioner rightly pointed out that three necessary ingredients needs to be satisfied for passing a detention order

against a person who is already under arrest. The first requirement regarding knowledge of detaining authority about his arrest is admittedly satisfied

as per contention of Shri Tiwari. Situation regarding two remaining conditions needs to be looked into. The condition remaining is possibility of grant of

bail for the detenu. The whole argument of Shri Bhoopesh Tiwari is based on a fact that on the date when detention order was passed, no bail

application was pending consideration before a Court of law. Merely because no bail application was pending on that day, it cannot be said that the

likelihood of getting bail to the detenu in future was not there. Similarly, the question of producing any specific material in relation to an activity of this

nature relatable with past does not arise in the peculiar facts and circumstances of this case. This pandemic related situation has arisen after more

than 100 years (after the spanish flu which threatened the humanity in the year 1918). The entire civilization was facing an extreme crisis because of

shortage of oxygen, medicines, injections, hospital beds and other facilities. In Yatindra Verma (supra), this Court poignantly held that for

blackmarketing of remedesivir injection the “public orderâ€​ is put to jeopardy and thus, Section 3 of the detention law can very well be invoked.

9) No doubt, ordinarily the Blackmarketing Act can be invoked when there is some material to show that the detenu has indulged in similar activities in

past, but it cannot be forgotten that in the peculiar factual matrix of this case, there was no question of availability of any past record of getting

indulged in blackmarketing of remedesivir injection. Putting it differently, the demand of remedesivir injection arose because of the pandemic and,

therefore, before pandemic, there could not have been any past record of petitioner related to blackmarketing of remedesivir injections or any such

drug. This is trite that judgment of a Court should not be read as Euclid's Theorem. [See: Bharat Petroleum Corporation Ltd. Vs. N.R.Vairmani

(2004) 8 SCC 579, C.Ronald Vs.UT Andaman & Nicobar Islands (2011) 12SCC 428, Deepak Bajaj Vs. State ofMaharashtra (2008) 16 SCC 14]

Hence in the peculiar facts and circumstances of this case, the judgments cited by Shri Tiwari cannot be pressed into service.

10) In Bhavnagar University Vs. Palitana Sugar Mill (P) Ltd & Ors. (2003) 2 SCC 111, the Apex Court poignantly held that the precedential value of

a judgment depends on the facts and circumstances of a case. One different fact may change the precedential value of a previous judgment. In this

pandemic era, the era of extreme crisis one singular incident of indulging in blackmarketing, in our opinion is sufficient to invoke Blackmarketing Act

and no fault can be found on this account in the order of detention.

The Apex Court in (1986) 4 SCC 407 (Rajkumar Singh vs. State of Bihar) opined as under:-

“Preventive detention as reiterated as hard law and must be applied with circumspection rationally, reasonably and on relevant materials. Hard and

ugly facts make application of harsh laws imperative.â€​

(Emphasis supplied)

Blackmarketing of a drug like remedesivir in days of extreme crisis is certainly such an ugly act and fact which can very well be a reason for

invoking Section 3 of Blackmarketing Act against the petitioner by District Magistrate.

13) A careful reading of impugned order of detention shows that the District Magistrate has considered the statement of concern SHO and thereafter

recorded his satisfaction that the act of detenu has caused serious threat to the supplies of commodities to the community. The District Magistrate has

taken into account the statement of SHO as well as the report of Superintendent of Police. The necessary ingredients for invoking Section 3 of

Blackmarketing Act are, thus, satisfied. We are unable to hold that there is any such flaw in the decision making process which warrants interference

by this Court.

14) So far contention of learned counsel for the petitioner that petitioner has been falsely implicated etc. is concerned, we are only inclined to observe

that the proceeding under the Blackmarketing Act are preventive in nature and no punitive. Since FIR and criminal case is pending against the

petitioner, we are not inclined to give any finding relating to the facts of the case. No fault could be established in the decision making process. Thus,

we find no reason to interfere of this matter. Petition fails and is hereby dismissed.â€​

(Emphasis supplied)

15) Before dealing with the legal aspect, a simple reading of aforesaid detention order makes it clear that this contention of petitioners is also factually

incorrect that the detention order does not reflect that the District Magistrate was aware that petitioners were already arrested. In two places, in para

‘A’ and ‘C’ of order dated 17/05/2021 (Annexure R/6), the learned District Magistrate has mentioned the factum of previous arrest of

the petitioners. He recorded his satisfaction that petitioners’ detention is necessary in order to ensure proper supply and distribution of an essential

drug. Thus, this contention also deserves rejection.

16) The last submission was that petitioners did not have any past record. This aspect was also dealt with in explicit manner in the case of Manikant

Asati (supra). In para 8 & 9 of said order, this Court made it clear that in an extraordinary crisis like Covid-19 pandemic, a singular act of

blackmarketing can attract the Blackmarketing Act for the purpose of detention. The pandemic of this magnitude came in 2019 after more than 100

years from the previous pandemic of Spanish Flu which threatened the humanity in the year 1918. Thus, question of availability of any past record in a

case of this nature is insignificant. Hence, this point raised by petitioners also cannot cut any ice. In Ayya Ayub (supra), the Apex Court visualised the

requirement of maintenance of a right balance and opined that principles relating to said balance are not static but vary according to the pressures of

the day and according to the intensity of imperatives that justify both the need for and the extent of curtailment of the individual liberty. The impugned

order of detention takes into account pressures of the day and assigns justifiable reasons for detaining the corpus. In this factual backdrop, we find no

reason to interfere in the matter.

17) In view of foregoing analysis, we find no merits in these petitions. No flaw in decision making process was pointed out. Petitions sans merit and

are hereby dismissed.