While displaying zero tolerance for those involved in black marketing of remedesivir, the Madhya Pradesh High Court has in a brief, brilliant, bold and balanced judgment titled Sonu Bairwa Vs State of MP & Ors in WP No. 9878/2021 delivered on July 7, 2021 has upheld the detention of a man accused of black marketing of Remedesivir injections amid Covid-19 pandemic under the National Security Act, 1980. A Division Bench of Justice Sujoy Paul and Justice Anil Verma of Indore Bench of Madhya Pradesh High Court held that black marketing of remdesivir injection has direct impact on “public order”, and the petitioner-accused if released, could indulge into same activity because the scarcity of remdesivir is still there. Without mincing any words, the Division Bench held that, “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 NSA Act against the petitioner by District Magistrate.”
To start with, Justice Sujoy Paul who has authored this cogent, commendable, courageous, calibrated and convincing judgment for a Division Bench of Indore Bench of Madhya Pradesh High Court comprising of himself and Justice Anil Verma that was delivered on July 7, 2021 first and foremost puts forth in para 1 that, “The petitioner has invoked the jurisdiction of this Court under Article 226 of the Constitution to assail the order dated 17/5/2021 whereby the District Magistrate in exercise of power u/S.3(2) read with (3) of National Security Act, 1980 (for short “NSA Act”) detained the petitioner.”
To put things in perspective, the Division Bench then discloses in para 2 that, “The petitioner was detained by District Magistrate by stating that the petitioner indulged in black marketing of Remedesivir injections. Two such injections were recovered from him. In a situation when highest numbers of Covid patients were there at Indore, the act of petitioner has caused serious threat to the ‘public order’. In view of aforesaid conduct, the detention order was passed and the grounds therefore were supplied to him.”
While citing the relevant case law, the Bench opines in para 13 that, “The interesting conundrum relating to liberty and regarding extent of liberty and aspect of curtailment thereof is wonderfully explained by K.K. Mathew, J. in Smt. Indira Nehru Gandhi vs. Raj Narain (1975 (Supp.) SCC 1):-
“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.””
Simply put, the Division Bench then brings out in para 14 that, “The first grievance put forth by petitioner is that in the instant case, the District Magistrate and other authorities passed the orders mechanically. This runs contrary to law laid down by Supreme Court in Khudiram Das (supra) and judgment of Allahabad High Court in Dr. Kafeel Khan (supra). This Court in its recent order passed in Yatindra Verma (supra) opined that when a detenu was not absconding and yet the authorities mentioned in their orders that he was absconding, it shows non-application of mind or acting in a mechanical manner. Thus, there is no hesitation in holding that the orders to the extent petitioner was shown to be absconding are passed without proper application of mind. However, it is noteworthy that the order of detention in case of Yatindra Verma was not set aside for incorrectly mentioning the word “absconding”. On the contrary the operative reason for setting aside the detention order in the said case was that detenu’s valuable right to make a representation against the detention order to the same authority who passed the detention order was infringed and such denial has vitiated the detention order.”
While cutting across the arguments of the petitioner’s counsel, the Division Bench then points out in para 15 that, “The learned counsel for the petitioner has taken pains to contend that present petitioner is similarly situated qua Yatindra Verma (supra). The language employed in their detention orders are identical, hence petitioner is entitled to get similar treatment. The argument on the first blush appears to be attractive, but lost much of its shine on closure scrutiny. In Yatindra Verma (supra), the petitioner therein was carrying an oxyflow meter and allegation was that he was trying to blackmarket it, whereas in the instant case, the petitioner was allegedly carrying remedesivir injections, a life saving /essential drug to fight corona virus. The SP’s report in the instant case shows that the petitioner was carrying those injections. The city of Indore was struggling to cope up the acute shortage of drugs, oxygen, beds etc. because of corona pandemic. Blackmarketing of remedesivir injection has direct impact on “public order”. The petitioner, who was already detained, if released could indulge into same activity because the scarcity of remedesivir is still there was the report of SP which was relied upon by District Magistrate.”
While justifying the detention of the petitioner under the NSA and citing the relevant case laws, the Division Bench then envisages in para 16 that, “In the factual backdrop of this case, the necessary parameters on which a person already under arrest can be detained under the NSA Act are satisfied. The judgment of Yatindra Verma (supra) cannot be mechanically pressed into service in this case. This is trite that a judgment of a Court cannot 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) 12 SCC 428, Deepak Bajaj Vs. State of Maharashtra (2008) 16 SCC 14]. This is equally settled that little difference in facts or an additional fact may make a lot of difference in the precedential value of a decision (See Bhavnagar University Vs. Palitana Sugar Mill (P) Ltd & Ors.(2003) 2 SCC 111).”
Adding more to it, the Division Bench then makes it clear in para 17 that, “A person, who is already in custody can still be detained under NSA Act if i) detaining authority had knowledge about detenu’s custody, ii) there exists real possibility of detenu’s release on bail and, iii) necessity of preventing him from indulging in activities prejudicial to the security of State or maintenance of public order upon his release on bail. In the instant case, all the aforesaid ingredients were satisfied. (See: Kamini Yadav vs. State of MP & Ors. – WP No.25986/2018) and judgment of Supreme Court reported in (2012) 7 SCC 181 (Konungjao Singh vs. State of Manipur & Ors.).”
Furthermore, while citing yet another relevant case law, the Division Bench then mentions in para 18 that, “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.” (Emphasis supplied).””
Briefly stated, the Division Bench then underscores in para 19 that, “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 NSA Act against the petitioner by District Magistrate.”
Be it noted, the Division Bench then lays bare in para 20 that, “Section 3(2) of NSA Act and explanation reads as under:-
“The Central Government or the State Government may, if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the security of the State or from acting in any manner prejudicial to the maintenance of public order or from acting in any manner prejudicial to the maintenance of supplies and services essential to the community it is necessary so to do, make an order directing that such person be detained.
Explanation.—For the purposes of this sub-section, “acting in any manner prejudicial to the maintenance of supplies and services essential to the community” does not include “acting in any manner prejudicial to the maintenance of supplies of commodities essential to the community” as defined in the Explanation to sub-section (1) of section 3 of the Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act 1980 (7 of 1980), and accordingly, no order of detention shall be made under this Act on any ground on which an order of detention may be made under that Act.” (Emphasis supplied).””
It would be instructive to note that the Division Bench then observes in para 21 that, “The use of “explanation” in a statute is an internal aid to construction. Fazal Ali J in (1985)1 SCC 591 (S. Sundaram Pillai & Ors. vs. V.R. Pattabiraman & Ors.) culled out from various judgments of Supreme Court the following as objects of an explanation to a statutory provision:-
(a) to explain the meaning and intendment of the Act itself;
(b) where there is any obscurity or vagueness in the main enactment, to clarify the same so as to make it consistent with the dominant object which it seems to subserve,
(c) to provide an additional support to the dominant object of the Act in order to make it meaningful and purposeful;
(d) an Explanation cannot in any way interfere with or change the enactment or any part thereof but where gap is left which is relevant for the purpose of the Explanation, in order to suppress the mischief and advance the object of the Act it can help or assist the court in interpreting the true purport and intendment of the enactment; and
(e) it cannot, however, take away a statutory right with which any person, under a statute has been clothed or set at naught the working of an Act by becoming an hindrance in the interpretation of the same.
This principle is consistently followed by Supreme Court in (2004) 2 SCC 249 (M.P. Cement Manufacturers Association vs. State of MP & Ors.) and (2004) 11 SCC 64 (Swedish Match AB vs. Securities & Exchange Board of India).”
For the sake of clarity, the Bench then clarifies in para 22 stating that, “These examples are illustrative in nature and not exhaustive. An “explanation” may be added to include something within or to exclude something from the ambit of the main enactment or the connotation of some word occurring in it (See: Controller of Estate Duty, Gujarat Vs. Shri Kantilal Trikamlal AIR 1976 SC 1935). Similarly a negative explanation which excludes certain types of category from the ambit of enactment may have the effect of showing that the category leaving aside the excepted types is included within it (See First Income Tax Officer, Salem Vs. Short Brothers (P) Ltd. AIR 1967 SC 81). Thus, the explanation in the instant case, has a limited impact on main provision i.e. sub-section (2) of Section 3 of NSA Act. It does not dilute or take away the right of detaining authority under the NSA Act regarding eventualities relating to maintenance of ‘public order’ or security of the State.”
It is worth noting that the Division Bench then puts across in simple, straight and suave language in para 23 that, “A microscopic reading of Section 3(2) with ‘Explanation’ leaves no room for any doubt that Sub-Section (2) is wide enough and deals with three contingencies when a citizen can be detained:
i) for preventing him from acting in any manner prejudicial to the security of State.
ii) for preventing him from acting in any manner prejudicial to the maintenance of public order.
iii) for preventing him from acting in any manner prejudicial to the maintenance of supplies and services essential to the community.”
While elaborating further, the Division Bench then puts forth in para 24 that, “The ‘explanation’ is limited to the contingency (iii) aforesaid only. The argument of Shri Maheshwari that since remedesivir is an essential drug/commodity, therefore, obstruction to its supply or blackmarketing can be a reason to invoke the blackmarketing act, but NSA Act cannot be invoked, is liable to be discarded for the simple reason that Sub-Section (2) of Section 3 is wide enough which contains and deals with three contingencies, whereas ‘explanation’ takes only one beyond the purview of the NSA Act if it is covered by Blackmarketing Act.”
Needless to say, the Division Bench then says categorically in para 25 that, “We find force in the argument of learned Additional Advocate General that blackmarketing of remedesivir creates a threat to “public order”. We have taken this view recently in the case of Yatindra Verma (supra) also. If ‘public order’ is breached or threatened, in order to maintain ‘public order’, NSA Act can very well be invoked. Thus, “explanation” appended to Sub-Section 2 of Section 3 of NSA Act will not exclude the operation of NSA Act in a case of this nature where ‘public order’ is breached, threatened and put to jeopardy.”
Frankly speaking, the Division Bench then makes it clear in para 26 that, “Interpretation of a statute must depend on the text and the context. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted. (See: 1987 (1) SCC 424- RBI vs. Peerless General Finance and Investment Co. Ltd.).”
While citing yet another relevant case law, the Division Bench then puts it succinctly in para 27 that, “The Apex Court in (2013) 3 SCC 489 (Ajay Maken vs. Adesh Kumar Gupta & Anr.) held as under:-
“Adopting the principle of literal construction of the statute alone, in all circumstances without examining the context and scheme of the statute, may not subserve the purpose of the statute. In the words of V.R. Krishna Iyer, J., such an approach would be “to see the skin and miss the soul”. Whereas, “The judicial key to construction is the composite perception of the deha and the dehi of the provision.” (Board of Mining Examination v. Ramjee (1977) 2 SCC 256, Para-9)”.”
While endorsing the detention of the petitioner, the Division Bench then puts it plainly in para 28 that, “Sub-Section 2 of Section 3 is very wide and as noticed above, deals with three eventualities (See: Para-23). “Explanation” to SubSection 2 deals with a small part of it. The intention of law makers in inserting the ‘explanation’ is to take out cases of blackmarketing from NSA Act to some extent, to the extent it is covered by the Black Marketing Act. ‘Explanation’, by no stretch of imagination can eclipse the entire main provision namely, Sub-Section 2 of Section 3. The plain and unambiguous language of Sub-Section 2 of Section 3 makes it clear that the Competent Authority/Govt. can pass order of detention if one of the eventuality out of said three is satisfied. In the instant case, the District Magistrate has taken a plausible view that ‘public order’ is being threatened by petitioner. Thus, we are unable to hold that order of detention is beyond the purview of Sub-Section 2 of Section 3 of NSA Act.”
Quite remarkably, the Division Bench then hastens to add in para 29 that, “We will be failing in our duty if argument of Shri Maheshwari relating to “acting under dictate” is not taken into account. On the basis of certain social media posts of the Chief Minister of the State wherein he expressed his view that persons involved in black marketing of Remdesivir/drugs should be detained under NSA Act, it was argued that the detention order passed by the District Magistrate is in furtherance of said posts and amount to acting under dictate. We do not see any merit in this contention. The social media posts cannot be equated with an administrative order/instruction. It is not necessary that every social media post of a government functionary is seen/read out and followed in the administrative hierarchy. Had it been an executive instruction/order issued by higher functionary to act in a particular manner and in obedience thereof District Magistrate would have passed a detention order, perhaps the matter would have been different. Unless a clear nexus is established between the social media posts and the detention order, it cannot be said that District Magistrate has acted under dictate. Apart from this, the impugned order of District Magistrate has been examined by us on the necessary parameters and it was found that he has used his discretion in accordance with law and thus this argument of petitioner must fail.”
What’s more, the Bench then also makes it clear in para 30 that, “So far question of communication of detention order to the uncle of petitioner is concerned, suffice it to say that no prejudice was caused to the petitioner because of such communication. Indeed petitioner filed this petition and had taken legal recourse with quite promptitude. In absence of showing any prejudice, no interference on this count is warranted and judgments of A.K. Roy (supra) and Dr. Kafeel (supra) are of no help to the petitioner.”
While taking potshots at the petitioner’s tall claims of innocence, the Division Bench then minces no words to put forth in para 31 that, “The petitioner is unable to show any flaw in the decision making process adopted by District Magistrate. In absence of establishing any such illegality, no interference is warranted.”
Finally, the Division Bench then holds in para 32 that, “Petition sans substance and is hereby dismissed.”
On the whole, this noteworthy judgment by a Division Bench of the Indore Bench of Madhya Pradesh High Court comprising of Justice Sujoy Paul and Justice Anil Verma have taken the blackmarketing of remedesivir drug most seriously and has demonstrated zero tolerance towards those who indulge in it as it directly impacts public order and those in need of it are compelled to buy the drug at exorbitant rates which is most inhumanly and cannot be condoned under any circumstances! We all know how Indore was among the worst affected city in India due to Covid-19 and so under such trying circumstances if there are such type of people who still tend to think only of themselves and their vested interests and hold others to ransom then they have to pay through their nose and suffer the consequences emanating from their condemnable acts! This notable judgment has done precisely that only!
Sanjeev Sirohi