PETITIONER: DWARIKA PRASAD SAHU Vs. RESPONDENT: THE STATE OF BIHAR & ORS. DATE OF JUDGMENT12/11/1974 BENCH: BHAGWATI, P.N. BENCH: BHAGWATI, P.N. CHANDRACHUD, Y.V. CITATION: 1975 AIR 134 1975 SCR (2) 702 1975 SCC (3) 722 CITATOR INFO : RF 1975 SC 367 (1) ACT: Maintenance of Internal Security Act, 1971-S. 3(2) (iii) Mixing of relevant and irrelevant grounds in the order of detention-Effect of. HEADNOTE: The Bihar Motor Spirit and High Speed Diesel Oil Dealers' Licensing Order, 1966 required that the names and addresses of the purchasers must be mentioned in the cash memos; but by a subsequent order issued by the State Government this requirement was dispensed with. On receipt of complaints that the petitioner was indulging in certain malpractices, including charging a price higher than the controlled price, a surprise physical verification of the stock of high speed diesel oil was made and it was found that he had stock of oil in excess of that shown in the stock register. The petitioner was detained under s. 3(2) (iii) of the Main- tenance of Internal Security Act, 1971 on the ground, among others, that he sold 762 litres of the said oil without giving the names and addresses of the purchasers in the cash receipts in contravention of cl. 7 of the licence and the supply under In a petition under Article 32 of the Constitution it was contended that the District Magistrate had totally failed to apply his mind and his subjective satisfaction based inter alia on ground number 5 was therefore vitiated and it ren- dered the order of detention invalid the said cash memos was to fictitious persons. Allowing the petition, HELD : The conclusion is inescapable that since ground no. 5 was wholly misconceived, non-existent and not available under the law the order of detention must be held to be invalid. If there is one principle more firmly established than any other in this field of jurisprudence, it is that even if one of the grounds or reasons which led to the subjective satisfaction of the detaining authority is non- existent, misconceived or irrelevant the order of detention would be invalid and it would not avail the detaining authority to contend that the other grounds or reasons are good and do not suffer from any such infirmity because it can never be predicated to what extent the bad grounds or reasons operated on the mind of the detaining authority or whether the detention order would have been made at all if the bad grounds or reasons were excluded and the good grounds or reasons alone were before the detaining authority. [707F; C-D] Shibban Lal Saxena v. The State of Uttar Pradesh, [1954] S.C.R. 418, Dr. Ram Manohar Lohia v. State of Bihar & Ors., [1966] 1 S.C.R. 709, Pushkar Mukharjee & Ors. v. The State of West Bengal, [1969] 2 S.C.R. 635 and Biram Chand v. State of Uttar Pradesh, A.I.R. 1974 S.C. 1161, followed. In the instant case if only the District Magistrate had applied his mind property and carefully and acted with a greater sense of responsibility, the infirmity vitiating the order of detention could have been easily avoided. Not mentioning the names and addresses of the customers in the cash memos was no longer a breach of cl. 7 of the licence and it could not support an inference that the sales covered by the cash memos were to fictitious persons. The District Magistrate mechanically subscribed to the grounds of detention without even caring to examine whether ground no. 5 was correct or not and proceeded to make the order of detention. [706H] Ground 1 disclosed yet another instance of non-application of mind on the part of the District Magistrate. This circumstance also is indicative of the rather casual manner in which the District Magistrate proceeded to make the order of detention without proper application of mind and it could have an invalidating consequence on the order of detention. [707H; 708A] 703 JUDGMENT:
ORIGINAL JURISDICTION : Writ Petition No. 346 of 1974.
Under Art. 32 of the Constitution of India.
G. K. Daphtary, K. K. Sinha and S. K. Sinha, for the
petitioner.
U. P. Singh, for the respondents.
The Judgment of the Court was delivered by
BHAGWATI, J.-It is with utmost reluctance, and we might
almost say regretfully, that we allow this petition directed
against the validity of an order of detention made by the
District Magistrate, Ranchi under section 3 (2) (iii) of the
Maintenance of Internal Security Act, 1971. If only the
District Magistrate had applied his mind properly and
carefully and acted with a greater sense, of responsibility,
the infirmity vitiating the order of detention could have
been easily avoided. We are painfully conscious of the fact
that economic offenders are a menace to the community and it
is necessary in the interest of the economic well being of
the society to mercilessly stamp out such pernicious, anti-
social and highly reprehensible activities as hoarding,
black-marketing and profiteering which are causing havoc to
the economy of the country and inflicting untold hardships
on the common man and to carry on a relentless war against
such economic offenders with a view to putting them out of
action. But in the present case the attempt to curb this
social menace has been frustrated and set at naught by want
of due care and application on the part of the District
Magistrate. We hope and trust that, in future, in view of
the social objectives intended to be achieved by the use of
the Act against economic offenders, the District Magistrates
will show greater care and attention in exercising the vast.
powers conferred upon them under the Act, both in the
interest of personal liberty which is one of our cherished
freedoms as also in the interest of firm and effective
action against those who are undermining the foundations of
our social and economic structure.
The petitioner is a dealer in high speed diesel oil holding
a licence under the Bihar Motor Spirit and High Speed Diesel
Oil Dealers’ Licensing Order, 1966. It appears that certain
complaints were received against the petitioner from local
truck owners that he was not supplying high speed diesel oil
to them according to their requirements and even when he
supplied a little, he made it a condition that they should
also buy from him other commodities, such as grease, brake
oil, filter oil etc., but so far as outside truck owner,%
are concerned, he supplied them as much quantity of high
speed diesel oil as they liked at prices higher than the
controlled price. The third respondent, who is the sub-
Divisional Officer, thereupon sent respondents Nos. 4 and 5
to the petrol pump of the petitioner with a view to checking
the accounts and verifying the stock of high speed diesel
oil with the, petitioner. Respondents Nos. 4 and 5 found on
physical verification that there was a total stock of 1957
litres in the two tanks of the petitioner as against a
balance of 1597 litres appearing in the books of account,
with the result that there was an excess stock of
13-L319 Sup.CI/75
704
350 litres. The District Magistrate thereafter, on the
materials placed before him, made the order of detention
impugned in the present petition.
The order of detention was based on the subjective
satisfaction of the District Magistrate that with a view to
preventing the petitioner from acting in any manner
prejudicial to the maintenance of supplies and services
essential to the community it was necessary to detain the
petitioner. Pursuant to the order of detention the
petitioner was arrested and at the time of his arrest he was
served with the grounds on which the order of detention was
made. The grounds of detention served on the petitioner set
out six grounds which were in the following terms :
.lm15
“1. That he being the proprietor of M/s Sahu Brothers Caltex
petrol dealers at Gumla, his cash Memo No. 70996 dated 14-2-
74 shows a sale of 1200, litres of High Speed Diesel oil to
one Mr. Griffiths of Tung Tola P. S. Raidib. The said
quantity is much beyond the capacity of any transport
vehicle and thereby by the said alleged sale he not only
aggravated the scarcity of an essential commodity i.e. high
speed diesel oil but he also supplied the said Mr. Griffths
the said oil in tins or barreals exceeding 37 litres (8
imperial gallons) otherwise than in the tank of a Motor
vehicle, without obtaining a written permission from the
District Magistrate or the Sub-Divisional Magistrate, autho-
rising the said Mr. Griffths to do so in contravention of
section 7 of Bihar Motor Spirit and High Speed Diesel Oil
Licensing Order 1966.
2. That the said Mr. Griffths in his show cause submitted
to the Sub-Divisional Magistrate Gumla and in his statement
recorded by Executive Magistrate, has denied to have
purchase 1200 litres of high speed diesel oil at a time at
any time.
3. That thus it is quite apparent that by the said cash
Memo No. 70996 no sale of the said oil was made and the said
cash Memo was fabricated entirely with the object of
disposing of 1200 litres of the said oil in a clandestine
way in black market.
4. That he being the proprietor of M/s Sahu Brothers Gumla
supplied 300 litres of said oil in Truck No. BR- 662 on 26-
74 and 300 litres to Truck No. MPL 5521 on 1-3-1974 and 400
litres in truck No. MPL ION on 1-3-1974 350 litres to truck
No. MPL 2135 on 1-3-74 and thereby he was. not only
aggravating the scarcity of essential commodity, i.e. the
High Speed Diesel oil but also supplied more than 37 litres
(eight Imperial gallons) of the said oil in tin or barrel to
be kept or stored otherwise than in the tank of a motor
vehicle without obtaining a written permission of the
District Magistrate or the Sub-Divisional
705
Magistrate authorising storage in contravention of section 7
of the Bihar Motor Spirit and High Speed Diesel Oil Dealers
Licensing Order, 1966.
5. That he supplied 762 litres of the said oil as per Cash
Memos fully described in Schedule, I annexed hereto without
giving the name and addresses of the purchasers not only in
contravention of clause 7 of the license but the supply by
the said cash memos-were shown to fictitious persons.
6. That on physical verification of his stock by Shri R.
D. Singh A.D.S.O. and L. Sawaya, Sub-Deputy Collector on
7-3-1974 his stock of the said oil was found to be in excess
by 357 litres from the book balance which is undisputedly
indicative of the fact that he has been showing fictitious
sales.”
The usual procedure prescribed by the provisions of the Act
was thereafter followed and the order of detention was
approved by the State Government, the representation of the
petitioner was considered and rejected, the case of the
petitioner was placed before the Advisory Board and
ultimately on receipt of the opinion of the Advisory Board,
the order of detention was confirmed by the State
Government.
The main ground on which the validity of the order of
detention was challenged on behalf of the petitioner was
that ground 5 was misconceived and betrayed total lack of
application of mind on the part of the District Magistrate
and that vitiated the order of detention. The petitioner
pointed out that though clause (7) of the Licence issued to
him under the Bihar Motor Spirit and High Speed Diesel Oil
Dealers’ )Licensing Order, 1966 provided that the names and
addresses of the purchasers must be mentioned in the cash
memos, an order No. 12706/S.C., dated 11th July, 1966 was
issued by the State Government which dispensed with this
requirement until further orders and it was, therefore, no
longer necessary to set out the names and addresses of the
purchasers in the cash memos issued to them and the ground
that the petitioner supplied 762 litres of high speed diesel
oil under various cash memos without giving the names and
addresses of the purchasers in contravention of clause (7)
of the Licence was, therefore, wholly unfounded. It was
also urged on behalf of the petitioner that if there was no
requirement of setting out the names and addresses of the
purchasers in the cash memos, no inference could rationally
be drawn by the District Magistrate from the absence of the
names and addresses of the purchasers in the cash memos
issued by the petitioner that the purchasers were fictitious
persons. The petitioner urged that in the circumstances it
was clear that this ground was based on a complete
misapprehension of the correct situation and showed that the
District Magistrate had totally failed to apply his mind and
the subjective satisfaction of the District Magistrate based
inter alia on this ground was, therefore, vitiated and it
tendered the order of detention invalid. We think there is
great
706
force in this contention urged on behalf of the petitioner
and the order of detention must on the basis of this
contention alone be held to be bad.
The gravamen of the charge against the petitioner in ground
No. 5 was that he supplied 762 litres of high speed ‘diesel
oil under several cash memos described in Schedule I to the
grounds of detention without giving the names and addresses
of the purchasers and this was not only in contravention of
clause (7) of the licence, but it also indicated that the
supplies under these cash memos were made to fictitious
persons. Now, it is true that clause (7) of the licence
issued to the petitioner provided that the licensee shall
issue to every customer a correct receipt or invoice, as the
case may be, giving inter alia the name and address of the
customer and, therefore, if this requirement prescribed by
clause (7) were operative at the material time, there can
be, no doubt that the action of the petitioner in issuing
cash memos to the purchasers without giving their names and
addresses would have been in contravention of clause, (7)
and it might have been a legitimate inference for the
District Magistrate to draw that the sales were to
fictitious persons, because. otherwise their names and
addresses would have been mentioned in the cash memos as
required by clause (7). But the order bearing-No.
12706/S.C., dated 11th July, 1966 was issued by the State
Government providing that ” as regards high speed diesel
oil, the enforcement of the following condition of the
licence shall be waived until further orders” and one of
such conditions was: “In the cash memo to be issued to the
customers the names and addresses of the customers need not
be mentioned and it will be sufficient if only the
registration number of motor vehicles is noted in the cash
memo”. The requirement of clause (7) of the licence to
mention the names and addresses of the customers in die cash
memos was, therefore, dispensed with by the State Government
with effect from 11th July, 1966 until further orders and
this dispensation was in force at the time when sales were
made by the petitioner under the cash memos described in
Schedule to the rounds of detention. The absence of
mention of the names and addresses of the purchasers in
these cash memos did not, therefore, constitute
contravention of clause (7) of the licence and no inference
could rationally he drawn by the District Magistrate, from
mere absence of names and addresses of the customers in the
cash memos, without anything more, that the sales under the
cash, memos were to fictitious persons. Ground No. 5 was,
therefore, wholly unfounded. It was based on a complete
misapprehension of what was required to be set out in the
cash memos. It is rather surprising that the District
Magistrate should not have known that the requirement of
clause (7) of the licence in regard to mention of names and
addresses of the customers in the cash memos bad been
dispensed with by the State Government as far back as 11th
July, 1966. If only the District Magistrate had properly
applied his mind and made the necessary inquiries for the
purpose of satisfying himself in regard to the charge in
ground No. 5, he would have immediately realised that not
mentioning the names and addresses of the customers in the
cash memos
707
was no longer a breach of clause (7) of the licence and it
could not support an inference that the sales covered by the
cash memos were to fictitious persons. But it appears that
the District Magistrate mechanically subscribed to the
grounds of detention without even caring to examine whether
ground No. 5 was correct or not and proceeded to make the
order of detention. We have tried to see whether we could,
even by taking a liberal or indulgent view, sustain ground
No. 5, but we find it impossible to do so. In fact the
learned counsel appearing on behalf of the State frankly
conceded that it was not possible for him to support this
ground. If there is one principle more firmly established
than any other in this field of jurisprudence, it is that
even if one of the grounds or reasons which led to the
subjective satisfaction of the detaining authority is non-
existent or misconceived or irrelevant, the order of
detention would be invalid and it would not avail the
detaining authority to contend that the other grounds or
reasons are good and do not suffer from any such infirmity,
because it can never be predicated to what extent the bad
grounds or reasons operated on the mind of the detaining
authority or whether the detention order would have been
made at all if the bad ground or reason were excluded and
the good grounds or reasons alone were before the detaining
authority. See the decisions of this Court hi Shibban Lal
Saxena v. The State of Uttar Pradesh,(1) Dr. Ram Manohar
Lohia v. State of Bihar & Ors.(2) and Pushkar Mukherjee &
Ors. v. The State of West Bengal.(3) Even as recently as
this year a Division Bench of this Court pointed out in
Biram Chand v. State of Uttar Pradesh(4) that “It is well
settled that in an order under the present Act the decision
of the authority is a subjective one and if one of the
grounds is non-existent or irrelevant or is not available
under the law, the entire detention order will fall since it
is not possible to predicate as to whether the detaining
authority would have made an order for detention even in the
absence of non-existent or irrelevant ground”. The
conclusion is, therefore, inescapable that since ground No.
5 was wholly misconceived, non-existent and “not available
under the law”, the order of detention must be held to be
invalid.
Though, on this view we are taking as regards the invalidity
of ground No. 5, it is not necessary for us to say anything
in regard to the other grounds, we think we ought to draw
the attention of the detaining authority to one other
infirmity, so that the detaining authority can, while
exercising the power of detention in future, avoid such
infirmity. That infirmity is to be found in ground No. 1
and it discloses yet another instance of non-application of
mind on the part of the District Magistrate. The allegation
in ground No. 1 was that cash memo No. 70996, dated 14th
February, 1974 showed a sale of 1200 litres of high speed
diesel oil to one Mr. Griffiths, but this allegation was
patently incorrect as the cash memo in fact, as frankly
admitted on behalf of the respondents, related only to the
sale of 200 litres of high speed diesel oil to Mr. Griffiths
and for the sale of further 1000 litres of high speed diesel
oil to Mr. Griffiths. there was another cash
(1) [1954] S. C. R. 418.
(3) [1969] 2 S.C.R 635 (4) A.I.R. 1974 S.C. 1161.
(2) [1956] 1 S. C. R. 709.
708
memo No. 71120, dated 16th February, 1974 which did not find
mention in ground No. 1. This circumstance also is
indicative of the rather casual manner in which the District
Magistrate proceeded to make the order of detention without
proper application of mind and it could have an invalidating
consequence on the order of detention. We hope and trust
that the District Magistrate will be more careful in the
future when he has occasion to exercise the enormous powers
of preventive detention entrusted to him by the Parliament.
We accordingly quash ‘and set aside the order of detention
and’ direct that the petitioner be set at liberty forthwith.
P.B.R. Petition allowed.
709