{"id":226061,"date":"1974-02-13T00:00:00","date_gmt":"1974-02-12T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/jagdish-prasad-vs-the-state-of-bihar-and-another-on-13-february-1974"},"modified":"2018-04-29T23:53:37","modified_gmt":"2018-04-29T18:23:37","slug":"jagdish-prasad-vs-the-state-of-bihar-and-another-on-13-february-1974","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/jagdish-prasad-vs-the-state-of-bihar-and-another-on-13-february-1974","title":{"rendered":"Jagdish Prasad vs The State Of Bihar And Another on 13 February, 1974"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Jagdish Prasad vs The State Of Bihar And Another on 13 February, 1974<\/div>\n
Equivalent citations: 1974 AIR 911, \t\t 1974 SCR (3) 369<\/div>\n
Author: V Krishnaiyer<\/div>\n
Bench: Krishnaiyer, V.R.<\/div>\n
           PETITIONER:\nJAGDISH PRASAD\n\n\tVs.\n\nRESPONDENT:\nTHE STATE OF BIHAR AND ANOTHER\n\nDATE OF JUDGMENT13\/02\/1974\n\nBENCH:\nKRISHNAIYER, V.R.\nBENCH:\nKRISHNAIYER, V.R.\nSARKARIA, RANJIT SINGH\n\nCITATION:\n 1974 AIR  911\t\t  1974 SCR  (3) 369\n 1974 SCC  (4) 455\n CITATOR INFO :\n E&R\t    1974 SC 917\t (10,16)\n D\t    1974 SC2305\t (1)\n RF\t    1975 SC 522\t (21)\n RF\t    1987 SC1977\t (4)\n R\t    1990 SC1597\t (19)\n\n\nACT:\nMaintenance  of\t Internal Security Act\t1971,  Sec.  3(1)(a)\n(iii)--Order   of   detention\tunder\tsec.   3   (1)\t (a)\n(iii)--Grounds--Maintenance   of   Supplies   and   Services\nessential to the community--Legality of order.\nWords\tand   phrases  \"Supplies   and\t Services\"   meaning\nof--Constitution  of India, Art. 32--Practice--Petition\t for\nhabeas corpus--Return to Rule Nisi.\nAffidavit--on behalf of State--Who should file.\n\n\n\nHEADNOTE:\nThe  petitioner, a licensed wholesale dealer,  was  detained\npursuant  to  an  order\t passed u\/s 33 of  the\tAct  by\t the\nDistrict  Magistrate,  Ranchi for  his\tantisocial  activity\nprejudicial  to\t the maintenance of  supplies  and  services\nessential to the community.  The particulars of the  grounds\nsupplied  to  him u\/s 8 stated that he\twas  found  secretly\ntransporting  50  bags\tof rice in his\ttruck  at  mid-night\ncontrary  to the conditions of his wholesaler's licence\t and\nthat,  when  caught red handed, he gave\t false\texcuses\t and\nimaginary  numbers  of\tlicence dealers,  some\tof  whom  on\nverification had no current licence and all of whom disowned\nthe  alleged  purchases.   The\tpetitioner  challenged\t the\nvalidity of the order by a petition for habeas corpus.\t The\naffidavit in return filed by the State was sworn by an Upper\nDivision  Assistant  (Special)\tHome  Department.   In\tthat\naffidavit  the\twords \"and services\" after  \"maintenance  of\nsupplies\", were struck off.\nThe  petitioner raised two contentions before this  Court  :\n(i)  The  District Magistrate was uncertain whether  he\t was\ndetaining   the\t  petitioner  to   prevent   disruption\t  of\nmaintenance of supplies or services essential to the life of\nthe community and such a mindless order was bad in law. (ii)\nSupplies  and Services are two distinct concepts and  though\nservices being disrupted was one of the precise reasons\t for\nthe  detention,\t no particulars which would  make  out\tthat\nground,\t apart\tfrom  the  distinct  ground  of\t  preventing\nsupplies, had been given; therefore, the order was illegal.\nDismissing the petition held\n1.   The  District  Magistrate\twhen  passing  an  order  of\ndetention u\/s 3 of the Act has to be fair and clear and\t not\ndoubtful about why he is detaining the man.  \"Either or\" ill\nfits into s. 3. Not so, when it is cumulative.\tA man may be\ndetained  on grounds A and B but not A or B. In the  present\ncase, illicit transport of food grains in the still  secrecy\nof  night by one whose business licence does not  permit  it\nand who gives false explanation when confronted does indulge\nin  an\tactivity  with\timpact\ton  supplies  and  services.\nSupplies  and stocks if hijacked by wholesalers\t upsets\t the\ndelicate  control scheme. go also transport and delivery  to\neach  centre according to its requirements is thrown out  of\ngear  by  these\t private  operations.\tFor  example,  Bihar\nhopping\t harrowingly from drought to floods, can  ill-afford\nto  have the wheels of distribution, of which  supplies\t and\nservices  are two facets, wobble or break down.\t  Therefore,\nthe order of detention cannot be held to bad in economics of\nlaw. [373 D, 377 H]\nRameshwar  Lal\tv. State of Bihar [1968] 2  S.C.R.  505\t and\nPrabhu\tDayal V. District Magistrate, Kamrup, W.P. No.<\/a>\t1946\nof 1973 dated October 11, 1973, referred to.\n11.  In\t interpreting  expressions  such  as  \"supplies\t and\nservices\"  basically the statutory subjects  matter  colours\nthe concept.  The complex needs and amenities of modern life\nand  the multifarious obligations of a welfare state  mingle\nsupplies and services.\tFor example, an essential  commodity\nis at once a supply and a service.  The touchstone of social\ncontrol is that it must be a\n370\nthing  essential  for the existence of the  community;\twhen\ncrystallised it is supplies, when sublimated it is services.\nIt  depends in most cases on the angle from which  you\tview\nand  the  lens you use.\t There can be no  dichotomy  between\n\"supplies  and services\" in the special context of  a  State\nbeing  called  upon in an emergency to supply  that  primary\nnecessity  of existence, viz., food, which' is\tperhaps\t the\nbasic  service which Government must render to\tthe  people.\nIn the present case, the allegation is of nocturnal, illegal\nrice  transport intercepted by officials and no violence  is\ndone to language to describe that activity as prejudicial to\nsupplies and services.\tRushing food supplies to a nation in\nhunger\tis  a composite operation of supplies  and  services\nessential to the life of the community and the order is\t not\nbad because it telescopes both.\t An intelligent fore-,\tcast\nmade by the District Magistrate that the detenu would  break\nthe  control'  system  and blackmarket\tin  rice  cannot  be\ncastigated as irrational. [372 C-H, 376 F]\nRam  Manohar  Lohia v. State of Bihar and another  [1966]  1\nS.C.R. 709, Prabhu Dayal v. Dist.  Magistrate, Kamrup,\tW.P.\nNo. 1496 of 1973 dt. 11-10-73 and Keshav Talpade v.  Emperor\nA.I.R. 1943 F.C.R. 1, 8 distinguished on facts.\nIII. (obiter dicta)\nIt  is difficult to appreciate why in return to a rule\tnisi\nin  the\t habeas\t corpus motion, it is  not  thought  serious\nenough even where liberty of a citizen is choked off, to get\nthe   District\t Magistrate  to\t  explain   his\t  subjective\nsatisfaction  and the grounds therefor.\t Not even why he  is\nnot  available,\t nor  the next best, the oath  of  a  senior\nofficer in the Secretariat who had been associated with\t the\nhandling  of  the  case\t at  Government\t level.\t  Mechanical\naffidavits,  miniaturising the files into a few\t paragraphs,\nby  some one handy in the Secretariat cannot be regarded  as\nsatisfactory.  This is not a mere punctilio of procedure but\na probative requirement of substance.  T373 B]\nThe  above  observations stand only as obiter dicta  in\t the\npresent\t case since counsel made no point about this  aspect\nof  the\t affidavit.  However, in a  subsequent\tjudgment  in\nMohd.\tAlam  v. State of West Bengal, W.P. Nos.<\/a>  1678\tand'\n1855\/1973  dt.\t14-2-74, this Court comprised  of  the\tsame\nBench  has specifically laid down that the proper person  to\nfile the counter-affidavit in return to Rule, nisi  issuedby\nthe Supreme Court in habeas corpus petition is the  District\nMagistrate who had passed the order of detention or a senior\nofficer who personally dealt with the case of the detenu  in\nthe Government Secretariat, or had to put up the file to the\nMinister for orders.\n\n\n\nJUDGMENT:\n<\/pre>\n
ORIGINAL JURISDICTION : Writ Petition No. 1972 of 1973.
\nUnder Article 32 of the Constitution of India for the  issue
\nof Writ in the nature of habeas corpus.\n<\/p>\n
Frank Anthony and S. K. Gambhir, for the petitioner.
\nK. K. Sinha and S. K. Sinha, for the respondents.
\nThe Judgment of the Court was delivered by.
\nKRISHNA IYER, J. The petitioner detained by the order of the
\nDistrict  Magistrate for anti-social proclivity\t prejudicial
\nto the maintenance of supplies and services essential to the
\ncommunity  challenges  its  validity in\t this  petition\t for
\nhabeas corpus.\n<\/p>\n
Mr. Frank Anthony has vigorously urged two vital defects  as
\nvitiating the detention order incarcerating the\t petitioner,
\nbased  mainly  on the, unreported ruling of  this  Court  in
\nPrabhu\tDayal v. District Magistrate, Kamrup<\/a>(1),  the  well-
\nknown Lohia(2) case and a few other peripheral
\n(1)  W.\t P.  No. 1496 of 1973; judgment\t dated\tOctober\t 11,
\n1973.\n<\/p>\n
(2)  A. I. R. 1960 S. C. 633.\n<\/p>\n
371<\/span><\/p>\n
observations  in other decisions.  The\tDistrict  Magistrate
\nwas  uncertain\twhether he would detain\t the  petitioner  to
\nprevent disruption of maintenance of supplies or of services
\nessential  to the life of the community and such a  mindless
\norder  suffered\t from a fatal genetic disease  diagnosed  by
\nthis Court in many decisions as fatal, runs the submission.
\nNow, the admitted facts and the authoritative law and  their
\ninteraction.   It is best to begin with the  impugned  order
\nitself which reads
\n\t      “No.  1182\/C  dated, the\t9th  October,  1973.
\n\t      Whereas  I  am satisfied that with a  view  to
\n\t      preventing Shri Jagdish Prasad, Proprietor M\/s
\n\t      Lachmi  Bhandar,\tNorth  Market  Road,   Upper
\n\t      Bazar,  Ranchi,  from  acting  in\t any  manner
\n\t      prejudicial to the maintenance of supplies and
\n\t      services\tessential  to the community,  it  is
\n\t      necessary\t to  make an order that\t he  be\t de-\n<\/p>\n
\t      tained.\tNow, therefore, in exercise  of\t the
\n\t      powers  conferred\t by Sub-section (2)  of\t the
\n\t      Section  3  of  the  Maintenance\tof  Internal
\n\t      Security Act, 1971 (No. 26 of 1971), 1  hereby
\n\t      direct  that the said Shri Jagdish  Prasad  be
\n\t      detained.\n<\/p>\n
\t      He  shall\t be treated in detention  in  Ranchi
\n\t      Jail and classified as Class Y and in division
\n\t      IB.\n<\/p>\n
\t\t\t      (S. N. Sinha)
\n\t      District Magistrate, Ran-.hi.”\n<\/p>\n
\t      The   executive  interdict  on  the   trader’s
\n\t      freedom is issued to inhibit his acting in any
\n\t      manner  prejudicial  to  the  maintenance\t  of
\n\t      supplies\t and  services\tessential   to\t the
\n\t      community.   The semantics of  ‘supplies’\t and
\n\t      ‘services’   in  this  context,\targued\t Sri
\n\t      Anthony,\t serves\t  to   show   that   certain
\n\t      activities  bear\tupon  supplies\tonly,  e.g.,
\n\t      hoarding\t or  blackmarketing,   while   other
\n\t\t\t    actings   may  disrupt  services  only
\n,   e.g.,
\n\t      sabotage\tof  railway  tracks  or\t scavenger’s
\n\t      strike.  He argued that some misconduct may be
\n\t      ambidextral as for example, huge quantities of
\n\t      telegraph\t wires\tbeing poached or  a  railway
\n\t      wagon  being  looted in an  organised  manner.
\n\t      The  cornerstone\tof his\tcontention,  in\t the
\n\t      first   stage,  is  that\t blackmarketing\t  in
\n\t      foodgrains  belongs  to  the  first   species-
\n\t      essential\t supplies-and  not  to\tthe  second-
\n\t      essential\t services In Rameshwar Lal v.  State
\n\t      of Bihar(1) this Court pointed out :\n<\/p>\n
\t      “No  doubt  blackmarketing has at its  base  a
\n\t      shortening  of  supplies\tbecause\t blackmarket
\n\t      flourishes  best\twhen  the  availability\t  of
\n\t      commodities  is rendered difficult.  It has  a
\n\t      definite\ttendency  to disrupt  supplies\twhen
\n\t      scarcity\t exists\t or  scarcity\tis   created
\n\t      artificially    by    hoarding\tto    attain
\n\t      illegitimate     profits.\t    Indulging\t  in
\n\t      blackmarketing is conduct which is prejudicial
\n\t      to the maintenance of supplies.  It is  hardly
\n\t      necessary to read supplies conjunctively\twith
\n\t      services, as was contended although cases\t may
\n\t      exist where supplies and services may both  be
\n\t      affected.\t   The\tword  ‘and’  is\t  not\tused
\n\t      conjunctively but disjunctively.\tIf  sweepers
\n\t      strike, no question of disrupting sup-\n<\/p>\n
\t      (1)   [1968]2 S. C. R. 505.\n<\/p>\n
\t      372<\/span><\/p>\n
\t      plies  arises  but services essential  to\t the
\n\t      life  of\tthe  community\twill  certainly\t  be
\n\t      disrupted.”\n<\/p>\n
 he  familiar imagery in Lohia’s case of concentric  circles
\nin  the\t context of Law and Order (the\tlarger\tcircle)\t and
\npublic order (the smaller but graver one) was projected here
\nwith  a\t little readjustment.  Similies and  metaphors\tland
\nliterary grace to legal argument but are apt to play  tricks
\nin  areas  of strict logic or cold law.\t Courts have  to  be
\ncautious  while transplanting picturesque  projections\tfrom
\none  situation\tto another.  So let us take  an\t independent
\nclose-up  of  the  profiles  of\t essential  ,supplies’\t and
\n‘services’  to\tdiscover  common  morphology  and  divergent
\nfeatures.   Basically, the statutory subject-matter  colours
\nthe  concept.  Counsel traced the pedigree of the Act,\twith
\nspecial\t reference  to essential supplies and  services,  to
\nsubstantiate his thesis of compartmentalisation and marginal
\noverlapping.   May  be, counsel is right in  his  contention
\nthat all supplies are not services and all services are\t not
\nsupplies but the complex needs and amenities of modern\tlife
\nand  the multifarious obligations of a welfare state  mingle
\nsupplies  and  services so much that the  concentric  circle
\ngeometry  becomes  a misleading stroke of  conceptualism  in
\nthis jural area.  For example, an essential commodity is  at
\nonce  a supply and a service.  Section 36(3) of the  Defence
\nof India Rules, 1971 defines it to mean
\n“essential commodity” means food, water, fuel, light,  power
\nor  any\t other\tthing essential for  the  existence  of\t the
\ncommunity which is notified in this behalf by Government;”
\n“Light\tand  power” thus are commodities; so also  food\t and
\nwater.\t Yet  who  will\t deny that light  is  a\t service  or
\ndrinking water, for that matter ?  The touchstone of  social
\ncontrol\t is  that  it  must be a  thing\t essential  for\t the
\nexistence   of\tthe  community;\t when  crystallised  it\t  is
\nsupplies,  when\t sublimated it is services.  It\t depends  in
\nmost cases an the angle from which you view and the lens you
\nuse.  Food is supplies, so is shipping and wagons,  kerosine
\nand  gasoline.\t And yet they are services.   At  a  feeding
\ncentre\tfor starving children you supply food, serve  gruel.
\nIn  other words, food is supplies, feeding is services.\t  In
\nBlackpool   Corporation\t v.  Lovkar(1)\tit  was\t held\tthat
\nproviding  housing  accommodation fell within the  scope  of
\n“supplies and services” in Regulation 51 (1) of the  Defence
\n(General)  Regulation,\t1939.\tWe  see\t no  force  in\t the
\ndichotomy  between  the\t two attempted\tby  counsel  in\t the
\nspecial\t context  of  a\t State\tbeing  called  upon  in.  an
\nemergency  to  supply that primary necessity  of  existence,
\nviz.,  food,  which  is\t perhaps  the  basic  service  which
\nGovernment must render to the people.  In the present  case,
\nthe  allegation\t is of nocturnal, illegal,  rice  transport,
\nintercepted by officials, and you do no violence to language
\nto  describe  that activity as prejudicial to  supplies\t and
\nservices.   Anyway,  rushing food supplies to  a  nation  in
\nhunger\tis  a composite operation of supplies  and  services
\nessential to the life of the community and the order is\t not
\nbad because it telescopes both.\n<\/p>\n
Shri  Anthony  relied  on  the\tmental\tvacillation  of\t the
\ndetaining  officer as disclosed in the affidavit  in  return
\nfiled by the State where ‘and services’ is struck off  after
\n“maintenance of supplies”.  If this reflects the
\n(1)  [1948] 1 K.B, 349.\n<\/p>\n
373<\/span><\/p>\n
slippery  satisfaction\tof  the District  Magistrate  it  is
\nunfortunate.  Here some Upper Division Assistant  (Special),
\nHome  Department, has sworn an affidavit, not with  personal
\nknowledge  but\twith  paper  wisdom.   It  is  difficult  to
\nappreciate  why in return to a rule nisi in a habeas  corpus
\nmotion, it is not thought serious enough even where  liberty
\nof  a citizen is choked off, to get the District  Magistrate
\nto  explain  his  subjective satisfaction  and\tthe  grounds
\ntherefor.   Not even why he is not available, not  the\tnext
\nbest,  the oath of a senior officer in the  Secretariat\t who
\nhad  been  associated  with  the handling  of  the  case  at
\nGovernment level.  Mechanical affidavits, miniaturising\t the
\nfiles  into  a\tfew paragraphs, by some\t one  handy  in\t the
\nSecretariat cannot be regarded as satisfactory.\t This is not
\na mere punctilio of procedure but a probative requirement of
\nsubstance.   However,  in this case, counsel made  no  point
\nabout  this  aspect of the affidavit  because  the  relevant
\nmaterial  recited in the detention order is almost  admitted
\nin  the\t petitioner’s  averments.   Even  so,  the   curious
\nstriking off in the affidavit of one ground relied on by the
\nDistrict Magistrate in his order is obscure.
\nHad  the authority used one or other of the grounds  in\t the
\nalternative, such for example as ‘public order’ or ‘security
\nof State’ or ‘maintenance of supplies’, it would have failed
\nin law.\t Ile has to be firm and clear and not doubtful about
\nwhy he is detaining the man.  ‘Either or’ ill fits into s.3.
\nNot  so,  when it is cumulative.  A man may be\tdetained  on
\ngrounds\t A and B but not A or B. Here, the  cumulative,\t not
\nthe  alternative,  is the tenor of the order.  Had  it\tbeen
\notherwise due care would stand negatived and the order would
\nfail.  Fundamental rights are fundamental and administrative
\nindifference is impermissible to encroach beyond the  strict
\nlines  of  the law.  Rameshwar Lal(1)  elicited\t some  stern
\nobservations  from  Hidayatullah, J., as he then  was.\t The
\nlearned Judge said :\n<\/p>\n
“However, the detention of a person without a trial,  merely
\non the subjective satisfaction of an authority however high,
\nis  a serious matter.  It must require the closest  scrutiny
\nof the material on which the decision is formed, leaving  no
\nroom  for  errors or at least avoidable\t errors.   The\tvery
\nreason that the courts do not consider the reasonableness of
\nthe  opinion  formed or the sufficiency of the\tmaterial  on
\nwhich  it  is  based, indicates the need  for  the  greatest
\ncircumspection\ton  the part of those who wield\t this  power
\nover  others.\tSince  the detenu is  not  placed  before  a
\nMagistrate  and\t has  only a right  of\tbeing  supplied\t the
\ngrounds\t  of  detention\t with  a  view\tto  his\t  making   a
\nrepresentation\tto the Advisory Board, the grounds must\t not
\nbe vague or indefinite and must afford a real opportunity to
\nmake a representation against the detention.  Similarly,  if
\na vital ground is shown to be, non-existing so that it could
\nnot have and ought not to have played a part in the material
\nfor  consideration, the court may attach some importance  to
\nthis fact.”\n<\/p>\n
The  present  case  hardly  fails  for\tthis  reason   since
\nparticulars  of grounds are given which cover  supplies\t and
\nservices  to  the  community,  prejudice  to  which  is\t the
\nrationale stated in the order.\tBut it is con-
\n(1)  [1968] 2 S.C.R. 505.\n<\/p>\n
374<\/span><\/p>\n
tended\tthat  the particulars furnished relate\tto  supplies
\nonly  and how services are affected is left vague.   If\t one
\nground\tis vague, the order fails.  In Rameshwar  Lal(1)  it
\nwas pointed out :\n<\/p>\n
”  where some grounds are found to be non are  cancelled  or
\ngiven  up,  the detention cannot be justified  ….  if\t the
\ngrounds\t are  not sufficiently precise and  do\tnot  furnish
\ndetails\t for the purpose of making effective  representation
\nthe detention can be questioned.”\n<\/p>\n
In  this connection, Shri Anthony forcefully urged his\tcase
\nthat services being disrupted was one of the precise reasons
\nfor  the detention, but no particulars which would make\t out
\nthat  ground, apart from the distinct ground  of  preventing
\nsupplies, have been given.  On the reasoning in Prabhu Dayal
\nthe order is illegal, he argued.\n<\/p>\n
Mathew, J., brought out the fatal flaw in Prabhu Dayal thus
\n“The  fact that one of the grounds mentions that  paddy\t and
\nrice  had  been unearthed and seized from  the\tunauthorised
\npossession of the petitioners from the rice mill in question
\non  the\t date of the detention order would  not\t necessarily
\nlead  to  the  inference  that\tthe  petitioners  have\tbeen
\nindulging  in unauthorized milling of paddy, much less\tthat
\nthey  were  smuggling the resultant rice  to  Maghalaya\t for
\nearning\t undue profit.\tIt cannot, therefore, be  said\tthat
\nthe   first  ground,  namely,  that  the   petitioners\t are
\nresponsible for unauthorised milling of paddy and  smuggling
\nof the resultant rice to Meghalaya for earning undue profit,
\nis  a conclusion reached from the fact of seizure  of  paddy
\nand  rice on 25-7-1973 or the seizure of rice  on  16-5-1972
\nfrom  their  unauthorized possession  at  Messrs.   Srinivas
\nBasudeo, Fancy Bazar, Gauhati.”\n<\/p>\n
These  are  not only cases where one of the grounds  of\t de-
\ntention was vague, but also cases where the detaining autho-
\nrity did not apply its mind at all to one of the grounds  of
\ndetention.   If the detaining authority had  no\t particulars
\nbefore\tit  as regards the smuggling operation\thow  was  it
\npossible for it to have been satisfied that the\t petitioners
\nwere smuggling rice to Meghalaya for earning undue profit  ?
\nIf  there  was any particular instance of smuggling  of\t the
\nkind  in the mind of the detaining authority, it would\thave
\nbeen  possible for it to specify the particular instance  at
\nleast in the grounds.”\n<\/p>\n
Reference  was\talso made in the above case by\tthe  learned
\nJudge to Keshav Talpade v. Emperor(2) where it was said
\n“If a detaining authority gave four reasons for detaining  a
\nman,  without  distinguishing between them, and any  two  or
\nthree  of  the reasons are held to be bad, it can  never  be
\ncertain to what extent the bad reasons operated on the\tmind
\nof the
\n(1) [1969] 2 S.C.R. 505.\n<\/p>\n
(2)  A.I.R. 1943 F.C.R.1,8.\n<\/p>\n
375.
\nauthority  or  whether the detention order would  have\tbeen
\nmade at all if only one or two good reasons had been  before
\nthem.”\n<\/p>\n
The  law is thus indubitable that if one ground is vague  of
\ndenuded’ of any detail the order, even if other good grounds
\nexist,\tis  bad.   The\tsole  enquiry  then  is\t whether  in
\nsubstance  no  material has been set out here from  which  a
\nrational  inference  regarding perverting  services  to\t the
\ncommunity  has\tbeen  given at all, as\thappened  in  Prabhu
\nDayal(1), case.\t We demur.\n<\/p>\n
The order detailing grounds of detention reads thus
\n“In  pursuance of section 8 of the Maintenance\tof  Internal
\nSecurity  Act, 1971 (No. 26 of 1971), Shri  Jagdish  Prasad,
\nProprietor  M\/s\t Lachmi Bhandar, North\tMarket\tRoad,  Upper
\nBazar, Ranchi is informed that he has been ordered to be de-
\ntained\tin my order No. 1182\/C dated 9th October, 73 on\t the
\nfollowing grounds –\n<\/p>\n
1.   That  you on 2-10-72 at about 12 O’Clock at night\twere
\ntransporting 50 bags of rice weighing on truck No. BRV\t6627
\nwhich  was checked by the Sub-Divisional Magistrate,  Sadar,
\nRanchi.\n<\/p>\n
2.   That  you\tproduced at the time of checking  cash\tmemo
\nbook and you asserted that out of 50 bags of rice seized oil
\nthe said truck, 15 bags of rice were sold to Biswanath Floor
\nMill, Khelari, 10 bags of rice to Pramod Floor Mill, Khelari
\nand 10 bags to Shri Kundanlal Khelari.\n<\/p>\n
3.   That in support of your assertion as stated in Para No.
\n2  above,  you\tproduced Cash memo No.\t1134  dated  2-10-73
\nshowing sale of 15 bags of rice to M\/s Biswanath Flour Mill,
\nKhelari\t and you mentioned licence Number of  M\/s  Biswanath
\nFlour  as  34\/69  (R) On verification by  a  Magistrate\t 1st
\nClass, Ranchi, at Khelari from Shri Jagi Ram, Proprietor  of
\nM\/s  Biswanath Flour Mill, Khelari, it has been\t established
\nthat the licence number of the firm is 63\/68 and not  34\/69.
\nShri Jagi Ram has also asserted that he did not purchase any
\nrice from you or from any other place on 2-10-73.\n<\/p>\n
4.   That  similarly  in support of assertion as  stated  in
\nPara 2 above, you produced Cash memo No. 1135 dated  2-10-73
\nshowing sale of 10 bags of rice to M\/s Pramod Flour Mill  of
\nKhelari\t showing their licence number as 31\/68 (R).  On\t ac-
\ntual  verification  at Khalari by a  Magistrate\t 1st  Class,
\nRanchi,\t from Shri Bhagwan Singh, Proprietor of\t M\/s  Pramod
\nFlour Mill, Khelari it has been established that the licence
\nof M\/s Pramod Flour Mill, Khelari is 9\/72 and not 31\/69.  It
\nhas  also  been\t established that  M\/s\tPramod\tFlour  Mill,
\nKhelari\t  had  no  license  in\t1969.\tIt  has\t also\tbeen
\nestablished  that on 2-10-73 M\/s Flour Mill Khelari did\t not
\nmake any purchase of rice from you or from any other shop.
\n(1)  W.P. 1496 of 1973; Judgment dated October 11, 1973.\n<\/p>\n
376<\/span><\/p>\n
5.   That  similarly in support of your assertion as  stated
\nin  Para No. 2 above, you produced cash memo No. 1137  dated
\n2-10-73 showing sale of 10 bags of rice. to Shri Kundan\t Lal
\nof  Khelari  showing  his licence number  as  26\/67(R).\t  On
\nactual\tverification at Khelari by a Magistrate\t 1st  Class,
\nRanchi,\t from Shri Kundan Lal of Khelari it has been  estab-
\nlished that Shri Kundan Lal of Khelari has got no  foodgrain
\ndealer’s  licence, nor he deals in foodgrains.\tIt has\talso
\nbeen established that the said Kundan Lal of Khelari did not
\npurchase any rice from you on 2-10-73.\n<\/p>\n
In the circumstances I am satisfied that it he is allowed to
\nremain\tat large, he will indulge in activities\t prejudicial
\nto the maintenance of supplies and services essential to the
\ncommunity  for prevention of such activities I consider\t his
\ndetention necessary. . . . ”\n<\/p>\n
He  who runs and reads will be satisfied, if the  statements
\nare  true,  it\tis  not for the\t Court\tto  investigate\t the
\nveracity  of  these averments that  prolix  particulars\t are
\ncommunicated about the midnight movement of 50 bags of rice-
\na  clandestine\tmisadventure contrary to the  conditions  of
\nthis  wholesaler’s licence-and, when challenged, reeled\t off
\nimaginary  numbers of licences of dealers some of  whom,  on
\nverification,  had  no current licence and all of  whom\t had
\ndisowned the alleged purchases.\t May be, the petitioner\t has
\na  good defence but the imprisonment is preventive  and\t not
\npunitive,  the\tconclusion  is\tbased  on  the\t executive’s
\nsubjective   satisfaction,   not   the\t court’s   objective
\nassessment.   Even  the admitted facts are  tell-tale.\t The
\npetitioner is a licensed wholesale dealer.  He can carry  on
\nhis  business only at a place mentioned in his\tlicence\t and
\nnot  do transport and sale outside those premises.   He\t can
\nsell  only to a wholesale or retail merchant holding a\tper-
\nmit.   He shall issue ‘to every customer a  correct  receipt
\ngiving the name, address and licence number of the customer’
\nand other details and keep a duplicate of the same.  On\t the
\nrecitals  in the annexure to the order, the petitioner\thas,
\nin  violation of all these safeguards, attempted to run\t the
\ngauntlet  of the law.  An intelligent forecast made  by\t the
\nDistrict Magistrate that the detenu would break the  control
\nsystem\tand  blackmarket  in rice cannot  be  castigated  as
\nirrational.   The  argument is that all this is\t germane  to
\nsupplies,  not services.  Therefore, as\t earlier  explained,
\nthe whole order breaks down.\n<\/p>\n
We  do\tnot  dismiss this argument as  merely  technical  or
\nprocedural  for the eloquent reason given by Mathew, J.,  if
\nwe may say, with deep deference in Prabhu Dayal’s case :
\n“The facts of the case might induce mournful reflection\t how
\nan  honest attempt by an authority charged with the duty  of
\ntaking\tprophylactic  measure to secure the  maintenance  of
\nsupplies  and services essential to the community  has\tbeen
\nfrustrated  by what is popularly called a  technical  error.
\nWe  say\t and we think it is necessary to  repeat,  that\t the
\ngravity\t of the evil to the community resulting\t from  anti-
\nsocial activities can never furnish an adequate reason for
\n377<\/span>
\ninvading  the  personal\t liberty of  a\tcitizen,  except  in
\naccordance   with   the\t  procedure   established   by\t the
\nConstitution and the laws.  The history of personal  liberty
\nis largely the history of insistence on observance of proce-
\ndure.  Observance of procedure has been the bastion  against
\nwanton\tassaults on personal liberty over the years.   Under
\nour Constitution, the only guarantee of personal liberty for
\na  person is that he shall not be deprived of it  except  in
\naccordance with the procedure established by law.  The\tneed
\ntoday for maintenance of supplies and services essential  to
\nthe  community cannot be over-emphasised.  There will be  no
\nsocial security without maintenance of adequate supplies and
\nservices essential to the community.  But social security is
\nnot  the only goal of good society.  There are other  values
\nin  a society.\tOur country is taking singular pride in\t the
\ndemocratic  ideals in personal liberty.\t It would indeed  be
\nironic if, in the name of social security, we would sanction
\nthe subversion of this liberty.\t We do not pause to consider
\nwhether\t social\t security  is more  precious  than  personal
\nliberty\t in  the  scale of values.   For,  any\tjudgment  as
\nregards that would be but a value judgment on which opinions
\nmight differ.  But whatever be its impact on the maintenance
\nof supplies and services essential to the community, when  a
\ncertain\t procedure is prescribed by the Constitution or\t the
\nLaws  for  depriving a citizen of his personal\tliberty,  we
\nthink  it  our\tduty to see  that  procedure  is  rigorously
\nobserved, however strange this might sound to some ears.”
\nPart IV of the Constitution projects a value judgment  which
\nsome, jurists have interpreted to mean that in the hierarchy
\nof  human rights the right to life ranks highest and if\t the
\nliberty\t of  the few starve the life of the many  the  jural
\norder may break down, an aspect on which we do not now\tneed
\nto speak.\n<\/p>\n
The  position of law is plain but does not apply  here.\t  We
\nhave,  been  at pains to explain that illicit  transport  of
\nfoodgrains  in\tthe  still secrecy of  night  by  one  whose
\nbusiness  license  does not permit it and  who\tgives  false
\nexcuses\t when confronted, does indulge in an  activity\twith
\nimpact\ton supplies and services.  Supplies and\t stocks,  if
\nhijacked by wholesalers, upsets the delicate control scheme.
\nSO  also transport and delivery to each centre according  to
\nits  requirements  thrown  out\tof  gear  by  these  private
\noperations.  And Bihar, hopping harrowingly from drought  to
\nfloods, can ill-afford to have the wheels
\n378<\/span>
\nof  distribution,  of which supplies and  services  are\t two
\nfacets,\t wobble\t or break down.\t Anyway, we cannot hold\t the
\norder bad, in economics or law.\n<\/p>\n
Counsel referred to the quantity being but 50 bags of  rice-
\ntoo  small to thwart supplies to the community.\t While\tthat
\nis  of\tlittle avail  legally, it  suggests  cynically\tthat
\nlarger\tblack-marketers\t are  easy  in\ttheir  bosom   while
\ndeserving  to be behind bars.  That is not our pro vince  as
\njudges, and our views as citizens are out of place.
\nIn conclusion, we would like to express concern at prolonged
\ndetentions  without trial without periodical review of\teach
\nindividual   case in changing circumstances.   The  petition
\nfails and is dismissed.\n<\/p>\n
S. B. W.\t Petition dismissed.\n<\/p>\n
379<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Jagdish Prasad vs The State Of Bihar And Another on 13 February, 1974 Equivalent citations: 1974 AIR 911, 1974 SCR (3) 369 Author: V Krishnaiyer Bench: Krishnaiyer, V.R. PETITIONER: JAGDISH PRASAD Vs. RESPONDENT: THE STATE OF BIHAR AND ANOTHER DATE OF JUDGMENT13\/02\/1974 BENCH: KRISHNAIYER, V.R. BENCH: KRISHNAIYER, V.R. SARKARIA, RANJIT SINGH […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-226061","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nJagdish Prasad vs The State Of Bihar And Another on 13 February, 1974 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/jagdish-prasad-vs-the-state-of-bihar-and-another-on-13-february-1974\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Jagdish Prasad vs The State Of Bihar And Another on 13 February, 1974 - 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