DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

VISAKHAPATNAM, A.P., INDIA

PROJECT TITLE – INTERPRETATION OF CASES UNDER

PREVENTION OF BLACKMARKETING AND MAINTENANCE OF SUPPLIES OF
ESSENTIAL COMMODITIES ACT, 1980

SUBJECT: INTERPRETATION OF STATUTES

NAME OF THE FACULTY: BHARATH SIR

NAME OF THE STUDENT: SANSKAR JAIN

ROLL NO. 2018080

SEM 6
ACKNOWLEDGEMENT

I would like to express my special thanks of gratitude to my teacher who gave me the golden
opportunity to do this wonderful project on the topic which also helped me in doing a lot of
research and I came to know about so many new things I am thankful to them.
Secondly, I would also like to thank my friends who helped me a lot in finalizing this project
within the limited time frame.
 1. NAND LAL BAJAJ V. THE STATE OF PUNJAB AND ANR

FACTS

"First as to the facts. On June 1, 1981, the District Magistrate passed an order of detention
under sub-section (2) of Section 3 of the Act on being satisfied that detention of Inderjit was
necessary with a view to preventing him from acting in any manner prejudicial to the
maintenance of supplies of commodities essential to the community, and as required by sub-
section (3) thereof, made a report forthwith to the State Government together with the
grounds on which the order of detention had been made and the State Government approved
of the same. The detenu was apprehended on June 11, 1981 and served with the order of
detention together with the grounds and, in due course, the detenu submitted his
representation challenging the order of detention to the State Government. He made a request
in writing that he be allowed the assistance of counsel during the hearing before the Advisory
Board, but the Government did not accede to his request. However, it appears that the
detaining authority was represented by the State counsel at the hearing.

The detenu thereupon asked the Advisory Board that he may also be afforded an opportunity
for legal assistance. What transpired before the Advisory Board can best be stated in the
words of the petitioner. The relevant averment in para 17 of the petition is as follows:Before
the commencement of these proceedings the detenu requested the State Government in
writing that he be allowed assistance of counsel during the course of the proceedings before
the Advisory Board. The said request was denied. The detenu to his utter surprise found that
whereas he bad to place his case before the Advisory Board without assistance of counsel, the
order of detention was defended by State counsel. The lawyers representing the State, during
the course of the proceedings before the Advisory Board included the District Attorney and
the Additional District Attorney who were assisted by the District Legal Adviser and one
legal assistant. The detenu had also requested the Advisory Board verbally that he be allowed
the assistance of counsel during the course of the proceedings."

ISSUE

This is a petition under Article 32 of the Constitution by one Nand Lal Bajaj for the issuance
of a writ of habeas corpus for the release of his son, Inderjit alias Billa, who has been
detained by an order of detention passed by the District Magistrate, Ropar, under Section 3 of
the Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities
Act, 1980 (hereinafter called the Act), on being satisfied that his detention was necessary
with a view to preventing him from acting in any manner prejudicial to the maintenance of
supplies of commodities essential to the life of the community."

REASONING

"Under Article 22(3)(b) of the Constitution, the right to consult and be defended by a legal
practitioner of his choice is denied to any person who is arrested or detained under any law
providing for preventive detention. Sub-section (4) of Section 11 of the Act is undoubtedly in
conformity with Art. 22(3)(b) of the Constitution. Normally, lawyers have up place in the
proceedings before the Advisory Board. The functions of the Advisory Board are purely
consultative. It is an independent body constituted under S. 9 of the Act consisting of a sitting
Judge as the Chairman and not less than two other members, who may be sitting or retired
Judges of the High Court. It is expected that the Advisory Board would act in a fair and
impartial manner in making a report whether or not there is, in its opinion, sufficient cause
for the detention of a person. In coming to that conclusion, the Board has to make an
objective determination on the question as to whether there was sufficient material on which
the subjective satisfaction of the detaining authority could be based. Under sub-section (1) of
Section 11 of the Act, the Board is not only entitled to look into the record and see whether
there was any material on which the order of detention could be passed under Section 3 of the
Act, but may also call for such further information as it may deem necessary from the
appropriate Government or from the person concerned and if, in any particular case, it
considers essential to do so or if the person concerned desires to be heard, shall hear him in
person.

The Board is entitled to devise its own procedure. It is the arbitrariness of the procedure
adopted by the Advisory Board that vitiates the impugned order of detention. There is no
denying the fact that while the Advisory Board disallowed the detenus request for legal
assistance, it allowed the detaining authority to be represented by counsel. It appears that the
Advisory Board blindly applied the provisions of sub-section (4) of Section 11 of the Act to
the case of the detenu failing to appreciate that it could not allow legal assistance to the
detaining authority and deny the same to the detenu. The Advisory Board is expected to act in
a manner which is just and fair to both the parties. The report of the Board placed before us
shows that the detenu exercised his right to recall some of the witnesses for the purpose of
cross-examination.
We are informed that the hearing before the Advisory Board went on for 4 to 5 days and there
were as many as 11 witnesses cross-examined by the detenu. It cannot be, as it is suggested
by the counsel for the State, that the lawyers representing the State Government did not
participate in the proceedings. On the contrary, the report itself shows that the Public
Prosecutor was called upon to explain some aspects of the case. If the matter was so intricate,
the Advisory Board should have ensured that both the parties had equal opportunities to place
their respective cases. It appears that the dice was loaded against the detenu in that whereas
he had to go without legal assistance, the State Government had the benefit of an array of
lawyers.

The expression procedure established by law in the context of deprivation of life and liberty
under Article 21 was interpreted in Maneka Gandhi v. Union of India, 1978 2 SCR 621 :
(AIR 1978 SC 597) and the interpretation so put has been treated as involving an enlargement
of the right conferred by Art. 21 of the Constitution. As limited to the procedure, the Judges
were agreed that the procedure must be reasonable and fair and not arbitrary or capricious.
For, if the procedure was arbitrary, it would violate Art. 14 since Art. 14 is not consistent
with any arbitrary power. (H. M. Seervai, Constitutional Law of India, 2nd Edn. Vol. 3 pp.
1940-41). In interpreting the expression procedure established by law in Article 21 with
reference to Article 14 of the Constitution, Bhagwati, J, observed (1978 2 SCR 621 at p. 674 :
(AIR 1978 SC 597 at p. 624))We must reiterate here what was pointed out by the majority in
E. P. Royappa v. State of Tamil Nadu, 1974 2 SCR 348 : (AIR 1974 SC 555) namely, that
from a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and
arbitrariness are sworn enemies; one belongs to the rule of law in a republic, while the other,
to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it
that it is unequal both according to political logic and constitutional law and is therefore
violative of Article 14.

,Article 14 strikes at arbitrariness in State action and ensures fairness and equality of
treatment. The principle of reasonableness, which legally as well as philosophically, is an
essential element of equality or non-arbitrariness pervades Article 14 like a brooding
omnipresence and the procedure contemplated by Article 21 must answer the test of
reasonableness in order to be in conformity with Article 14. It must be right and just and fair
and not arbitrary, fanciful or oppressive; otherwise, it would be no procedure at all and the
requirement of Article 21 would not be satisfiedArbitrariness is the very antithesis of Art. 14.
The principle of reasonableness is an essential element of equality and the procedure
contemplated by Article 21 must answer the test of reasonableness in order to be in
conformity with Article 149. Among the concurring opinions, Krishna lyer, J. although he
generally agreed with Bhagwati, J., goes a step forward by observing (1978 2 SCR 621 at p.
723 : (AIR 1978 SC 597 at pp. 658-659))Procedural safeguards are the indispensable essence
of liberty. In fact, the history of procedural safeguards and the right to a hearing has a human-
right ring. In India, because of poverty and illiteracy, the people are unable to protect and
defend their rights : observance of fundamental rights is not regarded as good politics and
their transgression as bad politicsIn short, the history of personal liberty is largely the history
of procedural safeguards. The need for observance of procedural safeguards, particularly in
cases of deprivation of life and liberty is, therefore, of prime importance to the body politic.
In Francis Coralie Mullin v. The Administrator, Union Territory of Delhi, 1981 2 SCR 516 at
p. 531 : (AIR 1981 SC 746 at p. 754) the inter-relation between Articles 21 and 14 of the
Constitution was brought out by Bhagwati, J. in these words:The right of detenu to consult a
legal adviser of his choice for any purpose not necessarily limited to defence in a criminal
proceeding but also for securing release from preventive detention or filing a writ petition or
prosecuting any claim or proceeding, civil or criminal, is obviously included in the right to
live with human dignity and is also part of personal liberty and the detenu cannot be deprived
of this right nor can this right of the detenu be interfered with except in accordance with
reasonable, fair and just procedure established by a valid law."

JUDGEMENT

It appears to us prima facie that the grounds for detention set out the facts with sufficient
degree of particularity and that they did furnish sufficient nexus for forming the subjective
satisfaction of the detaining authority. It seems to us that the order of detention cannot also be
challenged that the grounds furnished were vague or indifferent or lacking in particulars or
were not adequate or sufficient for the satisfaction of the detaining authority, or, for that
matter, for the making of an effective representation13. For the reasons stated above, the
order of detention passed by the District Magistrate, Ropar dated June 1, 1981 is quashed,
and we direct that the detenu Inderjit alias Billa be set at liberty forthwith.
 2. MOHAMMAD JAHANGIR S/O AHSAMUDDIN V STATE OF BIHAR,
THROUGH PRINCIPAL SECRETARY, PATNA AND OTHERS

FACTS

1. The instant writ petition having been found extremely urgent by Honble the Chief Justice
has been posted before me under his orders for hearing via video conferencing.

2. The petitioner has prayed for issuance of a writ in the nature of mandamus commanding
and directing the respondents to release 2073 bags of wheat, which were seized in connection
with Mirganj P.S. Case No. 124 of 2019 registered for the offence punishable under Section 7
of the Essential Commodities Act, 1955 (for short E.C. Act) in his favour and in case of
decay/damage of the wheat kept in those bags, to make payment of the proceeds thereof to
him in cash.

3. Mirganj P.S. Case No. 124 of 2019 was registered by the Officer-in-Charge of Mirganj
Police Station on the basis of a written report submitted by one Md. Imdadul Haque, the
Block Supply Officer, Dhamdaha wherein he has alleged that on 15.09.2019 at about 10.30
p.m. he had received telephonic information from the Officer-in-Charge of Mirganj Police
Station that illegally procured wheat is being loaded on trucks from the residential premises
of the petitioner situated in village Mir Millick falling within Rangpura panchayat. On receipt
of the aforesaid information, the Block Supply Officer along with the police party rushed to
the village Mir Millick and found that a truck bearing registration no. BR11G-5721 loaded
with bags of wheat was parked outside the premises of the petitioner but the driver or the
loaders (workers) were not found present near the truck. He also found three trucks loaded
with bags of wheat in the premises of Bhaiya Jee Petrol Pump near Dharmkanta. On seeing
the police party, the truck drivers fled away. Thereafter, the godown of the petitioner was
inspected from where also 129 bags of wheat were recovered, which had the seal of Food
Corporation of India (for short FCI) and State Food Corporation (for short SFC). On being
asked to produce relevant papers to justify the storage of wheat bags, the petitioner failed to
produce stock register and sale and purchase register. On enquiry regarding the trucks found
in the premises of Bhaiya Jee Petrol Pump, the petitioner admitted that the wheat bags loaded
on those trucks belong to him and were being sent to different destinations for sale. On
inspection of the wheat bags loaded on the trucks, it was found that they also bore the seal of
FCI and SFC.
4. In the concluding portion of the written report, the informant has alleged that the seal on
the wheat bags made it apparent that there had been diversion of FCI and SFC subsidized
grains for the purpose of black-marketing.

ISSUES

5. It would appear from the pleadings of the petitioner that the four trucks loaded with 2073
bags containing wheat weighing 1291.10 quintals were seized and handed over to the
Assistant Godown Manager, Bihar State Food Corporation on certain conditions.

6. Mr. Jitendra Kumar Giri, learned counsel for the petitioner submitted that the seized wheat
may be damaged in course of time. Hence, the same ought to be released in favour of the
petitioner. He has further contended that the petitioner is a private person having no
connection with any Public Distribution System shop and by his occupation he deals in
selling of different types of grains purchased from the local cultivators. He submitted that the
petitioner had stored the seized wheat in order to sell it in the open market. He has further
contended that the petitioner is legally entitled for the release of the aforesaid seized wheat
and the proceeds thereof and the search and seizure of commodities made by the police on the
basis of information of the Block Supply Officer are wholly without jurisdiction. He also
contended that if the prayer of the petitioner is not allowed by this Court, the petitioner would
suffer an irreparable loss and injury.

7. On query made by the Court, Mr. Giri, learned counsel for the petitioner has conceded that
a confiscation proceeding in respect of the seized wheat has already been initiated by the
Collector, Purnea in which he has already appeared pursuant to notice sent to him and has
filed an application for release of the seized commodity, but no order has been passed till
date.

REASONING

8. Per contra, Mr. Prashant Pratap, learned counsel for the State submitted that the writ
petition filed by the petitioner is misconceived. He contended that the confiscation
proceeding in respect of the seized commodity has already been initiated by the Collector,
Purnea and a notice in this regard has already been issued to the petitioner pursuant to which
he has appeared and is contesting the matter. He contended that Collector, who was reported
about the seizure of essential commodity under Section 6-A of the Act, has no power to order
for release of the seized commodity in view of the ratio laid down by the Supreme Court in
Shambhu Dayal Agarwala Vs. State of West Bengal &Anr. [(1990) 3 SCC 549 1990 Indlaw
SC 211].

9. In reply learned counsel for the petitioner submitted that the powers of the high court
cannot be curtailed under any circumstance and taking into consideration the decaying nature
of the commodity this court should allow the prayer of the petitioner and direct the
respondents to release the seized commodity during the pendency of the confiscation
proceeding.

10. I have heard learned counsel for the parties and carefully perused the record.

11. The E.C. Act was enacted to safeguard the public interest considering it necessary in the
interest of general public to control the production, supply and distribution and trade and
commerce in certain commodities through the legislation.

12. The E.C. Act envisages two independent proceedings against a person charged with
contravention for violation of an order made under Section 3 in relation to
an essential commodity. Under Section 6-A, the Collector can confiscate the seized
commodity. He has been empowered under Section 6-A, if it is found to be expedient, to sell
the seized commodity, which is subject to natural decay at a controlled price or by a public
auction or dispose of through public distribution system to avoid artificial shortages, maintain
the price line and secure equitable distribution thereof through fair price shops in the interest
of general public.

13. The provision of penalty and prosecution for the offences relating to essential commodity
are contained in the E.C. Act and the Prevention of Black-marketing
And Maintenance of Supplies of Essential Commodities Act, 1980 (for short Act of 1980).

14. Section 6-A of the E.C. Act confers a discretionary power on the Collector to confiscate
the seized essential commodity, if the seizure is on account of contravention for violation of
an order made under Section 3 of the E.C. Act.

15. The principle of audi alteram partem is embedded in Section 6-B of the E.C. Act, which
provides that notice has to be issued to the owner of
the essential commodity/package/conveyance in writing, informing him of the grounds for
the proposed confiscation and to give him opportunity of representing in writing within such
reasonable time against the grounds for confiscation. The owner is also to be afforded hearing
in the matter.

16. The provision of appeal is provided under Section 6-C of the E.C. Act.

17. Section 6-E of the E.C. Act proscribes the exercise of jurisdiction by any Judicial
Authority with respect to possession, delivery, disposal, release or distribution of
the essential commodity, package, covering, receptacle, vehicle, vessel or other conveyance.

18. The criminal intent and offence regarding contravention of an order under Section 3 of
the E.C. Act has been made punishable under Section 7 of the E.C. Act. Apart from
sentencing, the Court concerned has also been vested with the power of forfeiture of the
property or the vehicle, to the Government.

19. A plain reading of Sections 6-A to 6-E of the E.C. Act makes it clear that there is no
provision of release of the commodity so seized under Section 6-A of the E.C. Act, pending
confiscation proceeding. The Collector does not have the authority to release the commodity
even after the confiscation proceedings are over.

20. In Shambhu Dayal Agarwala (Supra), the Supreme Court held that whenever
any essential commodity is seized pending confiscation under Section 6-A of the E.C, Act,
the Collector has no power to order release of the commodity in favour of the owner. It held
that no unqualified and unrestricted power has been vested on the Collector to release the
commodity in the sense of returning it to the owner or person from whom it was seized even
before the proceeding for confiscation stood completed and before the termination of the
prosecution in the acquittal of the offender. Such a view would render Clause (b) of Section
7(1) totally nugatory and would completely defeat the purpose and object of the Act. The
view that the Act itself contemplates a situation which would render Clause (b) of Section
7(1) otiose where the essential commodity is disposed of by the Collector is misconceived.
Section 6-A of the E.C. Act does not empower the Collector to give an option to pay, in lieu
of confiscation of the essential commodity, a fine not exceeding the market value of the
commodity at the date of seizure, as in the case of any animal, vehicle, vessel or other
conveyance seized along with the essential commodity. Only a limited power of sale of the
commodity in the manner prescribed by Sub-section (2) of Section 6A is granted. The power
conferred by Section 6-A(2) to sell the essential commodity has to be exercised in public
interest for maintaining the supply and for securing equitable distribution
of essential commodities.

21. The provision for penalty and prosecution under the E.C. Act has been supplemented by
enactment of Act of 1980. The object of the Act of 1980 is to deal effectively malpractices
like black-marketing, hoarding, profiteering, etc. and to arrest the unjustified rise in prices
of essential commodities by providing for the preventive detention of person likely to indulge
in such practices.

22. The instant case has been filed by the petitioner invoking Article 226 of the Constitution
of India. Indisputably, the powers of the High Court under Article 226 of the Constitution of
India cannot be curtailed under any circumstance as it flows from the Constitution itself. An
order for release of essential commodity may be passed by the High Court under Article 226
of the Constitution of India even during confiscation proceeding, but only when it is
established that the procedure prescribed in law has been completely flouted or when there is
complete violation of the procedure prescribed for confiscation or when no opportunity of
hearing is given to the offender concerned.

23. A Full Bench of this Court in Baleshwar Roy Vs. State of Bihar [2018(4) PLJR 970],
dealing with the power of the High Court under Articles 226 and 227 of the Constitution of
India in the matter of release of vehicle and commodities pending confiscation proceeding,
held as under :-

"62. It may, however, be added that Article 226 of the Constitution of India provides power
to the High Court to issue writs to any person or authority, including in appropriate cases, any
Government, any order or writs (including writs in the nature of habeas corpus, mandamus,
prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the
rights conferred by Part-III and for any other purpose). Similarly Article 227 of the
Constitution of India provides the power of superintendence over all Courts and Tribunals
throughout the territories in relation to which any High Court exercises its jurisdiction. The
powers of the High Court under Articles 226 and 227 of the Constitution of India cannot be
curtailed under any circumstance, as the power flows from the Constitution itself. No
statutory bar can affect the power of the High Court under Articles 226 and 227 of the
Constitution of India.
63. Despite such wide and untrammeled powers, without any circumcision by external
restrictions, the Courts have evolved certain self-imposed limits while exercising these
powers. The High Courts, normally, would not go beyond justified inhibitions under any
Statue except where there is a complete jettisoning of rule of law or under exceptional
circumstances which demand timely judicial interdict. This inhibition is basically ordained,
keeping in mind that there is a national weal behind any valid piece of Legislation
incorporating and inhering in itself the social objective behind any Legislation. Though, no
limitations or fetters have been put on the powers of the High Court under Articles 226 and
227 of the Constitution of India, as the High Courts perform as sentinel on the qui-vive, but
such power is not to be exercised casually and without coming to the conclusion that non-
exercise of such power would lead to positive injustice. Times without number, it has been
held by the High Courts that only under condition of a person establishing that substantial
injustice has or is likely to ensue, such extraordinary powers can be exercised. It needs no
adumbration by this date that the plenary powers of the High Court have only to be exercised
in the interest of justice.

64. Thus, an order of release may be passed under Article 226/227 of the Constitution of
India, even pending confiscation proceedings, but only when it is established before the Court
that the procedure prescribed and the law in that regard has been completely flouted and that
there is complete violation of the procedure prescribed for confiscation, viz., notice to the
offender before confiscation, allowing him opportunity of giving written representation and
affording hearing on the issue to him and that such injustice cannot be remedied without the
exercise of the extraordinary power.

65. Needless to state that under Article 226 of the Constitution of India, the Court will not go
into the disputed question of facts.

66. Thus, the powers directing for release of the vehicles or goods, during the pendency of
the confiscation, can only be sparingly exercised under monstrous situations and
circumstances when injustice occurs because of non-fulfillment of the conditions for
confiscation."

24. Thus, it would be apparent from the ratio laid down by the Full Bench of this Court that
the release of goods seized should not normally be ordered in exercise of jurisdiction under
Articles 226 and 227 of the Constitution of India, even though the powers under Article 226
are wide and unraveled by any limitation. It is only in rare and exceptional cases that such a
direction would be issued. The Court would not go into the disputed questions of fact for the
purpose of release of any commodity. If the seizure is wholly outside the provision of the
Control Order or the E.C. Act, an order for release of the commodity can be passed in
exercise of jurisdiction under Article 226 of the Constitution of India.

25. In the instant case, the petitioner has failed to demonstrate that the procedure prescribed
in law has been flouted in the search and seizure of the wheat bags or that no notice was
issued to him in the confiscation proceeding or that any substantial injustice has been caused
to him or that any exceptional case is made out for the release of wheat bags during pendency
of the confiscation proceeding.

JUDGEMENT

26. Hence, in view of the ratio laid down by the Supreme Court in Shambhu Dayal Agarwala
(Supra), and by a Full Bench of this Court in Baleshwar Roy (supra), I am of the considered
opinion that no case for issuance of mandamus for the release of bags containing wheat
during the pendency of the confiscation proceeding is made out. The writ petition being
devoid of any merit is dismissed.

27. There shall be no order as to costs.

28. It is needless to say that the Collector, Purnea shall dispose of the pending confiscation
proceeding as early as possible.

Petition dismissed.
 3. NIRMALA V GOVERNMENT OF TAMIL NADU, REPRESENTED BY ITS
SECRETARY, CO-OPERATION, FOOD AND CONSUMER PROTECTION
DEPARTMENT, CHENNAI AND OTHERS

Madras High Court

02 April 2019

Bench

M. Sathyanarayanan, M. Nirmal Kumar

Where Reported

2019 Indlaw MAD 1562

Case Digest

Subject: Practice & Procedure

Keywords: Maintenance, suspicion

FACTS

Human Rights - Practice & Procedure - Prevention of Black Marketing

and Maintenance of Supplies of Essential Commodities Act 1980, ss. 3(1), 3(2)(a) - Order of
detention - Challenged - Respondent no. 2 passed order of detention u/ss. 3(1)/3(2)(a)
of Act against Detenu - Hence, instant petition –

ISSUES

Whether, Respondent no. 2 rightly passed order of detention dt. 2-12-2018 against Detenu.

REASONING & JUDGEMENT

Held, similar case material relied upon by Detaining Authority in Cr.M.P.No. 4493 of 2018
dt. 10-9-2018 pertaining to co-accused cannot be taken as similar case. Perusal of order
would disclose that said accused have not got any antecedents and taking into consideration
quantum of seizure and period of incarceration, they were enlarged on bail, whereas, in case
of present detenu, there are seven adverse cases and one ground case and as such there is no
imminent possibility of detenu coming out on bail and indulging in activities which are
prejudicial to maintenance and supply of essential commodities, and as such subjective
satisfaction arrived at by Detaining Authority is vitiated. Hence, on this sole ground,
impugned order of detention warrants interference. In result, Habeas Corpus Petition is
allowed and detention order passed by Respondent No. 2 in Cr.M.P.No.26/Black
Marketer/2018/C1 dt. 2-12-2018 is hereby set aside. Petition allowed.
 4. C. H. PRAVEEN KUMAR S/O KISTAIAH V STATE OF TELANGANA,
REPRESENTED BY ITS PRINCIPAL SECRETARY, GENERAL
ADMINISTRATION DEPARTMENT, HYDERABAD AND OTHERS
Hyderabad High Court
15 November 2018

Bench

C.V. Nagarjuna Reddy, T. Amarnath Goud

Where Reported

2018 Indlaw HYD 680

Case Digest

Subject: Practice & Procedure

Keywords: Maintenance, parallel proceeding, review

FACTS

Criminal-
Prevention ofBlackMarketingand Maintenance of Supplies of Essential Commodities Act, 19
80, ss. 3(1), 2 - Detention Order - Quashing Claim - Respondent no. 2 passed order of
detention of Petitioner brother u/ss. 3(1), 2 of Act - Petitioner filed petition for quashing of
said detention order - Hence, instant petition –

ISSUES

Whether, order of detention of Petitioner brother is liable to be quashed.

REASONING AND JUDGEMENT

Held, opinion of Forensic Science Laboratory rendered on sample analysis, which revealed
that rice, in which the detenu was allegedly carrying on his business, was suspected to be
meant for Public Distribution System, constituted basis for Respondent No.2 to arrive at
subjective satisfaction that detenu was carrying on the unlawful activity of purchase and sale
of rice meant for Public Distribution System. Such subjective satisfaction based on prima
facie opinion of expert is, therefore, not justiciable and Petitioner cannot insist on proof
beyond reasonable doubt, which is fundamental requirement for conviction of an accused and
not for invoking the power of preventive detention. As preventive detention relates to a
special law different from criminal jurisprudence, detenu cannot insist that unless his guilt is
proved, he cannot be detained. Petition dismissed.
 5. MIRIYALA RENUKA DEVI AND OTHERS V STATE OF ANDHRA
PRADESH, REPRESENTED BY PUBLIC PROSECUTOR, HYDERABAD
AND OTHERS

Hyderabad High Court

20 February 2017

Bench

B. Siva Sankara Rao

Where Reported

2017 Indlaw HYD 12

Case Digest

Subject: Administrative

Keywords: AndhraPradesh, Essential Commodities Act,

1955, Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities
Act, 1980, Code of Criminal Procedure, 1973, A.P.State Public Distribution System Control
Order, 2001, Andhra Pradesh Public Distribution System (Control) Order, 2008, Andhra
Pradesh Scheduled Commodities (LS & R) Order, 2008, A.P.Paddy and Rice (Requisitioning
of Stocks) Order, 1966, A.P. Procurement (Levy) Order, 1984, Licence Order, 2008

FACTS

Practice & Procedure - Essential Commodities Act, 1955, s. 6A - Validity of Confiscation

Proceeding - Challenged - Tahsildar filed petition u/s. 6A of Act before District Collector
about seizure of 182.00 quintals of so called Public Distribution System (PDS) Rice, which
was being transported in lorry without any documents - Confiscation proceeding initiated
against petitioner - As per petitioner no confiscation shall arise and proceedings u/s. 6A
of Act shall not arise as seized stocks were not essential commodities - Hence, instant petition
–

ISSUES

Whether, confiscation proceedings of Collector were sustainable.

REASONING AND JUDGEMENT

Held, orders of respective Collectors, modified or confirmed by respective Sessions Judges,

clearly show that quantity of rice involved is PDS Rice. It is clear case of PDS Rice at time of
seizure with finding from such identification, which Court has to take judicial notice from
respective Tahsildars dealing with civil supply commodities out of their day to day dealings
to identify, which stock is PDS, apart from interception, for lack of bills and presumption in
favour of it. Even FCI sealed bags were there among seized boxes, which clearly show
diverting stocks meant for beneficiaries before distribution to beneficiaries as part of PDS.
There is no permit obtained either from District Supply Officer or District Collector
(Civil Supplies). Once these are violations, which clearly prone to seizure and initiation of
proceedings and prone to confiscation, respective orders of Collectors, as confirmed to that
extent by lower appellate authority, no way require interference, but for if at all to consider
any interference, on quantum, of confiscation of seized stock respectively, though not to
reduce vehicle penalty. So far as order of Collector for confiscation of 100% of seized stock
modified to 75% by District Judge is reduced to 50% of seized stock or its value. Petition
partly allowed.
 6. KISHORBHAI ARJANBHAI BHANUSHALI V STATE OF GUJARAT AND
OTHERS

Gujarat High Court

16 December 2016

Bench

S.H. Vora

Where Reported

2016 Indlaw GUJ 1015

Case Digest

Subject: Administrative; Trade

Keywords: Gujarat, Prevention of Blackmarketing and Maintenance of Supplies of Essential

Commodities Act, 1980, Constitution of India, 1950, Gujarat Essential Articles (Dealers
Regulation) Order, 1977

FACTS

Practice & Procedure - Human Rights - Prevention of Black Marketing

and Maintenance of Supplies of Essential Commodities Act, 1980 - Order of detention -
Quashing of order - Challenged - Petitioner sought for quashing of order of detention passed
by detaining authority under provisions of Act as being illegal, invalid, null and void,
arbitrary, suffers from total non-application of mind - Hence, instant application –

ISSUES

Whether, order of detention should be quashed or same was proper.

REASONING AND JUDGEMENT

Held, it is matter of fact that documents referred to and relied upon by detaining authority,
were not supplied to petitioner and it is obligatory on part of detaining authority to supply
such material to enable petitioner to make effective representation against his detention. Non-
supply of documents prevented petitioner from making effective representation against his
detention. Detaining authority has not considered fact of filing of Special Civil Application
No.2544 of 2016 challenging order of detention against present petitioner with respect to
alleged transaction. In said petition, Court has stayed implementation and execution of order
of detention passed against petitioner on basis of alleged transaction. Detenue was prevented
from making effective representation against his detention on account of non-supply of vital
documents including non-furnishing fact of filing of said Special Civil Application No.2544
of 2016 before this Court. Impugned order of detention passed by respondent authority is
hereby quashed and set aside. Application allowed.
 7. KHUMLO ABI ANAL AND OTHERS V STATE OF MANIPUR AND
OTHERS

Manipur High Court

16 August 2016

Bench

Nobin Singh, N. Kotiswar Singh

Where Reported

2016 Indlaw MAN 127

Case Digest

Subject: Criminal; Practice & Procedure

Keywords: FIR, Opportunity, Secretary, National Security Act, 1980, Manipur, Unlawful
Activities (Prevention) Act,
1967, Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities
Act, 1980, Registered, Indian Penal Code, 1860, Unlawful Activities (Prevention)
Amendment Act, 2012

FACTS

Human Rights - Practice & Procedure - Indian Penal Code, 1860, ss. 302, 307, 120B, 121,
121A - National Security Act, 1980 - Detention - Challenged - Petitioner was arrested in
connection with National Investigation Agency case u/ss. 302/307/120B/121/121A of IPC
with permission from concerned Court and was remanded to judicial custody - Petitioner was
detained under Act vide order passed by District Magistrate - Hence, instant petition –

ISSUES

Whether, order of detention passed by District Magistrate against Petitioner is justified.

REASONING AND JUDGEMENT

Held, on perusal of affidavits filed by DM and UOI, it is seen that although representations of
Petitioner were forwarded to State Govt. by DM, there is no material on record which would
demonstrate as to when representation was disposed by State Govt. Conclusion that can be
arrived at inevitably, is that there is inordinate delay in forwarding representation by State
Govt. to UOI without any explanation thereof and moreover, there is no explanation for
period from 29-1-2016 to 3-2-2016 also while disposing of representation by UOI. Continued
detention of Petitioner is rendered absolutely illegal. Considering facts of instant case, Court
is of view that order of detention is not sustainable in law and is liable to be quashed and set
aside. Order of detention is quashed and set aside with direction that Petitioner shall be set at
liberty. Petition allowed.
 8. STATE OF GUJARAT AND ANOTHER V SURESHBHAI KESHAVBHAI
SHAH AND ANOTHER

Gujarat High Court

05 January 2016

Bench

Vipul M. Pancholi, Jayant Patel

Where Reported

2016 Indlaw GUJ 1565; 2016 (4) G.L.R. 3175

Case Digest

Subject: Practice & Procedure

Keywords: Jurisdiction,
Gujarat, Prevention of Blackmarketing and Maintenance of Supplies of Essential Commoditi
es Act, 1980, Constitution of India, 1950

FACTS

Constitution - Human Rights - Prevention of Black Marketing

and Maintenance of Supplies of Essential Commodities Act, 1980, s.3(2) - Constitution of
India, 1950, art.226 - Punitive detention - Release on bail - Jurisdiction - Respondent/detenue
had committed offence and detained u/s.3(2) of Act - Respondent challenged his detention
order by filing petition - Respondent also prayed for temporary release before Trial Court –

ISSUES

Trial Court released respondent for temporary period on certain terms and conditions during
pendency of petition - State filed appeal against order of Trial Court - Hence instant appeal.

REASONING AND JDUGEMENT

Held, if HC takes view that prima facie, allegations made in writ petition disclose serious
defect in order of detention which would justify release of detenu, wiser and more sensible
and reasonable course to adopt would in- variably be to expedite hearing of writ petition and
deal with merits without any delay. Improper exercise of jurisdiction in such matters must
necessarily be avoided by courts in dealing with applications of this character. Grave illness
or pressing and personal business may justify order of release in detention cases for short
period suited to exigencies of particular occasion. But detenu cannot be released on bail as
matter of common practice, on considerations generally applicable to cases of punitive
detention. Detenu cannot be released on bail/for temporary period as matter of common
practice on considerations generally applicable to cases of punitive detention. Jurisdiction of
Trial Court to grant relief to the detenu is very limited. Trial Court opined that allegations
made in writ petition disclose serious defect/lacuna in order of detention, which would justify
release of detenu, wiser and reasonable course to adopt by the Court would be to expedite
hearing of writ petition and deal with merits without any delay. Trial Court has not assigned
reason while exercising power for releasing detenu for temporary period and therefore said
order would have been quashed and set aside. Appeal disposed of.
 9. NAZIYA FAHMIDHA V SECRETARY TO GOVERNMENT, CO-
OPERATIVE, FOOD AND CONSUMER PROTECTION DEPARTMENT,
CHENNAI AND OTHERS

Madras High Court

04 June 2014

Bench

V. DHANAPALAN, G. Chockalingam

Where Reported

2014 Indlaw MAD 979

Case Digest

Subject: Administrative; Practice & Procedure

Keywords: TNSC (RDCS) Order,

1982, Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities
Act, 1980, Black Marketeer

FACTS

Administrative - Practice & Procedure - Prevention of Black Marketing

and Maintenance of Supplies of Essential Commodities Act, 1980 - Constitution of India,
1950, art. 22(5) - Essential Commodities Act, 1955, s. 7(1)(a)(ii) - TNSC (RDCS) Order,
1982, s. 6(4) - Black Marketeer - Detention order - Legality - Petitioner was wife of detenu
filed instant petition challenging order of detention passed by respondent no. 2 under which
the detenu was branded as 'Black Marketeer' and detained under 1980 Act - Petitioner
allegedly committed offence u/s. 6(4) of the Order r/w s. 7(1)(a)(ii) of 1955 Act –

ISSUES

Whether impugned detention order passed against the detenue was justified –
REASONING AND JUDGEMENT

Held, careful scrutiny of impugned order, it is seen that detaining authority passed order of
detention and on receipt of a copy of detention order, representation dt.20-1-2014 was made
to authorities concerned, which was received on 27-1-2014, for which the remarks called on
28-1-2014 were received on 7-2-2014 - Finally representation of detenu was decided to be
rejected vide letter dated 19-2-2014 - In that whole process, there occurred a delay of 8 days,
namely, between 28-1-2014 and 7-2-2014 (excluding the holidays), which would definitely
cause great prejudice to detenu and amount to an infringement of right ensured u/art. 22(5) of
Constitution - Thus, impugned detention order could not be sustained and was vitiated -
Detenu was ordered to be set at liberty forthwith - Petition allowed.
 10. VENNILA V COMMISSIONER OF POLICE, SALEM AND OTHERS

Madras High Court

15 April 2013

Bench

M. JAICHANDREN, M. M. SUNDRESH

Where Reported

2013 Indlaw MAD 886; 2013 (3) MLJ(Crl) 94

Case Digest

Subject: Constitution; Criminal

Keywords: Habeas Corpus, Detenu,

Remarks, Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodit
ies Act, 1980

FACTS

Criminal - Constitution - Constitution of India, 1950, art.22(5) - Black marketing - Detention

-Delay in disposal of representation - Petitioner's husband was detained, u/ss. 3(1), 3(2)(b)
of 1980 Act, pursuant to order passed by respondent no.1, in his proceedings - In view of
detention order passed by respondent no.1, Petitioner's husband had been lodged in Central
Prison, Salem - Hence, instant Petition –

ISSUES

Whether detention order passed by respondent no.1 was liable to be set aside, merely on
ground of delay in disposal of representation –

REASONING AND JUDGEMENT

Held, representation made on behalf of petitioner, was received by detaining authority -

Sponsoring Authority had furnished remarks, and remarks were sent to Govt. - Thereafter,
Govt., by its order had rejected representation of petitioner - Thus, there was unexplained
delay - Though remarks were sent to Govt. by detaining authority, representation of petitioner
was rejected by Govt. only - After deducting intervening Govt. holidays, there was actual
delay of eight days in passing order on representation made on behalf of petitioner, which
would vitiate detention order passed by detaining authority - It was clearly showed that
concern of makers of the Constitution that representation, made on behalf of petitioner,
should be considered and disposed of with sense of urgency and without any avoidable delay
u/art. 22(5) of the Constitution - Thus, delay caused in disposal of representation, made on
behalf of petitioner, had not been properly explained by respondents - Hence, impugned
detention order passed by first respondent, was set aside - Hence, Petitioner's husband was
directed to be set at liberty, forthwith, unless his detention was required in connection with
any other case or cause - Petition allowed.
 11. S. KAVITHA V GOVERNMENT OF INDIA AND OTHERS

Madras High Court

19 March 2013

Bench

M. JAICHANDREN, M. M. SUNDRESH

Where Reported

2013 Indlaw MAD 569; 2013 CRLJ 3525

Case Digest

Subject: Criminal; Practice & Procedure

Keywords: TNSC (RDCS) Order,

1982, Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities
Act, 1980

FACTS

Criminal - Practice & Procedure -

Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act, 1
980, ss. 3(1), 3(2)(a) - Detention - Legality - Detenu was detained, u/s. 3(1) r/w s. 3(2)(a) of
the Act, pursuant to order passed by respondent no. 3/detaining authority, and was lodged in
Central Prison, terming him as a 'Black Marketeer' - Hence, instant writ petition by
petitioner(wife of detenu) –

ISSUES

Whether order of respondent no. 3/Collector was sustainable –

REASONING AND JUDGEMENT

Held, there was no proper application of mind, by detaining authority, in passing impugned
order of detention - Detaining authority had not stated that there was an imminent possibility
of detenu, who was in custody, coming out on bail and indulging in activities prejudicial
to maintenance of supplies of commodities essential to public - Thus, there was no proper
application of mind, by detaining authority, in passing of impugned detention order - Thus,
impugned detention order, passed by respondent no. 3 was quashed - Petition allowed.
 12. SUSILA V SECRETARY TO GOVERNMENT, CO-OPERATION FOOD AND
CONSUMER PROTECTION DEPARTMENT, CHENNAI AND OTHERS

Madras High Court

05 March 2013

Bench

M. JAICHANDREN, M. M. SUNDRESH

Where Reported

2013 Indlaw MAD 649

Case Digest

Subject: Criminal; Practice & Procedure

Keywords: TNSC (RDCS) Order,

1982, Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities
Act, 1980

FACTS

Criminal - Practice & Procedure - Prevention of Black Marketing

and Maintenance of Supplies of Essential Commodities Act,1980, s. 3 - Constitution of
India,1950,art.22 - Detention - Validity of order - Call for record - Detaining Authority
detained detenu u/s. 3(1), r/w,s.3(2)(a) of the Act and further stated that other two cases were
filed against detenu and bail was granted to accused in one case and also granted anticipatory
bail by HC in another case - Therefore, detaining authority had inferred that there was real
likelihood of detenu coming out on bail and provided detenu came out on bail he could
indulge in further activities which could be prejudicial
to maintenance of supplies of commodities essential to community - Hence, instant Petition –

ISSUES

Whether detaining authority concerned had furnished all necessary records relating to similar
case in which bail were granted to detenu –
REASONING AND JUDGEMENT

Held, second respondent-detaining authority had not placed before Court relevant records to
refute claims made by petitioner - Even though second respondent had stated that copy of
order passed by HC, was furnished to detenu but he had not in position to show that all
relevant records relating to similar cases referred to by detaining authority were furnished to
detenu - It was clear that detenu had not given sufficient opportunity to make effective
representation against detention order - There was failure on part of detaining authority to
furnish all relevant materials could have without doubt caused substantial prejudice to detenu
- It was failure on part of detaining authority in following mandate enshrined in art.22(5) of
the Constitution - Thus, detention orders were liable to be quashed by Courts - Petition
allowed.
 13. K. SOUNDIRAVALLI V ADDITIONAL SECRETARY, GOVERNMENT OF
INDIA, DEPARTMENT OF CONSUMER AFFAIRS, NEW DELHI AND
OTHERS

Madras High Court

05 December 2012

Bench

M. JAICHANDREN, S. NAGAMUTHU

Where Reported

2012 Indlaw MAD 2893

Case Digest

Subject: Administrative; Practice & Procedure

Keywords: Prevention of Blackmarketing and Maintenance of Supplies of Essential Commod

ities Act, 1980

FACTS

Human Rights - Prevention of Black Marketing

and Maintenance of Supplies of Essential Commodities Act, 1980, ss.3(1), 3(2)(a) -
Detention order - Delay - Validity of Order - Respondent no.3 had passed impugned
detention order, u/s.3(2)(a) r/w s.3(1) of the Act, directing detention of detenu in Central
Prison, terming him as 'Black Marketer' - Hence, instant Petition –

ISSUES

Whether detention order passed by respondent no.3 was liable to be set aside –

REASONING AND JUDGEMENT

Held, delay caused in disposal of representation, made on behalf of detenu, was not properly
explained by respondents - Thus, as observed in K.M.Abdulla Kunhi v. Union of India,
(1991) 1 SCC 476 1991 Indlaw SC 473, that there should not be supine indifference,
slackness or callous attitude in considering representation - Any unexplained delay in
disposal of representation would be breach of Constitutional imperative and it would render
continued detention impermissible and illegal - Hence, detention order, passed by respondent
no.3 was set aside - Petition allowed.
 14. UMAYAL V ADDITIONAL SECRETARY, GOVERNMENT OF INDIA,
DEPARTMENT OF CONSUMER AFFAIRS, FOOD AND PUBLIC
DISTRIBUTION, NEW DELHI AND OTHERS

Madras High Court

05 December 2012

Bench

M. JAICHANDREN, S. NAGAMUTHU

Where Reported

2012 Indlaw MAD 2894

Case Digest

Subject: Administrative; Practice & Procedure

Keywords: Prevention of Blackmarketing and Maintenance of Supplies of Essential Commod

ities Act, 1980

FACTS

Criminal - Practice & Procedure -

Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act, 1
980, ss. 3(1), 3(2)(a) - Order of Detention - Unexplained delay - Respondent no. 3 passed
detention order as contemplated under the Act in exercise of powers conferred u/ss. 3(1) r/w
3(2)(a) of the Act and accordingly detenu was detained - Representation made on behalf of
detenu which was received and remarks were received after delay of 34 days - Hence, instant
Petition –

ISSUES

Whether order of detention passed by respondent no. 3 was liable to be quashed –

REASONING AND JUDGEMENT

Held, Aslam Ahmed Zahire Ahmed Shaik v. union of India and others, Indlaw SC 566 was
relied on that avoidable and unexplained delay in disposal of representation could result in
rendering continued detention of detenu illegal and constitutionally impermissible - Further,
delay caused in disposal of representation in petitioners case made on behalf of detenu was
not properly explained by respondents - Thus, detention order passed by respondent no. 3 was
set aside - Petition allowed.
 15. MANIMEGALAI V STATE OF TAMIL NADU AND ANOTHER

Madras High Court

05 November 2012

Bench

S. NAGAMUTHU, M. JAICHANDREN

Where Reported

2012 Indlaw MAD 2890

Case Digest

Subject: Administrative; Practice & Procedure

Keywords: Prevention of Blackmarketing and Maintenance of Supplies of Essential Commod

ities Act, 1980

FACTS

Criminal - Practice & Procedure - Prevention of Black Marketing

and Maintenance of Supplies of Essential Commodities Act, 1980 - Constitution of India,
1950, art. 22(5) - Quashing of detention order - Delay in considering representation -
Respondent no.2 passed detention order under provision of the Act against detenu - Hence,
instant Petition –

ISSUES

Whether inordinate and unexplained delay on part of Govt. in considering representation

render detention illegal –

REASONING AND JUDGEMENT

Held, there should not be supine indifference, slackness or callous attitude in considering
representation - Any unexplained delay in disposal of representation would be breach of
Constitutional imperative and it would render continued detention impermissible and illegal -
Right to representation u/art. 22(5) of Constitution included right to expeditious disposal by
State Govt. - Expedition was rule and delay defeated mandate of art. 22(5) of Constitution -
In instant case, it was clear that there was delay of fifteen days in considering representation -
Even if allowance was given to six days holidays, still, there remained delay of nine days
which had not been explained by respondents at all - Therefore, detention order was liable to
be quashed on sole ground of delay - Petition allowed.