We will be failing in our duty if argument of Shri Maheshwari
relating to “acting under dictate” is not taken into account. On the basis of certain social media posts of the Chief Minister of the State wherein he expressed his view that persons involved in black marketing of Remdesivir/drugs should be detained under NSA Act, it was argued that the detention order passed by the District Magistrate is in furtherance of said posts and amount to acting under dictate. We do not see any merit in this contention. The social media posts cannot be equated with an administrative order/instruction. It is not necessary that every social media post of a government functionary is seen/read out and followed in the administrative hierarchy. Had it been an executive instruction/order issued by higher functionary to act in a particular manner and in obedience thereof District Magistrate
would have passed a detention order, perhaps the matter would have been different. Unless a clear nexus is established between the social media posts and the detention order, it cannot be said that District Magistrate has acted under dictate. Apart from this, the impugned order of District Magistrate has been examined by us on the necessary parameters and it was found that he has used his discretion in accordance with law and thus this argument of petitioner must fail. {Para 29}
High Court of Madhya Pradesh:
Bench at Indore
Case Number WP No.9878/2021
Sonu Bairwa Vs. State of M.P. & Ors.
Date of Order 07/07/2021
Bench Division Bench:
Justice Sujoy Paul
Justice Anil Verma
Judgment delivered by Justice Sujoy Paul
Law Point * National Security Act, 1980 – Section 3(2)
– It can be invoked in three contingencies and
a citizen can be detained:
i) for preventing him from acting in any
manner prejudicial to the security of State.
ii) for preventing him from acting in any
manner prejudicial to the maintenance of
public order.
iii) for preventing him from acting in any
manner prejudicial to the maintenance of
supplies and services essential to the
community.
*Interpretation of Statute – Use of
“Explanation” – Explanation may be added to
include something within or to exclude
something from the ambit of the main
enactment or the connotation of some word
occurring in it.
*“Explanation”- The object of an explanation
to a statutory provision is ordinarily:
(a) to explain the meaning and
intendment of the Act itself;
(b) where there is any obscurity or
vagueness in the main enactment, to
clarify the same so as to make it
consistent with the dominant object
which it seems to subserve,
(c) to provide an additional support to the
dominant object of the Act in order to
make it meaningful and purposeful;
(d) an Explanation cannot in any way
interfere with or change the enactment or
any part thereof but where gap is left
which is relevant for the purpose of the
Explanation, in order to suppress the
mischief and advance the object of the
Act it can help or assist the court in
interpreting the true purport and
intendment of the enactment; and
(e) it cannot, however, take away a
statutory right with which any person,
under a statute has been clothed or set at
naught the working of an Act by
becoming an hindrance in the
interpretation of the same.
*Section 3(2) of NSA Act– 'Explanation' –
The explanation does not eclipse the entire
main provision namely Section 3(2) of NSA
Act. Indeed, it only takes out the aspect of
blacklisting of certain commodities which are
covered by The Prevention of Blackmarketing
And Maintenance of Supplies of Essential
Commodities Act, 1980.
*“Public Order” – Section 3 of NSA Act – It
is very wide and during pandemic like
situation, action of blacklisting of essential
drug like remedisivir brings the action within
the purview of “public order”.
*Acting under dictate – The social media
post of Chief Minister does not essentially
shows that it was read out and acted upon by
the District Magistrate. The contents of social
media post cannot be equated with an
administrative order unless a direct nexus
between the post and detention order is
established.
*Precedential Value of a judgment-A
judgment of a Court cannot be read as Euclid's
Theorem. This is trite that a judgment of a
Court cannot be read as Euclid’s theorem [See
Bharat Petroleum Corporation Ltd. Vs. N.R.
Vairmani (2004) 8 SCC 579, C.Ronald Vs.
UT Andaman & Nicobar Islands (2011) 12
SCC 428, Deepak Bajaj Vs. State of
Maharashtra (2008) 16 SCC 14]. This is
equally settled that little difference in facts or
an additional fact may make a lot of difference
in the precedential value of a decision.
*NSA Act 1980- A person already under arrest
can still be detained under the NSA Act if
three conditions are satisfied:-
i) detaining authority had knowledge about
detenu's custody,
ii) there exists real possibility of detenu's
release on bail and,
iii) necessity of preventing him from
indulging in activities prejudicial to the
security of State or maintenance of public
order upon his release on bail.
(Passed on 07th July, 2021)
Sujoy Paul, J:-
The petitioner has invoked the jurisdiction of this Court under
Article 226 of the Constitution to assail the order dated 17/5/2021
whereby the District Magistrate in exercise of power u/S.3(2) read
with (3) of National Security Act, 1980 (for short “NSA Act”)
detained the petitioner.
2. The petitioner was detained by District Magistrate by stating
that the petitioner indulged in black marketing of Remedesivir
injections. Two such injections were recovered from him. In a
situation when highest numbers of Covid patients were there at
Indore, the act of petitioner has caused serious threat to the 'public
order'. In view of aforesaid conduct, the detention order was passed
and the grounds therefor were supplied to him.
3. Criticizing this order Shri Maheshwari, learned counsel for
petitioner submits that detention order was supplied to the uncle of the
petitioner and it was not supplied to his parents. This runs contrary to
the observations made by Supreme Court in A.K. Roy Vs. Union of
India (1982) 1 SCC 271.
4. The next contention is that the petitioner was already in custody
because of an FIR lodged prior in time. Subsequently, petitioner was
formally arrested and detained under the NSA Act. The District
Magistrate and State government in relevant documents mentioned the
status of petitioner as “absconding”. This information was factually
incorrect and had potential to adversely affect the process of
application of mind by the State government, Advisory Board or
Central Government. Reliance is placed on a recent order passed by
this Court in W.P. No.9792/2021 (Yatindra Verma Vs. State of MP)
decided on 24.06.2021.
5. Shri Maheshwari placed reliance on various social media posts
of the Chief Minister of the State wherein he expressed his opinion
that the persons indulged in black marketing of Remedesivir
injections are liable to be detained under the NSA Act. The order of
detention passed by District Magistrate amounts to acting under
dictate is the next contention of Shri Maheshwari. Thus, subjective
satisfaction and element of application of mind was absent on the part
of the District Magistrate. By taking assistance of (1975) 2 SCC 81
(Khudiram Das Vs. State of West Bengal & Ors.) and 2020 SCC
Online Alld. (Dr. Kafeel Khan vs. State of U.P.) it is submitted that in
a matter of this nature where fundamental rights and right of freedom
of a citizen sought to be taken away, the authorities were required to
act with utmost care and caution. Reliance is placed to 'Explanation'
to sub-section (2) of Sec 3 of NSA Act. It is submitted that the
Explanation, in no uncertain terms, makes it clear that if somebody
acted in a manner which is prejudicial to the maintenance of supplies
and services essential to the community but such act falls within the
ambit of The Prevention of Blackmarketing and Maintenance of
Supplies of Essential Commodities Act, 1980 (Blackmarketing Act)
such person cannot be detained under the NSA Act. To elaborate, it is
submitted that Sec.3(29) of General Clauses Act talks about “Indian
Laws” which is wide enough to include the The Essential
Commodities Act, 1955 and also the blackmarketing Act. The “drug”
is the first entry in the Schedule appended to The Essential
Commodities Act, 1955. Thus, the detention under the NSA Act runs
contrary to the aforesaid explanation. Lastly, Shri Maheshwari
submits that a person already arrested can very well be detained under
the NSA Act, but in order to detain him further, certain conditions are
to be fulfilled which were considered by this Court in extenso in
Yatindra Verma (supra). These conditions were not satisfied in the
instant case. It was not mentioned that there is a likelihood of
petitioner’s indulging in the same activity or committing act of
blackmarketing of Remedisivir injection again. For these cumulative
reasons, the detention order is liable to be set aside.
6. Per contra, Shri Pushyamitra Bhargava, learned A.A.G for the
State fairly submits that the first ground relating to “absconsion” is
covered by the view taken by this Court in Yatindra Verma (supra).
However, a careful reading of Yatindra Verma (supra) shows that the
reason for setting aside the detention order was not providing the right
of representation to the same authority namely District Magistrate.
The detention order in the said case was not interfered with because
the petitioner therein was shown to be “absconding”.
7. So far question of “subjective satisfaction” and application of
mind is concerned, learned A.A.G urged that the necessary ingredients
on the basis of which NSA Act can be invoked were taken care of and
only thereafter impugned order was passed. By taking this Court to
the FIR (Annexure R/2) and report of Superintendent of Police
(Annexure R/7), it is contended that the action of petitioner in
indulging in black marketing of Remedesivir became a threat to
“public order”. Indore, town of Madhya Pradesh had the highest
number of Covid patients. There was severe scarcity of injections,
oxygen, beds etc. The petitioner’s act was detrimental to “public
order” and, therefore, NSA Act was rightly invoked.
8. Furthermore, it is contended that purpose of communicating
the detention order to the detenu and the family members was to make
them aware about grounds of detention and detention order so that
they can take legal recourse against it. If order is communicated to
petitioner’s paternal uncle, it cannot be said that information has not
reached to the person concerned. No prejudice is caused to the
petitioner.
9. So far explanation to Sec.3(2) of NSA Act is concerned, learned
counsel for State submits that a careful reading of 'Explanation' shows
it talks about “maintenance of supplies and services essential to the
community”. It is further argued that a careful reading of Sec.3(1)(b)
of the Blackmarketing Act shows that it is in two parts. In order to
treat a commodity as essential commodity, twin conditions are to be
satisfied namely; the commodity must be defined as an essential
commodity under the Act of 1955 and a provision has been made in
any other law in relation to the said commodity. In the instant case, in
absence of any such provision being made, the ingredients of Sec.3(1)
(b) are not satisfied. This argument of petitioner thus deserves
rejection.
10. The next contention of learned A.A.G is that in the case of
Yatindra Verma (supra) an oxyflow meter which was not a drug was
found in his possession whereas in the instant case an essential drug
namely Remedesivir was found in his possession. There is no flaw in
decision making process. In absence thereof, in view of recent order
passed by this Court in WP No. 9529/2021 (Smt. Monica Tripathi Vs.
State of MP & Ors.) no interference is warranted.
11. The parties confined their arguments to the extent indicated
above.
12. We have bestowed our anxious consideration on rival
contentions and perused the record.
13. The interesting conundrum relating to liberty and regarding
extent of liberty and aspect of curtailment thereof is wonderfully
explained by K.K. Mathew, J. in Smt. Indira Nehru Gandhi vs. Raj
Narain (1975 (Supp.) SCC 1):-
“the major problem of human society is to combine that
degree of liberty without which law is tyranny with that
degree of law without which liberty becomes licence; and
the difficulty has been to discover the practical means of
achieving this grand objective and to find the opportunity
for applying these means in the ever shifting tangle of
human affairs.”
14. The first grievance put forth by petitioner is that in the instant
case, the District Magistrate and other authorities passed the orders
mechanically. This runs contrary to law laid down by Supreme Court
in Khudiram Das (supra) and judgment of Allahabad High Court in
Dr. Kafeel Khan (supra). This Court in its recent order passed in
Yatindra Verma (supra) opined that when a detenu was not
absconding and yet the authorities mentioned in their orders that he
was absconding, it shows non-application of mind or acting in a
mechanical manner. Thus, there is no hesitation in holding that the
orders to the extent petitioner was shown to be absconding are passed
without proper application of mind. However, it is noteworthy that the
order of detention in case of Yatindra Verma was not set aside for
incorrectly mentioning the word “absconding”. On the contrary the
operative reason for setting aside the detention order in the said case
was that detenu's valuable right to make a representation against the
detention order to the same authority who passed the detention order
was infringed and such denial has vitiated the detention order.
15. The learned counsel for the petitioner has taken pains to
contend that present petitioner is similarly situated qua Yatindra
Verma (supra). The language employed in their detention orders are
identical, hence petitioner is entitled to get similar treatment. The
argument on the first blush appears to be attractive, but lost much of
its shine on closure scrutiny. In Yatindra Verma (supra), the petitioner
therein was carrying an oxyflow meter and allegation was that he was
trying to blackmarket it, whereas in the instant case, the petitioner was
allegedly carrying remedesivir injections, a life saving /essential drug
to fight corona virus. The SP's report in the instant case shows that the
petitioner was carrying those injections. The city of Indore was
struggling to cope up the acute shortage of drugs, oxygen, beds etc.
because of corona pandemic. Blackmarketing of remedesivir injection
has direct impact on “public order”. The petitioner, who was already
detained, if released could indulge into same activity because the
scarcity of remedesivir is still there was the report of SP which was
relied upon by District Magistrate.
16. In the factual backdrop of this case, the necessary parameters on
which a person already under arrest can be detained under the NSA
Act are satisfied. The judgment of Yatindra Verma (supra) cannot be
mechanically pressed into service in this case. This is trite that a
judgment of a Court cannot be read as Euclid’s theorem [See Bharat
Petroleum Corporation Ltd. Vs. N.R. Vairmani (2004) 8 SCC 579,
C.Ronald Vs. UT Andaman & Nicobar Islands (2011) 12 SCC 428,
Deepak Bajaj Vs. State of Maharashtra (2008) 16 SCC 14]. This is
equally settled that little difference in facts or an additional fact may
make a lot of difference in the precedential value of a decision (See
Bhavnagar University Vs. Palitana Sugar Mill (P) Ltd & Ors.(2003)
2 SCC 111).
17. A person, who is already in custody can still be detained under
NSA Act if i) detaining authority had knowledge about detenu's
custody, ii) there exists real possibility of detenu's release on bail and,
iii) necessity of preventing him from indulging in activities prejudicial
to the security of State or maintenance of public order upon his release
on bail. In the instant case, all the aforesaid ingredients were satisfied.
(See: Kamini Yadav vs. State of MP & Ors. - WP No.25986/2018)
and judgment of Supreme Court reported in (2012) 7 SCC 181
(Konungjao Singh vs. State of Manipur & Ors.).
18. The Apex Court in (1986) 4 SCC 407 (Rajkumar Singh vs.
State of Bihar) opined as under:-
“Preventive detention as reiterated as hard law and must
be applied with circumspection rationally, reasonably and
on relevant materials. Hard and ugly facts make
application of harsh laws imperative.”
(Emphasis supplied)
19. Blackmarketing of a drug like remedesivir in days of extreme
crisis is certainly such an ugly act and fact which can very well be a
reason for invoking Section 3 of NSA Act against the petitioner by
District Magistrate.
20. Section 3(2) of NSA Act and explanation reads as under:-
“The Central Government or the State Government
may, if satisfied with respect to any person that with a
view to preventing him from acting in any manner
prejudicial to the security of the State or from acting in
any manner prejudicial to the maintenance of public
order or from acting in any manner prejudicial to the
maintenance of supplies and services essential to the
community it is necessary so to do, make an order
directing that such person be detained.
Explanation.—For the purposes of this sub-section,
"acting in any manner prejudicial to the maintenance of
supplies and services essential to the community" does
not include "acting in any manner prejudicial to the
maintenance of supplies of commodities essential to the
community" as defined in the Explanation to sub-section
(1) of section 3 of the Prevention of Blackmarketing and
Maintenance of Supplies of Essential Commodities Act,
1980 (7 of 1980), and accordingly, no order of detention
shall be made under this Act on any ground on which an
order of detention may be made under that Act.”
(Emphasis supplied)
21. The use of “explanation” in a statute is an internal aid to
construction. Fazal Ali J in (1985)1 SCC 591 (S. Sundaram Pillai &
Ors. vs. V.R. Pattabiraman & Ors.) culled out from various
judgments of Supreme Court the following as objects of an
explanation to a statutory provision:-
(a) to explain the meaning and intendment of the Act
itself;
(b) where there is any obscurity or vagueness in the
main enactment, to clarify the same so as to make it
consistent with the dominant object which it seems to
subserve,
(c) to provide an additional support to the dominant
object of the Act in order to make it meaningful and
purposeful;
(d) an Explanation cannot in any way interfere with or
change the enactment or any part thereof but where
gap is left which is relevant for the purpose of the
Explanation, in order to suppress the mischief and
advance the object of the Act it can help or assist the
court in interpreting the true purport and intendment of
the enactment; and
(e) it cannot, however, take away a statutory right with
which any person, under a statute has been clothed or
set at naught the working of an Act by becoming an
hindrance in the interpretation of the same.
This principle is consistently followed by Supreme Court in
(2004) 2 SCC 249 (M.P. Cement Manufacturers Association vs.
State of MP & Ors.) and (2004) 11 SCC 64 (Swedish Match AB vs.
Securities & Exchange Board of India).
22. These examples are illustrative in nature and not exhaustive.
An “explanation” may be added to include something within or to
exclude something from the ambit of the main enactment or the
connotation of some word occurring in it (See: Controller of Estate
Duty, Gujarat Vs. Shri Kantilal Trikamlal AIR 1976 SC 1935).
Similarly a negative explanation which excludes certain types of
category from the ambit of enactment may have the effect of showing
that the category leaving aside the excepted types is included within it
(See First Income Tax Officer, Salem Vs. Short Brothers (P) Ltd.
AIR 1967 SC 81). Thus, the explanation in the instant case, has a
limited impact on main provision i.e. sub-section (2) of Section 3 of
NSA Act. It does not dilute or take away the right of detaining
authority under the NSA Act regarding eventualities relating to
maintenance of 'public order' or security of the State.
23. A microscopic reading of Section 3(2) with 'Explanation' leaves
no room for any doubt that Sub-Section (2) is wide enough and deals
with three contingencies when a citizen can be detained:
i) for preventing him from acting in any manner prejudicial to
the security of State.
ii) for preventing him from acting in any manner prejudicial to
the maintenance of public order.
iii) for preventing him from acting in any manner
prejudicial to the maintenance of supplies and services
essential to the community.
24. The 'explanation' is limited to the contingency (iii) aforesaid
only. The argument of Shri Maheshwari that since remedesivir is an
essential drug/commodity, therefore, obstruction to its supply or
blackmarketing can be a reason to invoke the blackmarketing act, but
NSA Act cannot be invoked, is liable to be discarded for the simple
reason that Sub-Section (2) of Section 3 is wide enough which
contains and deals with three contingencies, whereas 'explanation'
takes only one beyond the purview of the NSA Act if it is covered by
Blackmarketing Act.
25. We find force in the argument of learned Additional Advocate
General that blackmarketing of remedesivir creates a threat to “public
order”. We have taken this view recently in the case of Yatindra
Verma (supra) also. If 'public order' is breached or threatened, in
order to maintain 'public order', NSA Act can very well be invoked.
Thus, “explanation” appended to Sub-Section 2 of Section 3 of NSA
Act will not exclude the operation of NSA Act in a case of this nature
where 'public order' is breached, threatened and put to jeopardy.
26. Interpretation of a statute must depend on the text and the
context. Neither can be ignored. Both are important. That
interpretation is best which makes the textual interpretation match the
contextual. A statute is best interpreted when we know why it was
enacted. (See: 1987(1) SCC 424- RBI vs. Peerless General Finance
and Investment Co. Ltd.)
27. The Apex Court in (2013) 3 SCC 489 (Ajay Maken vs. Adesh
Kumar Gupta & Anr.) held as under:-
“Adopting the principle of literal construction of
the statute alone, in all circumstances without examining
the context and scheme of the statute, may not subserve
the purpose of the statute. In the words of V.R. Krishna
Iyer, J., such an approach would be “to see the skin and
miss the soul”. Whereas, “The judicial key to
construction is the composite perception of the deha and
the dehi of the provision.” (Board of Mining
Examination v. Ramjee (1977) 2 SCC 256, Para-9)”
28. Sub-Section 2 of Section 3 is very wide and as noticed above,
deals with three eventualities (See: Para-23). “Explanation” to Sub-
Section 2 deals with a small part of it. The intention of law makers
in inserting the 'explanation' is to take out cases of blackmarketing
from NSA Act to some extent, to the extent it is covered by the Black
Marketing Act. 'Explanation', by no stretch of imagination can eclipse
the entire main provision namely, Sub-Section 2 of Section 3. The
plain and unambiguous language of Sub-Section 2 of Section 3 makes
it clear that the Competent Authority/Govt. can pass order of detention
if one of the eventuality out of said three is satisfied. In the instant
case, the District Magistrate has taken a plausible view that 'public
order' is being threatened by petitioner. Thus, we are unable to hold
that order of detention is beyond the purview of Sub-Section 2 of
Section 3 of NSA Act.
29. We will be failing in our duty if argument of Shri Maheshwari
relating to “acting under dictate” is not taken into account. On the
basis of certain social media posts of the Chief Minister of the State
wherein he expressed his view that persons involved in black
marketing of Remdesivir/drugs should be detained under NSA Act, it
was argued that the detention order passed by the District Magistrate
is in furtherance of said posts and amount to acting under dictate. We
do not see any merit in this contention. The social media posts cannot
be equated with an administrative order/instruction. It is not
necessary that every social media post of a government functionary is
seen/read out and followed in the administrative hierarchy. Had it
been an executive instruction/order issued by higher functionary to
act in a particular manner and in obedience thereof District Magistrate
would have passed a detention order, perhaps the matter would have
been different. Unless a clear nexus is established between the social
media posts and the detention order, it cannot be said that District
Magistrate has acted under dictate. Apart from this, the impugned
order of District Magistrate has been examined by us on the necessary
parameters and it was found that he has used his discretion in
accordance with law and thus this argument of petitioner must fail.
30. So far question of communication of detention order to the
uncle of petitioner is concerned, suffice it to say that no prejudice was
caused to the petitioner because of such communication. Indeed
petitioner filed this petition and had taken legal recourse with quite
promptitude. In absence of showing any prejudice, no interference on
this count is warranted and judgments of A.K. Roy (supra) and Dr.
Kafeel (supra) are of no help to the petitioner.
31. The petitioner is unable to show any flaw in the decision
making process adopted by District Magistrate. In absence of
establishing any such illegality, no interference is warranted.
32. Petition sans substance and is hereby dismissed.
(SUJOY PAUL)
J U D G E
(ANIL VERMA)
J U D G E
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