Monday, 26 July 2021

Whether Chief Minister's Social Media Posts amounts Administrative Order/Instruction to the subordinate officer?

 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


Print Page

No comments:

Post a Comment