Amrutlal vs The Collector and Dist. Magistrate, Adilabad and others

Madhava Reddy, J.—This petition for the issue of a writ of Habeas Corpus is by a wholesale dealer in Kerosene oil at Adilabad who is detained u/s 3 (1) (a) (iii) of the Maintenance of Internal Security Act, 1971 (hereinafter referred to as the ''Act'') calling in question the validity of the order of detention dated 2-8-74 made by the Collector and District Magistrate, Adilabad Respondent 1 herein. The grounds of detention were served upon the petitioner on 8-8-74. In order to appreciate, the several contentions raised by the learned counsel for the petitioner, Mr. B, P. Jeevan Reddy, it is necessary to read the said grounds of detention which are as follows: In pursuance of sub-sec. (1) of Sec 8 of the Maintenance of Internal Security Act, 1971, (Central Act 16 of 1971) you are hereby informed that the following are the grounds on which the order of your detention was made under the Act.

You are a wholesale dealer in kerosene oil at Adilabad and you received the supplies of kerosene oil from the Indian Oil Corporation Limited, you possess a licence bearing No. 119 to carry on wholesale business in kerosene at Adilabad. According to condition No. 10 of the Kerosene Licence, the Licensee shall comply with any directions that may be given by the State Government or the licensing authority in regard to purchase, sale and storage for sale of kerosene. In the proceedings No. C4 by 4622/68 dt. 31-8-68 the district revenue officer, Adilabad, who is the licencing Authority directed you to sell the kerosene brought by you from the company to the retailers of Gudhihatnoor revenue circle of Boath Taluk as per the allotment made by the Tahsildar concerned. In District Revenue Officer''s Circular No. C4/130/74 dated 7-3-74 the Gudhihatnoor circle of Boath Taluk was deleted from your area. There are constant complaints from the Tahasildar Utnoor that you never supplied kerosene oil regularly to the retailers of his taluk and consequently there was scarcity of kerosene oil in his taluq. You took kerosene oil for Utnoor taluq on 19-8-1973 and the Tahsildar, Utnoor gave you allotment order for sale to the retailers of his taluq. But you did not sell the kerosene oil to the retailers as per the allotment orders given to you by the Tahsildar, Utnoor Sri. Arvind, S/o Janardhan, R/o Hasanapur is one of the retailers to whom the Tahsildar, Utnoor allotted Kerosene oil on 19-8-73. You demanded excess rate from him for the kerosene to be issued and when he refused to pay in excess of the fixed price, you refused to supply kerosene to him.

That the Tahsildar, Utnoor in his proceedings dated 5-11-1973 allotted 2,000 Jitters of kerosene oil among 18 retailers of his taluq for issue by you Sarvasrti Nawab Ahmed Khan of Utnoor. Osmankhan of Tosham Bipin Traders of Dhanora, Saleem Shamsuddien of Shampur, Amar and sons of Jainoor and Girijan Primary Co-operative Marketting Society Ltd. Utnoor, were among the 13 nominees of the Tahsildar Utnoor. When these retailers approached you for purchase of kerosene oil as per the allotment orders of the Tahsildar, you informed them that the stock was exhausted and did not supply the kerosene oil. Thus you did not sell the kerosene oil as allotted by the Tahsildar Utnoor but sold it in the black market.

The Tahsildar, Utnoor, in his proceedings dt. 4-3-74 allotted 600 litres of kerosene oil to Sri. Nawabkhan of Utnoor, a retail dealer. But you supplied him only 480 litres stating that the stock was exhausted.

In your letter dated 22-2-74 you informed the Collector, Adilabad and the Tahsildar, Adilabad, that you received 12,000 litres of Kerosene oil from Manmad. Accordingly the Tahsildar Adilabad, issued allotment orders to the retailers of his taluq. But after a fortnight you informed on 6-3-1974 that a shortage of 600 litres of kerosene oil occured in transit. This report clearly indicates that you sold away 600 litres of kerosene oil in black market.

In the mouth of December, 1973, you brought 12,000 litres of kerosene oil out of which the Tahsildar Adilabad, issued allotment orders for 9500 litres to the retailers of his taluk and the remaining 2500 litres were left for Utnoor and Boath Taluks. The Revenue Divisional Officer, Adilabad, checked your kerosene oil accounts on 22-1-74, Your Muneem Sri. Ganpath who carries on your kerosene oil business, was present. He informed the Revenue Divisional Officer, Adilabad that the retailers of Boath and Utnoor did not come and left the kerosene oil allotment and that therefore 2951 litres of kerosene oil was sold on 19-1-74 at Indervalli, Hasnapur and Jainoor of Utnoor taluq on your own taking the stock out there in your tanker. You did not possess a licence as requited under the Andhra Pradesh Kerosene (Licensing and Distribution Order) 1955 to carry on business in kerosene at Indervalli, Hasnapur and Jainoor villages of Utnoor Taluq. The Revenue Divisional Officer Adilabad verified the sale of 1951 litres of kerosene oil with reference to the bills issued and found that it was not issued to any retail dealers. Thus you do not possess a licence to carry on business in kerosene oil in retail.

In the mouth of April, 1974 you were supplied 24000 litres of kerosene oil by Indian Oil Corporation Limited, as intimated by the Company in its L. No. C-21/SK/Hyd. dt. 15-5-1974. But you sent arrival report to the Collector and Revenue Divisional Officer, Adilabad for 12000 litres only. You also entered 1200 litres merely for April, 1974 in your stock book for kerosene. Thus you concealed 12000 litres of kerosene oil from distribution by the Tahsildars and sold it in the black market.

That you sent your tanker bearing No. APT 876 with 5000 litres of kerosene oil to Indervalli in Utnoor Taluk on 6-5-74 with the malafide intention of selling in black market there You sent the kerosene oil through your Muneem Sri Ram Reddy. The tanker was stopped in front of the shop of Sri. Vallabh Bhai, a merchant at Indervalli. The Revenue Inspector in deravalli who was present there having seen the tanker enquired from Sri. Ram Reddy, your Muneem whether he had allotment orders of the Tahsildar Utnoor for the kerosene. Your Muneem had no orders. On intimation by the Revenue Inspector, Indervalli, the Tahsildar Utnoor came to the spot conducted panchanama and seized the tanker with kerosene. The Tahsildar, Utnoor had not issued any allotment orders for this kerosene. In view of the action of the Revenue Inspector, Indervalli, you could not succeed in your plan to sell the kerosene in black market. You have no licence under the Andhra Pradesh Kerosene (Licencing and Distribution) Order, 1965 to carry on business in Indervalli village and therefore you contravened the provisions of clause 3 of the Order. A case under Sec 6-A of the Essential Commodities Act, 1955 has been registered in the Court of District Revenue Officer, Adilabad in C4/428/74. As required u/s 6-B of the Act, notice was issued to you on 21-5-1974 to show cause why the kerosene seized should not be confiscated to the Government. In your petition dated 5-6-1974 filed through your Advocate in reply to the notice dated 24-5-74 you stated that unless the stock register etc., seized by the Special Tahsildar (C. S.) on 7-5-74 are returned you would not be able to answer the charge and requested to return the registered etc. In the Memo dated 13-6-1974 you were informed that the stock register would not be returned and that you might peruse it in Collector''s office on any working day. This memo was received by your Advocate on 13-6-74. Neither you nor your Advocate cams to the Collectorate and perused stock register. Again in this office Memo dated 29-7-1974 you were finally informed that if you did not peruse the records within 3 days from the date of that Memo you will forfeit your right to verify the records. This Memo was received by your Advocate on 30-7-74 but none of you came and perused the records.

I am therefore, satisfied that you have been acting in a manner prejudicial to the maintenance of supplies essential to the community and that it is necessary to prevent you from further jeopardising the maintenance of supplies essential to the community and I have accordingly passed the order of your detention u/s 3 (1) (a) (iii) of the Maintenance of Internal Security Act, 1971.

It is averred in the petition that the petitioner is a holder of a Wholesale Dealer''s Licence under Cl. 3 of the Andhra Pradesh Kerosene Licencing and Distribution Order, 1965 and that he lifts the quota of kerosene oil allotted to him by the Indian Oil Corporation Limited from its depots at Secunderabad or Nizambad or such other depot as may be specified by the Corporation. The petitioner in turn has to supply kerosene oil to the retail dealers in Adilabad and Utnoor Taluks in accordance with the procedure prescribed in the proceedings No. C4/4622/68 dt 31-8-68 of the District Revenue Officer, Adilabad. Though he has been carrying on the said business in accordance with law and the directions issued by the appropriate authorities from time to time, laterly certain irregularities were alleged to have been committed by the petitioner and he has been detained under the Act. Several allegations made in the grounds of detention are incorrect, untrue and non-existing. As the wholesale business under the said licence has already placed him at a great risk and has resulted in his detention, the petitioner has decided to completely stop his business forthwith. He has accordingly signed an application addressed to the District Revenue Officer who is the Licencing Authority, surrendering his licence and requesting him to revoke and cancel the same with immediate effect and also intimating his resolve not to carry on the said business any longer, A copy of the said application has also been sent to all the concerned authorities including the Indian Oil Corporation Limited. In the further affidavit filed on behalf of the petitioner by his next friend and brother-in-law, it is stated that he got a petition prepared on 10-8-1974 addressed to the District Revenue Officer intimating him that he was stopping his business and requesting him to cancel his licence, and delivered it to the Jailer of the Central Jail, Chenchalguda, Hyderabad where the petitioner was detained, so that it may be signed by the petitioner and attested by the Jailer and for warded to the District Revenue Officer. The Jailer promised to send it by post to the District Revenue Officer. Thereafter the present writ petition was filed on 12-8-1974. In view of the surrender of the licence, the employee of the petitioner requested the District Revenue Officer to take away the existing stock of kerosene. The petitioner contends that he is neither carrying on the wholesale business in kerosene oil nor does he intend to carry on the said business henceforth. 2. The validity of the detention, as contended by the learned counsel for the petitioner has to be judged with reference to the date of the return to the Habeas Corpus petition.

In Naranjan Singh Nathawan Vs. The State of Punjab, it was held :

..... in Habeas Corpus proceedings the court is to have regard to the legality or other wise of the detention at the time of the return and not wish reference to the date of the institution of the proceedings.........

The Supreme Court reiterated this principle in Ram Narayan Singh Vs. The State of Delhi and Others, . In Re Madhu Limaye AIR 1969 S.C. 1014 at 1019, the Supreme Court emphasized "that those who fee) called upon to deprive other persons of liberty in the discharge of what they conceive to be their duty must, strictly and scrupulously, observe the forms and rules of law Whenever that is not done, the petitioner would be entitled to a writ of Habeas Corpus directing his release...." In deciding whether the detention is legal or otherwise it was declared that "the court must have regard to the legality or otherwise, of the detention at the time of the return". So too in Talib Hussain Vs. State of Jammu and Kashmir, the date of the return was said to be the relevant date. The, Supreme Court observed :

If on the date of hearing it cannot be said that the aggrieved party has been wrongfully deprived of his personal liberty and his detention is contrary to law, a writ of habeas corpus cannot issue.

In Saptawna v. State of Assam AIR 1971 S.C. 83, it was pointed out that "the detention which may have been illegal at an earlier point of time may become lawful subsequently" The date that is therefore relevant with reference to which the legality of the detention has to be considered is the date of the return The date of the return in the case is 22-8-1974 and by that date, the petitioner had submitted an application requesting the Licencing Authority to accept the surrender cancelling his licence and take away the stocks of kerosene oil held by him The inaction of the respondents in taking necessary further action has therefore to be ignored in judging whether the petitioner really intended to surrender the licence and not to carry on the business of wholesale dealer in kerosene oil in future. We would therefore Proceed to consider the contention of the petitioner on the basis that he had for his part surrendered the licence and unequivocally declared his intention not to carry on business of wholesale dealer in kerosene oil.

The learned counsel for the petitioner contends that even if all the allegations in the grounds of detention are taken to be true, they only disclose the irregularities committed by the petitioner as a wholesale dealer of kerosene, and on the date of the return to this Habeas Corpus petition, as the petitioner had surrendered his wholesale dealers licence and the stocks held by him, and has unequivocally declared his intention not to carry on that business in future, there can be (sic) basis or justification for suspecting or apprehending that the petitioner would disrupt the maintenance of supplies in future. It is urged that the petitioner who had committed some irregularities as wholesale dealer in kerosene oil, cannot reasonably be suspected to indulge in disrupting the maintenance of supplies of kerosene oil or other essential commodities in future eventhough he has no licence to deal in those commodities, and consequently his continued detention can no longer be justified.

This contention is, no doubt, attractive but to our mind devoid of force True that allegations against the petitioner are with regard to his commissions and omissions as a wholesale dealer in kerosene oil. It is also true that he was able to lift kerosene in bulk from the Indian Oil Corporation Ltd, only on the strength of the Wholesale Dealers'' Licence granted to him by the licencing authority and now that licence is surrendered, he is not entitled to draw any quantity of kerosene. The activities of the petitioner as disclosed from the allegations contained in the grounds of detention served on the petitioner show that he was authorised to deal in kerosene oil as a wholesale dealer. Kerosene oil is an essential commodity in scarce supply. For the supply of the same to the retailers and consumers, the Andhra Pradesh Kerosene (Licensing and Distribution) Order, 1965 has been issued in exercise of the powers vested in the State Government under the Essential Commodities Act. The Legislature has thus envisaged a particular system under the provisions of the Essential Commodities Act and the Licensing Order. The distribution of kerosene is sought to be maintained by enforcing a system of licensing Licences to wholesale dealers and retail dealers for dealing in kerosene oil are issued. The contravention of the conditions of the licence, the provisions of the Licensing Order and the Essential Commodities Act, disrupt the maintenance of supplies of that commodity essential to the community as envisaged thereunder. From the grounds of detention it is evident that in dealing, with that Essential Commodity, the petitioner has contravened the provisions of law in this behalf in more than one respect. He gave incorrect reports about short supplies by the Corporation and also shortage in transit. He failed to supply to the retailers in accordance with the allotment orders. He withheld supply when excess price demanded by him was refused to be paid by the retailers. He carried on business in retail without a licence. He sold kerosene oil in black market. So much so proceedings u/s 6-A of the Essential Commodities Act were initiated against the petitioner separately. It cannot be denied that by these activities of the petitioner, maintenance of supplies of this essential commodity is disrupted.

The past dealings of the petitioner can certainly form the basis for reaching the satisfaction by the Detaining Authority After all only from past activity and conduct, future course of conduct could be anticipated and steps taken to prevent perpetration of the apprehended action. Since the petitioner was holding a Wholesale Dealers'' Licence, he could come into possession of the commodity more easily but it did not authorise him to dispose of the same otherwise than in accordance with the conditions of the licence and the provisions of law and thereby disrupt the supplies of the commodity. It does not however necessarily follow that once that licence is either surrendered or cancelled he is totally incapacitated from indulging in such activities as would disrupt the maintenance of supplies of essential commodities like kerosene oil, After all possession of a licence under the Order did not give him a licence to contravene the law or disrupt the maintenance of the supply of that commodity. The licence merely entitled him to deal with the commodity in accordance with the conditions of the licence. The clandestine and illegal activity of disposing of the stocks in black-market or not supplying to the retailers or demanding excess price or not giving correct information as regards the supplies and shortages of kerosene oil are not acts authorised by the licence; there are in contravention thereof. This activity of the petitioner discloses his propensity to indulge in such acts as would disrupt the maintenance of supplies of essential commodities. The possession of a licence and merely facilitated the petitioner in receiving the stocks of the kerosene oil but the disposal thereof in contravention of law is not on account of the licence but an account of his own propensity to make profit at the expense of the community by disrupting the maintenance of supply of this essential commodity. The detention is, not intended to prevent any activity of the petitioner based on the strength of the licence but an activity carried on de hors the licence and in contravention of the conditions thereof. The surrender of the licence or its cancellation cannot therefore nullify or vitiate the satisfaction reached by the detaining authority on the basis of the petitioner''s past activity, that his detention was necessary to prevent him from acting in a manner prejudicial to the maintenance of supplies of commodities essential to the community; nor does the detention subsequent to the date of the surrender of the licence become illegal or unwarranted.

It was, however, argued by Mr. Jeevan Reddy, learned counsel for the petitioner that the purpose of detention is preventive and not punitive, in this context, he placed reliance upon the observations of the Supreme Court with reference to the Preventive Detention Act in Gopalan v. State of Madras A.L.R. 1950 S.C. 27. In that case Their Lordships observed :

the word ''preventive'' is used in contradistinction to the word ''punitive''. To quote the work of Lord Finlay Rex V. Halli day 1917 A.C. 260 at 269, it is not a punitive but a precautionary measure. The object is not to punish a man for having done something but to intercept him before he does it and to prevent firm from doing it. No offence, is proved, for any charge formulated; and the justification of such detention is suspicion or reasonable probability and not criminal conviction which can only be warranted by legal evidence.

That being so, it is argued that whatever justification there may have been for the detention of the petitioner when the order of detention was made, now that he has surrendered the licence, his continued detention would be punitive in nature and not preventive.

It is also argued that the conclusion reached by the detaining authority that for the maintenance of supplies of commodities essential to the community in future, the detention of the petitioner is necessary could not reasonably be drawn from his past conduct which relates only to his kerosene oil business under the Wholesale Dealers'' Licence ; any such conclusion drawn with regard to other essential commodities or even with regard to kerosene oil after the surrender of licence would be wholly unrelated to his past conduct. We are unable to agree with this contention.

No doubt, the object of the Act is merely to prevent and not to punish. But as observed by the Supreme Court in Borjahan Gorey Vs. The State of West Bengal, "this jurisdiction is sometimes called the jurisdiction of suspicion founded on past incidents and depending on subjective satification..............The authorities mentioned in S. 3(2) which include the District Magistrate are, in our view, best suited to decide whether it is necessary to proceed under the Act which decision rests on their subjective satisfaction. The grounds of detention relate to the past acts on which the opinion as to the likelihood of the repetition of such or similar acts is based and those grounds are furnished to the detenu to inform him as to how and why the subjective satisfaction has been arrived at so as to enable him to represent against them". When the conclusion as to future conduct has to be based on past activities, the past activity may disclose a course of conduct out merely with reference to a particular commodity but with reference to other commodities as well. A situation where an essential commodity is in scarce supply is taken advantage of by the petitioner under the cover of a Wholesale Dealers'' Licence, to dispute the maintenance of the supply of such commodity essential to the community by the surrender of that licence, it is not as if he is totally incapacitated from taking advantage of the scarce supply of other essential commodities to disrupt the supply of those commodities. The petitioner''s dealings in kerosene oil in our opinion disclose a course of conduct of the petitioner not peculiar to the business in kerosene oil but with respect to all such commodities which are in scarce supply. The conclusion drawn by the detaining authority cannot therefore be said to be unreasonable or based on material irrelevant to the object of maintenance of supplies of essential commodities. It cannot be insisted that if a person deals at a particular point of time in a particular commodity the detaining authority should confine its confusion as to his future conduct with respect to that commodity only. No such restriction can be placed on the desertion of the detaining authorities in the matter of reaching a satisfaction whether the detention of a particular dealer is necessary for the purpose of maintenance of supplies of essential commodities. Maintenance of supplies of commodities essential to the community is an important function of the State and with all its resources, it has been found difficult to maintain them. If such a contention were to be countenanced, then no dealer carrying on business either wholesale or retail could ever be detained. However gross the irregularities and contraventions committed by them may have been, they could avoid detention under the Act by merely surrendering or offering to surrender their licences. The legislature could never have intended that the persons who have been disrupting the maintenance of supplies of one essential commodity should escape the rigors of the Act and the prospect of detention by merely surrendering or offering to surrender the licence. If persons other than those holding licences and disrupting the maintenance of supplies could be detained, if they had indulged in such activities, there is no reason why the holders of licences who are given more facilities to come into possession of large stocks of essential commodities should not be detained on allegations of contravention of the conditions of licence disrupting the maintenance of supplies. Any such limitation placed on the discretion of detaining authority would render the provisions as to detention under the Maintenance of Internal Security Act wholly nugatory.

Evidently realising that that would be the logical conclusion to which his contention would lead to, Mr. Jeevan Reddy, learned counsel for the petitioner conceded that he cannot generalise that every licencee who surrenders his licence gets immunity from detention. He urged that while the surrender of a licence would not debar the detaining authority from issuing an order of detention on the basis of the past activities of the licence of every essential commodity, it would certainly debar the authority from detaining a wholesale dealer in kerosene oil inasmuch as kerosene oil can be drawn only through the Indian Oil Corporation or two or three other indentifiable dealers. This factor to our mind makes no difference. A licencce of an essential commodity like kerosene oil, foodgrains and the like are all required to conform to the conditions of the licence. The source from which they receive supplies of these commodities would not in any way effect the illegal activities of the licensee after they come into possession of these commodities. The fact that the licensing authority can have a closer check if the sources of supply are few and easily identifiable can in our opinion have no bearing on the activities of the wholesale dealers themselves who receive the supplies. From whatever source they may receive their supplies, if they indulge in activities similar to those alleged against the petitioner in the grounds of detention, they would render the mselves to the charge that they are disrupting the maintenance of supplies, and it is that fact which justifies the satisfaction reached by the detaining authority to make the order of detention. That the sources of supply of the commodity concerned to the Wholesale dealers are few may be relevant for the detaining authority to determine whether mere cancellation of the licence would serve the purpose or whether the detention also is necessary. But that is a matter lying entirely within the discretion of the authorities concerned. It is now welt settled that merely because more than one proceeding could be taken against the licensee for the contravention of the conditions of the licence, one for suspending or cancelling the licence, another for prosecuting him in a criminal court under the ordinary law of the land and a third for his detention under the provisions of the Maintenance of the Internal Security Act, the detention of the Licencee cannot be deemed to be void, illegal or without jurisdiction.

For all these reasons, we find no merit in the contention that the petitioner having offered or surrendered the licence and also the stocks, and having undertaken not to carry on kerosene business either in wholesale or in retail, he could not be detained and also in the contention that the detention order had on the date of the return to this Habeas Corpus petition, become illegal, they are accordingly rejected.

The learned counsel for the petitioner next contended that Ground Nos. 1 and 2 of the detention order suffer from vagueness. It was urged that the allegation "that there are constant complaints from the Tahsildar Utnoor that you never supplied kerosene oil regularly to the retailers of his Taluq and consequently there was scarcity of kerosene oil in his Taluq" is vague inasmuch as the date of the complaint, the number of complaints, the name of the retailer to whom the petitioner failed to supply kerosene are not mentioned. It is also urged that the allegation therein "that you took kerosene oil for Utnoor Taluq on 19-8-73 and the Tahsildar Utnoor gave you allotment order for sale to the retailers of his Taluq. But you did not sell the kerosene oil to the retailers as per the allotment orders given to you by the Tahsildar, Utnoor" is also vague inasmuch as the names of the retailers are not mentioned and the copies of the allotment orders are not supplied. Placed as he was in detention, he could not have access to any records of his own and made an effective representation without the above particulars. It is also argued that the further allegation in that ground that "Sri Arvind, s/o Janardhan, r/o Hansnapur is one of the retailers to whom the Tahsildar, Utnoor allotted kerosene oil on 19-8-73. You demanded excess rate from him for the kerosene to be issued and when he refused to pay in excess of the fixed price you refused to supply kerosene to him" is also vague. The petitioner contends that what was the fixed or controlled price and what was the excess rate demanded by the petitioner ought to have been mentioned in the grounds. According to him, the rate at which a wholesaler of kerosene oil is bound to sell to the retail dealers varies from consignment to consignment, having regard to the place of delivery, the time of delivery and the charges required to be incurred to transport that particular consignment of kerosene oil to the Wholesale Depot. As the ground of detention is silent as to what was the particular rate at which the petitioner was bound to supply kerosene oil to Arvind under the allotment order dt. 19-8-73 and how much excess rate the petitioner demanded, the petitioner was not in a position to make any effective representation.

Whether a ground is vague or not is a matter which cannot be decided in the abstract. It is relative term As observed by the Supreme Court in The State of Bombay Vs. Atma Ram Sridhar Vaidya, "Vague can be considered as the antonym of ''definite''. If the ground which is supplied is incapable of being understood or defined with sufficient certainty it can be called vague it is not possible to state affirmatively more on the question of what is vague. It must vary according to the circumstances of each case. It is, however, improper to contend that a ground is necessarily vague if the only answer of the detained person can be to deny it. That is a matter of detail which has to be examined in the light of the circumstances of each case. It, on reading the ground furnished it is capable of being intelligently understood and is sufficiently definite to furnish materials to enable the detained person to make a representation against the order of detention it cannot be called vague." Having regard to the above position of law whether a particular ground furnished to the detenu concerned is vague or not has to be determined with reference to that particular detenu and not in the abstract. The test would be whether the detenu was in a position to understand what the allegation against him was with some definiteness so as to enable him to make a representation.

In SK. Hasan Ali Vs. State of West Bengal, , where the allegation was that on "27-3-71 at about 10 : 10 Hrs you along with your associates were found engaged in smuggling rice by train No. 110 DN at Radhamohanpur Riy Station under Kharagpur C.R.P.S Shri N.G Saha, Inspector of Police Cordining Midnapore was there on duty to prevent smuggling office from the cordoned areas of Midnapore district to the statutory rationing areas of Howrah and Calcutta. He secured arrests of some smugglers and seized huge quantity of rice there, when you along with your associates attacked the police party, assaulted some of them, snatched away a portion of the seized rice and rescued some of the arrested smugglers. Thus you acted in a manner prejudicial to the maintenance of supplies and services essential to the Community", it was argued that the ground was vague, the Supreme Court observed : "That the date, time and place of the incident was specified. Particulars were also given regarding the nature of the activity of the petitioner. The facts stated in the ground of detention were sufficient to apprise the petitioner of the precise activity on account of which the order for his detention has been made and, in our opinion, it cannot be said that the petitioner was in any way handicapped in making an effective representation against the detention order. What has to be seen by the Court is that the ground of detention supplied to the petitioner was not so vague as to prevent him from making an effective representation the fact that the names of the associates of the petitioner were not given in the ground of detention would not make the ground to be vague".

The primary allegation against the petitioner herein is that the petitioner failed to supply kerosene to the retailers as per the allotment orders of the Tahsildar, Utnoor dt. 19-8-73. The allotment order contains the names of all the retailers. That apart, the petitioner who is a wholesale dealer and who is required to supply to retailers and whose case is that he has been supplying kerosene oil in accordance with the said order knows the names of all the retailers, When the allegation is that be has not been supplying as per the allotment order to the retailers of the Taluk, we are not able to see how that allegation can be said to be vague. The further allegation in that ground that he failed to supply kerosene to one of the retailers by name Aravind of Hasanapur is a statement of a particular instance of failure to supply kerosene oil. In that connection, it was also alleged that he failed to supply kerosene oil because the said Aravind refused to pay the excess rate demanded by him. The gravamen of the allegation is not the excess rate demanded but the failure on the part of the Wholesaler to supply the kerosene oil. The reason for not supplying is that the retailer refused to pay the excess. The contention is that the failure to mention what exactly the fixed price was and how much excess was demanded; in our opinion, in the circumstances, it could not be deemed to be a necessary particular without which, the petitioner could not make an effective representation against the allegation that he failed to supply. If the allegation were to be that he Remanded excess and collected it, then the question as to how much he demanded and what was the fixed rate would have been relevant. When be is not detained for demanding the excess price but for failing to supply in accordance with the allotment order, the non-mention of the excess rate or the fixed price does not render the ground vague. Moreover, merely because in view of the provisions of the Kerosene Price Control Order, the fixed price of kerosene varies from consignment to consignment, it cannot be assumed that the wholesale dealer was wholly unaware of the fixed price and the price demanded for supply of kerosene to Aravind was in excess of the fixed price or not. That was a matter within the knowledge of the petitioner,

Mr. Jeevan Reddy, learned counsel for the petitioner placed reliance upon a judgment of the Supreme Court in Mishrilal Jain v. The District Magistrate Kamrup & others 1971 S.C. W.R. 601 in support of his contention that the failure to mention the excess rate demanded from Aravind renders the ground vague. In that decision, Their Lordships were considering whether the following ground of detention was vague,

That you are the proprietor or M/s Mishrilal Nirmal Kumar of Fancy Bazar, P. S. Gauhati, Dist. Kampur which mainly deals in salt an essential commodity for human consumption. Prices of essential commodities including salt have recorded unprecedented rise in the middle of July, 71 and salt became so scarce that this essential commodity was selling in and around Gauhati at exceptionally high prices immediately after the breaches of road and train communication between Assam and rest of the country. You, being one of the leading dealers of salt at Gauhati, availed yourself of the opportunity of profiteering in this commodity by resorting to hoarding.

The sudden disappearance of this most essential commodity from Gauhati market and resultant acute scarcity and high prices resorted to by you and other unscrupulous dealers became a subject matter of criticism both in the local press and the platform and the situation ultimately posed a serious threat to the maintenance of law and order at Gauhati in August, 1971.

In order to case the supply position of this commodity the Deputy Commissioner, Kamrup fixed on 14-8-1971 a ceiling on the prices of salt at Rs. 10.00 per bag and you wilfully organized profiteering by secretly selling this essential commodity at exorbitant rates at Gauhati by creating an artificial scarcity yourself even after fixation of its price by Deputy Commissioner, Kamrup on 14-8-1971 and thereby acted in a manner prejudicial to the maintenance of supplies and services essential to the community and your being at large has, therefore, constituted a risk to the maintenance of supplies and services essential to the community" Mathew, J. speaking for the court observed :

the case that the petitioner has been selling salt at exorbitant rate does not convey any definite idea as to the price at which he sold the articles. The idea of exorbitant rate is a relative one. It has no absolute connotation. What may appear exorbitant rate to one may not be exorbitant to another......

In that case, as the allegation was that the detenu was selling salt which was in acute scarcity at exorbitant rates even after fixation of the price by the Deputy Commissioner and thus created an artificial scarcity and thereby acted in a manner prejudicial to the maintenance of supplies and services essential to the public, it was held that the exorbitant price at which he sold that commodity was an essential particular which should have been mentioned in the grounds of detention. While in the case before the Supreme Court the charge is one of selling at an exorbitant price, in this case the charge is one of withholding the supplies for nonpayment of excess price demanded. As the demand of excess price is not ground of detention but only the failure to supply kerosene, the non-disclosure of this particular, in our view did not render the ground vague.

It was further urged on behalf of the petitioner that in Ground No. 2 in making the allegation that white 2,000 litres of kerosene oil was allotted on 5-11-73 to 13 retailers, the petitioner failed to supply to some of the retailers named therein, the detaining authority did not take all the relevant particulars into consideration. It is argued that where the authority failed to apply its mind to all the relevant facts then such a ground of detention must be treated to be non-existent. The case of the detenu with respect to this allegation is, that after supplying kerosene oil as per allotment orders, on 27-10-73 there was a balance of only 326 litres out of 12000 litres of kerosene received by him and that after distributing as per the allotment orders dated 7-11-73 and 8-11-73 and the stock subsequently received, the petitioner was having only 394 litres with him. That stock be was holding as per the instructions of the Tahsildar, Adilabad for distribution on special coupons to Government Officials. In those circumstances, the retailers who cams on 8-11-73 to lift the quota of kerosene allotted to them by the Tahsildar, Utnoor on his allotment order dated 5-11-73 were not supplied stating that the stock was exhausted. It is the case of petitioner that if all the allotment orders issued by the Tahsildar, Adilabad, Utnoor and Boath pertaining to 12,000 litres received by the petitioner on 27-10-73 are produced, they would establish that the petitioner had supplied the kerosene oil in accordance with the directions of the said authorities and was not in a petition to supply any further quantity of kerosene oil. Although it was contended vehemently that the production of such record would establish that he had complied with the orders of allotment, the very averment contained in paragraph 6-B of the petitioner''s affidavit discloses that while he was in possession of at least 394 litres of kerosene oil on 8-11-73, when some of the retailers entitled to the supply of the quantity allotted to them as per the orders of the Tahsildar Utnoor dated 5-11-73, came, the petitioner failed to supply the same. For withholding this supply, the petitioner seeks shelter under some instructions issued by the Tahsildar, Adilabad. The petitioner does not allege that there were any written instructions to that effect. As a Wholesale dealer, the petitioner was under no obligation to comply with any oral instructions. Thus there is an admission that even while he was holding 394 litres of stock, he failed to supply to the retailers when they approached him on 8-114973 and that he also told them that the stock was exhausted That being so, the detaining authority was fully justified in drawing the conclusion that there was non-compliance on the part of the petitioner to supply this essential commodity to the retailers and that he sold the same in the black-market It cannot be said that those conclusions were drawn on material which was either irrelevant or non-existent or vague. As observed by the Supreme Court in Khangen Sarkar v. State of West Bengal AIR 1971 S.C. 2051 the Court cannot go into the sufficiency of the material nor is the satisfaction of the Court that is the determing factor ; it is the satisfaction of the detaining authority. In view of the facts admitted by the petitioner in his affidavit, any further scrutiny of the material in our view is wholly unnecessary.

With regard to the allegation in ground Nos. 2, 4 and 6 that the petitioner had sold away the kerosene in black-market, it is argued that it is an inference drawn from facts which are not disclosed to the petitioner

It is also argued that no particulars as to the date of sale, the person to whom it was sold and the rate at which it was sold are mentioned and therefore, it is vague. Without these particulars it is urged that the petitioner was not in a position to make an effective representation. It is also urged that the petitioner was not in a position to make an effective representation. It is also urged that if the conclusion arrived at by the District Magistrate and the satisfaction reached by him that the petitioner''s detention was necessary for the maintenance of supplies of essential commodity like kerosene oil is based on facts mentioned in ground Nos. 2, 4 and 6 then that satisfaction would be one reached on wholly irrelevant material.

The petitioner in support of his contention that the allegation in ground Nos. 2, 4 and 6 that he sold kerosene in black market is vague and necessary particulars are not furnished, relies upon a decision of the Supreme Court in Motilal Jain Vs. State of Bihar and Others, in which one of the grounds for detention read as follows :

On 10th March, 196? he sold match boxes and soap to a shop keeper of Purnea Court compound at a price higher than that fixed for these commodities and did not grant any receipt for the same.

In that context, the Supreme Court observed :

The name of the shop keeper to whom the appellant was said to have sold match boxes and soap at a price higher than that fixed for these commodities was not mentioned. Neither the price fixed nor the price at which the detenu was said to have sold the match boxes and soap was mentioned. The futility of making representation against an unknown man in respect of an unspecified price could easily be imagined. There was no opportunity to the detenue to satisfy the Advisory Board that the alleged purchaser was a fictitious figure or that he was an enemy of his or that the information given by him should otherwise be not accepted. As things stood the detenu was left to attack a shadow.

That observation of the Supreme Court can hardly be held apposite in regard to the allegations contained in the ground of detention served on the petitioner herein. The detention of the petitioner is not based on the ground that he sold any goods in black-market to a particular person ; it is on the ground that he being a wholesale dealer bound to supply only to the retailers as per the allotment order of the Tahsildar, failed to supply and instead disposed of the same to some others. That being the allegation to whom it was sold, when it was sold and for what price it was sold is wholly immaterial. So long as it is not sold in accordance with the allotment order, the sale must be considered to be sale in the black-market, The non-existence of the stocks having been admitted, in the circumstances, an inference that he sold it in black-market is inescapable. The necessary particulars on the basis of which that inference was drawn having been stated in the grounds they cannot be said to be vague.

It is true that neither the date of sale nor the person to whom it was sold nor the rate at which it was sold by the petitioner in black market is mentioned in the said ground. But the vagueness of the grounds or the relevancy of the facts to the conclusion reached by the District Magistrate hat to be judged on the particular facts and circumstances of the case an I with reference to the detenu in question and not in the abstract. In ground No. 2, it was alleged that while the Tahsildar, Utnoor in his proceedings dated 5-11-1973 allotted 2000 litres of kerosene oild among 13 retailers of his taluq, the petitioner informed six of these allottees when they approached him to lift their quota, he did not supply kerosene to them stating that the stock was exhausted. The allegation is not merely that there was a failure to supply the kerosene as contended by the learned counsel for the petitioner, the further allegation in ground No. 2 is that the petitioner told them that the "stock was exhausted". If according to the records required to be kept as per Jaw, the petitioner should have been in possession of 2,000 litres and ought to have supplied that quantity of kerosene to the allottes and if the petitioner had not only failed to supply that much quantity but also informed the allottees that stock was exhausted, the conclusion drawn by the District Magistrate that the petitioner had disposed of the stocks in the black-market cannot be said to be unwarranted or based on material or irrelevant material. When in the circumstances stated in the grounds the petitioner told the retailers that the stock was exhausted, it would be wholly unnecessary to convey to the detenu to whom else he had sold. The fact that he has sold to a particular person is not the ground of detention. The ground of detention is that he has exhausted the stock by disposing it of to persons other than the allottees to whom alone he ought to have supplied. "Black-market" is defined in the Chambers 20th Century Dictionary as "Surreptitious trade in rationed goods". The sale to any one else than the retailers by a wholesale dealer who is authorised under the licence to sell only to the retailers as pre the allotment orders of the Tahsildar cannot but beheld to be a surreptitious trade. Such a sale by the holder of a Wholesale Dealers Licence would be a clandestine disposal ordisposal in the black-market. If on the petitioner''s own statement that the stock was exhausted and for that reason be failed to supply kerosene oil to the retailers to whom it was allotted the District Magistrate concluded that he sold the kerosene oil in the black-market, it cannot, be deemed to be a conclusion based on irrelevant material; nor can such a statement be deemed vague. When the satisfaction reached by the Magistrate on the facts is that the petitioner was disrupting the maintenance of supply of kerosene oil by black-marketing, the omission to mention the names of the persons and the dates on which the sale in black-market had been affected cannot be deemed to be an infirmity in the ground which effected the right of the petitioner to make an effective representation against his detention. So too in ground No. 4 it is stated that the petitioner had first informed that he had received 12,000 litres by his letter dated 22-2-1974. Later, on 6-3-1974 he informed that there was a shortage of 600 litres The conclusion on that material reached by the detaining authority was that he sold away 600 litres of kerosene oil in black market.

In ground No. 6, the allegation is that as per the records of the Indian Oil Corporation Limited, 24000 litres of kerosene oil was supplied to the petitioner on 15-5-74. But the petitioner reported the receipt of only 12,000 litres. From that the detaining authority concluded that he had sold away 12000 litres in black-market. If the detaining authority had accepted the records of the Indian Oil Corporation Ltd, to be more authentic than that of the petitioner, it cannot be said that the detaining authority had acted on no material or on irrelevant material in concluding that the report of short supply made by the petitioner was not correct. And having received 24,000 litres, if the petitioner without supplying to the retailers reported that he had only 12,000 litres, the conclusion drawn by the detaining authority, that the petitioner sold away the balance of 12,000 litres, cannot be deemed to be on irrelevant material. We are, therefore, of the view that in the circumstances, the failure to give particulars as to the date of sale or the person to whom it was sold or the price at which it was sold did not render them vague. Having regard to the allegations in ground Nos. 2, 4 and 6, what the petitioner was required to represent was that he sold kerosene oil to the allottees concerned and that he did not dispose of the stocks surreptitiously. The material furnished to him in grounds 2, 4 and 6 in our view was sufficient to afford him such an opportunity, These grounds are neither vague nor irrelevant to the conclusion and satisfaction reached toy the authority that the detention of the petitioner was necessary for preventing him from acting in a manner prejudicial to the maintenance of supplies of essential commodities to the community.

Mr. Jeevan Reddy, learned counsel for the petitioner, however contended that if the inference of the goods having been sold in the black-market is based on the facts stated in ground Nos. 2, 4 and 6 then that would be an inference drawn from facts which are not relevant to that inference. In this context, be placed very strong reliance upon a judgment of the Supreme Court in Prabhu Dayal Deorah Vs. The District Magistrate, Kamrup and Others, That was a case in which the grounds of detention were:

That you, being one of the partners and in the active management of M/s. Deora Flour and Rice Mills at Zoo Road, Gauhati and M/s. Srinivas Basudeo, Fancy Bazar, Gauhati are responsible for unauthorised milling of paddy in M/s. Deora Flour and Rice Mills at Zoo Road; Gauhati and smuggling of the resultant rice to Meghalaya for earning undue profit. You are also responsible for unauthorised hoarding of rice and sugar in the premises of M/s. Deora Flour and Rice Mills at Zoo Road and M/s. Srinivas Basudeo at Fancy Bazar for the sole purpose of selling these commodities at higher price in and outside Gauhati for profiteering.

On 25-7-73 the following quantities of paddy and rice were unearthed end seized from your unauthorised possession at Zoo Road (Deora Flour and Rice Mills) premises.

1.

Sali Paddy

..

147 bags.

2.

Ahu Paddy

..

207 bags.

3.

SaliMota Rice (Arua)

..

239 bags.

4.

Ahu Rice

..

8 bags.

5.

Joha Rice

..

15 bags.

That on 4-1-1972, 191 bags of sugar were seized by the Supply Officials of Gauhati from your unauthorised possession at Messrs. Basudeo, Fancy Bazar, Gauhati.

That on 16-5-1972 the supply officials seized 105-03 quintals of rice from your unauthorised possession at Messrs. Srinivas Basudeo, Fancy Bazar, Gauhati.

That you indulged in such trade activities which created acute scarcity and high prices of rice and sugar in Gauhati market.

You are, thus acting in a manner prejudicial to the maintenance supplies and services essential to the community as a whole in this distinct and your being at a large has jeopardised the maintenance of such supplies and services to the community.

The Supreme Court held, that--

the first ground for detention states that the petitioners are responsible for unauthorised milling of paddy in Deora Flour and Rice Mills and smuggling the resultant rice to Meghalaya, for selling it for earning undue profit. The period during which the unauthorised milling of paddy has been carried on was not stated in the grounds of detention nor is there anything to indicate when and bow the resultant rice was smuggled to Meghalaya for earning undue profit. The fact that the grounds communicated to each of the petitioners mention the seizure of paddy and rice from the unauthorised possession of the petitioners from the mill in question on 25-7-73 gives no particulars as regards unauthorised milling of paddy or the smuggling of the resultant rice to Meghalaya for earning undue profit. The first ground of detention was, therefore, vague and that is sufficient to vitiate the detention orders.

Basing on this ruling, it was argued that, that the more failure to supply the kerosene as per the order of allotment, or the report of the shortage referred to in ground No. 4 of the report of the receipt of a lesser quantity of kerosene than that was dispatched by the Indian Oil Corporation Limited does not necessarily lead to the inference that kerosene was sold in black market. It is true that mere failure to supply kerosene as per the allotment order would not lead to an inference that quantity was sold in the black-market nor the report of shortage by itself, nor even the report of short delivery would lead to that inference. But it is seen from ground No. 2 that not only the petitioner failed to supply to the allottees but he also reported that the stock was exhausted, If as per the records, certain stock of kerosene ought to have been with the petitioner and that is reported to have been exhausted and the detaining authority finds that that statement is not correct and while be should have been in possession of certain stocks, he was not in possession of the same on the relevant date, the detaining authority was perfectly justified in coming to the conclusion that much quantity was disposed of in black market. The conclusion drawn in those circumstances cannot be said to be not flowing from the facts stated in the ground or based on irrelevant considerations. In Prabhu Dayal v. Dist. Magistrate, Kamarup A. I. R. 1974 S.C. 183 what all was stated in the grounds of detention was that paddy was milled at a particular mill unauthorisedly and from that the inference drawn was that rice was smuggled to Meghalaya. The milling of paddy by itself cannot lead to the conclusion that the rice so milled was smuggled into Meghalaya; it may have been still held in stock or may have been disposed of at the place where it was milled, and not necessarily smuggled to Meghalaya. With regard to the conclusion drawn by the detaining authority that rice was smuggled into Meghalaya, no particulars were given and therefore that ground was said to be vague. The same criticism cannot be levelled against ground Nos. 2, 4 and 6 for in all these grounds the detaining authority mentioned the stock of kerosene which even according to the petitioner himself he should have been in possession as per the records and which on the petitioner''s own statement was exhausted contrary to the allotment orders. The allegations mentioned in those grounds are neither vague nor unconnected with the conclusion reached by the Detaining Authority.

With reference to ground Nos. 3 and 4, it was stated by the petitioner that he had to take delivery of 12,000 litres of kerosene oil at Manmad and transport the same in a tanker. On account of the defect which developed in the main valve of the said tanker and the long distance of 650 miles which had to be covered to transport the kerosene to the wholesale depot of the petitioner, there was shortage of nearly 600 litres of kerosene oil due to leakage, evaporation and pillage during the course of transport. This shortage could be discovered only when the kerosene was emptied from the tanker into the barrels and the same was informed to the Tahsildar, Adilabad on 6-3-1974, The petitioner''s contention is that in the above circumstances the detaining authority ought not to have drawn the conclusion that the report of the petitioner was false or that he had disposed off the same in black-market. But when according to the records, he was supplied 12,000 litres and he also took delivery of 12,000 litres on 22-2-1974 and he did not inform the deficit forthwith but took nearly 14 days, if the Tahsildar refused to accept his explanation and directed the supply of 600 litres to a retailer on 4-3-1974, it cannot be said that the allotment was unjustified. More over, as per the allegation in ground No. 3, the failure on the part of the petitioner to supply was on the ground that there was shortage of 600 litres of kerosene which occurred in transit but it was on the ground that it was exhausted.

The Petitioner''s own statement and in having taken delivery of 12 000 litres of kerosene which was received on 22-2-74 and not reporting the shortage in transit immediately when the said kerosene was shifted to the wholesale depot and the failure to supply to Nawabkhan, Retailer of Utnoor on the ground that the stock was exhausted, to our mind, constituted sufficient material for the authority to reach the satisfaction that the quantity reported as shortage oil was actually disposed of in black market.

It is admitted by the petitioner that the Collector issued a show cause notice on 21-6-74 as to why his licence should not be cancelled. To that the petitioner submitted his explanation on 22-6-74. The Revenue Divisional Officer also issued a notice to explain the deficiency in supply of 120 litres to one of the allottees ; the petitioner submitted his explanation to this also. If in the above circumstances, the detaining authority came to the conclusion that the petitioner had disposed of the stock otherwise, we are unable to hold that this was not an honest satisfaction of the authorities concerned or a satisfaction reached on no material whatsoever.

With reference to ground No. 5, it was argued that the petitioner did not commit contravention of any of the conditions of the licence or the previsions of the Andhra Pradesh Kerosene Licensing and Distribution Order, 1965 in selling the kerosene oil on 19-1-1974 at Indaravalli, Hasanapur and Jayanoor of Utnoor Taluk when the retailers of Boath and Utnoor to whom that quota was allotted failed to turn up and lift the kerosene oil allotted to them. When it is admitted that the petitioner did not poises a retail dealer''s licence and under the Wholesale Dealer''s Licence was only entitled to supply the quota of kerosene oil to the retailers as per the allotment order, that is a clear proof of the contravention of the conditions of the wholesale dealer''s licence. Whether the retail sale effected by the petitioner who was not authorised to sell in retail in the circumstances stated by the petitioner should be dealt with by prosecuting him under the provisions of the Act or ignoring the contravention having regard to the fact that he bad sold the kerosene oil in the area for which it was meant or whether he should be dealt with under the provisions of the Maintenance of Internal Security Act for having disrupted the supply of this essential commodity in the manner envisaged by law i.e., by the wholesaler supplying it to the retailer and the retailer selling it to the consumer, is a matter which is left to the discretion of the authority concerned. The petitioner who possessed only a wholesale dealer''s licence cannot take upon himself to do retail business, merely because the retailers failed to lift the kerosene oil allotted to them when the distribution of an essential commodity like kerosene oil which is in scare supply is regulated by statute which is calculated to serve the ''Public Interest'', and for maintenance of such supply, when a system of licensing is introduced and certain restrictions are placed on the wholesalers and retailers, neither the wholesaler can deal in retail nor the retailer can dual in wholesale. When a such a system of supply of that commodity is envisaged by the statute, the action of the wholesaler in selling in retail disrupts that system and if the authority has chosen to detain the wholesaler who is guilty of this contravention, it cannot be said that the satisfaction reached by that authority was not with reference to any action of the petitioner which disrupted the maintenance of supply.

Mr. Jeevan Reddy, learned counsel for the petitioner, however, contended that the action of the respondent in selling in retail in the are a for which the particular quota was allotted did in fact ensure the supply and not disrupt the supply ; though that action may have been in contravention of the conditions of the licence, still, it cannot be said that it was an act disrupting the maintenance of essential commodity. But this contention ignores the fact that every licensed dealer of an essential commodity cannot devise his own method of maintaining the supplies of commodities. It is regulated by the statute, orders and rules, and the supply of an essential commodity must be in accordance with those orders and rules. The act of a licence in contravention of the scheme envisaged by the statute must be deemed to be an act disrupting the maintenance of supplies of essential commodities exposing him to detention under the Act, in support of the contention that the action of the petitioner may constitute an offence but not necessarily one likely to disrupt the maintenance of supplies of an essential commodity and therefore not a ground for detention of the petitioner, the learned counsel for the petitioner placed reliance upon the observation of the Supreme Court in Tapan Kumar v. State of W B A.I.R 1972 S.C. 840, which is as follows:

Similarly in writ petition No. 324 of 1971 grounds Nos. 3 and 4 may indicate that the petitioner and his associates are guilty of offences, but they do not show that the acts alleged against them were likely to affect the public order as such. ID this view, this detention also cannot be sustained, and is consequently illegal.

It is true that a particular act may constitute an offence and yet may not be one likely to affect the "Public order" so as to justify the detention under Clause (a) of section 3 (1) of the Act. So also the contravention of a condition of the licence may expose the licencee to prosecution but may not by itself be sufficient to detain him on the ground that it disrupts the maintenance of supplies. But as observed by the Supreme Court in Indradeo v. State of West Bengal A.I.R 1973 S. C. 1065 "Similar acts in different situations may give rise to different problems; in one set of circumstances an act may pose only a law and order problem whereas in another it may generate deep and widespread vibrations having serious enough impact on the civilised peace abiding society so as to affect public order. One has to weigh the degree and sweep of the harm the act in question is capable of in its context. Every case has, therefore, to be considered on its own facts and circumstances". Thus the same act in a particular set of circumstances may not be treated as sufficiently serious to detain a person responsible for the act, but in another set of circumstances, the detention may be deemed necessary Whether on the particular facts, a prosecution would serve the purpose or detention of the person is necessary, is therefore, a matter lying entirely within the subjective satisfaction of the detaining authority, We therefore reject the contention that ground No. 5 could not justify the petitioner''s detention.

With regard to the 7th ground of detention, I was urged that the same facts constitute the subject matter of an enquiry under S. 6-A of the Essential Commodities Act. It was contended that a proceeding u/s 6-A of the Essential Commodities Act is a criminal proceeding and a proceeding parallel to the one u/s 3 of the Maintenance of Internal Security Act and therefore cannot be taken. This contention is based on the decision of the Supreme Court in Biram Chand v. State of Uttar Pradesh AIR 1974 S. C. 1161. The correctness of the view expressed in this decision was reconsidered by the Supreme Court in Madanlal Agarwal v. The State of West Bengal and others (unreported decision of the S. C. in W.P. 1913/73 dated 21-8-74) and it was held :

The decision in Biram Chand v. State of Uttar Pradesh and Others AIR 1974 S.C. 1161 supra reported which is a Division Bench decision of two learned Judges is contrary to the other Bench decisions consisting in each case of three learned Judges. The principles which can be broadly stated are these. First merely because a detenu is liable to be tried in a criminal Court for the commission of a criminal offence or to be proceeded against for preventing him from committing offences dealt with in Chapter VIII of the Code of Criminal Procedure would not by itself debar the Government from taking action for his detention under the Act Second, the fact that the Police arrests a person and later on enlarges him on bail and initiates steps to prosecute him under the Code of Criminal Procedure and even lodges a first information report may be no bar against the District Magistrate issuing an order under the preventive detention. Third, where the concerned person is actually in jail custody at the time when an order of detention is passed against him and is not likely to be released for a fair length of time, it may be possible to contend that there could be no satisfaction on the part of the detaining authority as to the likelihood of such a person indulging in activities which would jeopardise the security of the State or the public order. Fourth, the mere circumstance that a detention order is passed during the pendency of the prosecution will not violate the order. Fifth the order of detention is a precautionary measure. It is based on a reasonable prognosis of the future behaviour of a person based on his past conduct in the light of the surrounding circumstances.

Assuming that proceedings under S. 6-A of the Essential Commodities Act are criminal in nature, having regard to the pronouncement of the Supreme Court in Madan Lal Agarwala v. State of West Bengal and (sic) Unreported decision of the Supreme Court in W. P. No. 1913/73 dated 21-8-74 such parallel proceedings are not barred. For the aforesaid reasons we find that neither the detention order suffers from any infirmity nor has the detention of the petitioner since become invalid. The writ petition therefore fails and it is accordingly dismissed. No costs, Advocate''s fee Rs. 250/-.