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1981 Supreme(Ori) 148
ORISSA HIGH COURT
R. N. MISRA, C.J. AND B. K. BEHIJRA, J.
KHIROD CHANDRA SAHU
VERSUS
STATE OF ORISSA AND ANOTHER
Original Jurn. Case No. 2665 of 1981,
Decided on : 21 -12 -1981.
The Rules of Business framed by the State Government under Articles 166(2) and 166(3) of the Constitution are directory and substantial compliance is sufficient.
Headnote:
PREVENTION OF BLACKMARKETING AND MAINTENANCE OF SUPPLIES OF ESSENTIAL COMMODITIES ACT, 1980 - SECTION 3(2)(A) - DETENTION ORDER - MANAGER OF CEMENT STOCKIST - LIABILITY FOR DEFICIENCIES OR IMPROPER DEALINGS - RULES OF BUSINESS - APPROPRIATE DEPARTMENT FOR CONFIRMATION OF DETENTION ORDER.
Fact of the Case:
Petitioner, allegedly the Manager of a cement stockist, was detained under Section 3(2)(a) of the Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act, 1980, for allegedly suppressing the receipt of cement and misappropriating cement with the ulterior motive of blackmarketing. The petitioner challenged the detention order on various grounds, including that he was not the Manager, that the licensee was not a proprietorship firm, that the grounds of detention were misleading and irrelevant, and that the order was made in a cavalier fashion without proper application of mind.
Finding of the Court:
The Court found that there was no clear material to show that the petitioner was the Manager of the business and that the fact that he had been meddling with the business could not be very much used against him in view of the fact that he was not a stranger and happened to be the husband of the licensee. The Court also found that the reference to Clause 3(b) of the Orissa Cement Control Order, 1973, in the grounds of detention was not an offence under the Act and that the order was not made in a cavalier fashion. However, the Court held that the order of confirmation of the detention order was not valid as it was made by the Food and Civil Supplies Department instead of the Home Department, which was the appropriate department under the Orissa Government Rules of Business.
Issues: 1. Whether the petitioner was the Manager of the cement stockist and liable for the alleged deficiencies or improper dealings in the business? 2. Whether the reference to Clause 3(b) of the Orissa Cement Control Order, 1973, in the grounds of detention constituted an offence under the Act? 3. Whether the order of detention was made in a cavalier fashion without proper application of mind? 4. Whether the order of confirmation of the detention order was valid despite being made by the Food and Civil Supplies Department instead of the Home Department?
Ratio Decidendi: 1. The Court held that there was no clear material to show that the petitioner was the Manager of the business and that the fact that he had been meddling with the business could not be very much used against him in view of the fact that he was not a stranger and happened to be the husband of the licensee. 2. The Court held that the reference to Clause 3(b) of the Orissa Cement Control Order, 1973, in the grounds of detention was not an offence under the Act. 3. The Court held that the order was not made in a cavalier fashion. 4. The Court held that the order of confirmation of the detention order was not valid as it was made by the Food and Civil Supplies Department instead of the Home Department, which was the appropriate department under the Orissa Government Rules of Business.
Final Decision: The Court allowed the application, quashed the order of detention of the petitioner, and directed that he be set at liberty forthwith.
JUDGEMENT
R. N. Misra, C. J. :- In this application under Article 226 of the Constn. challenge is to the order of detention (Annexure-1) dated 20-10-1981 by which the District Magistrate of Cuttack (opposite party 2) directed the detention of the petitioner in exercise of powers under Section 3(2)(a), Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act, 1980.
2. The following two grounds were in due course communicated to the petitioner in support of the order of detention :-
"(i) The detenu is admittedly the Manager of the cement stockist, namely, Shrima Iron Stores, College Square. Cuttack-3, the proprietress of which is Smt. Kalyani Sahu. The above firm deals with cement procured from Andhra Cement Company, Visakhapatnam. The said detenu being the husband of the proprietress, manages the cement business on behalf of the proprietress keeping the lady in the background. At the time of verification of the stock registers of this firm, the detenu produced the stock register etc. of the firm for verification by the Executive Magistrate. M/s. Shrima Iron Stores was allotted 214 M. T. of cement during 2nd quarter of 1981 (April to June 1981). Following arrival reports have been submitted to the Collector in respect of cement received, from Andhra Cement Company on behalf of the firm for the 2nd quarter of 1981 (April, May, June, 1981) for public distribution out of the 214 M. T. allotted to the Firm.
8-5-81 24 M. T. 480 bags
11-5-81 24 M. T. 480 bags
10-6-81 36 M.T. 720 bags
11-6-81 36 M. T. 720 bags
1-7-81 51 M. T. 1020 bags
Total : 171 M. T. 3420 bags
But the Deputy Sales Manager, M/s. Andhra Cement Company, has reported that the above firm has lifted the following quantities of cement during the 2nd quarter of 1981.
Date of dispatch Qauntity lifted. Trucks Nos. in which the quantity is despatched,
5-5-81 24 M. T. ORK 2683 and ORG 4615
7-5-81 24 M. T. ORG 4306 and OSO 1252
6-6-81 12 M. T. OSO 9372
7-6-81 12 M. T. ORG 4035
8-6-81 30 M. T. ORG 7466, ORG 249, OSU 795
9-6-81 26 M. T. OSO 6775, OSU 1252
10-6-81 12 M. T. ORG 4306
28-6-81 5 M. T. OSU 647
29-6-81 36 M. T. OSU 2575, OSU 1179, ORU 947
30-6-81 12 M. T. ORG 4035
193 M. T. (3960) bags.
Thus it will be seen that the detenu has not submitted the arrival reports in respect of 27 M. T. (540 bags). The stock book of the firm as verified by the Magistrate who conducted the stock verification, also indicates that only 171 tonnes (3420 bags) has been taken to the stock and the rest 540 bags has not been entered in the stock. Thus it is clear that the detenu has deliberately suppressed the receipt of 540 bags of cement with the ulterior motive of blackmarketing the same which is an essential commodity, the present blackmarket price of the cement being the double of the controlled rates per bag of cement. This also amounts to an offence under Cl. 3 (b), Orissa Cement Control Order, 1973.
(ii) During the physical verification of the stock by the Executive Magistrate on 17-7-1981, it was found that 135 bags of cement including 20 damaged bags are available in the stock. But as per the closing balance of the stock in the stock book on the date of verification, 477 bags including 20 damaged bags should have been in the stock. On being called upon to explain the discrepancies by the verifying Magistrate, the detenu refused to explain. Thus it is clear that the detenu has misappropriated 342 bags of cement with the ulterior motive of blackmarketing the same which is an essential commodity, the present blackmarket price of the cement being the double of the controlled rate per bag of cement. This also amounts to an offence under clause 3(b), Orissa Cement Control Order, 1973."
3. The following contentions were raised and pressed before us at the time of hearing :-
(i) The petitioner is not the Manager of Shirma Iron Stores and thus it could not be an admitted fact. He having no liability under any law to report about arrival or to comply with
