(1) This Act may be called the Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act, 1980.
(2) It extends to the whole of India except the State of Jammu and Kashmir.
(3) It shall be deemed to have come into force on the 5th day of October, 1979.
In this Act, unless the context otherwise requires.
(a) "appropriate Government" means, as respects a detention order made by Central Government or by an officer of the Central Government or a person detained under such order, the Central Government, and as respects a detention order made by a State Government or by an officer of a State Government or as respects a person detained under such order, the State Government;
(b) "detention order" means an order made under Section 3;
(c) "State Government", in relation to a Union territory, means the Administrator thereof.
CASE LAWS
Interpretation - There is one principle on which there is complete unanimity of all Courts in the world and this is that where the words or the language used in a statute are clear and cloudless, plain, simple and explicit unclouded and unobstructed, intelligible and pointed so as to admit of no ambiguity, vagueness, uncertainty or equivocation, there is absolutely no room for deriving support from external aids. In such cases, the statute should be interpreted on the face of the language itself without adding, subtracting or omitting words therefrom. Where the language is plain and unambiguous the Court is not entitled to go behind the language so as to add or supply omissions and thus play the role of political reformer or of a wise counsel to the Legislature : AIR 1982 SC 304/314 : 1998 SC 1827 at P. 1828.
It is the duty of judicature to act upon the true intention of the Legislature the mens sentential legis : AIR 1991 Raj 17.
Statute made for the public good ought to be liberally construed : AIR 1991 SC 604.
(1) The Central Government or a State Government or any officer of the Central Government, not below the rank of a Joint Secretary to that Government specially empowered for the purposes of this section by that Government, or any officer of a State Government, not below the rank of a Secretary to that Government, specially empowered for the purposes of this Section by that Government, may, if satisfied, with respect to any person that with a view to preventing him from acting in any manner prejudicial to the maintenance of supplies of commodities 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, the expression "acting in any manner prejudicial to the maintenance of supplies of commodities essential to the community" means -
(a) committing or instigating any person to commit any offence punishable under the Essential Commodities Act, 1955 (10 of 1955), or under any other law for the time being in force relating to the control of the production, supply or distribution of, or trade and commerce in any commodity essential to the community; or
(b) dealing in any commodity -
(i) which is an essential commodity as defined in the Essential Commodities Act, 1955 (10 of 1955), or
(ii) with respect to which provisions have been made in any such other law as is referred to in CIause (a),
with a view to making gain in any manner which may directly or indirectly defeat or tend to defeat provisions of that Act or other law aforesaid.
(2) Any of the following officers, namely:
(a) District Magistrate;
(b) Commissioners of Police, wherever they have been appointed, may also, if satisfied as provided in Sub-section (1), exercise the powers conferred by the said sub-section.
(3) When any order is made under this section by an officer mentioned in Sub-section (2), he shall forthwith report the fact to the State Government to which he is subordinate together with the grounds on which the order has been made and such other particulars as in his opinion have a bearing on the matter, and no such order shall remain in force for more than twelve days after the making thereof unless in the meantime it has been approved by the State Government:
Provided that where under Sec. 8 the ground of detention are communicated by the authority making the order after five days but not later than ten days from the date of detention, this sub-section shall apply subject to the modification that for the words "twelve days", the words "fifteen days" shall be substituted.
(4) When any order is made or approved by the State Government under this section or when any order is made under this section by an officer of the State Government not below the rank of Secretary to that Government specially empowered under Sub-section (1), the State Government shall, within seven days, report the fact to the Central Government together with the grounds on which the order has been made and such other particulars as in the opinion of the State Government have a bearing on the necessity for the order.
CASE LAWS
Detention order - Even for one incident if the District Magistrate or the State Government as the case may be, is satisfied that with a view to prevent a person from acting in any manner prejudicial to supply of essential commodities to the community, it is necessary to detain a person, an order can be made for his detention : 2007 (Supp.-I) OLR 555.
Petitioner granted licence of Sub-wholesaler Dealership to deal in Kerosene Oil under P.D.S. - Detention order passed by D.M. which was confirmed by the State Government - Writ filed dismissed - Review - Averment mentioned in review petition has not been made in the writ petition - Petitioner should have moved for amendment of the writ petition due to the pendente lite developments but the same was not made - On other facts discussed held, no error apparent on the face of the record in the writ petition in question : 2007 (Supp.-I) OLR 586.
Detention order - Communication of - The State Government, within seven days, report the fact to the Central Government together with the grounds on which the order has been made - The order of the District Magistrate is liable to be approved by the State Government - The period of seven days cannot be counted from the date of the detention order passed by the District Magistrate - The order of the District Magistrate cannot remain in force without approval of the State Government - The liability to communicate the order to the Central Government vests upon the State Government and not upon the District Magistrate : 2007 (Supp.-I) OLR 555.
Sub-wholesaler for kerosene oil - Fire Accident took place - Commission of offence under Sec. 285, IPC read with Sec. 7 of the Essential Commodities Act and Section 23 of the Petroleum Act - Suspension of licence by the licensing authority - Order of detention - Writ - Conclusion of the District Magistrate is not based on any facts found during enquiry - No material whatsoever produced by the opp. parties to show that the petitioner has acted in any manner prejudicial to the maintenance of supplies of commodities essential to the community which is only ingredient of Section 3 of the Act and without which no order of detention can be passed against any person as contemplated under the Section - Present case is a proper case where the extraordinary jurisdiction of Court should be exercised and the order of detention can be subjected to judicial review - Grounds of detention do not in any manner fulfil the ingredients of the Section, same liable to be quashed : 2005 (II) OLR 676.
Preventive detention is resorted to thwart future action - If the detenu is already in jail charged with an offence, he is thereby prevented from acting in any manner prejudicial to the maintenance of supplies of commodities essential to the community - There may be in a given case the need to order preventive detention of a person already in jail - In such a situation the detaining authority must disclose awareness of the fact that the person against whom an order of preventive detention is being made is to the knowledge of the authority already in jail and yet for compelling reasons preventive detention order needs to be made - The facts of the present case indicates non-application of mind of the detaining authority which results invalidation of the order : 2002 (I) OLR 110 : I (2002) CCR 357 (Ori.).
The petitioner detained by the District Magistrate - The Govt. of Orissa approved the order of detention - Petitioner's representation dtd. 22.3.2002 against the order of detention was received by the State Govt. on 26.3.2002 and rejected on 6.4.2002 - Delay of 12 days - Unexplained delay in disposing of the representation of the detenue affects his constitutional rights under Art. 22 (5) of the Constitution to make a representation against the order of detention - The petitioner has not been furnished with copies of cash memo. dt. 5.12.2001 and 7.12.2001 under which the petitioner's firm supplied 24,000 of kerosene oil to sub-wholesale dealers as a result of which, the petitioner was not in a position to effectively make a representation against the order of detention - Unexplained delay in disposing of the representation and non-furnishing of copies of cash memos to the detenue are not just and proper hence the impugned order of detention quashed : 2002 (Supp.) OLR (NOC) 753.
Detention under the above provisions - Sub-Collector and Civil Supplies Officer submitted a joint report to the Dist. Magistrate indicating the irregularities committed by the petitioner in supply of B.P.L.rice in some Panchayats - The Dist. Magistrate was satisfied with the allegations made in the report and passed the order of detention - There was basic material available to the Dist. Magistrate for his subjective satisfaction - Merely because on 17.9.2000 the Dist. Magistrate reported to the State Government about the detention together with the grounds it cannot be held that there was no material before the Dist. Magistrate where the detention order was passed - The petitioner being the Gram Panchayat Secretary enjoys considerable influence in the area, manipulation in entries in the ration cards of the consumers and in view of the past conduct of petitioner the Dist. Magistrate was satisfied that the acts of petitioner are prejudicial to the interest of public in maintenance of supplies of essential commodities - There is no hard and fast rule as to what is the length of time which should be regarded sufficient to snap the nexus between the incident and the order of detention - Details of dates stated and discussed.
Detenu making application before the Advisory Board for allowing his friend to appear and place and make representation - The said "friend" appears to be a legal practitioner - The petition was rightly rejected as the detenu has no right to appear through a legal practitioner before the Advisory Board as has been held by the Supreme Court.
The question whether the representation of the detenu has been dealt with by all reasonable promptness and diligence is to be decided not by application of any rigid or inflexible rule or strict formulae nor by mere arithmetical counting of dates - It has to be decided by careful scrutiny of facts and circumstances peculiar to each case - In the instant case, after perusal of the files produced, the Hon'ble Court held that the representation was duly considered by Central Government with promptitude and diligence - Details discussed : 2001 (II) OLR 267.
When the conduct of the detenu was prejudicial to the maintenance of supplies and services essential to the community in general and contemplated by Sec. 3(2) and not in any particular mode contemplated by Explanation of Sec. 3( 1) of said Act it is not excluded by the Explanation of Sub-section (2) of Sec. 3 of the Act : 1986 Cr.L.J. 2047.
Vital and material documents being available with the State, it was not open to the Food and Supplies Department to pick and choose and in the process not to place the earlier statements before the detaining authority. In the instant case, the earlier statements are not only material but vital. These have been withheld from the detaining authority. The detention order is thus liable to be quashed on this ground alone : 1997 CrLJ 4492 (A.P).
The limitation prescribed in the said provision is invariable and absolute. Once there is any delay, the detenu will be relieved from the pains of detention. In the instant case, the report was not sent to the Central Government within the prescribed time limit of seven days, and was late by one day. It is on account of this one day's delay that the order of detention has been challenged : 1987 CrLJ 266 at pp 267,269 (Ori).
The person or persons to whom the Sagol and Murrum powder as cement was sold have also not been stated. The price at which the Sagol and Murrum powder was being sold by the detenu has also not been stated. In fact not single instance has been cited in which the Sagol and Murrum powder produced by the detenu has been sold. The allegation in the ground of detention regarding sale of Sagol and Murrum powder as cement is too vague and it appears that a generalisation has been made by the detaining authority without any material. In the instant case no particulars whatsoever have been given by the detaining authority and the ground of detention is too vague and therefore the order of detention passed by the detaining authority is vitiated : 1986 CrLJ 151 (M.P).
It was held that the single act attributed to the detenu is not of such a character that merely on the basis of commission of that act, an inference could reasonably be drawn that the detenu is likely to indulge in illegally transporting kerosene in future and that in order to prevent him from doing so he must be detained : 1986 CrLJ 1708 (M.P).
Ground disclosing fraudulent entry of sale of sugar, party based on non-production of Books of accounts by purchaser provides no materials for adverse inference against detenu - One ground vague or based on suspicion fatal to the order : 1985 CrLJ 71 : 1985 (I) OLR (NOC) 30.
Detenu is entitled to be communicated all the grounds of detention to enable him to make effective representation against the order of detention - One of the grounds found to be vague, non-existent and irrelevant - Detention is held to be bad and not to be sustained in law -Writ of habeas corpus was issued quashing the order of detention and directing the release of the petitioner : 1985 CrlJ 741 : 1985 (I) OLR (NOC) 30.
The sample in the instant case has since been chemically examined and there is no manner of doubt that the commodity concerned was kerosene oil. Kerosene oil is a Commodity existence of which can be detected by mere sight and smell, for the chemical examination is not at all necessary. Be that as it may, in the instant case the sample has since been chemically examined and there cannot be any doubt that the inference drawn by the authorities on the basis of physical appearance and smell of the commodity concerned was absolutely justified. So far as the question of informing the petitioner whether there was movement in the market or not is concerned there was no obligation on the respondents to furnish such an information to the petitioner for enabling him to make, the representation. Thus the detention was valid : 1984 (1) Crimes 495 at P 497 (All).
It must however, be kept in mind that the liberty of a citizen, should be placed at a high pedestal and should not be curtailed illegally or arbitrarily by the detaining authority. In the instant case the ground was taken that the officers concerned were busy owing to natural calamities in the State and therefore, there has been some delay in complying with Sec.3(4) of the Act, does not appeal and even if this ground is accepted, it cannot be said that the mandatory provisions has not been infringed. The order of detention must, therefore, be rendered invalid in view of the clear violation of the provision made in Sec.3(4) of the Act : 1984 CrLJ 392 (Orissa).
1. Substituted by Act No. 27 of 1982. Sec.2.
2. Inserted by Act No. 27 of 1982. Sec.2.
A detention order may be executed at any place in India in the manner provided for the execution of warrant of arrest under the Code of Criminal Procedure, 1973 (2 of 1974).
Every person in respect of whom a detention order has been made shall be liable -
(a) to be detained in such place and under such conditions, including conditions as to maintenance, discipline and punishment for breaches of discipline, as the appropriate Government, may, by general or special order specify; and
(b) to be removed from one place of detention to another place of detention, whether within the same State or in another State, by order of the appropriate Government.
Provided that no order shall be made by a State Government under Clause (b) for the removal of person from one State to another State except with the consent of the Government of that other State.
CASE LAW
It has been laid down consistently by the Supreme Court that the mere use of the word "shall" by itself in the Statute does not make the provisions mandatory, but it is the duty of the Courts of justice to try to get at the real intention of the Legislature by carefully attending to the whole scope of the Statute to be construed. In each case, one has to look to the subject-matter, consider the importance of the provisions and the relation of that provision with the general object intended to be secured by the Act and upon the review of the case in that aspect decide whether the enactment is mandatory or only directly : 1998 CrLJ 2741 at p 2746 (AP).
No detention order shall be invalid or inoperative merely by reason -
(a) that the person to be detained there under is outside the limits of the territorial jurisdiction of the Government or officer making the order, or
(b) that the place of detention of such person is outside the said limits.
(1) If 1[the appropriate Government or an officer mentioned in Sub-section (2) of Sec.3, as the case may be] has reason to believe that a person in respect of whom a detention order has been made has absconded or is concealing himself so that the order cannot be executed, that Government 2[or officer] may -
(a) make a report in writing of the fact to a Metropolitan Magistrate or a Judicial Magistrate of the first class having jurisdiction in the place where the said person ordinarily resides; and thereupon the provisions of Secs. 82, 83 84 and 85 of the Code of Criminal Procedure, 1973 (2 of 1974), shall apply in respect of the said person and his property as if the order directing that he be detained where a warrant issued by the Magistrate;
(b) by order notified in the Official Gazette direct the said person to appear before such officer, at such place and within such period as may be specified in the order, and if the said person fails to comply with such direction he shall, unless he proves that it was not possible for him to comply therewith and that he had, within the period specified in the order, informed the officer mentioned in the order of the reason which rendered compliance therewith impossible and of his whereabouts, be punishable with imprisonment for a term which may extend to one year or with fine or with both.
(2) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974); every offence under Clause (b) of Sub-section (1) shall be cognizable.
(1) When a person is detained in pursuance of a detention order the authority making the order shall, as soon as may be, but ordinarily not later that five days and in exceptional circumstances and for reasons to be recorded in writing not later that ten days from the date of detention, communicate to him the grounds on which the order has been made and shall afford him the earliest opportunity of making representation against the order to the appropriate Government.
(2) Nothing in Sub-section (1) shall require the authority to disclose facts which it considers to be against the public interest to disclose.
CASE LAW
The detaining authority has served on the detenu on 9th July, 1983, the copy of the grounds and also 28 sheets containing the translation of the grounds in Telugu. Various statements, a translated copy of the grounds in Telugu has been served containing the statement of various card holders and the allegations made in these grounds are supported by the statements of the card holder, when the detenu has been supplied with all the statements, he cannot complain that the necessary material has not been supplied. Thus all the necessary documents have been supplied and a reasonable opportunity has been afforded to the detenu : 1984 CrLJ 156 at pp. 159,160 (A.P).
(1) The Central Government and each State Government shall, whenever necessary, constitute one or more Advisory Boards for the purposes of this Act.
1[(2) Every such Board shall consist of three persons who are, or have been or are qualified to be appointed as, Judges of High Court, and such persons shall be appointed by the appropriate Government.
(3) The appropriate Government shall appoint one of the members of the Advisory Board who is or has been a Judge of a High Court to be its Chairman, and in the case of a Union territory, the appointment to the Advisory Board of any person who is a Judge of the High Court of a State shall be with the previous approval of the State Government concerned.]
1. Substituted by Act 19 of 1981 published in the Gazette of India Extraordinary, Pt. II. Sec 1. dated 2.9.1981.
Save as otherwise expressly provided in this Act, in every case where a detention order has been made under this Act, the appropriate Government shall, within three weeks from the date of detention of a person under the order place before the Advisory Board constituted by it under Sec. 9, the grounds on which the order has been made and the representation, if any made by the person affected by the order, and in case where the order has been made by an officer referred to in Sub-section (2) of Sec.3, also the report by such officer under Sub-section (3) of that Section.
(1) The Advisory Board shall, after considering the materials placed before it and, after calling for such further information as it may deem necessary from the appropriate Government or from any person called for the purpose through the appropriate Government or from the person concerned, and if, in any particular case, it considers it essential so to do or if the person concerned desires to be heard, after hearing him in person, submit its report to the appropriate Government within seven weeks from the date of detention of the person concerned.
(2) The report of the Advisory Board shall specify in a separate part thereof the opinion of the Advisory Board as to whether or not there is sufficient cause for the detention of the person concerned.
(3) When there is a difference of opinion among the members forming the Advisory Board the opinion of the majority of such members shall be deemed to be the opinion of the Board.
(4) Nothing in this section shall entitle any person against whom a detention order has been made to appear by any legal practitioner in any matter connected with the reference to the Advisory Board and the proceedings of the Advisory Board and its report, excepting that part of the report in which the opinion of the Advisory Board is specified, shall be confidential.
CASE LAW
Natural Justice - Reasonable opportunity to represent his case - Facts of the case material to determine whether effective prejudice caused and there cannot be any straight jacket formula - On facts of the case no prejudice specially when detenu made no representation though almost a month was available and made a grievance of denial of time when notice of appearance before the Advisory Board was issued with opportunity of personal hearing giving time of two days : 1985 (I) OLR (NOC) 30 : 1985 CrLJ 741.
(1) In any case where the Advisory Board has reported that there is in its opinion sufficient cause for the detention of a person, the appropriate Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit.
(2) In any case where the Advisory Board has reported that there is in its opinion no sufficient cause for the detention of the person concerned, the appropriate Government shall revoke the detention order and cause the person to be released forthwith.
CASE LAW
Detention order - There is no necessity to give the reasons for confirming the detention by the State Government acting on the report of the Advisory Board : 2007 (Supp.-I) OLR 555.
The maximum period for which any person may be detained in pursuance of any detention order which has been confirmed under Sec.12 shall be six months from the date of detention :
Provided that nothing contained in this Section shall affect the power of the appropriate Government to revoke or modify the detention order at any earlier time.
(1) Without prejudice to the provisions of Sec.21 of the General Clauses Act, 1897 (10 of 1897), a detention order may, at any time, be revoked or modified,
(a) notwithstanding that the order has been made by an officer of the State Government, by that State Government or by the Central Government;
(b) notwithstanding that the order has been made by an officer of a Central Government or by the State Government, by the Central Government.
(2) The revocation or expiry of a detention order shall not bar the making of fresh detention order under Section 3 against the same person in any case where fresh facts have arisen after the date or revocation or expiry on which the Central Government or a State Government or an officer, as the case may be, is satisfied that such an order should be made.
(1) The appropriate Government may, at any time, direct that any person detained in pursuance of a detention order may be released for any specified period either without conditions or upon such conditions specified in the direction as that person accepts, and may, at any time, cancel his release.
(2) In directing the release of any person under Sub-section (1) the appropriate Government may require him to enter into a bond with or without sureties for the due observance of the conditions specified in the direction.
(3) Any person released under Sub-section (1) shall surrender himself at the time and place, and to the authority, specified in the order directing his release or cancelling his release as the case may be.
(4) If any person fails without sufficient cause to surrender himself in the manner specified in Sub-section (3), he shall be punishable with imprisonment for a term which may extend to two years, or with fine, or with both.
(5) If any person released under Sub-section (1) fails to fulfil any of the conditions imposed upon him under the said sub-section or in the bond entered into by him, the bond shall be declared to be forfeited and any person bound thereby shall be liable to pay the penalty thereof.
No suit or other legal proceeding shall lie against the Central Government or a State Government and no suit, prosecution or other legal proceeding shall lie against any person for anything in good faith done or intended to be done in pursuance of this Act.
(1) The Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Ordinance, 1979 (10 of 1979), is hereby repealed.
(2) Notwithstanding such repeal, anything done or any action taken under the Ordinance so repealed shall be deemed to have been done or taken under this corresponding provisions of this Act.