judgement:
ition No. 8193 of 1981.
(Under article 32 of the Constitution of India.) R. K. Garg and C.S. Vaidyanathan for the Petitioner.
Miss A. Subhashini for Respondent No. 1.
N. C. Talukdar, K.S. Gurumoorly and R. N. Poddar for Respondents Nos. 2 to 4.
P. N. Lekhi and K. C. Dua for the Applicants.
P. K. Bahardwaj in person for Times of India.
B. M. Srivastava for U.N.I. V. section Karnic for P.T.I. The order of the Court was delivered by CHANDRACHUD, C.J. This is a petition under article 32 of the Constitution by the Chief Reporter of the Hindustan Times, Smt.
Prabha Dutt, asking for a writ of mandamus or any other appropriate writ or direction directing the respondents, particularly the Delhi Administration and the Superintendent of Jail, Tihar, to allow her to interview two convicts Billa and Ranga who are under a sentence of death.
We may mention that the aforesaid two prisoners have been sentenced to death for an offence under section 302 Indian Penal Code and the petitions filed by them to the President of India for commutation of the sentence are reported to have been rejected by the President recently.
Before considering the merits of the application, we would like to observe that the constitutional right to freedom of speech and expression conferred by article 19(1)(a) of the Constitution, which includes the freedom of the Press, is not an absolute right, nor indeed does it confer any right on the Press, to have an unrestricted access to means of information.
The Press is entitled to exercise its freedom of speech and expression by publishing a matter which does not invade the rights of other citizens and which does not violate the sovereignty and integrity of India, the security of the State, public order, decency and morality.
But in the instant case, the right claimed by the petitioner is not the right to express any particular view or opinion but the right to means of information through the medium of an interview of the two prisoners who are sentenced to death.
No such right can be claimed by the Press unless in the first instance, the person sought to be interviewed is 1186 willing to be interviewed.
The existence of a free Press does not imply or spell out any legal obligation on the citizens to supply information to the Press, such for example, as there is under section 161(2) of the Criminal Procedure Code.
No data has been made available to us on the basis of which it would be possible for us to say that the two prisoners are ready and willing to be interviewed.
We have, however, no data either that they are not willing to be interviewed and, indeed, if it were to appear that the prisoners themselves do not desire to be interviewed, it would have been impossible for us to pass an order directing that the petitioner should be allowed to interview them.
While we are on this aspect of the matter, we cannot overlook that the petitioner has been asking for permission to interview the prisoners right since the President of India rejected the petitions filed by the prisoners for commutation of their sentence to imprisonment for life.
We are proceeding on the basis that the prisoners are willing to be interviewed.
Rule 549(4) of the Manual for the Superintendence and Management of Jails, which is applicable to Delhi, provides that every prisoner under a sentence of death shall be allowed such interviews and other communications with his relatives, friends and legal advisers as the Superintendent thinks reasonable.
Journalists or newspapermen are not expressly referred to in clause (4) but that does not mean that they can always and without good reasons be denied the opportunity to interview a condemned prisoner.
If in any given case, there are weighty reasons for doing so, which we expect will always be recorded in writing, the interview may appropriately be refused.
But no such consideration has been pressed upon us and therefore we do not see any reason why newspapermen who can broadly, and we suppose without great fear of contradiction, be termed as friends of the society be denied the right of an interview under clause (4) of rule 549.
Rule 559A also provides that all reasonable indulgence should be allowed to a condemned prisoner in the matter of interviews with relatives, friends, legal advisers and approved religious ministers.
Surprisingly, but we do not propose to dwell on that issue, this rule provides that no newspapers should be allowed.
But it does not provide that no newspapermen will be allowed.
Mr. Talukdar who appears on behalf of the Delhi Administration contends that if we are disposed to allow the petitioner to interview the prisoners, the interviews can be permitted only subject to the rules and regulations contained in the Jail Manual.
There 1187 can be no doubt about this position because, for example, rule 552A provides for a search of the person who wants to interview a prisoner.
If it is thought necessary that such a search should be taken, a person who desires to interview a prisoner may have to subject himself or herself to the search in accordance with the rules and regulations governing the interviews.
There is a provision in the rules that if a person who desires to interview a prisoner is a female, she can be searched only by a matron or a female warden.
Taking an overall view of the matter, we do not see any reason why the petitioner should not be allowed to interview the two convicts Billa and Ranga.
During the course of the hearing of this petition, representatives of the Times of India, India Today, PTI and UNI also presented their applications asking for a similar permission.
What we have said must hold good in their cases also and they, in our opinion, should be given the same facility of interviewing the prisoners as we are disposed to give to the petitioner in the main writ petition.
We therefore direct that the Superintendent of the Tihar Jail shall allow the aforesaid persons, namely the representatives of the Hindustan Times, the Times of India, India Today, the Press Trust of India and the United News of India to interview the aforesaid two prisoners, namely, Billa and Ranga, today.
The interviews may be allowed at 4 O 'Clock in the evening.
The representatives agree before us that all of them will interview the prisoners jointly and for not more than one hour on the whole.
There will be no order as to costs.
Mr. Lekhi who appears on behalf of the magazine India Today as also Mr. Jain who appears on behalf of the Hindustan Times has requested us to direct the Superintendent of Jail to allow the aforesaid representatives to be present at the time of the execution of the death sentence.
That is not a matter for us to decide.
If such an application is made to the Superintendent of Jail, he will be free to consider the same on merits and in accordance with the jail regulations.

summary:
The constitutional right to freedom of speech and expression conferred by article 19(1)(a) of the Constitution, which includes the freedom of Press, is not an absolute right; nor indeed does it confer any right on the Press to have an unrestricted access to means of information.
The Press is entitled to exercise its freedom of speech and expression by publishing a matter which does not invade the rights of other citizens and which does not violate the sovereignty and integrity of India the security of the State, public order, decency and morality.
[1185 FG] The right claimed by the petitioner in the present case, a newspaper reporter, to interview two convicts under sentence of death is not a right to express any particular view, or opinion but the right to means of information through the medium of an interview with them.
No such right can be claimed by the Press unless the person sought to be interviewed is willing to be interviewed.
[1185 H] The existence of a free Press does not imply or spell out any legal obligation on the citizens to supply information to the Press, such as there is under section 161(2) of the Criminal Procedure Code.
[1186 A] Rule 549(4) of the Jail Manual provides that a prisoner under a sentence of death shall be allowed interviews and other communications with relatives, friends and legal advisers, journalists and newspapermen, though not expressly referred to in this rule cannot be denied the opportunity of interview without good reasons.
There is no reason why newspapermen who could be termed as friends of the society be denied the right of interview under rule 549(4).
[1186 D F] There can be no doubt that a person, who desires to interview a prisoner may have to subject himself or herself to the search in accordance with the rules and regulations governing the interviews.
[1187 A B] Whether representatives of the Press should be allowed to be present at the time of the execution of the death sentence is a matter for the Superintendent to consider on merits and in accordance with the jail regulations.
It is not a matter for the Court to decide.
[1187 G] 1185


judgement:
DICTION: Writ Petitions Nos.
7477 79 of 1981 33 (Under article 32 of the Constitution of India) AND SPECIAL LEAVE PETITION (CIVIL) NOS.
9116 & 8735 of 1981 From the judgment and order dated the 15th October, 1981 and 22nd September, 1981 of the Punjab and Haryana High Court in Civil Writ Petitions Nos.
4734/81 & 4370/81 respectively.
B. Datta for the Petitioners in Writ Petitions.
Ravindra Bana for the Petitioners in both SLPs.
O. P. Sharma and M. section Dhillon for the Respondents.
The Judgment of the Court was delivered by SEN, J.
These petitions under article 32 of the Constitution and the connected special leave petitions mainly challenge the constitutional validity of the second proviso to sub cl.(1) of cl 11 of the Punjab Foodgrains Dealers Licensing and Price Control Order, 1978 (for short 'the Order '), as inserted by the Punjab Foodgrains Dealers Licensing and Price Control (First Amendment) Order, 1980, with effect from March 27, 1980, as violative of articles 14 and 19 (1) (g) of the Constitution, as also the legality and propriety of the action of the licensing authorities in suspending the licences held by the petitioners.
It appears that the licences held by the petitioners who are foodgrains dealers in the State of Punjab, have been suspended by orders passed by the District Food and Supplies Controllers, Faridkot and Bhatinda, for a period not exceeding ninety days under the second proviso to sub cl.
(1) of cl. 11 of the Order.
The orders of suspension of licence in each of these cases rest on the allegation that the licensee has committed a breach of conditions Nos. 4, 8 and 10 of the licence.
The petitioners have all been served with notices under the first proviso to sub cl.
(1) of cl. 11 of the Order to show cause why their licences should not be cancelled.
Some of the petitioners accept that in the recent past their licences were suspended under the second proviso to sub cl.
(1) of cl. 11 of the Order for alleged breach of the licence conditions 34 for having sold large quantities of wheat to dealers outside the State without disclosing the names of the purchasers in their stock registers.
It, therefore, appears that the present suspension is for a repeated breach.
These petitioners have filed the petitions under article 32 of the Constitution for protection of their fundamental rights to carry on trade or business as foodgrains dealers within the meaning of article 19 (1) (g) read with article 301 thereof.
The other petitioners allege that because they approached the High Court by way of petitions under article 226 of the Constitution, complaining against restrictions placed on movement of wheat by rail, their licences have been suspended under the second proviso to sub cl.
(1) of cl.11 of the order as a punitive measure.
Incidentally, these petitioners had first moved the High Court under article 226 of the Constitution, but the High Court dismissed their writ petitions summarily.
The connected special leave petitions are directed against the order of the High Court.
The State of Punjab in the counter affidavits filed by the Deputy Secretary to the Government of Punjab, Food and Supplies Department, Chandigarh, and the District Food and Supplies Controller, Faridkot, controvert the allegations of the petitioners.
It is stated that the petitioners have been served with show cause notices under the first proviso to sub cl.(1) of cl. 11 of the Order for cancellation of their licences, for breach of the licence conditions.
Learned counsel for the petitioners seek to assail the constitutional validity of the second proviso to sub cl.
(1) of cl.11 of the Order on two grounds.
First of these is that the second proviso to sub cl.
(1) of cl. 11 of the Order, inserted by the Punjab Foodgrains Dealers Licensing and Price Control (First Amendment) Order, 1980, confers upon the licensing authority unguided, uncontrolled and arbitrary power to suspend a licence and it, therefore, infringes the fundamental right to carry on trade or business guaranteed under article 19 (1) (g) of the Constitution.
It is also urged that the conferral of such unguided, uncanalised and arbitrary power on the licensing authority, without any guidelines whatsoever, makes the impugned proviso unconstitutional as offending article 14 of the Constitution.
The second contention is that the suspension of the foodgrains dealers ' licences held by the petitioners was mala fide and motivated, as in reality it was not on account of any breach of the licence conditions on their part, but on extraneous considera 35 tions.
It is said that the real purpose was to prevent them from exporting wheat from the State of Punjab to various other States in the course of inter State trade and commerce within the meaning of article 301 of the Constitution.
We are unable to accept any of these contentions.
To make the point intelligible, it is necessary to deal with the scheme of the Order.
3 of the Order provides that no person shall carry on business as a dealer except under and in accordance with the terms and conditions of a licence granted by the licensing authority.
Cl. 7 (3) thereof provides that where an application for grant of a licence is not refused, the licensing authority shall grant a licence in Form B subject to the conditions specified therein.
Condition No. 4 of the licence enjoins that the licensee shall submit to the licensing authority concerned fortnightly returns in Form C of the stock receipts and deliveries.
Condition No. 8 of the licence lays down that the licensee shall exhibit the price list of foodgrains held by him for sale and it shall indicate separately the prices of different varieties of foodgrains.
Condition No. 10 thereof interdicts that the licensee shall give all facilities at all reasonable times to the licensing authority or any officer authorised by it or the State Government, for the inspection of his stocks and accounts at any shop, godown or other place used by him for the storage, sale or purchase of foodgrains etc.
11 of the Order provides for cancellation or suspension of a licence.
The power of cancellation or suspension of a licence which was subject to the giving of a reasonable opportunity to the lincensee of stating his case was not adequate and sufficient to effectively check and control flagrant breaches of the provisions of the order, during the pendency of the proceedings for cancellation of a licence.
The State Government, therefore, inserted the second proviso to sub cl.
(1) of cl. 11 of the Order.
11 of the Order, as amended, in so far as material, reads: "Cancellation or suspension of licence: (1) If a licensee or his agent or any person acting on his behalf contravenes any of the terms and conditions of his licence or any provision of this Order then, without prejudice to any action that may be taken against him, the licensing authority may by an order in writing, cancel or suspend licence in so far as it relates to the foodgrains in respect of which contravention has been made.
36 Provided that no order shall be made under this clause unless the licensee has been given a reasonable opportunity of stating his case; Provided further that the licensing authority may suspend a licence without giving a reasonable opportunity to the licensee of stating his case for a period not exceeding ninety days during the pendency or in contemplation of the proceedings for cancellation of his licence.
" It is plain upon the terms of sub cl.
(1) of cl. 11 of the order that it deals with the substantive punishment of cancellation or suspension of a licence.
The power of cancellation or suspension of a licence of a foodgrains dealer under sub cl.
(1) of cl. 11 of the Order is, however, subject to the limitation contained in the first proviso.
The power of cancellation or suspension of a licence is, therefore, not exercisable by the licensing authority until it affords a reasonable opportunity to the licensee of stating his case.
This necessarily entails the holding of an inquiry into the question of the alleged breach.
The making of an inquiry into the breach of licence conditions by a foodgrains dealer is a time consuming process which may many a time verily frustrate the purpose and object of the Order.
The State Government was evidently of the opinion in the light of the experience gained in the recent past, that for effective control and regulation of the trade in foodgrains, it was necessary and expedient that the licensing authority should be clothed with powers to suspend a licence on the spot when it detects contravention of any of the terms and conditions of the licence or any of the provisions of the Order.
Otherwise, a foodgrains dealer after committing flagrant breaches of the terms and conditions of his licence and the provisions of the Order, may, with impunity, carry on his trading activities without any check or control.
The power of suspension conferred by the second proviso to sub cl.
(1) of cl. 11 of the Order is by way of an interim measure, pending the holding of an inquiry as to whether there is any breach which must result in cancellation of the licence.
It is true that the suspension of licence is a drastic measure, if taken without affording to the dealer a reasonable opportunity of stating his case, but it is 37 a measure of social control in the interests of the community.
The power of suspension is a necessary concomitant of the power to grant a privilege or a licence.
By reason of cl. 3 of the Order, no dealer can engage in the business of purchase and sale of foodgrains except under and in accordance with the terms and conditions of a licence issued by the licensing authority in that behalf.
The dealers are free to carry on their trade or business in foodgrains, subject to their complying with the terms and conditions of their licence and the provisions of the Order.
But, if they commit a breach, they must face the consequence that their licence may be cancelled or suspended under sub cl.
(1) of cl. 11 of the Order.
They must face the further consequence of suspension of their licence during the pendency or in contemplation of the proceedings for cancellation of the licence, if the breach is of such a nature that it must result in the cancellation of a licence.
As already stated, the power of suspension is a necessary adjunct of the power to grant a licence.
In view of the acute shortage of foodstuffs in the country, the Government is bound to take all effective steps to implement the provisions of the Act and the various orders issued under section 3 thereof, from time to time.
The conferral of the power of suspension of the licence of a foodgrains dealer under the second proviso to sub cl.
(1) of cl. 11 of the Order during the pendency or in contemplation of the proceedings for cancellation of his licence, is an important step taken by the Government to subserve the object of the legislation and is in public interest.
It cannot be said that the second proviso to sub cl.
(1) of cl. 11 of the Order does not satisfy the test of reasonableness.
It seeks to strike a proper balance between the freedom of trade or business guaranteed under article 19 (1) (g) and the social control permitted by cl.
(6) of article 19 of the Constitution.
It is, therefore, difficult to hold that the second proviso to sub cl.
(1) of cl. 11 of the Order is of an excessive nature beyond what is required in the interests of the general public.
There is no warrant for the submission that the second proviso to sub cl.
(1) of cl. 11 of the Order confers upon the licensing authority unguided, uncontrolled and uncanalised power to suspend a licence and is, therefore, void by reason of article 14 of the Constitution.
It is urged that the impugned orders of suspension in these cases are for a period of 89 days, and the licensing authority would, as in the past, pass fresh orders of suspension ad infinitum 38 completely paralysing the business of the petitioners.
There is no substance in the contention that repeated orders of suspension of a licence can be passed under the second proviso in respect of the same breach.
The second proviso expressly states that the licensing authority may suspend a licence for a period not exceeding ninety days.
It, therefore, fixes the period of suspension.
From its very terms, it is obvious that there cannot be repeated orders of suspension of a licence under the second provision in respect of the same breach.
Normally, the order of suspension under the second proviso to sub cl.
(1) of cl. 11 of the Order after the expiry of the period of 90 days, would automatically lapse.
However, if the licensee commits another breach, after the expiry of the period of suspension, there is nothing to prevent the licensing authority to suspend his licence afresh.
On a fair reading of the second proviso to sub cl.
(1) of cl. 11 of the Order, it cannot be said that it commits to the unrestrained will of the District Food and Supplies Controller, who is the licensing authority, the power of suspension of a licence.
It does not confer arbitrary and uncontrolled power because the suspension can only be for specified reasons and the second proviso lays down the circumstance or grounds on which the power may be exercised.
Such guidelines are expressly and specifically stated.
In the first place, the power of suspension is not exercisable unless there is a breach and the breach is of such a nature that it must entail cancellation of the licence.
The substantive provision contained in sub cl.
(1) of cl. 11 of the Order provides for the power of cancellation or suspension, if any dealer commits any contravention of the 'terms and conditions of his licence or any provision of this order '.
The first proviso is in the nature of a limitation on the power contained in sub cl.
(1), and there can be no cancellation or suspension of a licence unless the licensee is afforded a reasonable opportunity of stating his case.
The proper function of the second proviso is to carve out an exception to the first proviso.
It dispenses with the requirement of affording a reasonable opportunity to the licensee in case of suspension of his licence during the pendency or in contemplation of the proceedings for cancellation.
It must, however, be read along with the main enacting provision in sub cl.
(1), and, if so construed, the power of suspension during the pendency of an inquiry cannot be exercised unless there is contravention of any of the terms and conditions of the licence or any of the 39 provisions of the Order.
Secondly, it provides for a reasonable safeguard, in that it limits the period of suspension.
The period of suspension would necessarily depend upon the nature of the breach, and in no case, can it exceed ninety days.
During this period, the licensing authority is expected to complete the inquiry and take a decision as to the cancellation or otherwise of the licence.
Thirdly, as a check upon possible injustice that might result from an improper exercise of the power of suspension of a licence by the licensing authority under the second proviso, there is an additional safeguard to a dealer by way of an appeal to the Director, Food and Supplies, under cl. 13 of the Order.
This Court has repeatedly laid down that where the discretion to apply the provisions of a particular statute is left with the Government or one of the highest officers, it will be presumed that the discretion vested in such highest authority will not be abused.
It would, therefore, appear that the second proviso to sub cl.
(1) of cl. 11 of the Order furnishes sufficient guidelines for the exercise of the power of suspension of a licence during the pendency of or in contemplation of the proceedings for cancellation thereof, and it does not suffer from the vice of arbitrariness and is, therefore, not violative of article 14 of the Constitution.
On the contrary, as already indicated, it affords reasonable safeguards.
There still remains the question whether the impugned orders of suspension are mala fide or motivated.
We are unable to hold from the material on record that the licensing authorities acted with improper motives or were actuated with bias in directing the suspension of the licences held by the petitioners.
All that is averred in para 9 is: "(Under oral instructions of the Punjab Government from the Civil Supplies and Food Department to all the Licensing Authorities, including the Food Department and Supplies Controllers, instructions were issued that if any one dealer is found exporting wheat to another State, there being no direct or indirect ban on such movement, he should be punished at the spot by way of suspension of licences so that the dealer may not export wheat to any other State for which there are no restrictions imposed by 40 any law or notified order or even the terms and conditions of the licence." The petitioners then go on to say in para 12: "Under oral instructions from the Secretary, Food and Supplies Department, the Director Food and Civil Supplies, and up to the District Food and supplies Controller, the Punjab Government has imposed restriction on inter State movement of foodgrains.
There are already restrictions on stock holding and dealer to dealer sale.
The petitioners have never violated any conditions of the licence except that they have been, in exercise of their fundamental rights, exporting foodgrains to various destination outside the State of Punjab. " In the case of M/s Sukhwinder Pal Bipan Kumar in support of the petition, there is an affidavit of one Raj Kumar, claiming to be a partner, who asserts that the allegations in paras 9 and 12 are 'correct to the best of my knowledge '.
To say the least, this is no affidavit at all.
Under order XIX, Rule 3, of the Code of Civil Procedure, 1908, it was incumbent upon the deponent to disclose the nature and source of his knowledge with sufficient particularity.
The allegations in the petition are, therefore, not supported by an affidavit as required by law.
That being so, the State Government was fully justified in answer, 'Denied.
There is no restriction on the movement of wheat '.
The Deputy Secretary in his counter affidavit has further denied that the impugned orders of suspension were passed on the direction of the State Government.
In our view, the allegations in the writ petitions are not sufficient to constitute an averment of mala fides so as to vitiate the impugned orders of suspension.
The Court would be justified in refusing to carry out investigation into allegations of mala fides, if necessary particulars of the charge making out a prima facie case are not given in the petition.
The burden of establishing mala fides lies very heavily on the person who alleges it.
The petitioners who seek to invalidate the impugned orders of suspension must establish the charge of bad faith or bias or misuse by the Government of its powers.
The impugned orders of suspension ex facie show breaches of conditions Nos. 4, 8 and 10 of the licence by the petitioners.
The question whether or not, they committed the breaches is a matter for 41 inquiry by the licensing authorities under sub cl.
(1) of cl. 11 of the Order.
In the result, the petitions must fail and are dismissed with costs.
P.B.R. Petitions dismissed.

dataset_name: IN-Abs

summary:
Clause 11 of the Punjab Foodgrains Dealers Licensing Price Control Order 1978 (as amended in 1980) empowers the licensing authority to cancel or suspend a licence if the licensee contravenes any of the terms and conditions of his licence or any provision of the order.
The first proviso to this clause enjoins on the authority to give to the licensee a reasonable opportunity of stating his case before cancelling or suspending his licence.
The second proviso provides that "the licensing authority may suspend a licence without giving a reasonable opportunity to the licensee of stating his case for a period not exceeding 90 days during the pendency or in contemplation of the proceedings for cancellation of his licence.
" The petitioners, whose licences had been suspended under clause 11, contended that the second proviso to clause 11(1) of the Order conferred on the licensing authority unguided, uncontrolled and arbitrary power to suspend a licence which infringed their fundamental right under Article 19(1)(g) of the Constitution and that conferral of such unguided power offended Article 14 of the Constitution and (2) that the suspension of the licence was mala fide and motivated because it was passed on extraneous considerations namely, to prevent them from exporting wheat from the State to other parts of the country in the course of inter state trade and commerce.
Dismissing the petitions, ^ HELD: The power conferred on the licensing authority under the second proviso to clause 11(1) of the Order is not of an excessive nature and beyond what is required in the interest of general public.
The power of suspension conferred by the second proviso to clause 11 is by way of an interim measure, pending an enquiry as to whether there was any breach which must result in cancellation of the licence.
The power of suspension is a necessary concomitant of the power to grant a privilege or a licence.
32 So long as the dealers complied with the conditions of licence and the provisions of the Order they are free to carry on their trade or business in foodgrains.
If they commit a breach they must face the consequences that their licence may be cancelled or suspended and also face further consequence of suspension of their licence during the pendency or in contemplation of the proceedings for such cancellation if the breach is of such a nature that it must result in the cancellation of a licence.
The power of suspension conferred under the second proviso is an important step taken by the Government to subserve the object of the legislation and in is public interest.
Nor could it to be said that it does not satisfy the test of reasonableness.
[37 A G] Nor again could it be said that there is warrant for the submission that the second proviso confers upon the licensing authority unguided, uncontrolled and uncanalised power to suspend a licence.
It does not suffer from the vice of arbitrariness and is, therefore, not violative of Article 14 of the Constitution.
[37 G] It cannot be said that licensing authority has an unrestrained power of suspension of licence because the suspension can only be for specified reasons which are spelt out in the second proviso.
The power of suspension is not exercisable unless there is a breach and the breach is of such a nature that it must entail cancellation of the licence.
The first proviso is in the nature of limitation on the power contained in clause 11(1) and the second proviso carves out an exception to the first proviso by dispensing with the requirement of affording a reasonable opportunity to the licensee in case of suspension of his licence during the pendency or in contemplation of the proceedings for cancellation.
The power of suspension during the pendency of an enquiry cannot be exercised unless there is contravention of any of the terms and conditions of the licence or any of the provisions of the Order.
Secondly, it provides for a reasonable safeguard in that it limits the period of suspension which would necessarily depend upon the nature of the breach which in no case can exceed 90 days.
Thirdly, as a check on improper exercise of power of suspension by the licensing authority an additional safeguard is provided by way of appeal to the Director of Food Supplies.
[38 E H] On the material on record there is nothing to show that the licensing authority acted with improper motives or was actuated with bias in directing the suspension of the licence held by the petitioners.
The affidavit filed by a partner of one of the petitioners does not fulfil the requirements of Order XIX rule 3 of the Code of Civil Procedure under which it is incumbent upon the deponent to disclose the nature and source of his knowledge with sufficient particularity.
The allegations in the writ petition are not sufficient to constitute an averment of mala fide so as to vitiate the orders of suspension.
The burden of establishing mala fides lies very heavily on the person who alleges it.
[39 E F]


judgement:
172 of 1956.
Under Article 32 of the Constitution for a writ in the nature of Habeas Corpus.
section N.
Andely, amicus curiae, for the petitioner.
Porus A. Mehta, T. M. Sen and R. H. Dhebar, for the respondent.
November 1.
The Judgment of the Court was delivered by JAGANNADHADAS J.
This is an application under article 32 of the Constitution for the issue of a writ in the nature of habeas corpus against the State of, Jammu and Kashmir by the petitioner who was under detention by virtue of an order dated the 5th September, 1956, issued by the Government of the State of Jammu and Kashmir under sub section (2) of sec tion 3 taken with sub section (1) of section 12 of Jammu and Kashmir Preventive Detention Act, 2011 (hereinafter referred to as the Act).
The petitioner was first placed under detention by virtue of an order passed by the District Magistrate, Jammu, under subsection (2) of section 3 of the Act on the 1st May, 1956, and that order was confirmed and continued on the 5th September, 1956, under sub section (1) of section 12 of the Act by the Government after taking the opinion of the Advisory Board.
The two orders of detention, one of the District Magistrate dated the 1st May, 1956, and the other of the Government dated the 5th September, 1956, recited that the petitioner is directed to be detained because it was, necessary to make such an order "with a view to preventing him 950 from acting in a manner prejudicial to the maintenance of supplies and services essential to the community".
The grounds of detention as communicated to the petitioner on the 31st May, 1956, by the District Magistrate, Jammu, are as follows: "1.
That you carried on smuggling of essential goods to Pakistan through the Ferozpur and Amritsar border, but since the tightening of said borders you have recently shifted your smuggling activities to Ranbirsinghpura Pakistan borders in the State of Jammu and Kashmir and are carrying on illicit smuggling of essential goods such as cloth, zari and mercury to Pakistan through this border (thus affecting the economic condition of the public in Kashmir State adversely).
That for the said purpose of smuggling of goods to Pakistan you went to village Darsoopura on 7th April, 1956, and contacted Ghulam Ahmed son of Suraj bin resident of Darsoopura Tehsil Ranbirsinghpura and one Ram Lal son of Frangi resident of Miran Sahib Tehsil Ranbirsinghpura and others who I similarly are addicted to carrying on such a smuggling business and with their aid made arrangements for export of Shaffon cloth worth Rs. 2,500 to Pakistan through Ranbirsinghpura Pakistan border.
That on 11 4 1956, you booked 3 bales of silk cloth through Messrs Jaigopal Rajkumar Shegal of Amritsar to Jammu Tawi and got these bales on address of yourself, and on the same day you got one package of Tila booked through section Kanti Lal Zarianwalla of Amritsar and got this package also addressed "To self" for Jammu Tawi.
That after booking these packages as aforesaid you came over to Jammu and waited for their arrival and contacted Ghulam Ahmed and Ram Lal the above mentioned persons.
That on the 15th April, 1956, you tried to get the transport receipt from the Punjab National.
Bank but did not succeed in doing so as it was a public holiday.
Meanwhile your activities leaked out and the goods 951 were seized by the Central Customs and Excise Department of India.
2.There are other facts also but those cannot be given as I consider their disclosure would be against the public interest.
That by resorting to the above activities you have been and are acting in a manner prejudicial to the maintenance of the supplies and services essential to the community".
It will be seen from the above grounds that the reason for the detention is the alleged "illicit smuggling of essential goods such as cloth, zari and mercury to Pakistan through the border, thereby affecting the economic condition of the public, in Kashmir State adversely".
From the particulars set out in paragraph 2 of the grounds, it appears that the cloth referred to in paragraph I is Shaffon cloth.
The High Court of Jammu and Kashmir, to whom a similar application was filed by this petitioner along with a number of others similarly detained for illicit smuggling of goods, has in its judgment dated the 21st June, 1956" held that Shaffon cloth is not within the category of an essential commodity as defined in the Essential Supplies (Temporary Powers) Ordinance of Jammu and Kashmir.
There is no indication in the High Court judgment whether zari is or is not an essential commodity in the same sense.
But in answer to a query from this Court, Shri Porus Mehta who appeared before us on behalf of the State of Jammu and Kashmir has stated, on instructions, that zari which is obviously a luxury article is not one of the commodities declared essential under the above Ordinance.
The High Court, when it dealt with the batch of applications, of which the application of the petitioner before us was one, set aside the detention of number of others on the ground that the smuggling attributed to the individuals concerned in those cases was not of essential goods.
So far as this petitioner is concerned the High Court held as follows: "The case of Dwarika Das Bhatia stands on s 952 different footing altogether.
The allegation against him is that he smuggled into Pakistan some goods such as cloth and zari along with a certain quantity of mercury.
Mercury is a non ferrous metal and according to the definition of an essential commodity given in the Essential Supplies (Temporary Powers) Ordinance, mercury is an essential commodity.
This being so, Dwarika Das Bhatia 's detention cannot be challenged".
The point raised before us is that since the detention is based on the assumption that Shaffon cloth and zari as well as mercury are all essential goods and since two out of the three categories of the goods with reference to the smuggling of which the detention has been directed, are found not to be essential goods, the entire order is illegal, although one of the items, viz., mercury is an essential commodity.
In support of this contention, the cases of this Court in Dr. Ram Krishan Bhardwaj vs The,, State of Delhi(1), and Shibban Lal Saksena vs The State of U. P. (2) are relied upon.
Learned counsel for the State of Jammu and Kashmir contends that the principle of these decisions has no application to the present case, and attempts to distinguish the same.
In order to understand the principle underlying these two cases, it is necessary to examine them in some detail.
In Dr. Ram Krishan Bhardwaj 's case (supra) the two points that were raised were (1) whether an order of detention is invalid if the grounds supplied in support thereof are vague, and (2) whether the vagueness of one or some of the various grounds vitiates the entire order.
The argument advanced in that case was based on the view adopted by this Court in the decision in Atma Ram Sridhar Vaidya 's case(3), viz., that the obligation cast on the detaining authority to supply grounds is for the purpose of enabling a detenue to make a fair representation to the authority concerned and to the Advisory Board, against the order of detention.
The argument was that in a (1) ; (2) ; (3)[1951] S C.R. 167.
953 case where one or more of the grounds are vague, the petitioner is handicapped in making an adequate representation as regards that ground and his representation even if effective in respect of the other grounds, may fail to carry conviction as regards the ground which is vague and that this might result in the detention being confirmed.
The Court stated that that argument was not without force and held as follows: "The question however is not whether the petitioner will in fact be prejudicially affected in the matter of securing his release by his representation, but whether his constitutional safeguard has been infringed.
Preventive detention is a serious invasion of personal liberty and such meager safeguards as the Constitution has provided against the improper exercise of the power must be jealously watched and enforced by the Court. .
We are Of opinion that this constitutional requirement must be satisfied with respect to each of the grounds communicated to the person detained, subject of course to a claim of the privilege under clause (6) of article 22.
That not having been done in regard to the ground mentioned. . the petitioner 's detention cannot be held to be in accordance with the procedure established by law within the meaning of article 21".
Shibban Lal Saksena vs The State of U. P. (supra) is a case where the question arose in a different form.
The grounds of detention communicated to the detenue were of two fold character, i.e., fell under two different categories, viz., (1) prejudicial to maintenance of supplies essential to community, and (2) injurious to maintenance of public order.
When the matter was referred to the Advisory Board, it held that the first of the above grounds was not made out as a fact but upheld the order on the second ground.
The question before the court was whether this confirmation of the original order of detention, when one of the two grounds was found to be non existent by the Advisory Board, could be maintained.
Their Lordships dealt with the matter as follows: 124 954 "It has been repeatedly held by this court that the power to issue a detention order under section 3 of the Preventive Detention Act depends entirely upon the satisfaction of the appropriate authority specified in that section.
The sufficiency Of the grounds upon which such satisfaction purports to be based, provided they have a rational probative value and are not extraneous to the scope or purpose of the legislative provision cannot be challenged in a court of law, except on the ground of mala fides.
A Court of law is not even competent to enquire into the truth or otherwise of the facts which are mentioned as grounds of detention in the communication to the detenue under section 7 of the Act." Posing the situation which arises in such cases where one of the grounds is found to be irrelevant or un.substantiated, the Court stated as follows: "The question is, whether in such circumstances the original order made under section 3(1) (a) of the Act can be allowed to stand.
The answer, in our opinion, can only be in the negative.
The detaining authority gave here two grounds for detaining the petitioner.
We can neither decide whether these grounds are good or bad nor can we attempt to assess in what manner and to what extent each of these grounds operated on the mind of the appropriate authority and contributed to the creation of the satisfaction on the basis of which the detention order was made.
To say that the other ground, which still remains, is quite sufficient to sustain the order, would be to substitute an objective judicial test for the subjective decision of the executive authority which is against the legislative policy underlying the statute.
In such cases, we think, the position would be the same as if one of these two grounds was irrelevant for the purpose of the Act or was wholly illusory and this would vitiate the detention order as a whole.
This principle, which was recognised by the Federal Court in the case of Keshav Talpade vs The King Emperor(1), seems to us to be quite sound and applicable to the facts of this case".
(1) 955 In Keshav Talpade 's case(1) the learned Judges stated as follows: "If a detaining authority gives four reasons for detaining a man, without distinguishing between them, and any two or three of the reasons are held to be bad, it can never be certain to what extent the bad reasons operated on the mind of the authority or whether the detention order would have been made at all if only one or two good reasons bad been before them".
The principle underlying all these decisions is this power is vested in a statutory authority to deprive the liberty of a subject on its subjective satisfaction with reference to specified matters, if that satisfaction is stated to be based on a Dumber of grounds or for a variety of reasons all taken together, and if some out of them are found to be non existent or irrelevant, the very exercise of that power is bad.
That is so, because the matter being one for subjec tive satisfaction, it must be properly based.
on all the reasons on which it purports to be based.
If some ,out of them are found to be non existent or irrelevant, the Court cannot predicate what the subjective satisfaction of the said authority would have been on the exclusion of those grounds or reasons.
To uphold the validity of such an order in spite of the invalidity of some of the reasons or grounds would be to substitute the objective standards of the Court for the subjective satisfaction of the statutory authority.
In applying these principles, however, the Court must be satisfied that the vague or irrelevant grounds are such as , if excluded, might reasonably have affected the subjective satisfaction of the appropriate authority.
It is not merely because some ground or reason of a comparatively unessential nature is defective that such an order based on subjective satisfaction can be held to be invalid.
The Court while anxious to safeguard the personal liberty of the individual will not lightly interfere with such orders.
It is in the light of these principles that the validity of the impugned order has to be judged.
(1) 956 In this case, the order of detention is based on the ground that the petitioner was engaged in unlawful smuggling activities relating to three commodities, cloth, zari and mercury of which two are found not to be essential articles.
No material is placed before us enabling us to say that the smuggling attributed to the petitioner was substantially only of mercury and that the smuggling as regards the other two commodities was of an inconsequential nature.
On the other hand the fact that the particulars furnished to the detenue on the 31st May, 1956, relate only to cloth and zari (we understand that tila referred to in paragraph 3 is zari) indicates that probably the smuggling of these two items was not of an inconsequential nature.
We are, therefore, clearly of the opinion that the order of detention in this case is bad and must be quashed.
We have accordingly quashed the order and directed the release forthwith of the detenue on the conclusion of the hearing on the 29th October, 1956.
Petition allowed.

summary:
The petitioner was detained by virtue of an order of detention passed by the District Magistrate, Jammu, under section 3(2) of the Jammu and Kashmir Preventive Detention Act, 2011 and that order was confirmed and continued by an order passed by the Government of the State of Jammu and Kashmir under section 12(1) of the Act after taking the opinion of the Advisory Board.
The order recited that it was necessary to detain the petitioner with a view to preventing him from acting in a manner prejudicial to the maintenance of supplies and services essential to the community and was based on the ground of alleged illicit smuggling by the petitioner of essential goods such as shaff on cloth, zari and mercury to Pakistan.
It was found that shaffon cloth and zari were not essential goods.
It was not established that the smuggling attributed to the petitioner was substantially only of.
mercury or that the smuggling as regards shaffon cloth and zari was of an inconsequential nature.
Held, that the order was bad and must be quashed.
The sub jective satisfaction of the detaining authority must be properly based on all the reasons on which it purports to be based.
If some out of those reasons are found to be non existent or irrelevant, the Court cannot predicate what the subjective satisfaction of the authority would have been on the exclusion of those reasons.
To 949 uphold the order on the remaining reasons would be to substitute the objective standards of the Court for the subjective satisfaction of the authority.
The Court must, however, be satisfied that the vague or irrelevant grounds are such as, if excluded, might reasonably have affected the subjective satisfaction of the authority.
Keshav Talpade vs The King Emperor ([1943] F.C.R. 88), Atma Ram Sridhar Vaidya 's case ([1951] S.C.R. 167), Dr. Ram Krishan Bhardwaj vs The State of Delhi ([1953] S.C.R. 708) and Shibban Lal Saksena vs The State of U.P. ([1954] S.C.R. 418), relied on.


judgement:
N: Criminal Appeal No. 932 933 of 1981.
Appeals by special leave from the judgment and order dated the 23rd October, 1981 of the Allahabad High Court in CM.
5909 (W) of 1981 in CW No. 8918/81.
R.K. Bhatt for the Appellant.
Shaukat Hussain and Shakil Ahmed for the Respondent.
The Judgment of the Court was delivered by CHANDRACHUD, C.J.
: Heard counsel.
Special leave granted.
The respondents, who are detained under the provisions of the Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act, 1980 filed Habeas Corpus petitions in the High Court of Allahabad challenging the orders of detention passed against them.
Those petitions were almost fully heard by a Division Bench on October 19 and 22, 1981.
The learned Judges, however, released the writ petitions from their list since the Court had Diwali 26 holidays from October 24 until November 2, 1981 and they were not likely to be available, perhaps as a Bench, for concluding the hearing of the writ petitions.
Another Division Bench took up the Writ Petitions for hearing on October 23 but they adjourned the petitions until the reopening of the Court on November 3.
Soon after the Division Bench rose, counsel for the respondents approached a learned Single Judge after Court hours and applied for bail.
It appears that the Deputy Government Advocate was available.
He was sent for and after hearing both the sides, the learned Judge granted bail to the respondents on the ground that the State Government had erred in forwarding the respondents ' representations to the Advisory Board without considering them for itself.
The writ petitions were taken up for hearing by another Division Bench on November 3, 1981.
They concluded the hearing on that date, reserved their judgment and allowed the respondents to continue on bail till November 10 which was fixed for judgment.
The judgment is not yet delivered.
The learned Judges directed: "It may however be inquired as to how file was sent before the learned single Judge for bail when there was no case fixed before him." These Special Leave Petitions are directed against the order passed by the learned Single Judge on October 23, 1981, releasing the respondents on bail "until the next date of hearing of the Habeas Corpus petitions.
" We are unable to appreciate how the learned Single Judge could release the respondents on bail when, in the first instance, the writ petitions filed by them were listed for hearing before a Division Bench.
Secondly, and that involves a question of principle, we are unable to see for what special reason the learned Judge thought it necessary to release the respondents on bail.
The order passed by the learned Judge does not show that there was any pressing or particular reason of a unique kind for which it was imperative to enlarge the respondents on bail.
If persons held in detention are released on bail in the manner done by the learned Judge, the very object and purpose of detention will be totally frustrated.
Grave illness or pressing and personal business may justify an order of release in detention cases for a short period suited to the exigencies of the particular occasion.
But a detenu cannot be released on bail as a matter of common practice, on considerations generally appli 27 cable to cases of punitive detention.
The learned Single Judge virtually took upon himself the decision of the writ petitions of merits.
He found, evidently on an on the spot argument, that the State Government had erred in not considering the representations of the respondents before forwarding them to the Advisory Board and released the respondents on bail as their further continuance in detention was "prima facie" vitiated.
In passing the order of bail, the learned Judge has sought the support of a decision of a Constitution Bench of this Court in State of Bihar vs Rambalak Singh and Others.
In that case, the State of Bihar appealed to this Court against an order of interim bail passed by the Patna High Court in a Habeas Corpus petition which was filed by the respondent to challenge an order of detention issued under Rule 30 of the Defence of India Rules, 1962.
It was held by this Court that though the High Court has jurisdiction to grant bail in Habeas Corpus petitions filed against orders of detention passed under rule 30, the exercise of the said jurisdiction is inevitably circumscribed by the considerations which are special to such proceedings and which have relevance to the object which it intended to be served by orders of detention passed under the said Rule.
If on proof of certain conditions or grounds it is open to the High Court to set aside the order of detention made under Rule 30 and direct the release of the detenu, then it cannot be held that in a proper case the High Court has no jurisdiction to make an interim order giving the detenu the relief which the High Court would be entitled to give him at the end of the proceedings.
The Court, however, hastened to emphasize: ". though we have no hesitation in affirming the jurisdiction of the High Court in granting interim relief by way of bail to a detenu who has been detained under Rule 30 of the Rules there are certain inexorable considerations which are relevant to proceedings of this character and which inevitably circumscribe the exercise of the jurisdiction of the High Court to pass interim orders granting bail to the detenu.
There is no doubt that the facts on which the subjective satisfaction of the detaining authority is based, are not justiciable, and so, it is not open to the High Court to enquire whether the impugned order of detention is justified on facts or not.
The jurisdiction of the High Court to grant relief to 28 the detenu in such proceedings is very narrow and very limited.
That being so, if the High Court takes the view that prima facie, the allegations made in the writ petition disclose a serious defect in the order of detention which would justify the release of the detenu, the wiser and the more sensible and reasonable course to adopt would invariably be to expedite the hearing of the writ petition and deal with the merits without any delay.
Take the case where mala fides are alleged in respect of an order of detention.
It is difficult, if not impossible, for the Court to come to any conclusion, even prima facie about the mala fides alleged, unless a return is filed by the State.
Just as it is not unlikely that the High Courts may come across cases where orders of detention are passed mala fides, it is also not unlikely that allegations of mala fides are made light heartedly or without justification; and so, judicial approach necessarily postulates that no conclusion can be reached, even prima facie, as to mala fides unless the State is given a chance to file its return and state its case in respect of the said allegations; and this emphasises the fact that even in regard to a challenge to the validity of an order of detention on the ground that it is passed mala fides it would not be safe, sound or reasonable to make an interim order on the prima facie provisional conclusion that there may be some substance in the allegations of mala fides.
What is true about mala fides is equally true about other infirmities on which an order of detention may be challenged by the detenu.
That is why the limitation on the jurisdiction of the Court to grant relief to the detenus who have been detained under R. 30 of the Rules, inevitably introduce a corresponding limitation on the power of the Court to grant interim bail.
" The Court, speaking through Gajendragadkar, C.J. added: "It is no doubt true that a detenu is detained without a trial; and so, the courts would inevitably be anxious to protect the individual liberty of the citizen on grounds which are justiciable and within the limits of their jurisdiction.
But in upholding the claim for individual liberty within the limits permitted by law, it would be unwise to ignore the object which the orders of detention are intended 29 to serve.
An unwise decision granting bail to a party may lead to consequences which are prejudicial to the interests of the community at large; and that is a factor which must be duly weighed by the High Court before it decides to grant bail to a detenu in such proceedings.
We are free to confess that we have not come across cases where bail has been granted in habeas corpus proceedings directed against orders of detention under R. 30 of the Rules, and we apprehend that the reluctance of the courts to pass orders of bail in such proceedings is obviously based on the fact that they are fully conscious of the difficulties legal and constitutional, and of the other risks involved in making such orders.
Attempts are always made by the courts to deal with such applications expeditiously; and in actual practice, it would be very difficult to come across a case where without a full enquiry and trial of the ground on which the order of detention is challenged by the detenu, it would be reasonably possible or permissible to the Court to grant bail on prima facie conclusion reached by it at an earlier stage of the proceedings.
If an order of bail is made by that Court without a full trial of the issues involved merely on prima facie opinion formed by the High Court, the said order would be open to the challenge that it is the result of improper exercise of jurisdiction.
It is essential to bear in mind the distinction between the existence of jurisdiction and its proper exercise.
Improper exercise of jurisdiction in such matters must necessarily be avoided by the courts in dealing with applications of this character.
" The learned Single Judge, with respect, has failed to appreciate the weight of these observations while passing the order of interim bail.
A Division Bench had heard the petitions for two days but did not think it fit or proper to grant interim relief to the detenus.
Another Division Bench was going to rehear the petitions after ten days.
It is not proper that, in between, the learned Single Judge should have taken upon himself the task of examining the merits of the matter in order to find whether there was a prima facie case for releasing the detenus on bail.
Shri Shaukat Husain, who appears on behalf of the respondents, has drawn our attention to an order passed by the Division 30 Bench itself on November 10, 1981 by which it has permitted the respondents to continue on bail until the delivery of the judgment by it in the writ petitions.
Learned counsel says that the special leave petitions filed by the State of Uttar Pradesh against the order passed by the learned Single Judge have become infructuous by reason of the order passed by the Division Bench.
We are unable to accept this submission because the primary order of bail under which the respondents are at large is the one passed by the learned Single Judge.
The Division Bench has allowed that order to remain in operation, only for the reason that counsel for the State was unable to say whether the Advisory Board had recommended the confirmation of detention or not.
The Division Bench postponed the delivery of the judgment for that reason and directed that the respondents, who are already on bail, will be allowed to continue on bail until further orders.
For reasons aforesaid, we set aside the order of bail and direct that the respondents shall be taken in custody forthwith.
We hope that the Division Bench which has already heard arguments in the Writ Petitions, will be able to deliver its judgment expeditiously, if it has not already done so.
The appeals will stand disposed of in terms of this judgment.
P.B.R. Appeal allowed.

summary:
After hearing the habeas corpus petitions of the respondents, who were detained under the provisions of the Maintenance of Supplies of Essential Commodities Act, 1980 the Division Bench of the High Court released the writ petitions from their list since the Court was to have holidays for over ten days immediately thereafter.
Another Division Bench, which took up the petitions for hearing, also adjourned the petitions until the reopening of the Court after holidays.
In the mean time a single Judge of the High Court, before whom the detenus made an application for bail, allowed their petitions on the ground that the Government had erred in forwarding their representations to the advisory board without considering them for itself.
On reopening of the Court, a Division Bench heard the habeas corpus petitions.
It however, allowed the detenus to be on bail till the judgment was pronounced.
In its petition for grant of special leave to appeal the State challenged the impugned order of the Single Judge releasing the detenus on bail "until the next date of hearing of the habeas corpus petitions".
Allowing the appeal ^ HELD: 1.
The single Judge erred in releasing the detenus on bail when their writ petitions were listed for hearing before a Division Bench.
Neither was there any pressing or particular reason of a unique kind such as grave illness or pressing and personal business justifying the order of release on bail for a short period.
The detenus cannot be released on bail as a matter of common practice on considerations generally applicable to cases of punitive detention.
[26 F H] In the instant case the single Judge took up on himself the decision on merits.
25 Although the Courts would be anxious to protect the individual liberty of the citizen on justiciable grounds and within the limits of their jurisdiction, it would be unwise to ignore the object which the orders of detention are intended to serve.
The reluctance of Courts to pass orders of bail in detention cases is based on the fact that they are fully conscious of the difficulties legal and constitutional and of the other risks involved in making such orders.
If an order of bail is made by the Court without a full trial of the issues involved merely on prima facie opinion formed by the High Court, such order would be open to challenge that it is the result of improper exercise of jurisdiction.
It is essential to bear in mind the distinction between the existence of jurisdiction and its proper exercise.
Improper exercise of jurisdiction in such matters must necessarily be avoided by the courts in dealing with applications of this character.
[29 A F] State of Bihar vs Rambalak Singh and others, applied.
There is no force in the argument of the detenus that by reason of the decision of the Division Bench, allowing the detenus to be on bail till the delivery of the judgment by it in their writ petitions, the special leave petition filed by the State had become infructuous because the primary order of bail was the one passed by the single Judge.
The Division Bench has allowed that order to remain in operation only because the counsel for the State was unable to say whether the Advisory Board had recommended the confirmation of detention or not.
The Division Bench postponed the delivery of the judgment for that reason and directed that the detenus would be allowed to continue on bail until further orders.
[30 A C]


summary:
In exercise of the powers vested under the Essential Commodities Act, 1951, the State Government of Uttar Pradesh issued two orders, namely (1) the Uttar Pradesh Food Grains Dealers (Licensing and Restriction on Hoarding) Order, 1976 and (2) the Uttar Pradesh Food Grains (Procurement and Regulation of Trade) Order 1978.
By its teleprinter message dated March 31, 1981 to all the Regional Food Controllers, the State Government issued certain further instructions for effective enforcement of the two Orders and in particular regulating the inter district and outside the State movement of wheat by traders on private account.
By a Notification No. P XXIX Food 5 5(42)/80 dated April 21,1981, clause (4) of the 1978 Order, was amended providing that no wholesale dealer, commission agent, or a retailer shall have in stock wheat more than 250 quintals, 250 quintals and 20 quintals respectively, at any time, since it was of opinion that it was necessary or expedient so to do for securing the equitable distribution and availability of foodgrains at fair prices.
Pursuant to the powers vested in them, the Senior Marketing Inspector and the Chief Marketing Inspector, Agra, intercepted and seized the trucks laden with wheat of the petitioners who are wholesale dealers of foodgrains from the Union Territory of Delhi and the States of Punjab and Haryana at the check post at Saiyan on the border between the States of Uttar Pradesh and Madhya Pradesh, and after bringing them back to the purchase point at Agra unloaded the wheat from the said trucks.
While the petitioners moved an application for the release of the seized wheat before the Additional District Magistrate (Civil Supplies), Agra, the Marketing Inspectors not only lodged First Information 1138 Reports but obtained an interim order on May 23, 1981 for the sale of the seized wheat as it was subject to speedy and natural decay.
The seized wheat had been purchased by the State Government on Government account at the procurement price and the sale proceeds were credited into the treasury.
The petitioners challenged the teleprinter message dated March 31, 1981 and the Notification dated April 21, 1981 on the following grounds: (1) The Notification fixing the maximum limit of wheat permitted to be possessed by a wholesale dealer at 250 quintals, at a time, is an unreasonable restriction on the freedom of trader guaranteed under Article 19(1)(g) of the Constitution; (2) there is no distinction made between a wholesale dealer and a commission agent in as much as the maximum limit of wheat allowed to be possessed by them is the same, i.e., 250 quintals at a time and the fixation of such limit in the case of a wholesale dealer is arbitrary, irrational and irrelevant and thus violative of Article 14 of the Constitution; (3) the instructions conveyed by the State Government by its teleprinter message dated March 31, 1981, placing restrictions on movement of wheat by traders on private account from the State of U.P. to various other States and on inter district movement of wheat within the State, were violative of their fundamental rights under Article 19(1)(g) and Article 301 of the Constitution; (4) the seizure of the consignments of the wheat, while they were in transit in the course of inter State trade and commerce from the Union Territory of Delhi and the States of Punjab and Haryana to various destinations in the States of Maharashtra and Madhya Pradesh, was without "the authority of law" and in violation of Article 300A of the Constitution; (5) the restriction must be by "law" or by an "order" having the force of law and not by recourse to the executive authority of the State under Article 162 of the Constitution, that is, by an executive action.
The teleprinter message of the State Government dated March 31, 1981 on the basis of which the seizures were effected in truth and substance, had no legal sanction and cannot be construed to be a notified order within the meaning of sub section (1) read with sub section (5) of section 3 of the Essential Commodities Act; it was nothing but an executive direction.
No executive action which operates to the prejudice of the citizens can be taken without the authority of law.
The seizures effected were not in compliance with the instructions contained in the teleprinter message and not for breach of the two control Orders and, therefore, it was nothing but a "colourable exercise" of power.
The real purpose of the seizure was procurement of wheat in furtherance of the directives of the Central Government without any legal sanction, since the farmers were not willing to sell their wheat at the procurement price; and (6) under sub section 2(ii) of section 6A of the Act there being no control price for wheat, the wheat should have been sold by public auction by the Additional District Magistrate while passing an interim order.
Dismissing the petitions, the Court ^ HELD: 1:1.
The restriction imposed by the State Government on wholesale dealers of wheat is neither arbitrary nor is of an excessive nature beyond what is required in the national interest.
To check speculative tendencies of the wholesale traders and others who manipulate the market by withholding stocks of a commodity and to obviate blackmarketing, the stock limit of wheat was fixed for wholesale dealers at 250 quintals at a time, as in the case of a commission agent, the underlying idea being that the wholesale dealers should be allowed to 1139 continue their trading activities within reasonable limits.
The fixation of stock limit at 250 quintals implies that wholesale dealers can have at any time, in stock, a wagon load of wheat.
The words "at any time" mean "at any given time", which means that a wholesale dealer should not have in stock more than 250 quintals at a time.
But there is nothing to prevent a wholesale dealer from entering into a series of transaction during the course of the day.
[1173 A E] 1:2.
The State Government had adopted various measures in the interest of the general public for the control of production, supply and distribution of, and trade and commerce in, essential commodities.
The Order fixing a stock limit introduces a system of checks and balances to achieve the object of the legislation, that is, to ensure equitable distribution and availability of essential commodities at fair prices.
Looking to the prevailing conditions, the imposition of such restrictions satisfies the test of reasonableness.
The fixation of such stock limit is not arbitrary or irrational having no nexus to the object sought to be achieved and is, therefore, intra vires of Article 14.
The limitation imposed fixing a stock limit for a wholesale dealer at 250 quintals is also a reasonable restriction within the meaning of Article 19(6) of the Constitution.
[1174 A D] 2:1.
The teleprinter message No. PP 1061/XXIX.Food 5 dated 31st March, 1981 was in the nature of executive instruction of the State Government to the Regional Food Controllers of the various regions to be more vigilant and to secure due observance of the control orders.
[1156 B, E F, 1163 C] 2:2.
The instructions conveyed by the State Government by the impugned teleprinter message imposing the requirement for the making of an endorsement by the Deputy Marketing Officer or the Senior Marketing Officer or the physical verification of stocks of wheat during the course of transit, are not a 'restriction ' or an 'intrusion ' on the fundamental right to carry on trade or business guaranteed under Article 19(1)(g) or on the freedom of trade, commerce and intercourse under Article 301.
These are nothing but regulatory measures to ensure that the excess stock of wheat held by a wholesale dealer, commission agent or a retailer is not transported to a place outside the State or from one district to another.
Even if these requirements are considered to be a 'restriction ' on inter State or intra State trade, that is, across the State or from one part of the State to another, the limitation so imposed on the enjoyment of the right cannot be considered to be arbitrary or of an excessive nature and thus violative of Article 19(1)(g) or Article 301 of the Constitution.
There being no ban on the export of wheat from the State of Uttar Pradesh to various other States or from one district to another within the State, subject to the making of an endorsement by the Deputy Marketing Officer or the Senior Marketing Officer concerned, the Petitioners who are wholesale dealers of foodgrains in the State of Uttar Pradesh are, therefore, free to carry on their business within the permissible limits, that is, they may carry on their trade or business or enter into inter State or intra State transactions of wheat subject to the stock limit of 250 quintals, at a time.
[1174 D H, 1175 A B] 2:3.
The teleprinter message dated March 31, 1981 was a direct sequel to the Centre 's directives contained in its earlier teleprinter message and intended or meant to achieve three main objectives, namely, (i) to provide price support in wheat to purchasers with a view to sustain, maintain and maximise the pro 1140 curement of wheat; (ii) to prevent hoarding and black marketing; and (iii) to provide for equitable distribution and availability of wheat at fair prices.
The directions were obviously meant to subserve the object of the legislation and were in public interest.
The State Government was committed to provide price support in wheat to producers and hence to maximise procurement of wheat, there is nothing unusual on the State Government issuing such executive instructions.
[1156 E F, 1160 D E] 2:4.
Even assuming that the impugned teleprinter message is not relatable to the control Orders, the State Government undoubtedly could, in exercise of the executive power of the State, introduce a system of verification on movement of wheat from the State of Uttar Pradesh to various other States at the check post on the border and place restrictions on inter district movement of wheat by traders on private account within the State.
[1156 E F] Ram Jawaya Kapur vs State of Punjab and Naraindas Indurkhya vs State of Madhya Pradesh & Ors., ; , explained and followed.
The State Legislature is competent to enact a law on the subject covered by Entry 33, List III, regulating trade and commerce in, and the production, and supply and distribution of "foodstuffs".
The was enacted by Parliament in exercise of concurrent jurisdiction under Entry 73, List II, of the Seventh Schedule to the Constitution as amended by the Constitution (Third Amendment) Act, 1954.
The exercise of such concurrent jurisdiction would not deprive the State Legislature of its jurisdiction thereunder.
The executive power of the State which is coextensive with the legislative power is subject to the limitation contained in Article 162 which directs that in any matter with respect to which the legislature of a State and Parliament have power to make laws, the executive power of the State shall be subject to, and limited by, the executive power expressly conferred by the Constitution or by any law made by Parliament upon the Union of authorities thereof.
[1158 F H, 1159 A B] 3:2.
The State in exercise of its executive powers is charged with the duty and the responsibility of carrying on the general administration of the State.
So long as the State Government does not go against the provisions of the constitution of any law, the width and amplitude of its executive power cannot be circumscribed.
If there is no enactment covering a particular aspect, certainly the Government can carry on the administrative directions or instructions, until the legislature makes a law in that behalf.
Otherwise the administration would come to a standstill.
[1157 B C] 3:3.
The executive power of "search and seizure" is a necessary concomitant of a welfare State.
It tends to promote the well being of the nation.
Many questions arising in the field of search and seizure are factual in nature, involving varying degrees of difference among the infinitely diverse facts.
It is a limitless area where not only every factual variation presents a new constitutional question, but it is a peculiar field in which the decisions of courts do not help in clarifying the law.
The decisions in the field are of little precedental value, because the more the cases that are decided the more issues arise, through possible factual variation.
[1159 B E] 1141 4:1.
The quintessence of the Constitution is the rule of the law.
The State or its executive officers cannot interfere with the rights of others unless they can point to some specific rule of law which authorises their acts.
[1161 A] State of Madhya Pradesh vs Thakur Bharat Singh, ; , Satwant Singh Sawhney vs Dr. Ramarathnam, Assistant Passport Officer, Government of India, New Delhi & Ors., at 542; Smt.
Indira Nehru Gandhi vs Shri Raj Narain, at 524, reiterated.
The is a "law" within the meaning of Article 302 of the Constitution imposing reasonable restrictions on the right to carry on trade and commerce as guaranteed by Article 19(1)(g) and Article 301 of the Constitution.
The object of the Act is to provide, in the interest of the general public for the control, production, supply and distribution of, and trade and commerce in, certain essential commodities.
[1161 D E] 5.
From the point of view either of Entry 54 List II or of Article 301 of the Constitution, the State Legislature is competent to set up the check posts and barriers on the State 's borders, designed and meant to prevent evasion of sales tax and other dues.
Just as inter State trade and commerce must pay its way and be subject to taxation, persons engaged in inter state trade or commerce are equally subject to all regulatory measures.
The check posts or barriers set up by the State Government under section 28 of the U.P. Sales Tax Act, 1948, which is legally accepted as valid and also considered not a restriction or impediment to the freedom of trade, commerce and intercourse granted under Article 301 of the Constitution, can certainly be utilised as a machinery for due observance of the laws, for example, for verification and control of movement of wheat by traders on private account from the State of Uttar Pradesh to various other States.
B D] 6:1.
The fundamental right to carry on trade or business guaranteed under Article 19(1)(g) or the freedom of inter State trade, commerce and intercourse under Article 301 of the Constitution, has its own limitations.
The liberty of an individual to do as he pleases is not absolute.
It must yield to the common good.
Absolute or unrestricted individual rights do not and cannot exist in any modern State.
There is no protection of the rights themselves unless there is a measure of control and regulation of the rights of each individual in the interests of all.
Whenever such a conflict comes before the Court, it is its duty to harmonise the exercise of the competing rights.
The Court must balance the individual 's rights of freedom of trade under Article 19(1)(g) and the freedom of inter State trade and commerce under Article 301 as against the national interest.
Such a limitation is inherent in the exercise of those rights.
[1164 E H] 6:2.
Under Article 19(1)(g) of the Constitution, a citizen has the right to carry on any occupation, trade or business and the only restriction on this unfettered right is the authority of the State to make a law imposing reasonable restrictions under clause (6).
[1165 A] 6:3.
The expression "reasonable restriction" signifies that the limitation imposed on a person in enjoyment of the right should not be arbitrary or of an excessive nature, beyond what is required in the interests of the public.
The test of reasonableness, wherever prescribed, should be applied to each individual 1142 statute impugned, and no abstract standard, or general pattern of reasonableness can be laid down as applicable in all cases.
The restriction which arbitrarily or excessively invades the right cannot be said to contain the quality of reasonableness and unless it strikes a proper balance between the freedom guaranteed in Article 19(1) (g) and the social control permitted by clause (6) of Article 19, it must be held to be wanting in that quality.
[1165 B D] 6:4.
Several steps taken, in the instant case, like prevention of movement of stock of wheat to various other States, movement of wheat from one district to another within the State only after the verification of the transaction and due endorsement by the Deputy Marketing Officer or the Senior Marketing Officer concerned and also the physical verification at the check post on the State 's borders etc. were designed to prevent a price rise in wheat in the State of Uttar Pradesh and to prevent outflow of wheat from the State to various other States and from one district to another district within the State.
The whole object was to ensure that the wholesale dealers in foodgrains did not corner stocks of wheat for the purpose of speculation, and hence the steps taken were reasonable and in the interests of the general public.
If, therefore, the seizure can be justified on the basis of any valid law, it cannot be held to be illegal.
[1165 D H] 7:1.
Article 301 imposes a limitation on all legislative power in order to secure that trade, commerce and intercourse throughout the territory of India shall be free.
Although Article 301 guarantees that trade, commerce intercourse throughout the country shall be free, the right to carry on inter State trade and commerce may be subject to reasonable restrictions in the interests of the general public.
[1165 A, 1166 A, C] 7:2.
The word 'free ' in Article 301 does not mean freedom from laws or from regulations.
Article 301 guarantees freedom of trade, commerce and intercourse throughout the country from any State barriers.
The whole object was to bring about the economic unity of the country under a federal structure, so that the people may feel that they are members of one nation.
One of the means to achieve this object is to guarantee to every citizen in addition to the freedom of movement and residence throughout the country, which is achieved by Article 19(1)(d) and (e) is the freedom of movement or passage of commodities from one part of the country to another.
This freedom of trade, commerce and intercourse throughout the country without any "State barriers" is not confined to inter State trade but also including intra State trade as well.
In other words, subject to the provisions of Part XIII, no restrictions can be imposed upon the flow of trade, commerce and intercourse, not only between the State and another, but between any two points within the territory of India whether any State border has to be crossed or not.
[1166 D H] 7:3.
The regulatory measure or measures imposing compensatory taxes do not come within the purview of the restrictions contemplated by Article 301.
The regulatory measures should, however, be such as do not impede the freedom of trade, commerce and intercourse.
[1166 H, 1167 A] 8:1.
In view of the provisions of clause (3) of the 1976 Order read with clauses (4) & (6) of the 1978 Order, the validly seized excess stock of wheat lying with such dealer, that is, a wholesale dealer, commission agent or a retailer, in truth and substance, became their "unlicensed stock".
Here, if really the Delhi traders had purchased the excess stock of wheat from wholesale dealers, com 1143 mission agents or retailers in the State of Uttar Pradesh, as is alleged, it is possible to contend that there was a contravention of the provisions of clause (4) of the 1978 Order.
The question whether the seizure was for any contravention of any order issued under section 3 of the Act has to be determined by the Additional District Magistrates (Civil Supplies), Agra, on the evidence adduced by the parties before him.
The facts being controverted, the petitioners have no right to relief under Article 32 of the Constitution.
[1168 D H, 1169 A B] 8:2.
Supreme Court can neither act on documents which are yet to be proved nor can they pronounce upon the genuineness of the transactions covered by them or record any finding on the basis of the documents when the facts are in dispute.
[1169 E] 8:3.
Normally, it is not the function of Supreme Court to investigate into facts in proceedings under Article 32 of the Constitution when they are controverted with a view to discerning the truth.
The matter must, in a situation like this, be left to the fact finding body.
For the establishment of their right to relief under Article 32, the petitioners must establish the necessary facts before the said Additional District Magistrate in the proceedings under section 6A of the .
If they fail to get relief in such proceedings, their obvious remedy lies in a suit for damages for wrongful seizure.
[1171 A C] 9:1.
The State Government cannot while taking recourse to the executive power of the State under Article 162 of the Constitution deprive a person of his property.
Such power can be exercised only by authority of law and not by a mere executive fiat or order.
Article 162 being subject to other provisions of the Constitution, is necessarily subject to Article 300A. [1169 F G] Wazir Chand vs The State of Himachal Pradesh, ; ; Bishan Das and Others vs The State of Punjab and Others, ; , referred to.
The word 'law ' in the context of Article 300A must mean an Act of Parliament or of a State Legislature, a rule, or a statutory order, having the force of law, that is positive or State made law.
[1169 G H] 9:3.
The effect of the Constitution (Fourth) Amendment Act, 1955, is that there can be no 'deprivation ' unless there is extinction of the right to property.
Here, no doubt, the wheat had to be sold, as it was subject to speedy and natural decay, but the petitioners are entitled to the sale proceeds, if ultimately it is found by the Additional District Magistrate (Civil Supplies), Agra, that there was no contravention by them of an order issued under section 3 of the Act.
It is true that the seizure was with intent to confiscate under section 6A of the Act, but that would not make the seizure illegal, if, ultimately, it is found that there was contravention of an order issued under section 3 of the Act.
If the facts were not in controversy and if the petitioners were able to prove that there was wrongful seizure of wheat by the State Government of Uttar Pradesh at the check post of Saiyan on the border, while in transit, in the course of inter State trade and commerce from the Union Territory of Delhi, perhaps, they would be entitled to the return of the seized wheat, or, in the alternative, to the payment of price thereof.
[1170 D H, 1171 A] 1144 9:4.
The question that the seizures were in reality for procurement of wheat in furtherance of the directive of the Central Government, and not for breach of the two Control Orders and, therefore, were nothing but a 'colourable exercise of power ', is dependent on facts to be found on investigation.
Further, the question that there being no control price for wheat, the wheat should have been sold by public auction, is again a question that must be raised before the Additional District Magistrate (Civil Supplies), Agra, in the proceedings pending before him under section 6A of the Act.
[1171 C D]


judgement:
tition (Criminal) Nos.
8333 and 8365 of 1981.
(Under article 32 of the Constitution of India) Bhim Singh and P.D. Sharma for the Petitioners.
Altaf Ahmad for the Respondent.
The Judgment of the Court was delivered by PATHAK, J.
The petitioners Ashok Kumar Binny and Hans Raj have been detained by the Government of Jammu and Kashmir under section 8 of the Jammu & Kashmir Public Safety Act, 1978.
They have filed these petitions for a writ in the nature of habeas corpus directing their release.
The petitioner Hans Raj was detained on 17th August, 1981 while the petitioner Ashok Kumar Binny was detained on 1st October, 1981.
It is pointed out that although their cases have been referred to the Advisory Board, the Advisory Board has not submitted its report yet to the Government, and as eight weeks from the date of detention have expired there has been a violation of sub section
(1) of section 16 of the Public Safety Act.
In the circumstances, it is urged, the further detention of the petitioners is invalid.
When these petitions were called on for hearing, Mr. Altaf Ahmed, appearing for the respondents, placed before us a wireless communication received by him from the State Government stating the Advisory Board was programmed to sit today and instructing him to seek adjournment in these cases.
We are unable to grant the adjournment because it seems to us that any proceeding now taken by the Advisory Board can be of no consequence in supporting the further detention of the petitioners.
The petitioners enjoy a fundamental right under Article 21 not to be deprived of their personal liberty except according to 144 procedure established by law.
In cases where the Government resorts to preventive detention, clauses (4) to (7) of Article 22 prescribe the conditions relating to preventive detention.
A perusal of these clauses will make it immediately apparent that the Constitution places the greatest emphasis on severely limiting the period of preventive detention and envisages time bound stages for the processing of a case as it reaches its determination.
The Jammu and Kashmir Public Safety Act contains provisions which specify the successive stages and also prescribe the period within which each stage must be completed.
Section 15 declares that after a detention order has been made the Government must, within four weeks from the date of the detention order, place before, the Advisory Board the grounds on which the order has been made, the representation made by the person effected by the order, and where the order has been made by an officer, also the report by such officer.
Thereafter, sub section
(1) of section 16 provides that the Advisory Board, after considering the material before it and such further material as it may deem necessary and after hearing the person concerned, shall "submit its report to the Government within eight weeks from the date of detention".
The obligation placed on the Advisory Board to submit its report within the prescribed period must be construed strictly inasmuch as the personal liberty of a person is involved and having regard to the emphasis which the Constitution has placed, and which emphasis is reflected in the Act, on the necessity of expeditiously determining whether the detention of the person concerned should be continued.
In the cases before us, it is clear that the period prescribed by sub section
(1) of section 16 of the Act for the submission of its report by the Advisory Board has already expired.
On that ground alone, it must be held that the further detention of the two petitioners is invalid.
We are supported in this view by Shri Mritunjoy Pramanik vs The State of West Bengal.
We allow these writ petitions and direct the State of Jammu and Kashmir and other respondents to release the petitioners 145 Ashok Kumar Binny and Hans Raj forthwith.
Immediately on their release, the Chief Secretary, State of Jammu and Kashmir, will intimate to this Court that their release has been effected.
N.K.A. Petitions allowed.

summary:
The petitioners were detained under the Jammu & Kashmir Public Safety Act 1978.
Their cases were referred to the Advisory Board, which did not submit its report yet to the Government, although eight weeks from the date of detention had already expired.
It was argued that there was a violation of sub section (1) of Section 16 of the Public Safety Act and therefore, further detention of the Petitioners was invalid.
Accepting the petitions it was, ^ HELD: (1) The petitioners enjoy a fundamental right under Article 21 of the Constitution not to be deprived of their personal liberty, except according to procedure established by law.
In cases where a Government resorts to preventive detention, Clauses (4) to (7) of Article 22 prescribe the conditions relating to preventive detention.
A perusal of these Clauses will make it immediately apparent that the constitution places the greatest emphasis on severely limiting the period of preventive detention and envisages time bound stages for the processing of a case as it reaches its determination.
The Jammu & Kashmir Public Safety Act contains provisions which specify the successive stages and also prescribe the period within which each stage must be completed [143 H, 144 A B] 2.
It is clear that the period prescribed by sub s (1) of section 16 of the Act for the submission of its report by the Advisory Board has already expired.
Sub section
(1) of section 16 provides that the Advisory Board, after considering the material before it and such further material as it may deem necessary and after hearing the person concerned, shall .
submit its report to the Government within eight weeks from the date of detention. ' The obligation placed on the Advisory Board to submit its report within the prescribed period must be construed strictly in as much as the personal liberty of a person is involved and having regard to the emphasis which the Constitution has placed, and which emphasis is reflected in the Act, on the necessity of expeditiously determining whether the detention of the person concerned should be continued.
[144 B F] 143 Shri Mritunjoy Pramanik vs The State of West Bengal, , referred to.