KAILASH NATH GOEL Vs. UNION OF INDIA

JUDGEMENT

(1.) This is the second writ petition filed by the petitioner, Kailash Nath God. His earlier writ petition, bearing No. 39460 of 1999, was dismissed by us on 24.4.2000 on the ground that the order of detention does not suffer from any infirmity, inasmuch as the acts of the petitioner were not only prejudicial to the maintenance of public order but also to the maintenance of supplies and services essential to the community. However, the reasons for dismissing the aforesaid Writ Petition No. 39460 of 1999 were given by us later on. The present writ petition has been filed on the ground that in similar set of circumstances, a Division Bench of this Court has subsequently held the application of provisions of Section 3 of the National Security Act (hereinafter called as 'NSA') inapplicable. The finding by the other Division Bench returned in Habeas Corpus Petition No. 42309 of 1999. Dilip Kumar v. Union of India and others, is as under : 'It is not disputed that the drugs as defined, has been included as one of the essential commodities under Section 2 (a) (iv-a) of the Essential Commodities Act, 1955. As drugs are essential commodities and their production, supply and distribution and trade and commerce is controlled by the Drugs and Cosmetics Act, 1940 and the Rules framed thereunder, there remains no doubt that the Explanation appended to subsection (2) of Section 3 of the Act is attracted to the present case and the order of detention could not be legally passed. From a close reading of the Explanation to sub-section (1) of Section 3 of Prevention of Black marketing and Maintenance of Supplies of Essential Commodities Act, 1980, it is clear that the nature of the drugs whether spurious, misbranded, or adulterated is not the basis for passing the order but the requirement is that the trade and commerce or indulgence in the production, supply and distribution of the alleged drugs should be with a view to making gain in any manner which may directly or indirectly defeat or tend to defeat the provisions of that Act or other law, which in the present case, may be Drugs and Cosmetics Act, 1940 and the Essential Commodities Act, 1955. Allegation against petitioner is that he stored the spurious medicines for making gain which, if permitted, would defeat provisions of aforesaid Acts. In view of the aforesaid legal position, in our opinion, the detaining authority was not competent to pass an order of detention against petitioner in view of the clear prohibition contained in the Explanation to Section 3 (2) of the Act."

(2.) It is pertinent to mention here that the aforesaid Judgment has been delivered on 15.5.2000. However, both these petitions arise out of the same F.I.R. but the grounds of detentions were different, may be the contents are similar. In the circumstances, we desired the learned counsel for the petitioner, Sri G.C. Chaturvedi, to satisfy us about the maintainability of the present writ petition. Learned counsel for the petitioner has very candidly accepted that this writ petition, though is not maintainable, yet the question raised before the Bench now is of general importance and, therefore, it must be given a proper consideration by us. Since, admittedly, it was not raised before us in the previous petition and a contrary decision has come in a subsequent Judgment of this Court barring the applicability of the provisions of N.S.A., it shall be expedient in the interest of justice that this Court should go into the question without bothering much about the maintainability of the petition.

(3.) We see no merits in the submission of the learned counsel. As already stated earlier, we had held in our judgment dated 24.4.2000 that the detention order is perfectly valid because the activity of the petitioner is prejudicial to the maintenance of public order as well as to the maintenance of supply and services essential to the community. It is not open to us to enter into the merits of the argument now advanced before us especially when this question was not raised at all before us during the course of arguments by the petitioner. In the result, we dismiss this writ petition as not maintainable.