SRI NIWAS AGRAWAL Vs. STATE OF U P

JUDGEMENT

(1.) IN this writ petition under Article 226 of the Constitution it has been prayed that a writ in the nature of habeas corpus be issued directing release of petitioner, Number 1, Sri Niwas Agarwal. The order under challenge is Annexure -1 and has been issued under Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980. A perusal of the record indicates that petitioner No. 1 was appointed as a salesman for a period of three months. It has been stated in the writ petition that his services were terminated after the expiry of three months, i.e., on 26 -9 -1981. This fact has been controverted in the counter -affidavit wherein it has been stated that he continued to work on the post. It is unnecessary, to go into the question as to whether the petitioner continued to be in employment as salesman on the date in question or not. A perusal of the Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980, indicates that it applies to a "dealer". If the petitioner continued to be a salesman, the provisions of the Act will have no application. A salesman, is obviously, not a dealer and, therefore, does not come within the clutches of the Act unless the allegation is that he instigates a dealer. In the instant case, there is nothing to indicate that petitioner No. 1 who was a salesman instigated the dealer. In similar circumstances, a Division Bench of this Court in Prem Singh v. State, (1981 -7 All LR 448) held that the Act applies to a dealer and does not apply to a salesman. As there is no allegation in the instant writ petition that the petitioner instigated any dealer, it is obvious that the Act has no application to the petitioner. In this view of the matter, the Division Bench held that the petitioner was to be set at liberty forthwith. The principle enunciated in the Division Bench decision referred to above applies with equal force to the facts of the instant case.

(2.) REFERENCE in this connection may also be made to Mohd. Alam v. State of West Bengal (AIR 1974 SC 917) : (1974 Cri. LJ 770). In paragraph 20 of the decision R. S. Sarkaria, J., observed as follows : -

(3.) WE have heard the learned counsel for the parties on this aspect of the matter. It has been held by the Division Bench in the case referred to above that "habitual" connotes repetition and a person can be said to be habitual offender only if several offences are imputed to him. In the instant case only one instance has been mentioned. Relying upon the decision in Hanuman Prasad v. District Magistrate referred to above, we are of the view that the ground pertaining to the petitioner's alleged habit is vague inasmuch as it does not contain any particulars and is not supported by any material which was supplied to the petitioner in order to enable him to make any representation. Since the allegation about the petitioner No. 1 being a habitual offender is vague, the order detaining the petitioner No. 1 is liable to be quashed regard being had to the principles enunciated by this court in the case of Prem Singh v. State (supra) as also by the Supreme Court in Mohd. Alam v. State of West Bengal (supra).