MAHENDRA KUMAR BHAGWANDAS RENDHERIA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS is an application by the detenu under S. 491 of the Criminal Procedure Code and Art 226 of the Constitution of India for setting aside the order of detention passed against him by the Commissioner of Police, Greater Bombay on 2nd November, 1965. The order states that the Commissioner was satisfied with respect to the petitioner that with a view to preventing him from acting in any manner prejudicial to the maintenance of supplies essential to the life of the community. It is necessary to detain him in exercise of the powers under R. 30 (1) (b) of the Defence of India Rules. The petitioner has alleged as follows:

(2.) HE is a peace-loving young man of 25 years. He is a partner in the firm which is run under the name and style "new Pioneer Medical Supply Co. " which carries on business in the purchase and sale of drugs in a shop situate on the Princess Street. The other partner of the firm is the petitioner's father who is an old man of 65 years. The petitioner says that he is a small dealer. The daily turnover of his business comes to about Rs. 500 or Rs. 600. The firm holds drug licence, poison licence, police licence, excise licence and municipal licence, which are all necessary to carry on the business of purhase and sale of drugs. The petitioner has asserted that he has an absolutely clean record and has not been adversely commented upon either by the police department or the Drug Controller or any other statutory authority. The petitioner then proceeds to give his own version as to what took place on 22nd October 1965 at about 7. 30 p. m. which may be set out in his own words;

(3.) THE petitioner has then narrated the events which transpired after the aforesaid incident. He says that he was taken by the Sub-Inspector along with his friend Vinodchandra, his sister Thejaswi and servant Devji to his office at about 3-30 a. m. in the same night. The petitioner and his friend Vinodchandra were released on bail of Rs. 2,000 each, and his sister and the servant were allowed after recording their statements and preparing a punchanama of the ampoule of Hyalase injection. The petitioner alleges that the said Sub-Inspector had come ready with his own panchas at the time of raiding the shop. On 27th October 1965, the petitioner themselves before the 23rd Presidency Magistrate's Court. Esplanade when the Inspector filed in the Court an application for remand of the accused to magisterial custody. The petitioner avers that he and Vinodchandra were charged under R. 125 (2) and (9) of the Defence of India Rules read with Drugs (Control of Prices) Order 1963. At paragraph 6 the petitioner has averred that the order of detention is fraud on the Defence of India Rules and gross abuse of the powers given by the Legislature, because even if the allegation against the petitioner, namely, that he sold a single ampoule of the drug at an exorbitant price, is accepted as true, it will not warrant the order of detention under R. 30 (1) (b) of the Defence of India Rules. He has further contended that detention for an indefinite period under the circumstances is too harsh, excessive and disproportionate to the alleged offence. He has then proceeded to say that ampoules of Hyalase injection are manufactured by Messrs. Bengers Ltd. of London and that the import of these ampoules has been banned in India since 1962. The petitioner, therefore, submits that banned articles cannot be regarded as essential to the life of the community and it is therefore impossible that any act done by the petitioner would prejudice the maintenance of essential supplies. At paragraph 8 of the petitioner alleges that the proper course of action to be adopted by the respondents was to prosecute the petitioner under the specific statute i. e. , the Drugs (Control of Prices) Order 1963 and not to use the emergency powers conferred by the Defence of India Rules. At paragraph 9 he has referred to S. 44 of the Defence of India Act and has stated that the respondents are bound by virtue of S. 44 of the Defence of India Act, 1962 to see that in exercising their powers under the said Act and/or the said Rules least interference would be caused to the petitioner's ordinary avocation of life and the enjoyment of his property. He has alleged that in issuing the said order under R. 30 (1) (b) of the Defence of India Rules, the respondents have not observed the provisions of S. 44. At paragraph 11 the petitioner has gone a step further and stated that the petitioner's arrest and detention is illegal, improper and without any legal basis as no offence against the petitioner is disclosed and the petitioner has only "become the guiena pig for wide publicity against boarders and/or black marketers by the respondents. On 23rd October 1965 all the newspapers published the news of the petitioner's arrest under the Defence of India Rules and evidently the respondents 1 and 2 meant to warn the trading community severely at the petitioner's cost in this way. "