PINJARI HUSSAIN SAB Vs. DISTRICT COLLECTOR ANANTAPUR

JUDGEMENT

(1.) These two habeas corpus writ petitions are listed before us pursuant to an order of reference dated 19-1-1994 made by a Division Bench of this court comprising two of us - M. N. Rao and P. Ramakrishna Raju, JJ. These two writ petitions, in the first instance, came up for hearing before the Division Bench on 19-1-1994. In W.P. No. 18349 of 1993, one of the contentions urged by Sri Vijay Kumar, learned counsel for the petitioner, was that the impugned order of detention was liable to be struck down on the ground of non-application of mind by the detaining authority. The detention order specifically mentioned that it was passed by the detaining authority in exercise of the powers conferred by Section 3(2)(a) r/w Section 3(1)(a) and (b)(i) and (ii) of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 (Act No. 7 of 1980) (hereinafter referred to as the "Act") with a view to preventing the detenu from acting further in a manner prejudicial to the maintenance of supplies of commodities essential to the community. No provision of law falling within the ambit of Section 3(1)(b)(ii) of the Act has been mentioned in the detention order or in the grounds. The argument advanced was that if Section 3(1)(b) came into play, it was incumbent on the part of the detaining authority to mention the provision of law in respect of which breach has been alleged. Unless there was material to support the allegation as to contravention of Section 3(1)(b)(ii) the order of detention must be held to be vitiated, the counsel urged. He relied upon the Division Bench judgment of this court in H. Thippanna v. The Chief Secretary, Government of A.P. (W.P. No. 5128 of 1992 dated 20/05/1992) in which the order of detention was struck down on the ground : "Non-specification of the provisions of contravention becomes vague and disables the detenu from making an effective representation under Article 22 of the Indian Constitution." The Division Bench followed the view taken by the Karnataka High Court in Leharibai v. State of Karnataka, 1981 Cri LJ 1048.

(2.) Another Division Bench of this court in Pidakala Seshagiri Rao v. The District Collector, Anantapur (W.P. No. 10073 of 1993 dated 2-9-1993) has taken a contrary view deriving support from the decision of a Full Bench of this court in Kalavathi v. State of A.P., 1987 (1) ALT 260 : 1987 Cri LJ 1101 (FB). In Kalavathi's case (supra), the order of detention mentioned breaches of two provisions of law - clause (7) of the A.P. Rice Procurement (Levy) Order, 1984 and clause (3) of the A.P. Paddy (Restriction on Movement) Order, 1983. It was found that there was no violation of clause (7) of the Rice Control Order. The Full Bench while rejecting the contention that the order of detention was vitiated on the ground that two provisions of law were stated to have been allegedly breached when, in fact, there was only breach of one provision of law, observed (at page 1104 of Cri LJ) :

(3.) Pidakala Seshagiri Rao's case (W.P. No. 10073 of 1993), the detention order mentioned the provision of law in respect of which breach was alleged as Section 3(1) and (b)(i) of the Act. In the body of the order, Section 3(1)(a) and (b)(i) were mentioned. In the grounds supplied to the detenu, at the beginning, Section 3(1)(b)(ii) was referred to but in the operative portion Section 3(1) alone was mentioned. The contention that the order of detention was vitiated on the ground of non-application of mind was rejected by the Division Bench following the aforesaid view expressed by the Full Bench.