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(No. 7 of 1980)
(12 th February, 1980) |
An Act
toprovide for detention in certain cases for the purpose of prevention
of black-marketing and maintenance of supplies of commodities essential
to the community and for matters connected therewith.Be it enacted by
Parliament in the Thirtieth Year of the Republic of India as follows:
1. Short title, extend and commencement :-
(1) This act may be called the Prevention of Black marketing and
Maintenance of Supplies of Essential Commodities Act,1980.
(2) It extends to the whole of India except the State of Jammu and
Kashmir.
(3) It shall be deemed to have come into force on the 5th day of
October, 1979.
2. Definitions :- In this Act, unless the context otherwise
requires,-
(a) " appropriate Government" means, as respects a detention
order made by the Central Government or by an officer of the Central Government
or a person detained under such order, the Central Government, and as
respects a detention order made by a State Government or by an officer
of a State Government or by an officer of a State Government or as respects
a person detained under such order, State Government;
(b) " detention order" means an order made under Sec. 3;
(c) "State Government", in relation to a Union Territory,
means the administrator thereof.
Comment
General principle of construction:-There is one principle on which
there is complete unanimity of all the courts in the words and this is
that there the words or the language used in a statue are clear and
cloudless, plain, simple and explicit unclouded and unobscured,
intelligible and pointed so as to admit of no ambiguity, vaguencess,
uncertainty or equivocation, there is absolutely no room for deriving
support from external aids. In such cases, the statute, should be
interpreted on the face of the language itself without adding, subtracting
or omitting words there from.
Where the language as plain, and unambiguous the Court is not entitled to
go behind the language so as to add or supply omissions and thus play the
role of a political reformer or of a wise counsel to the Legislature.
1. Published in the Gazette of India,
Extraordinary
2. S.P.Gupta v. President of India
P.t. 11, Sec. 1, dated the 12th
February,1980.
A.I.R.. 982 S.C. 149 at pp.304,314.
3. Power to make orders detaining certain persons:-
(1) The Central
Government or a State Government or any officer of the Central Government,
not below the rank of a Joint Secretary to that Government specially
empowered for the purposes of this section by that Government, or any
officer of a State Government, not below the rank of a Secretary to that
Government specially empowered for the purposes of this section by that
Government, may, if satisfied, with respect to any person that at view
to preventing him from acting in any manner prejudicial to the maintenance
of supplied of commodities essential to the community it is necessary so
to do, make an order directing that such person be detained.
Explanation :-
(1).For the purposes of this sub-section, the expression
"acting in any manner prejudicial to the maintenance of supplies of
commodities essential to the community" means:-
(a) committing or instigating any person to commit any offence
punishable under the Essential Commodities Act,1955 (10 of 1955), or under
any other law for the time being in force relating to the control of the
production, supply or distribution of , or trade and commerce in, any
commodity essential to the community : or
(b) dealing in any commodity:-
(i) which is an essential commodity as defined in the
Essential Commodities Act,1955 (10 of 1955), or
(ii) with respect to which provisions have been made in
any such other law as is referred to in Cl.(a). 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 aforesaid.
(2) Any of the following officers, namely:
(a) District Magistrate;
(b) Commissioners of Police, wherever they have been
appointed, may also, if satisfied as provided in sub-section (1),
exercise the powers conferred by the said sub-section.
(3) When any order is made under this section by an
officer mentioned in [sub-section (2)], he shall forthwith report the
fact to the State Government to which he is subordinate, together with the grounds on which the order has been made and such other
particulars as in his opinion have a bearing on the matter, and no such
order shall remain in force for more than twelve days after the making
thereof unless in the meantime it has been approved by the State
Government;
Provided that where under Sec. 8 the grounds of detention are communicated
by the authority making the order after five days but not later than ten
fays from the date of detention, this sub-section shall apply subject to
the modification that for the words "twelve days", the words
"fifteen days" shall be substituted'.
(4) When any order is made or approved by the State
Government under this section or when any order is made under this section
by an officer of the State Government not below the rank of Secretary to
that Government officially empowered under sub-section (1), the State
Government shall, within seven days, report the fact to the Central
Government together with the grounds on which the order has been made and
such other particulars as, in the opinion of the State Government, a have
a beating on the necessity for the order.
4. Execution of Detention Order:- A detention order may be executed
at any place in India in the manner provided for the execution of warrants
of arrests under the Code of Criminal Procedure, 1973 (2 of 1974).
5. Power to regulate place and conditions of detention:- Every
person in respect of whom the detention order has been made shall be
liable :-
a) to be detained in such place and under such conditions, including
conditions as to maintenance, discipline and punishment for breaches of
discipline. as the appropriate Government may be general or special order,
specify, and
b) to be removed from one place of detention to another place of
detention, whether within the same State or in another State, by order of
the appropriate Government
Provided that no order shall be made by a State
Government under Cl. (b) for the removal of a person from one State to
another State except with the consent of the Government of that other
State.
Comment
The word "shall Meaning of It has been laid down consistently by
the Supreme Court that the mere use of the word "shall" by
itself in the Statue does not make the provisions mandatory, but it is the
duty of the Courts of justice to try to get at the real intention of the
Legislature by carefully attending to the whole scope of the Statute to be
construed. In each case, one has to look to the subject-matter, consider
the importance of the provisions and the relation of that provision with
the general object intended to be secured by the Act and upon the review
of the case in that aspect decide whether the enactment is mandatory or
only directory.
6. Detention orders not to be invalid or in operative on certain
grounds:- No detention order shall be invalid or inoperative merely by
reason:-
(a) that the person to be detained there under is outside the limits of
the territorial jurisdiction of the Government or officer making the
order, or
(b) that the place of detention of such person is outside the said limits.
Comment
This section empowers the Government or its officers to pass an order
of detention against the person outside the territorial jurisdiction of
the Government or officer.
7. Power in relation to absconding persons:-
(1) If appropriate
Government or an officer mentioned in sub-section (2) of section 3 as the
case may be, has reason to believe that a person in respect of whom a
detention order has been made has absconded or is concealing himself so
that the order cannot be executed that Government or officer may :-
(a) make a report in writing of the fact to a Metropolitan Magistrate for
a Judicial Magistrate of the first class having jurisdiction in the place
where the said person ordinarily resides; and thereupon the provisions of
secs. 82,83,84 and 85 of the Court of Criminal Procedure, 1973 (2 of
1974), shall apply in respect of the said person and his property as if
the order directing that he detained were a warrant issued by the
Magistrate;
(b) by order notified in the official Gazette direct the said person to
appear before such officer, at such place and within such period as may be
specified in the order; and if the said person fails to comply with such
direction he shall, unless he proves that it was not possible for him to
comply therewith and that he had, within the period specified in the
order, informed the officer mentioned in the order of the reason which
rendered compliance therewith impossible and of his whereabouts, be
punishable with imprisonment for term which may extend to one year or with
fine or with both.
(2) Notwithstanding anything contained in the Code of Criminal Procedure,
1973 (2 of 1974), every offence under Cl. (b) sub-section (1) shall be
congnizable.
8. Grounds of order of detention to be disclosed to person affected by
the order:-
(1) When a person is detained in pursuance of a detention
order, the authority making the order shall, as soon as may be, but
ordinarily not later than five days and in exceptional circumstances and
for reasons to be recorded in writing, not later than ten days form the
date of detention, communicate to him the grounds on which the order has
been made and shall afford him the earliest opportunity of making a
representation against the order to the appropriate Government.
(2) Nothing in sub-section (1) shall require the authority to disclose
facts which it considers to be against to public interests to disclose.
9.Constitution of Advisory Boards:-
(1) The Central Government and
each State Government shall, when ever necessary, constitute one or more
advisory Boards for the purposes of this Act. Comment
This section seeks to prescribe the minimum and maximum time-limit,
that is to say, five and ten days, for communicating grounds of detention
to the detune.
(2) Every such Board shall consists of three persons who are, or have been
or are qualified to be appointed as, Judges of High Court and such persons
shall be appointed by the appropriate Government.
(3) The appropriate Government shall appoint one of the members of the
advisory board who is, or has been a Judge of a High Court to be its
Chairman, and in the case of a Union Territory, the appointment to
the advisory board of any person who as a Judge of the High Court of a
State shall be with the previous approval of the State Government
concerned.
10. Reference to Advisory Boards:- Save as otherwise expressly
provided in this Act, in every case where a detention order has been made
under this Act, the appropriate Government shall, within three weeks from
the date of detention of a person under the order, place before the
advisory board constituted by it under sec. 9, the grounds on which the
order has been made and the representation, if any, made by the person
affected by the order, and in case where the order has been made by an
officer referred to in sub-section (2) of Section 3 also the report by
such officer under sub-section (3) of that section. Comment This section requires the appropriate Government to refer the case of
detention to the Advisory Board within three weeks from the date of
passing the detention order.
11. Procedure of Advisory Boards:-
(1) The Advisory Board, shall,
after considering the materials placed before it and, after calling for
such further information as it may deem necessary from the appropriate
Government or from any person called for the purpose through the
appropriate Government or from the person concerned, and if, in any
particular case, it considers it essential so to do or if the person
concerned desires to be heard, after hearing him in person, submit its
report to the appropriate Government within seven weeks from the date of
detention of the person concerned.
(2) The report of the Advisory Board shall specify in a separate part of
the opinion of the Advisory Board as to whether or not their is sufficient
case for the detention of the person concerned.
(3) When there is a difference of opinion among the members forming the
Advisory Board, the opinion of the majority of such members shall be the
opinion of the Board.
(4) Nothing in this section shall be entitled any person against whom a
detention order has been made to appear by any legal practitioner in any
matter connected with the reference to the advisory board, and the
proceedings of the Advisory Board, and its report excepting that part of
the report in which the opinion of the Advisory Board is specified, shall
be confidential. Comment This section seeks to
prescribe the time-limit for the submission of report to the appropriate
Government by the Advisory Board, that is to say, seven weeks from the
date of detention of the person concerned.
12.Action upon the report of
Advisory Board.-
(1) In any case where the Advisory Board has reported that
there is in its opinion sufficient cause for the detention of a person, the
appropriate Government may confirm the detention of the person concerned
for such period as it thinks fit. (2)
In any case where the Advisory Board has reported that there is in its
opinion no sufficient cause for the detention of the person concerned, the
appropriate Government shall revoke the detention order and cause the
person to be released forthwith. Comment This
section empowers the appropriate Government to confirm the detention order
if there is a sufficient cause in the opinion of the Advisory Board. 13.
Maximum period of detention.- The maximum period for which any person may
be detained in pursuance of any detention order which has been confirm
under Sec. 12, shall be six months from the date of detention.
Provided
that nothing contained in this section shall affect the power of the
appropriate Government to revoke or modify the detention order at any,
earlier time. Comment This
section prescribes the maximum time limit of detention, that is say, six
months from the date of detention. 14.
Revocation of detention order.- Without prejudice to the provisions of
Sec. 21 of the General Clauses Act, 1897 (10 of 1897) a detention order
may, any time be revoked or modified :-
(a) notwithstanding that
the order has been made by an officer or a State Government, by that State
Government or by the Central Government; (b)
notwithstanding that the order has been made by an officer of the Central
Government or by a State Government, by the Central Government. (2)
The revocation or expiry of a detention order shall not bar the making of
a fresh detention order under Sec. 3 against the same person in any case
where fresh facts have arisen after the date of revocation or expiry on
which the Central Government or a State Government or an officer, as the
case may be, is satisfied that such an order should be made. Comment The
fresh detention order may be passed even if the Previous detention order
has been revoked. 15.
Temporary release of persons detained.-
(1) The appropriate Government
may, at any time, direct that any person detained in pursuance of a
detention order may be released for any specified period either without
conditions or upon such conditions specified in the direction as that
person accepts had may, at any time, cancel his release.
(2) In directing the release of any person under sub-section (1), the
appropriate Government may require him to enter into a bond with or
without sureties for the due observance of the conditions specified in the
direction.
(3) Any person released under sub-section (1) shall surrender himself at
the time and place and to the authority, specified in the order
directing his release or canceling his release, as the case may be.
(4) If any person fails without sufficient cause to surrender himself in
the manner specified in sub-section (3) he shall be punishable with imprisonment
for a term which may extend to two years, or with fine, or with both.
(5) If any person released under sub-section (1) fails to fulfill any of
the conditions imposed upon him under the said sub-section or in the bond
entered into by him, the bond shall be declared to be forfeited and any
person bound there shall be liable to pay the penalty thereof.
16. Protection of action taken in good faith:- No suit or
other legal proceeding shall be against any person or anything in good
faith done or intended to be done in pursuance of this Act.
17. Repeal and saving:-
(1) The Prevention of Black-marketing and
Maintenance of Supplies of Essential Commodities Ordinance, 1979 (10 of
1979), is hereby repealed.
(2) Notwithstanding such repeal anything done or any action taken under
the Ordinance so repealed shall be deemed to have been done or taken under
the corresponding provisions of this Act.
Authoritative English text of this
Department notification No. FDS-A9302/82, dated 11th January,85 as
required under clause (3) of Article 348 of the constitution is published
for general information of the public.
NOTIFICATION
Shimla-171002, the 11th January, 1985
No. FDS.A(3)-2/82:- In super session of this Department
Notification No. FDS.A(3)-1/80 dated 20th March,1980, and in exercise of
the powers conferred by Section 9 of the Prevention of Black-marketing and
Maintenance of Supplies of Essential Commodities (Amendment) Act,1980 (Act
No. 7 of 1980), the Governor of Himachal Pradesh in accordance with the
recommendations of the Hon'ble Chief Justice of High Court Himachal
Pradesh is pleased to re-constitute the following Advisory Board for State
of Himachal Pradesh, with immediate effect:-
1. Mr. Justice T.R. Handa Judge of the Himachal Pradesh High
Court
.. Chairman
2. Mr. Justice Vyom Prakash Gupta Judge of the High Court of
Himachal Pradesh .. Member
3. Mr. R.S. Thakur , Judge of the High Court of Himachal Pradesh.
.. Member
By order,
ATTAR SINGH,
Secretary.
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