TEN POINTERS OF JUDGMENT
1. Zero Tolerance towards Remedesivir
While displaying zero tolerance for those involved in black marketing of Remedesivir, the Madhya Pradesh High Court has in a brief, brilliant, bold and balanced judgment titled Sonu Bairwa Vs State of MP & Ors in WP No. 9878/2021 delivered on July 7, 2021, has upheld the detention of a man accused of black marketing of Remedesivir injections amid Covid-19 pandemic under the National Security Act, 1980.
A Division Bench of Justice Sujoy Paul and Justice Anil Verma of Indore Bench of Madhya Pradesh High Court held that black marketing of remdesivir injection has a direct impact on “public order”, and the petitioner-accused if released, could indulge in the same activity because of the scarcity of remdesivir is still there. Without mincing any words, the Division Bench held that
“Black marketing of a drug like remedesivir in days of extreme crisis is certainly such an ugly act and fact which can very well be a reason for invoking Section 3 of NSA Act against the petitioner by District Magistrate.”
2. Facts about Arrest
To start with, Justice Sujoy Paul has authored this cogent, commendable, courageous, calibrated and convincing judgment for a Division Bench of Indore Bench of Madhya Pradesh High Court comprising of himself and Justice Anil Verma. The petitioner has invoked the jurisdiction of this Court under Article 226 of the Constitution to assail the order whereby the District Magistrate in the exercise of power u/S.3(2) read with (3) of National Security Act, 1980 (for short “NSA Act”) detained the petitioner. The Petitioner was already in jail due to a prior FIR but was detained and rearrested under NSA.
3. Degree of Liberty and the Law
While citing the relevant case law, the Bench opines in para 13 that- The interesting conundrum relating to liberty and regarding the extent of liberty and aspect of curtailment thereof is wonderfully explained by K.K. Mathew, J. in Smt. Indira Nehru Gandhi vs. Raj Narain (1975 (Supp.)
“the major problem of human society is to combine that degree of liberty without which law is tyranny with that degree of law without which liberty becomes licence, and the difficulty has been to discover the practical means of achieving this grand objective and to find the opportunity for applying these means in the ever-shifting tangle of human affairs.”
4. Satisfaction of parameters of arrest under NSA
While justifying the detention of the petitioner under the NSA and citing the relevant case laws, the Division Bench then envisages in para 16 that, “In the factual backdrop of this case, the necessary parameters on which a person already under arrest can be detained under the NSA Act are satisfied. The judgment of Yatindra Verma cannot be mechanically pressed into service in this case as there the right to challenge the detention order was infringed due to labelling of absconding. The court took into account the action of recording absconding in the present case as non-application of mind.
5. Little difference in fact may cause a lot of difference in the precedential value of the decision.
This is trite that a judgment of a Court cannot be read as Euclid’s theorem [See Bharat Petroleum Corporation Ltd. Vs. N.R. Vairmani (2004) 8 SCC 579, C.Ronald Vs. UT Andaman & Nicobar Islands (2011) 12 SCC 428, Deepak Bajaj Vs. State of Maharashtra (2008) 16 SCC 14]. This is equally settled that little difference in facts or an additional fact may make a lot of difference in the precedential value of a decision (See Bhavnagar University Vs. Palitana Sugar Mill (P) Ltd & Ors.(2003) 2 SCC 111).”
6. Ingredients of arrest under NSA
Adding more to it, the Division Bench then makes it clear in para 17 that, “A person, who is already in custody can still be detained under NSA Act if-
(i) detaining authority had knowledge about detenu’s custody,
(ii) there exists a real possibility of detenu’s release on bail and,
(iii) necessity of preventing him from indulging in activities prejudicial to the security of State or maintenance of public order upon his release on bail.
In the instant case, all the aforesaid ingredients were satisfied. (See Kamini Yadav vs. State of MP & Ors. – WP No.25986/2018) and judgment of Supreme Court reported in (2012) 7 SCC 181 (Konungjao Singh vs. State of Manipur & Ors.).”
Furthermore, while citing yet another relevant case law, the Division Bench then mentions in para 18 that, “The Apex Court in (1986) 4 SCC 407 (Rajkumar Singh vs. the State of Bihar) opined as under:-
“Preventive detention as reiterated as hard law and must be applied with circumspection rationally, reasonably and on relevant materials. Hard and ugly facts make application of harsh laws imperative.” (Emphasis supplied).”
Briefly stated, the Division Bench then underscores in para 19 that,
“Black marketing of a drug like remedesivir in days of extreme crisis is certainly such an ugly act and fact which can very well be a reason for invoking Section 3 of NSA Act against the petitioner by District Magistrate.”
7. Explanation of Section 3 of the NSA
Be it noted, the Division Bench then lays bare in para 20 that, “Section 3(2) of NSA Act and explanation reads as under:-
“The Central Government or the State Government may, if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the security of the State or from acting in any manner prejudicial to the maintenance of public order or from acting in any manner prejudicial to the maintenance of supplies and services essential to the community it is necessary so to do, make an order directing that such person be detained.
Explanation.—For the purposes of this sub-section, “acting in any manner prejudicial to the maintenance of supplies and services essential to the community” does not include “acting in any manner prejudicial to the maintenance of supplies of commodities essential to the community” as defined in the Explanation to sub-section (1) of section 3 of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act 1980 (7 of 1980), and accordingly, no order of detention shall be made under this Act on any ground on which an order of detention may be made under that Act.” (Emphasis supplied).”
8. Construction of the Explanation
It would be instructive to note that the Division Bench then observes in para 21 that, “The use of “explanation” in a statute is an internal aid to construction. Fazal Ali J in (1985)1 SCC 591 (S. Sundaram Pillai & Ors. vs. V.R. Pattabiraman & Ors.) culled out from various judgments of Supreme Court the following as objects of an explanation to a statutory provision:-
(a) to explain the meaning and intendment of the Act itself;
(b) where there is any obscurity or vagueness in the main enactment, to clarify the same so as to make it consistent with the dominant object which it seems to subserve,
(c) to provide any additional support to the dominant object of the Act in order to make it meaningful and purposeful;
(d) an Explanation cannot in any way interfere with or change the enactment or any part thereof but where the gap is left which is relevant for the purpose of the Explanation, in order to suppress the mischief and advance the object of the Act it can help or assist the court in interpreting the true purport and intendment of the enactment; and
(e) it cannot, however, take away a statutory right with which any person, under a statute has been clothed or set at naught the working of an Act by becoming a hindrance in the interpretation of the same.
This principle is consistently followed by the Supreme Court in (2004) 2 SCC 249 (M.P. Cement Manufacturers Association vs. State of MP & Ors.) and (2004) 11 SCC 64 (Swedish Match AB vs. Securities & Exchange Board of India).”
9. Illustrations Explanatory in Nature not exhaustive
For the sake of clarity, the Bench then clarifies in para 22 stating that
“These examples are illustrative in nature and not exhaustive. An “explanation” may be added to include something within or to exclude something from the ambit of the main enactment or the connotation of some word occurring in it (See: Controller of Estate Duty, Gujarat Vs. Shri Kantilal Trikamlal AIR 1976 SC 1935). Similarly, a negative explanation that excludes certain types of category from the ambit of enactment may have the effect of showing that the category leaving aside the excepted types is included within it (See First Income Tax Officer, Salem Vs. Short Brothers (P) Ltd. AIR 1967 SC 81). Thus, the explanation in the instant case has a limited impact on the main provision i.e. sub-section (2) of Section 3 of the NSA Act. It does not dilute or take away the right of detaining authority under the NSA Act regarding eventualities relating to maintenance of ‘public order’ or security of the State.”
It is worth noting that the Division Bench then puts across in simple, straight and suave language in para 23 that, “A microscopic reading of Section 3(2) with ‘Explanation’ leaves no room for any doubt that Sub-Section (2) is wide enough and deals with three contingencies when a citizen can be detained:
(i) for preventing him from acting in any manner prejudicial to the security of State.
(ii) for preventing him from acting in any manner prejudicial to the maintenance of public order.
(iii) for preventing him from acting in any manner prejudicial to the maintenance of supplies and services essential to the community.” While elaborating further, the Division Bench then puts forth in para 24 that, “The ‘explanation’ is limited to the contingency (iii) aforesaid only. The argument of Shri Maheshwari that since remedesivir is an essential drug/commodity, therefore, obstruction to its supply or black marketing can be a reason to invoke the black marketing act, but the NSA Act cannot be invoked, is liable to be discarded for the simple reason that Sub-Section (2) of Section 3 is wide enough which contains and deals with three contingencies, whereas ‘explanation’ takes only one beyond the purview of the NSA Act if it is covered by Black marketing Act.”
10. On Interpretation of Statute
Frankly speaking, the Division Bench then makes it clear in para 26 that, “Interpretation of a statute must depend on the text and the context. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted. (See: 1987 (1) SCC 424- RBI vs. Peerless General Finance and Investment Co. Ltd.).”
While citing yet another relevant case law, the Division Bench then puts it succinctly in para 27 that, “The Apex Court in (2013) 3 SCC 489 (Ajay Maken vs. Adesh Kumar Gupta & Anr.) held as under:-
“Adopting the principle of literal construction of the statute alone, in all circumstances without examining the context and scheme of the statute, may not subserve the purpose of the statute. In the words of V.R. Krishna Iyer, J., such an approach would be “to see the skin and miss the soul”. Whereas, “The judicial key to construction is the composite perception of the data and the dehi of the provision.” (Board of Mining Examination v. Ramjee (1977) 2 SCC 256, Para-9)”.”
While endorsing the detention of the petitioner, the Division Bench then puts it plainly in para 28 that, “Sub-Section 2 of Section 3 is very wide and as noticed above, deals with three eventualities (See: Para-23). “Explanation” to SubSection 2 deals with a small part of it. The intention of lawmakers in inserting the ‘explanation’ is to take out cases of black marketing from NSA Act to some extent, to the extent it is covered by the Black Marketing Act. ‘Explanation’, by no stretch of imagination can eclipse the entire main provision namely, Sub-Section 2 of Section 3. The plain and unambiguous language of Sub-Section 2 of Section 3 makes it clear that the Competent Authority/Govt. can pass the order of detention if one of the eventuality out of said three is satisfied. In the instant case, the District Magistrate has taken a plausible view that ‘public order’ is being threatened by the petitioner. Thus, we are unable to hold that order of detention is beyond the purview of Sub-Section 2 of Section 3 of NSA Act.”
Final Judgment
Needless to say, the Division Bench then says categorically in para 25 that, “We find force in the argument of learned Additional Advocate General that black marketing of remedesivir creates a threat to “public order”. We have taken this view recently in the case of Yatindra Verma (supra) also. If ‘public order’ is breached or threatened, in order to maintain ‘public order’, NSA Act can very well be invoked. Thus, “explanation” appended to Sub-Section 2 of Section 3 of NSA Act will not exclude the operation of NSA Act in a case of this nature where ‘public order’ is breached, threatened and put to jeopardy.”
Quite remarkably, the Division Bench then hastens to add in para 29 that, “We will be failing in our duty if the argument of Shri Maheshwari relating to “acting under dictate” is not taken into account. On the basis of certain social media posts of the Chief Minister of the State wherein he expressed his view that persons involved in black marketing of Remdesivir/drugs should be detained under the NSA Act, it was argued that the detention order passed by the District Magistrate is in furtherance of said posts and amount to acting under dictate. We do not see any merit in this contention. The social media posts cannot be equated with an administrative order/instruction. It is not necessary that every social media post of a government functionary is seen/read out and followed in the administrative hierarchy. Had it been an executive instruction/order issued by higher functionary to act in a particular manner and in obedience thereof District Magistrate would have passed a detention order, perhaps the matter would have been different. Unless a clear nexus is established between the social media posts and the detention order, it cannot be said that District Magistrate has acted under dictate. Apart from this, the impugned order of District Magistrate has been examined by us on the necessary parameters and it was found that he has used his discretion in accordance with law and thus this argument of the petitioner must fail.”
What’s more, the Bench then also makes it clear in para 30 that, “So far the question of communication of detention order to the uncle of the petitioner is concerned, suffice it to say that no prejudice was caused to the petitioner because of such communication. Indeed petitioner filed this petition and had taken legal recourse with quite a promptitude. In absence of showing any prejudice, no interference on this count is warranted and judgments of A.K. Roy (supra) and Dr Kafeel (supra) are of no help to the petitioner.”
While taking potshots at the petitioner’s tall claims of innocence, the Division Bench then minces no words to put forth in para 31 that, “The petitioner is unable to show any flaw in the decision-making process adopted by District Magistrate. In absence of establishing any such illegality, no interference is warranted.”
Finally, the Division Bench then holds in para 32 that, “Petition sans substance and is hereby dismissed.”
On the whole, this noteworthy judgment, the division bench has taken the black marketing of remedesivir drug most seriously and has demonstrated zero tolerance towards those who indulge in it as it directly impacts public order and those in need of it are compelled to buy the drug at exorbitant rates which are most inhumanly and cannot be condoned under any circumstances! We all know how Indore was among the worst affected city in India due to Covid-19 and so this is a notable judgment in that regard!
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