# Dilip Kumar v. Union of India through the Secretary and others

- **Citation:** (2000) 3 ILRA 46
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 1999-08-04
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dilip-kumar-v-union-of-india-through-the-secretary-and-others-39536
- **Pages:** 3

## Text

INDIAN LAW REPOSTS ALLAHABAD SERIES [2000
46
Bulandshahr dated 17.12.1999 is quashed.
However, the matter is sent back to learned
Sessions Judge, Bulandshahr, who may
pass proper order in the Criminal Revision
No.458 of 1999 in the light of the
discussions made in the body of the
judgment.
Application Allowed.

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By the Court
1. This writ petition has been filed
challenging order dated 4th August, 1999
by District Magistrate, Agra under section
3(2) of the National Security Act, 1980
here-in-after referred to 'Act' under which
petitioner has been detained. Counter and
rejoinder affidavits have been exchanged
between the parties.

2. We have heard Sri Nasiruzzaman
alongwith Sri Jokhan Prasad Yadav,
learned
counsel
for
petitioner,
Sri
Mahendra Pratap, learned A.G.A. for
respondents no.2 to 4 and Sri K.N. Pandey
for respondent no.1.

3. Learned counsel for petitioner has
challenged the legality of the order on a
short
ground
that
in
view
of
the
Explanation appended to sub-section (2) of
section 3 of the act the impugned order of
detention could not be legally passed by
detaining authority. Learned counsel has
3All] Dilip Kumar V. Union of India through the Secretary and others
47
submitted that as in the present case
the recovery of drugs allegedly spurious is
involved, the action can only be taken
under the prevention of black marketing
and maintenance of supplies of essential
commodities act, 1980.

4. Sri Mahendra Pratap learned
A.G.A., on the other hand has submitted
that misbranded, adulterated or spurious,
drugs cannot be treated as drugs as defined
in the Drugs and Cosmetics Act, 1940 and
section
2(a)(iv-a)
of
the
essential
commodities
act,
1955,
prohibition
contained
in
explanation
has
no
application in the present case.

5. We have carefully considered the
submissions of the learned counsel for the
parties. In the present case, allegations
against the petitioner are that on 6th July,
1999, authorities conducted a raid and
search in the shop of the petitioner and
recovered 38 different kinds of medicines,
which, according to the Drug Inspector,
were spurious and not genuine and could
be harmful to the patients. Sample of 19
medicines was taken and sent to public
Analyst for his report as to whether the
drugs are genuine or not. It is not disputed
that the report of the Public Analyst is still
awaited. Explanation appended to subsection (2) of section 3 of the act reads as
under:

"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."

Explanation appended to sub-section (1) of
section 3 of the prevention of Black
marketing and Maintenance of Supplies of
Essential Commodities Act, 1980 reads as
under :

"Explanation 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 clause (a) ;

with a view to making gain in any manner
which may directly or indirectly defeat or
tend to defeat the provisions or that act or
other law aforesaid."
INDIAN LAW REPOSTS ALLAHABAD SERIES [2000
48
6. It is not disputed that the drugs as
defined, has been included as one of the
essential commodities under section 2(a)
(vi-a) of the essential Commodities Act,
1955. As drugs are essential commodities
and
their
production,
supply
and
distribution and trade and commerce is
controlled by the Drugs and Cosmetics
Act,
1940
and
the
Rules
framed
thereunder, there remains to no doubt that
the explanation appended to sub-section
(2) of section 3 of the Act is attracted to
the present case and the order of detention
could not be legally passed. From a close
reading of the explanation to sub-section
(1) of section 3 of Prevention of Blackmarketing and Maintenance f supplies of
essential Commodities Act, 1980, it is
clear that the nature of the drugs whether
spurious misbranded, or adulterated is not
the basis for passing the order but the
requirement is that the trade and commerce
or indulgence in the production, supply
and distribution of the alleged drugs
should 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, which, in the present
case, may drugs and Cosmetics Act, 1940
and the Essential Commodities Act, 1955.
Allegation against petitioner is that he
stored the spurious medicines for making
gain which, if permitted, would defeat
provisions of aforesaid Acts. In view of
the aforesaid legal position, in our opinion,
the detaining authority was not competent
to pass an order of detention against
petitioner is view of the clear prohibition
contained in the explanation to Section 3
(2) of the Act.

7. For the reasons stated above, the
writ petition is allowed. The impugned
order dated 4.8.1999 (Annexure-2) is
hereby quashed. The respondents are
directed
to
set
petitioner
at
liberty
forthwith if his detention is not required in
any other case.
Petition Allowed.

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By the Court

The petitioner is challenging the
advertisement for P.C.S.(J) examination
of the U.P.. The main ground which he
has alleged is that several persons who are
doing LL.M. are also being permitted to
appear
in
the
aforesaid
examination
although they have not attended Courts for
three years as lawyer. In our opinion, once
a person is enrolled as a lawyer by the U.P.