[Act No. 7 of Year
1980]
An
Act to provide for detention in certain cases for the purpose of
prevention of blackmarketing and maintenance of supplies of
commodities essential to the community and for matters connected
therewith.
Be it enacted by Parliament in the Thirty-first Year of the
Republic of India as follows: -
1. Short title, extent
and commencement
(1) This Act may be called the Prevention of Blackmarketing
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 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 as respect a
person detained under such order, the State
Government;
(b) "detention order" means an order made under section
3;
(c)
"State Government" in relation to a Union Territory, means the
administrator thereof.
3. Power to make orders
detaining certain persons
(1) The Central Government or
State Government or any officer of the Central Government, not below
the rank or 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
with a view to preventing him from acting in any manner prejudicial
to the maintenance of supplies of the commodities 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, 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 of that Act or
other law aforesaid.
(2) Any of the following
officers, namely-
(a) District Magistrates;
(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 section 8 the grounds of detention are communicated by the
authority making the order after five days but not later than ten
days 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
specially 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, have a
bearing on the necessity for the order.
4. Execution of
detention orders
A detention order may be executed at any place in India in
the manner provided for the execution of warrants of arrest 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 a
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, by 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 clause (b) for the removal of a person from one State to another State except with the consent of the government of that other State.
6. Detention orders not
to be invalid or inoperative on certain grounds
(a) that the person to
be detained thereunder 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.
7. Powers in relation to
absconding persons
(1) If 1[the 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 2[or officer] may,-
(a) make a report in writing of
the fact to a Metropolitan Magistrate or a Judicial Magistrate of
the First Class having jurisdiction in the place where the said
person ordinarily resides; and there upon the provisions of sections
82, 83, 84 and 85 of the Code 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 be 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 a 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 clause (b)
of sub-section (1) shall be cognizable.
8. Grounds of order of
detention to be disclosed to person affected by 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 from 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 the public interest to
disclose.
Comment: It will be seen that right to represent has been given not only by Article 22(5) of the Constitution but also by Section 8 of the Act. The right provided under the Act has, therefore, to be treated as an extension of the constitutional right already available to a detenu under Article 22(5). The legislature has, in fact, given effect to the constitutional right by providing in Section 8 of the Act that the detenu shall have the right of making a representation to the appropriate government. Kundanbhai Dulabhai Shaikh v. Distt. Magistrate, Ahmedabad, AIR 1996 SUPREME COURT 2998
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.
(2) Every such Board shall
consist of three persons who are, or have been or are qualified to
be appointed as, Judges of a High Court, and such person 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 Union Territory, the appointment to the Advisory Board of
any person who is 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 shall 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 section 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.
11. Procedure of
Advisory Board
(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 purposes 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 Advisory Board
shall specify in separate part thereof the opinion of the Advisory
Board as to whether or not there is sufficient cause 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 member shall be deemed to be the opinion of the
Board.
(4) Nothing in this section shall entitle 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.
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 order and continue 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.
13. Maximum period of
detention
(1) The maximum period for which any person may be detained
in pursuance of any detention order which has been confirmed under
section 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.
14. Revocation of
detention orders
(1) Without prejudice to the provisions of section 21 of the
General Clauses Act, 1897 (10 of 1897), a detention order may at any
time, be revoked or modified-
(a) notwithstanding that the
order has been made by an officer of the State Government, by the
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 detention order shall not bar the making of a fresh
detention order under section 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.
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 the person accepts,
and 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 cancelling 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 fulfil 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 thereby shall be liable to pay the penalty
thereof.
16. Protection of action
taken in good faith
No suit or other legal
proceedings shall lie against the Central Government or a State
Government and no suit, prosecution or other legal proceeding shall
lie against any person, for any thing in good faith done or intended
to be done in pursuance of this Act.
17. Repeal and
saving
(1) The Prevention of Blackmarketing 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.