Blackmarketing Of Remedesivir Directly Impacts Public Order: Madhya Pradesh High Court Upholds Detention Under NSA

The Madhya Pradesh High Court 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 Justices Sujoy Paul and Anil Verma held that Blackmarketing of remedesivir injection has direct impact on "public order", and the Petitioner-accused if released, could indulge into same activity because the scarcity of remedesivir is still there.

The High Court further elucidated on the principles of statutory interpretation and clarified that the explanation appended to Section 3(2) of NSA only takes out the aspect of blacklisting of certain commodities which are covered by the Prevention of Blackmarketing And Maintenance of Supplies of Essential Commodities Act, 1980. It does not however 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.

"Blackmarketing 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," the High Court thus ruled.

In the present matter, the petitioner was detained by District Magistrate on allegations of black marketing of Remedesivir injections. The DM opined that when the highest numbers of Covid-19 patients were there at Indore, the petitioner's act has caused a serious threat to the public order.

Section 3(2) of NSA deals with three contingencies when a citizen can be detained for preventing him from acting in any manner prejudicial to (a) security of State; (b) maintenance of public order; and (c) maintenance of supplies and services essential to the community.

The explanation appended thereto, Petitioner's counsel Mudit Maheshwari argued, makes it clear that if somebody acted in a manner which is prejudicial to the maintenance of supplies and services essential to the community but such act falls within the ambit of the Blackmarketing Act, 1980, such person cannot be detained under the NSA.

On the other hand, AAG Pushyamitra Bhargava for the State argued that explanation to Section 3(2) of the NSA Act deals with "maintenance of supplies and services essential to the community." Further, it is clear that under Section 3(1)(b) of the Black Marketing Act, to treat a commodity as an essential commodity, twin conditions are to be satisfied; (a) the commodity must be defined as an essential commodity under the Act of 1955; (b) a provision is present in any other law about the said commodity. In the instant case, in the absence of any such provision being made, Section 3(1)(b) ingredients are not satisfied.

The Court held that the use of "explanation" in a statute is an internal aid to construction. It relied on the objects of an explanation as provided by the Apex Court in S. Sundaram Pillai v. V.R. Pattabiraman, i.e., it cannot. (a) interfere with or change the enactment; (b) take away a statutory right; (c) create hindrance in the working and interpretation of the Act. It was held that an explanation is meant to: (a) to explain the meaning and intention of the Act; (b) to clarify any obscurity or vagueness and make it consistent with the dominant object of Act (c) to provide any additional support to the dominant object of the Act; (d) suppress the mischief and advance the object of the Act.

The Court further noted,

"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. Similarly a negative explanation which 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. Thus, the explanation in the instant case, has a limited impact on main provision i.e. Section 3(2) of 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."

The Court rejected Maheshwari's argument 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 NSA Act cannot be invoked. In this regard, the Court held:

"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 Blackmarketing Act."

The Court instead accepted the argument of the AAG that black marketing of Remedesivir creates a threat to "public order," and if public order is breached or threatened, NSA Act can very well be invoked as held in the Yatindra Verma case. Thus, the conclusion arrived at was that an explanation to Section 3(2) of the NSA Act would not exclude the operation of the NSA Act in a case of this nature where 'public order' is breached, threatened, and put to jeopardy.

Textual & Contextual Intepretation Of A Statute

The High Court observed that interpretation of a statute must depend on the text and the context. That interpretation is best, which makes the textual interpretation match the contextual.

"A statute is best interpreted when we know why it was enacted," the Court noted, relying on RBI v. Peerless General Finance and Investment Co. Ltd.

It also discussed the rule of literal construction in interpretation. Relying on the case of Ajay Maken v. Adesh Kumar Gupta, it 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."

The Court noted that lawmakers' intention 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. By no stretch of the imagination, an explanation can eclipse the entire main provision of Section 3(2). The Court noted,

"The plain and unambiguous language of Sub-Section 2 of Section 3 makes it clear that the Competent Authority/Govt. can pass an order of detention if one of the eventualities 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 the order of detention is beyond the purview of Sub-Section 2 of Section 3 of NSA Act."

The petitioner also argued that the DM, while passing the order of detention, was 'acting under dictate,' influenced by the various social media posts of the Chief Minister. In these posts, the CM expressed his opinion that the persons indulged in black marketing of Remedesivir injections are liable to be detained under the NSA Act. Thereby alleging that subjective satisfaction and application of mind were absent on the part of the DM while passing the impugned order.

The High Court rejected this contention and held that an administrative order or instruction could not be equated with a social media post. Every such post of a government functionary cannot be seen/read out and followed in the administrative hierarchy. While upholding the impugned detention order, it noted:

"Had it been an executive instruction/order issued by higher functionary to act in a particular manner and obedience thereof, DM 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".

Case Title: Sonu Bairwa v. State of MP & Ors.

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