ition No 84 of 1975
Petition under article 32 of the Constitution of India
A k Sell D N Mukherjee Narayan Gupta and C section Chatterjee for the petitioner
Girish Chandra for respondent No 1
DP Uniyal and O P Rana for respondent nos
The Judgment of the Court was delivered by FAZAL ALI J
By an order dated November 8 1974 passed by the District Magistrate Badaun the petitioner was detained under section 31aiii of the hereinafter referred to as the Act  because the allegations made in the grounds of detention disclosed that he had committed acts prejudicial to the maintenance of supplies and services essential to the community
The grounds of the order of detention were served on the petitioner by the District Magistrate Badaun on November 13 1974
The State Government approved the order of detention on 18 November 19 1974 and made a report to the Government of India on November 22 1974
According to the respondents the Government of UP had made a reference to the Advisory Board constituted under the Act on November 22 1974 but as it had not received The representation from the petitioner the same was forwarded later
The representation according to the respondents was received on November 28 1974 which was rejected on December 6 1974
The representation was sent to the Advisory Board on December 18 1974 which gave 13 its report holding that the grounds were sufficient for detention of the petitioner and after receipt of the opinion of the Advisory Board on January 7 1975 the order of detention was finally confirmed by the Government on January 17 1975
We might mention at the very outset that there was some controversy on two points before us
In the first place the petitioner did not accept the stand of the Government that the reference to the Advisory Board was made on November 22 1974 but relied on a counter affidavit filed by Mr section K D Mathur the then District Magistrate of Badaun in this Court to support his plea that the reference to the Advisory Board was made on December 20 1974 vide paragraph 2vi of the counter affidavit appearing at p 118 the Paper Book
It was therefore contended by the learned counsel for the petitioner that as the reference was made to the Advisory Board beyond the period mentioned in section 10 of the Act there being a violation of the mandatory provision of the statute the order of detention fell on this ground alone
We gave an opportunity to the Government to produce before us materials to show the exact position and from the original file produced before us we find that the counter affidavit filed by Mr section K D Mathur in this court to the effect that the reference was made to the Advisory Board on December 20 1974 was factually incorrect and that the reference was really made on November 22 1974 by the Government by virtue of letter No 10724874
The file also contains a letter of the Registrar dated January 7 1975 forwarding the opinion of the Advisory Board wherein also it was mentioned that the reference was made on November 22 1974
In view of these cogent materials Mr Sen learned counsel for the petitioner did not choose to press this point
We cannot however
Leave this matter without expressing our strong disapprobation on the careless and irresponsible manner in which the counter affidavit has been filed by the respondents particularly by Mr section K D Mathur who happened to be the then District Magistrate Badaun
We hope the Government will be careful in future and see that such incorrect affidavit are not filed before this Court which may create unnecessary confusion and controversy and make a simple issue so very much involved
The petitioner was admittedly a partner of the firm called Bharat Oil Company which was dealing in the storage and sale of high speed diesel oil since 1965
According to the petitioner the business was started at Badaun and Ujhani but later a branch was opened at Bareilly and the firm transferred its headquarters to Bareilly in 1971
We are not however concerned with the business at 19 Bareilly in this case
Under the  the petitioner could have carried on his business only after obtaining a licence from the prescribed authority
The District Authorities could grant licence only to the extent of 22000 liters but if the dealer wanted to store high diesel oil to the extent of more than 22000 litres he had to get a licence from the Chief Controller of Explosives Nagpur
The petitioner s further case is that as high speed diesel oil ran in short supply the Indian oil Corporation and the District authorities impressed on the dealers the necessity of keeping light diesel oil which was available in sufficient quantities and was necessary for running crushers and pumps in the rural areas
The petitioner had undoubtedly secured a licence for storage of li ht diesel oil which was valid upto March 31 1975 and had applied for renewal of the licence thereafter and had also complied with all the necessary formalities about no objection and the safety certificate to be given by the District Authorities
But on the date in question the licence of the petitioner had not been renewed so far
We might intention in this connection that the stand taken by the respondents is that although the petitioner had a licence to stole light diesel oil to the extent of 22000 litres he did not possess any licence for storing it at Ujhani
It appears that the godown of the petitioner was searched by the excise authorities on October 17 1974 and November 5 1974 and in inspection of the godown about 164 lakhs litres of light diesel oil was found stored it Ujhani
The stock register was produced by the petitioner before the authorities which appeared to be in order and there is no allegation that there was any manipulation or interpolation in the stock register Thus the simple allegation against the petitioner is that he had stocked huge quantity of light diesel oil without waiting for the licence to be cleared by the Chief Controller of Explosives at Nagpur This forms the subject matter of the allegations mentioned in grounds 1a  b of the grounds of detention served on the petitioner
The sheet anchor of the argument of Mr Sen learned counsel for the petitioner was that in so far as ground No 1 was concerned it was wholly irrelevant and totally unconnected with the nexus of the Act because even if the grounds be taken at their face value they did not disrupt or disturb the essential supplies to the community
Before dealing with this contention it may be necessary to quote in extenso the grounds mentioned in 1a  b of the detention order 1 That you a partner in the firm named Bharat oil Company Mohalla Ayodhya Nagar Ujhani District Badaun on Bareilly Mathura Road authorised only to deal in High Speed Diesel and Motor Spirit were found hoarding Light Diesel oil without having obtained a licence for the same from the Chief controller of Explosives Nagpur as is evident from the following a On 17 10 74 at about 4 PM the premises of your aforesaid firm was inspected by Sri section N Pandey District Excise officer Badaun and it was found that in the underground tanks within the premises mentioned aforesaid 96000 litres of Light 20 Diesel oil was stored for which no licence could be produced on demand by the District Excise officer aforesaid and thereafter a complaint has also been lodged in the court of the Chief Judicial Magistrate Badaun by the District Excise officer on 8 11 74 b On 5 11 74 the premises of your aforesaid firm Bharat oil Company Ujhani was again inspected at about 415 PM by Sri N N Verma SDM Badaun accompanied by District Excise officer Badaun and Sri Fateh Singh Dy
SP Badaun and it was found that 68000 litres of Light Diesel oil had during 7th October 1974 to the time of this inspection been added to the store kept by you of the said Light Diesel oil of 96000 litres in three underground tanks within the premises mentioned aforesaid and no licence could be produced on demand by the SDM Badaun
For this also a complaint has been lodged by the SDM Badaun in the Court of Judicial Magistrate II Badaun on 8 11 74
 Analysing these grounds it would appear that there is no allegation by the detaining authority that by storing the huge quantity of light diesel oil the petitioner had in any way affected the distribution or sale of that commodity nor is there any allegation to show that the petition had refused to sell light diesel oil to any body who required it
The High Court which was moved in the first instance for a writ of habeas corpus appears to have drawn an inference based purely on speculation that the petitioner had transferred huge quantities of light diesel oil from his depot at Badaun to his godown at Ujhani
There is however no material on the basis of which the High Court could have drawn such an inference
There is however no suggestion
far less any allegation in these grounds that the petitioner had tried to divert his stocks of light diesel oil from Badaun to Ujhani and thereby deprived the people of Badaun of their share of the light diesel oil
In these circumstances therefore we arc satisfied that there is absolutely no correlation between the act of the petitioner and the disruption of distribution of the essential supplies to the community
The learned counsel appearing for the respondents submitted that by storing such huge quantities of light diesel oil in Ujhani the petitioner has committed a clear violation of the mandatory provisions of the and the Rules made thereunder and must be presumed to have disrupted the essential supplies because light diesel oil had been declared by the order of the Government of UP to be an essential commodity
We are however unable to agree with this argument
Mr Sen appearing for the petitioner does not dispute that the light diesel oil was an essential commodity but his argument was that he has in no way tried to disrupt the essential supplies of this commodity and he merely committed a technical offence in storing the quantities of light diesel oil in anticipation of the licence which had been cleared by the District Authorities and which awaited the 21 sanction of the Chief Controller of Explosives Nagpur and which would have in normal routine been granted
It is also admitted in the ground itself that a complaint had been lodged in the Court of the Chief Judicial Magistrate against the petitioner for the storage
We have already held in several cases that the commission of an offence at a private place or a violation of a provision of law by itself does not attract the Act unless by the act committed by the petitioner the essential supplies to the community are disrupted or even flow of the life of the community is disrupted
Reading grounds 1a  b we are unable to hold that they are in any way germane or relevant to the disruption of maintenance of essential supplies to the community
In Manu Bhusan Roy Prodhan vs State of West Bengal and others1 this Court observed as follows This kind of a solitary assault on one individual which may well be equated with an ordinary murder which is not an uncommon occurrence can hardly be said to disturb public peace or place public order in jeopardy so as to bring the case within the purview of the Act
It can only raise a law and order problem and no more its impact on the society as a whole cannot be considered to be so extensive widespread and forceful as to disturb the normal life of the community thereby rudely shaking the balanced tempo of the orderly life of the general public
This ground is therefore not at all relevant for sustaining the order of detention for preventing the petitioner from acting in a manner prejudicial to the maintenance of public order
The ratio of this case fully tallies with the facts of the present case where also grounds 1 a  b taken at their face value appear to be irrelevant and do not disclose any causal connection with the disruption of the essential supplies to the community
We now take up the other ground namely ground No 2 which is as follows 2 That you as partner of the firm Ms Bharat oil Company located at Badaun licensed at Badaun to deal with Light Diesel oil and required by rule 91 of the UP Essential Commodities Price Display and Control of Supply and Distribution order 1971
as amended by Second Amendment dated  June 13 1973 framed under Rule 1142 of the Defence of India Rules 1971 to issue every purchaser a correct receipt showing inter alia the name and address of the customer were found to have sold Light Diesel Oil repeatedly without complying with the said requirement and with the object make fictitious sale of the 22 Light Diesel Oil a scheduled commodity within the meaning of the said order as is evident from the following i Cash memo No 62 dated 8 8 74   ii Cash memo no 63 dated 14 8 74   iiiCash memo no 134 dated 7 10 74  Name and address  of the customer iv Cash memo no 135 dated 7 10 74 not given  v Cash memo No 145 dated 7 11 74  vi Cash memo No 146 dated 7 11 74 This ground no doubt discloses a clear overt act on the part of the petitioner from which an inference can be drawn that the petitioner had made a number of fictitious sales
The details of the cash memos by which the sales had been made have also been given but the cash memos do not disclose the names and addresses of the customers as required by the rules
The petitioner has himself admitted in paragraph 13 of his petition filed in this Court that there had been a violation of the UP Sale of Motor Spirit Taxation Act and the Rules made thereunder but he sought to explain the omission on the ground that it was due to the mistake of the Munim and the quantities alleged to have been sold were actually purchased by the petitioner himself for the use of the pumps in his own agricultural farm
This explanation does not appear to be convincing at all
From the file produced before us by the respondents it appears that the total amount of sale of light diesel oil under these cash memos mentioned in the ground comes to 21 000 litres
We find it impossible to believe that the petitioner would consume such huge quantity of light diesel oil for his personal agricultural farms particularly when the petitioner had given no details of the number of farms and other machines for which this oil was said to be used
In these circumstances there can be no doubt that these were fictitious sales made by the petitioner with a view to hoard light diesel oil and by his conduct the persons who were in genuine need of light diesel oil were deprived of the same
Ground No 2 therefore is quite specific but the difficulty is that in view of our finding that ground No 1 is irrelevant it is not possible to determine as to what extent the subjective satisfaction of the detaining authority was influenced or affected by Ground No 1 which has been found by us to be extraneous and irrelevant
It has been held by us in several cases that where out of two grounds one ground is vague or irrelevant then the entire order of detention falls to the ground
In this view of the matter the order of detention suffers from this serious infirmity and must be quashed
Secondly it was argued by the learned counsel for the petitioner that on the materials produced before us the subjective satisfaction of the detaining authority has also not been established
To begin with it is not clear at all as to who passed the order of detention and who was satisfied regarding the sufficiency of the grounds
In the second place the grounds appear to have been served by Mr R C Arora the permanent District Magistrate of Badaun who has also signed the same which shows that he was the detaining 23 authority also
On a consideration of these two points we are of the opinion that the contention of the learned counsel for the petitioner is well founded and must prevail
Coming to the first point we find that Mr section K D Mathur has clearly alleged in his counter affidavit that Mr R C Arora the permanent District Magistrate of Badaun had proceeded on leave from October 21 1974 to November 11 1974 and during his absence the deponent section K D Mathur was acting as the District Magistrate of Badaun
It is further stated in the affidavit that Mr R C Arora rejoined his duty in November 12 1974 and took charge of his office
The order of detention however appears to have been passed while Mr section K D Mathur was officiating as District Magistrate of Badaun and Mr Mathur makes no secret of the fact that the order of detention was passed by him after being satisfied of the grounds of detention
In the counter affidavit submitted by Mr section K D Mathur before the High Court which is Annexure at p 66 of the Paper Book Mr Mathur categorically stated that he himself had passed the detention order after recording his satisfaction
In this connection paragraph 1 of the counter affidavit before the High Court is as follows That the deponent was District Magistrate Badaun on 8 11 1974 and he has passed the detention order against the petitioner after being fully satisfied that the petitioner was acting in a manner prejudicial to the maintenance of supplies and services essential to the community and as such he is well acquainted with the facts deposed to below
 This allegation is reiterated and over emphasised in paragraph 23 of the same affidavit wherein Mr Mathur makes a categorical averment which is as follows  the deponent submits that in his capacity as the District Magistrate he was fully competent to make the impugned order of detention
The deponent further submits that on the basis of the evidence and the material placed be before him to which he has referred above he was personally and fully satisfied as to the existence of sufficient basis to make the impugned order with a view to prevent the petitioner from indulging in activities prejudicial to the maintenance of essential services and supplies
 In this very affidavit Mr Mathur goes on to state that he had also farmed draft of the grounds on November 8 1974 and that Shri R C Arora who took over on November 12 1974 served these grounds on the petitioner which were drawn by the deponent Mr section K D Mathur
In this connection the averment runs as follows Sri R C Arora took over charge on November 12 1974 and under his signature Sri Arora served these same grounds which the deponent had earlier drawn upon the petitioner
 According to the clear and categorical averments made by Mr section K D Mathur in his affidavit before the High Court the only role which was 24 assigned to Mr R C Arora the permanent District Magistrate was A that he signed the grounds and served them on the detenu
In other words according to Mr section K D Mathur Mr R C Arora was merely the serving officer and did not perform any other function in so far as the order of detention passed against the petitioner was concerned and yet this officer is imprudent enough to allege in paragraph 25 of the counter affidavit filed in this Court that the order of detention was passed not only by him but by the two detaining authorities namely Mr R C Arora and Mr section K D Mathur
In this connection Mr Mathur averred as follows
That the order of detention was passed by the detaining authorities after they had fully satisfied themselves about the existence of the grounds
 It would thus appear from this averment that the order of detention was not passed by one single person but by more than one person and taking the facts mentioned by the deponent it would appear that the order of detention appears to have been passed in two stages in he first instance by Mr section K D Mathur who was full fledged District Magistrate on November 8 1974 when the order of detention was passed but who according to his own statement had first prepared a draft of the grounds
The order of detention was then signed by Mr R C Arora on November 13 1974 and served on the detenu
While Mr section K D Mathur took the clearest possible stand before the High Court that he alone had made the order of detention and he alone was satisfied about the sufficiency of the grounds but in his affidavit before this Court he seems to suggest that there were two detaining authorities both of whom were satisfied
This shows the casual and cavalier manner in which the order of detention against the petitioner appears to have been passed in this case
Even if the order had been made by Mr section K D Mathur and signed by him there could have been no objection in Mr R C Arora serving the grounds on the petitioner because the law does not require that the person who actually signs the order or the grounds must also serve the same on the detenu
But in this case it is not possible to determine as to who in fact made the order of detention
F It is true that the Court cannot go behind the subjective satisfaction of the detaining authority but such satisfaction does not confer a blanket power which may authorise the detaining authority to act in a ruthless or arbitrary fashion and the judicial decisions have undoubtedly carved out an area though limited
within which the subjective satisfaction of the detaining authority can be tested on the touchstone of objectivity
It is obvious that the subjective satisfaction of the detaining authority is a sine qua non for the exercise of power of detention and it has got to be exercised properly and discreetly
In Khudiram Das vs The State of West Bengal and others1 this Court made the following observations The basic postulate on which the courts have proceeded is that the subjective satisfaction being a condition precedent for the exercise of the power conferred on the executive the 25 court can always examine whether the requisite satisfaction is arrived at by the authority if it is not the condition precedent dent to the exercise of the power would not be fulfilled and the exercise of the power would be bad In the instant case in view of the contradictory stand taken by the detaining authorities we are satisfied that the exercise of jurisdiction to detain the petitioner has not been made with due care and caution or in a proper and fair manner
On this ground also the order of detention stands vitiated
Section 31 of the Act runs
thus 3
1 The Central Government or the State Government may a if satisfied with respect to any person including a foreigner that with a view to preventing him from acting in any manner prejudicial to i the defence of India the relation of India with foreign powers or the security of India or ii the security of the State or the maintenance of public order or iiithe maintenance of supplies and services essential to the community or b if satisfied with respect to any foreigner that with a view to regulating his continued presence in India or with a view to making arrangements for his expulsion from India It is necessary so to do make an order directing that such person be detained
 This power can also be exercised by the officers mentioned in sub section
2 and in the instant case we are concerned with the District Magistrate
The words make an order directing that such person be detained  clearly postulate three conditions 1 that the order must be made by the authority mentioned in section 3 ii the order must be duly signed by the said authority and iii that only one authority and one authority alone can pass such order of detention
The statute does not contemplate a sort of composite or a joint order passed by several authorities
In the instant case the original order of detention passed by Mr section K D Mathur bears his signature and even the grounds mentioned bear his signature
In these circumstances we are unable to accept the affidavit of Mr section K D Mathur that the grounds framed by him were merely draft grounds prepared by him which were signed by the permanent District Magistrate later
It is obvious that unless the order made and the grounds prepared are signed by the authority concerned the order is not made as contemplated by section 3 of the Act
Further more since the order is based on grounds to be served on the detenu the order of detention could be passed only if the grounds are in existence and are prepared contemporaneously otherwise the order 26 of detention becomes purely illusory
In view however of the contradictory affidavits given by Mr section K D Mathur it is difficult to determine whether Mr section K D Mathur or Mr R C Arora passed the order of detention and as to who among them was satisfied regarding the grounds of detention
This is also a very serious infirmity from which the order of detention suffers and as a result of which the order has to be set aside
There appears to us to be a clear violation of the provisions of section 3 of the Act in this case
Lastly we may mention that although the petitioner has pleaded he question of mala fides in the instant case it is not necessary for us to decide the same in the view we take in this case and that is why it was not seriously pressed by Mr Asoke Sen ill the course of his arguments before us
For the reasons given above we allow the petition and quash the order of detention passed against the petitioner on November 8 1974 and direct the petitioner to be released forthwith
VPS Petition allowed


Summary:
The petitioner was carrying on business in diesel oil an essential commodity in two places
He was detained under section 31aiii of the  on the basis of allegations in two grounds that as had committed sets prejudicial to the maintenance of supplies and services essential to the community
The allegation in the first ground was that he had stocked a large quantity of light diesel oil in one of the places without waiting for the licence to be cleared by the Chief Controller of Explosives in violation of the provisions of the Petroleum Act
It was also stated in the ground that a complaint had been lodged in the Magistrate s court for the offence
The allegation in the second ground was that the petitioner violated the UP Sale of Motor Taxation Act and the rules made thereunder in that the names and addresses of customers who had purchased light diesel from tho petitioner had not been given in the cash memos
Allowing The petition  HELD 1a There is no allegation by the detaining authority in the first ground that by storing the huge quantity of light diesel oil the petitioner had in any way affected the distribution or sale of that commodity nor is there any allegation to show that the petitioner had refused to sell the oil to anybody who required it
Also there is no suggestion far less any allegation that the petitioner had tried to divert his  stocks from one place to the other and thereby deprived the people of one place of their share of the oil
Therefore there is absolutely no correlation between the act of the petitioner and the disruption of distribution of essential supplies to the community
20D E F G b From the violation of the mandatory provisions of the Petroleum Act and the Rules made thereunder no presumption can be drawn that there was disruption of supply of the essential commodity
20G H c The commission of an offence at a private place or a violation of a provision or a law by itself does not attract the unless by the Act committed the supply or an essential commodity to the community is disrupted or the even flow of the life of the community is disrupted
21B Manu Bhushan Roy Prodhan vs State of Bengal and others A I R  referred to
2 The second Ground does disclose a clear overt act from which an inference can be drawn that the petitioner had made a number of fictitious sales
But in view of the finding that the first ground is irrelevant it is not possible to determine to what extent the subjective satisfaction of the detaining authority was influenced or affected by the first ground
When out of 2 grounds one is ague or irrelevant then the entire order of detention falls to the ground
22C F G 3 The Court cannot go behind the subjective satisfaction the detaining authority but such satisfaction does not confer a blanket power which may authorise the detaining authority to act in a ruthless or arbitrary fashion
Judicial decisions have carved out an area though limited within which the subjective satisfaction of the detaining authority which is a sine qua non for the exercise of the power can be tested on the touchstone of objectivity
24F G 17 a The words make an order directing that such person be detained in Section 3 1 of the Act postulates three conditions i that the order must be made by the authority in the section ii The order must be duly signed by the said authority and iii that only one authority and one authority alone can pass the order of detention
Therefore unless the order made and the grounds prepared are signed by the authority concerned the order is not made as contemplated by the section
25F G b Further since the order is based on grounds to be served on the detenu he order of detention could be passed only if the grounds are in existence and are prepared contemporaneously otherwise the order of detention becomes illusory
25H 26A In the present case the District Magistrate who filed the counter affidavit was acting in place of the permanent District Magistrate
In the High court which was moved in the first instance for a writ of habeas corpus the District Magistrate stated that the order of detention was passed by him after being satisfied of the grounds of detention that he also framed the draft of the grounds and that the permanent District Magistrate who took over from him merely signed and served those grounds on the detenu
But in this Court he stated that the order of detention was passed by the two detaining authorities namely both the District Magistrates after they had fully satisfied themselves about the existence of the grounds
It is therefore
not possible to determine as to who in fact made the order of detention
and in view of the contradictory stand taken in the counter affidavits filed by the detaining authorities the exercise of the jurisdiction to detain the petitioner has not been made with due care and caution or in a proper and fair manner
23B 24F Khudiram Das vs The state of West Bengal and Other A 1
R 1975 section C 550 referred to
The Court also expressed strong disapproval of the careless and irresponsible manner in which the counter affidavit had been filed by the District Magistrate because the date on which reference was made to the advisory Board was in correctly stated in the counter affidavit which created unnecessary confusion and controversy over a simple issue 18F G