G.B. Patnaik, J.
1. The petitioner has been detained under the provisions of the Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act, 1980 (hereinafter referred to as the 'Act') pursuant to an order passed by the District Magistrate, Sundargarh, in exercise of his power conferred under Section 3 (1)(a), (b)(i) and (ii) read with Section 2(a) of the Act. The petitioner assails the said order, inter alia on the grounds that the detaining authority has passed the order of detention mechnically without applying his mind to find out whether launching of a criminal prosecution under the provisions of the Essential Commodities Act could also serve the purpose of preventing the petitioner from acting in any manner prejudicial to the maintenance of supplies of commodity essential to the community and that the grounds are vague and irrelevant and the detenu was prevented from making an effective representation thereby Article 22(5) of the Constitution has been violated.
2. The averments made in the writ application indicate that the petitioner was an Inspector of Co-operative Societies and by virtue of his office he was deputed to hold the post of Secretary, Regional Marketing Cooperative Society, Bonai. The said Society was appointed as a Storage Agent on 25-5-1989. The Civil Supplies Officer made a stock verification of different godowns of, the Society on 7-7-1989 and 11-7-1989 and in course of such inspection certain shortages of stock were detected. On account of such shortage of stocks, the detaining authority passed the impugned order of detention on 14-7-1989 and the petitioner was taken into custody. The order of detention has been annexed as Annexure 1 to the writ application. In accordance with the provisions of the Act, the grounds of detention, annexed as Annexure 2, were communicated on 18-7-1989 and the said order of detention was approved by the State Government on 20-7-1989. The petitioner was suspended from service with effect from 14-7-1989 and petitioner's representation was rejected by the State Government on 31-8-1989. The State Government confirmed the order of detention on 6-9-1989 for a period of six months from the date of detention. The petitioner thereafter has approached this Court.
3. In the counter-affidavit filed on behalf of the State it has been averred that the detaining authority has passed the impugned order of detention after applying his mind fully to the facts of shortage of stocks and on being satisfied that the detention of the petitioner is necessary to prevent him from acting in a manner prejudicial to the maintenance of supplies of commodity essential to the community. The allegation of non-application of mind and that the detaining authority has mechanically passed the order of detention has been denied.
4. In course of the hearing of the writ application, Mr. Bijan Ray, the learned Counsel for the petitioner, strenuously contends that the counter-affidavit filed on behalf of the detaining authority does not indicate that the said authority had in mind the question whether prosecution of the offender was possible and sufficient in the circumstances of the case to prevent him from acting in a manner prejudicial to the maintenance of supplies of commodity esential to the community and having the same in mind yet passed the order of detention on being satisfied that the pre-conditions for exercise of power under Section 3 of the Act have been fulfilled in the absence of such materials in the counter-affidavit the order of detention gets vitiated, as the conclusion can only be that the detaining authority passed the order of detention mechanically. In support of his aforesaid contention, he places reliance on the decision of the Supreme Court in the case of Smt. Hemlata Kantilal Shah v. State of Maharashtra, AIR 1982 SC 8 : (1982 Cri LJ 150); a Bench decision of Gujarat High Court in the case of Dalpatbhai Bhikhabhai Patel v. District Magistrate, Surat, 1983, (2) 24 Guj LR 849 and Anr. Bench decision of the said High Court in the case of , Ganeshbhai Gangabhai Harijan v. District Magistrate, Banaskantha, 1983 (2) 24 Guj LR 1016. Mr. Bijan Ray further urges that the statement of facts contained in the grounds of detention is such that it was not possible for the detenu to clearly understand what exactly is the allegation against him and, therefore, he was prevented from making an effective representation and consequently, there has been an infringement of Article 22(5) of the Constitution and the order of detention is vitiated on that score. Reliance was placed in this case on a Bench decision of this Court in the case of Ram Bhagat Agarwala v. State of Orissa (1984) 1 Crimes 972: (1984 Cri LJ 392) and the decision of the Supreme Court in the case of Mohd. Yosuf Rather v. State of Jammu and Kashmir, 1979 SCC (Cri) 999 : (AIR 1979 SC 1925). Mr. Ray also urges that in the facts and circumstances of the present case, the detenu being a public servant, the order of detention has been punitive rather than preventive and was exercised by the authority without due care and caution and, therefore, the said order must be held to be vitiated.
Mr. R. K. Patra, the learned Additional Government Advocate, on the other hand, contends that the provisions of the Act being preventive in nature it was open for the detaining authority to take recourse to the said provision notwithstanding the fact that the detenu could be proceeded under the normal criminal law and the order of detention cannot be vitiated on that score. He further contends that the object of making an order of detention is different from the object of a criminal prosecution and, therefore, merely because the detenu could be possibly proceeded against by instituting a criminal case, that would not be a bar for the detaining authority to pass an order of preventive detention. The learned Additional Government Advocate further urges that the High Court would not function as a court of appeal and, therefore, the subjective satisfaction of the detaining authority with regard to the necessity for an order of detention cannot be interfered with by this Court in exercise of jurisdiction under Article 226 of the Constitution.
The rival contentions require a closer examination of the law on the subject and also a closer scrutiny of the grounds of detention.
5. It is undisputed that the High Court when exercises power under Article 226 of the Constitution and scrutinize an order of detention, it does not sit in appeal on the question of subjective satisfaction of the detaining authority. But when a detaining authority passes an order of detention mechnically without applying his mind to the relevant facts and considerations or when the Court finds that there has been an infringement of Article 22(5) of the Constitution, then the Court would be fully justified in interfering with an order of detention. Bearing in mind the aforesaid parameter with regard to exercise of power by this Court, we would examine now the grounds of detention and the contention raised by the learned counsel for the petitioner in assasiling the same. The grounds of detention, annexed as Annexure-2, indicate that the detenu was working as the Secretary of Bonai Regional Co-operative Marketing Society and the Society had been appointed as the Storage Agent under the Orissa State Civil Supplies Corporation for rice, wheat and sugar for financial year 1989-90 for Lahunipada, Koira, Bonai and Gurundia Blocks. The said Society had also been granted licence to deal with different commodities under different Control Orders. Under the Control Orders and in accordance with the agreement executed between the parties, the Society was required to keep the stocks of rice, wheat and sugar in conformity with the stock position in the register maintained in such depots and while verifying the stocks physically by the Supplies Staff, shortages. were revealed as indicated in paragraph-4 of the grounds of detention. On account of such shortage, the detaining authority came to the conclusion that there had been a sale in blackmarket with a view to making personal gain and for which the public distribution system had been disrupted and the detenu had violated the provisions of the Control Orders issued under the Essential Commodities Act and, therefore, was detained by order dated 14-7-1989.
6. A bare perusal of the grounds of detention unequivocally indicates that the detaining authority has never borne in mind the fact that the detenu has been suspended from acting as Secretary and also could be proceeded with under the provisions of the Essential Commodities Act for having contravened the provisions thereunder. It is no doubt true, as contended by the learned Additional Government. Advocate that possibility of the detenu being dealt with under the provisions of criminal law will not constitute a bar for the detaining authority to pass an order of preventive detention. Mr. Ray, the learned counsel for the petitioner, also does not dispute the proposition, but what he contends is that the detaining authority must have in his mind the fact that the detenu has been suspended from service and could be criminally prosecuted and, therefore, whether in such a circumstance, an order of preventive detention is necessary of not. In other words, where a public servant is suspended from the service and thereby is ineligible to indulge in similar activities for which the detaining authority had thought of passing an order of detention and consequently it serves the purpose of a preventive detention and yet bearing that in mind the detaining authority passes an order of detention, his satisfaction cannot be assailed in a Court of Law. But if while arriving at' his satisfaction he had not borne in mind the fact of suspension of such public servant and consequential prevention of the said servant in dealing with the commodities, then the order of detention gets vitiated. The aforesaid conclusion of ours is based upon the decision of the Supreme Court in Smt. Hemlata Kantilal Shah's case AIR 1982 SC 8 : (1982 Cri LJ 150). The Bench decision of the Gujarat High Court in Dalpatbhai Bhikhabhai Patel's case, 1983 (2) 24 Guj LR 849 fully supports our conclusion, inasmuch as it was held in the said case:--
'.......An order of interim suspension has the effect of preventing a public servant from performing the duties of his office though he might continue to enjoy the status of a public servant. Such suspension prevents him from doing anything in the discharge of the duties of his office. The purpose of such suspension, inter alia, is to ensure that pending departmental inquiry or criminal prosecution, or both, which might have been instituted or which might have been under contemplation, such public servant is not in a position to misuse his authority in the same way in which he might have been found to have done in the past. The order of suspension passed against the petitioner, therefore, served the same purpose and had the same effect which was sought to be attained by his detention. The petitioner was thereby put out of the harm's way and prevented from indulging in future in his objectionable activities detrimental to the maintenance of supply of an essential commodity.'
It was also held in the said case:--
'......it is clearly manifest that the detaining authority's mind was not at all applied to the vital aspect relating to the impact of the suspension of the petitioner on the need of the exercise of the power of detention on the facts and in the circumstances of the case......'
The Bench decision of Gujarat High Court in Ganeshbhai Gangabhai Harijan's case, 1983 (2) 24 Guj LR 1016 also fully supports the aforesaid view. In the premises, as aforesaid, and on the admitted facts and circumstances of the present case, the detenu being a public servant and having been suspended from service was prevented from having any control over the Cooperative Society which had entered into an agreement with the State for doing business in rice, wheat and sugar there could, therefore, be no apprehension in the mind of the detaining authority that the petitioner would act further in any manner which would be prejudicial to the maintenance of supplies of commodities essential to the community. At any rate, the detaining authority had never applied his mind to this aspect of the case and without considering the question has passed the order of detention and consequently, the order of detention gets vitiated on that score. Even in the return filed to this Court the detaining authority has also not stated that he had applied his mind to the aforesaid facts, but had merely urged on the legal ground that an order of preventive detention could be passed notwithstanding the fact that the detenu could be criminally proceeded against. In the aforesaid premises, we would accept the first submission of Mr. Bijan Ray, the learned counsel for the petitioner, and hold that the order of detention has been vitiated and accordingly, we would quash the same.
7. Since we have accepted the first contention of Mr. Ray, the learned counsel for the petitioner, and have held that the order of detention is vitiated, it is not necessary to examine the other contentions urged by the earned counsel for the petitioner.
8. In the net result, therefore, we quash the order of detention and the continued detention of the petitioner pursuant to the same and direct that the petitioner be set at liberty forthwith unless his detention is necessary in some other case. The writ application is accordingly allowed, but there would be no order as to costs.
V. Gopalaswamy, J.
9. I agree.