M.M. Das, J.
1. The petitioner in this writ application assails the order of approval of the detention order dated 27.3.2005 of the District Magistrate, Sambalpur made by Government of Orissa under Annexure-5 dated 6.4.2005.
. 2. The short facts as enumerated in the writ application leading to the said order under Annexure-5 are required to be narrated for appreciation of the case.
3. The petitioner was appointed as a sub-wholesaler for kerosene oil for NAC, Burla under the provisions of the Orissa Kerosene Control Order, 1962, by the licensing authority in the year, 1994. The said licence was renewed from time to time and was valid till 31.6.2006. The District Magistrate-cum-Collector, Sambalpur is the licensing authority. On 23.3.2005 a fire accident took place in which two kerosene tankers were gutted in fire inside the godown premises of the petitioner and an FIR to that effect, was registered as P.S. Case No. 54 dated 23.3.2005 for commission of offence under Section 285, IPC read with Section 7 of the Essential Commodities Act and Section 23 of the Petroleum Act. In the said criminal case, the petitioner was arrayed as an accused alongwith three others. The licensing authority, namely, the Collector suspended the licence of the petitioner with immediate effect, vide his order dated 25.3.2005 which has been annexed as Annexure-3 to the writ petition. The petitioner alleges that the question regarding the said accident in which the kerosene tankers were gutted in fire, was raised in the State Assembly and the concerned minister gave a statement that there has been a preliminary enquiry regarding the said incident and necessary steps are being taken by the Government in that regard. The petitioner further alleges that in order to substantiate the said statement, a detention order under Section 3 of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 (hereinafter referred to as 'the Act') was made by the District Magistrate, Sambalpur and sent to the Government for approval on 27.3.2005, which is purported to have been approved under the order dated 6.4.2005 of the Government (Annexure-5).
4. A counter affidavit has been filed on behalf of opp. party No. 2-District Magistrate-cum-Collector, Sambalpur, stating inter alia that a clear case for passing an order of detention against the petitioner under Section 3 of the Act having been made out, the District Magistrate-cum-Collector, Sambalpur prepared the grounds of detention of the petitioner and sent the same to the Government for approval as required under the Act. The grounds of detention of the petitioner submitted by the District Magistrate-cum-Collector to the Government has been annexed to the counter affidavit as a part of the FIR in the P.S. Case No. 54 of 2005 which was registered at the Burla Police Station.
5. Mr. B.P. Ray, learned counsel for the petitioner submitted that the grounds of detention levelled against the petitioner in no way satisfy the requirement of Section 3 of the Act. He further contended that a bare perusal of grounds would disclose that none of the ingredients of the said Section 3 of the Act are satisfied and as such, the same is vague being based on extraneous and irrelevant considerations.
6. Mr. D.C. Mohanty, learned Government Advocate, per contra, submitted that an order of detention in the pre-execution stage cannot be challenged in an application under Article 226 of the Constitution and this Court should not exercise the extraordinary jurisdiction at this stage before the order of detention is executed and the detenu is taken to custody. He further submitted that an order of detention passed under any law which provides for preventive detention if not allowed to be executed, the same will be frustrated and the very object of the detention law would be defeated. He, thus, contended the impugned order of detention should not be allowed to be challenged before it is executed.
7. Mr. B.P.Ray, in reply to the above contention vehemently argued that the impugned order of detention is not only vague and based on extraneous and irrelevant ground but also clearly indicates a mala fide action on the part of the executive and infringes the right of the petitioner guaranteed under Article 21 of the Constitution. He, therefore, contended that the power under Article 226 of the Constitution is wide enough and unfettered by any external restriction and in an appropriate case can be extended to curb an action of the executive if the same is found to be intended for a wrong purpose and is ex facie, baseless and vague.
8. The questions that arise for our consideration in this writ application are as to whether the petitioner is entitled to challenge the order of detention without submitting or surrendering to it and if so, whether the order of detention passed in the present case satisfies the requirement of Section 3 of the Act.
9. It is needless to observe that the Constitution does not place any restriction in exercising the extraordinary power of this Court under Article 226 of the Constitution but it has been evolved by repeated judicial pronouncements over a period of years that this jurisdiction is exercised within the frame work of self-imposed restriction by the Courts. The High Court does not as a Court of Appeal or Revision correct mere errors of law or of facts and it also does not exercise such jurisdiction as an alternative remedy for relief which may be obtained by other modes prescribed by a statute thereby permitting the machinery created by a statute to be by-passed, unless, of course, where there exists exceptional circumstances calling for judicial intervention, such as, where the action complained of is an outcome of mala fide or based on extraneous consideration or is made in violation of principles of natural justice or any constitutional provision. The Court can also intervene where an action is without jurisdiction or the order passed was unwarranted or in breach of provisions of the concerned statute. The Court can also exercise such power if it is found that the authority has exceeded its jurisdiction or has failed or refused to exercise jurisdiction vested in it or has not applied its mind at all or even where it has exercised the power for an improper purpose.
10. In order to appreciate the facts giving rise to the present application, we feel it necessary to reproduce Section 3(1) of the Act which is as follows :
Power to make order detaining certain persons
- (1) The Central Government or a State Government or any officer of the Central Government, not below the rank of a Joint Secretary to that Government specially empowered for the purpose 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 purpose 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 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.
11. A bare reading of the above provision shows that an order of detention under the said provisions can be passed against any person with a view to prevent him from acting in any manner prejudicial to the maintenance of supplies of commodities essential to the community. It further appears that the phrase 'acting in any manner prejudicial to the maintenance of supplies of commodities essential to the community' has been defined in the explanation (a) and (b).
12. On perusal of the grounds of detention which has been Annexed to the counter affidavit filed on behalf of the District Magistrate-cum-Collector, it is seen that with respect to the allegation of contravention of condition 2(1) of the licence granted in favour of the petitioner, the same being an offence under Section 7 of the Essential Commodities Act, admittedly, a criminal case has been instituted against the petitioner. All the other grounds stated therein are also stated to be in violation of the said condition 2(1) of the licence and of misuse of electricity. Though it appears that the District Magistrate has used the same phraseology as given in Section 3 of the Act by stating that he is satisfied that the petitioner has indulged in committing offence and instigating other persons to commit such offence in a manner prejudicial to the maintenance of supplies of commodities essential to the poor community with a view to make illegal gain defeating the provision of Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980, but as a matter of fact, the said conclusion of the District Magistrate is not based on any facts found during enquiry. We find no material whatsoever produced by the opp. parties to show that the petitioner has acted in any manner prejudicial to the maintenance of supplies of commodities essential to the community, which is the only ingredient of Section 3 of the Act and without which no order of detention can be passed against any person as contemplated under the said Section 3 of the Act.
13. The Supreme Court in the case of Additional Secretary to the Government of India and Ors. v. Smt. Alka Subhash Gadia and Anr., 1992 Supp. (1) SCC 496 while examining an order of detention passed under the 'COFEPOSA Act, 1974' dealt with a similar situation as in the present case. A similar question was raised in the said case with regard to judicial review of an order of detention at the pre-execution stage. Though in the said case, the Supreme Court was not inclined to interfere with the order of detention but it held that the Courts have necessary power and they have used it in proper cases as has been pointed out above, although such cases have been few and the grounds on which the Courts have interfered with them at the pre-execution stage are necessarily very limited in scope and number, viz., where the Courts are prima facie satisfied (i) that the impugned order is not passed under the Act under which it is purported to have been passed, (ii) that it is sought to be executed against a wrong person, (iii) that it is passed for a wrong purpose, (iv) that it is passed on vague, extraneous and irrelevant grounds or (v) that the authority which passed it had no authority to do so. The refusal by the Courts to use their extraordinary powers of judicial review to interfere with the detention orders prior to their execution on any other ground does not amount to the abandonment of the said power or to their denial to the proposed detenu, but prevents their abuse and the perversion of the law in question.
14. Considering the submissions made by the learned counsel for the parties and on appreciating the facts giving rise to the order of detention and after perusal of the grounds of detention as reported by the District Magistrate-cum-Collector, in our view, the instant case is A proper case where the extraordinary jurisdiction of this Court under Article 226 of the Constitution should be exercised and the order of detention can be subjected to judicial review. In our further view, as the grounds of detention as stated by the District Magistrate-cum-Collector do not in any manner fulfil the ingredients of Section 3 of the Act, the same is liable to be quashed. We, therefore, quash the order of detention dated 27.3.2005 of the District Magistrate, Sambalpur for detaining the petitioner under Section 3 of the Act as approved by the order of the Government on 6.4.2005 in Annexure-5.
The writ application is, accordingly allowed.
S.B. Roy, C.J.
I agree.