9911796707
TMI Blog1975 (7) TMI 154X X X X Extracts X X X X X X X X Extracts X X X X ..... tituted 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. S. 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 2(vi) of the counter-affidavit appearing at p. 118 the Paper Book. It was therefore contended by the learned counsel for the petitioner that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trict 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 22,000 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 1.64 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 M/s Bharat oil Company located at Badaun licensed at Badaun to deal with Light Diesel oil and required by rule 9(1) of the U.P. Essential Commodities (Price Display and Control of Supply and Distribution) order, 1971. as amended by Second Amendment dated June 13, 1973 framed under Rule 114(2) 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 Light Diesel Oil a scheduled commodity within the meaning of the said order, as is evident from the following: (i) Cash memo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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. S. 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 S. 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 ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... them on the detenu. In other words, according to Mr. S. 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. S. 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. S. 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 de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 3(1) 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 (iii)the 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-s. (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 s. 3; (ii) the order must be duly signed by the said authority; and (iii) that only one authority and one authority alone ca ..... X X X X Extracts X X X X X X X X Extracts X X X X
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