JUDGMENT
A. Pasayat, J.
1. The detention of one Mahabir Prasad Sharma (hereinafter referred to as the ‘detenu”) Under Section 3(2) of the Prevention of Black Marketing and Maintenance of Supply of Essential Commodities Act, 1980 (hereinafter referred to as the ‘Act’) it the subject-matter of challenge in this writ application by his son, the petitioner.
2. The detention in question is intended as preventive measure with a view to prevent the detenu from acting in any manner prejudicial to the maintenance of supplies of commodities essential to the community. Detenu’s representations against the detention have been rejected by the State and the Central Governments and the detention has been confirmed by the Advisory Board constituted under the Act.
3. Petitioner has restricted his grounds of attack to the following, though various other grounds were taken in the writ application.
(i) The detenu has surrendered his licence to carry on business and there is no likelihood of his acting in any manner prejudicial to the maintenance of supplies of commodities to warrant his further detention.
(ii) The detention order was passed without application of mind and on the basis of vague allegations.
(iii) The alleged offences can be properly dealt with by common law procedures and without any indication in the grounds of detention that the procedure available under the common law were not adequate, resort to the harsh measures of the preventive detention is unwarranted. The detaining authority did not apply his mind to this aspect.
(iv) The State Government in a proceeding Under Section 6-C of(the Essential Commodities Act, 1955,) has held that in respect of some of the conclusions the detaining, authority while directing confiscation of certain commodities, had not applied his mind to the relevant materials. ¦ In view of this conclusion by the appellate authority it is apparent that the allegations which formed the basis of detention, were the outcome of non-application of mind.
(v) The grounds of detention were not served on the detenu in a language known to the detenu, and therefore, his right of making an effective representation was affected.
(vi) The petitioner was not present at the time of inspection and merely because any alleged offence has been committed by a person allegedly to be in charge of the business, the detention of the detenu is unwarranted.
The detaining authority, the State Government and the Central Government have characterised the submissions and contentions as without substance, and have submitted that the detention does not suffer from any infirmity to warrant any interference, particularly when it involves serious allegations of activities affecting supply of commodities which are essential for the very sustenance of human lire.
5. A preventive detention is no punitive but precautionary;, measure. The object is not to punish a man for having done something but to prevent and intercept him before he does it again No offence is proved, nor any charge is formulated ; and the, justification Of such detention is suspicion or reasonable probability and there is no criminal conviction which can only be warranted by legal evidence. Preventive justice requires an action “to be taken to prevent apprehended objectionable activities’ (See Rex v. Halliday : 1917 AC 260 ; Mr. Kubicc Dariusz v. Union’ of India and others– AIR 1990 SC 605 ) But at the ‘.same time ,a person’s .greatest of human .freedoms i. e.. personal, liberty, .is deprived, and, therefore, the law ,of preventives detention: are,. strictly construed, and, a. meticulous compliance with the procedural safe guards however .technical, is mandatory. The, compulsions of the primordial need,,, to,, maintain order in society, without which enjoyment of all rights including the right, of persona! liberty, would lose all their meaning, are the true justifications for the laws of preventive detention Some times the deprivation of personal liberty of individuals becomes imperative to protect the” ‘society from -denigrating. Laws that provide “for’ ‘preventive ‘detention posif that an Individual’s conduct prejudicial to the maintenance of supplies ‘of commodities necessary for the commodities can provide ‘grounds: for a-‘ satisfaction o that similar purpose be the part of the person concerned are likely o’and there is a possible future manifestation. This jurisdiction- has been described as a jurisdiction of suspicion ; and the compulsions to preserve the: -values of freedom, of a democratic society and social sometime merit the court ailment of the individual liberty, (See, AIR 1989 SC 364 ; Ayya @ Ayub v. State of U. P. and another),to lose our country, by a scrupulous adherence to the written law “said Thomas Jefferson” would be to lose the law itself, with life, liberty and all those who are enjoying with us, thus absurdly sacrificing the ‘end to the Heeds,- No Saw is an end itself and the curtailment of-liberty or reasons of State’s security and national economic discipline as a necessary evil has to be administered under strict constitutional restriction No. case blanche , is given to. any organ of the State to be the sole arbiter in such matters. A constitutional protection is given to every, detenu which mandates .the grant of liberty to the, detenu to make a representation against the detention as imperated jn Aft. 22(5) of the constitution . It .also. imperates the authority to, whom. the, representation is addressed to deal with the same with utmost expedition. The representation is to be considered in its right perspective keeping .in view -the fact that the detention of the detenu is based on subjective satisfaction of the authority concerned, and infringement of the constitutional right conferred under Art 22(5) invalidates’ the detention in order Personal liberty protected under Art. 21 is so sacrosanct and so high in ‘the scale of constitution values that it is the obligation of the detaining authority to show’ that the impugned detention meticulously accords with ‘the procedure established by law., The stringency and concern of the judicial vigilance that is needed was aptly described, in the following words in Thomas Petham Dales’ case , 1881 (6) OBD, 376,
“Then comes the, question upon the habeas corpus it. is a general-rule, which has always been acted upon by the Courts of England that, if any person procures the imprisonment .pf another he must take care to do so by, .steps, all of which are entirely regular, and that if he fails to follow every step in the process with extreme regularity the Court will not allow the imprisonment to continue.”
Whenever there-is executive invasion on personal liberty, the Court has to weigh in golden scales whether the personal liberty is the be placed’ at a high pedestal regardless ‘of the social cost involved in the release of a possible ‘renegade:: Observations to- similar effect were made by the Supreme Court in Iohhudevi v. Union of India : AIR 1980 SC 1983: Judged in this background, the quest is whether the detention as directed in the instant case One -where the procedural – sinews ; offered from any Weakness to warrant interference.
6. The grounds of detention in substance, are that on several, occasions inspections, by several authorities brought into fore ponderous discrepancies in the stock of essential commodities handled .by the detenu. There was allegation of attempt, to create artificial .scarcity of the concerned commodities with a view to make .wrongful gain. ,The. ;.question whether there is sufficient material to Justify, the detention, is- not open .to judicial scrutiny. Sufficiency of material is inconsequential in a case of preventive detention, it is not for the Court to pronounce possible inferences from evidence for or against the detenu. It is for the detaining authority to satisfy himself about these .matters and about the need to order the preventive detention and its duration, in considering the legality of an order of detention,’ the High Court does not and cannot function as a Court of appeal. If there is any material to justify passing of the detention order, the necessity for it is a matter of subjective assessment and satisfaction by the detaining authority with which no Court would be ordinarily justified in interfering unless it is shown that there has been any infraction of the precautions afforded under Art. 22(5). That the matter falls within the subjective satisfaction does not mean it could be irrational to the point of unreality. Subjective satisfaction is actual satisfaction, nevertheless. The objective standards which Courts apply may not be applied, the subject being more sensitive; but a sham satisfaction is no satisfaction and will fail in Court when challenged. If the material factors are slurred over, the formula of subjective satisfaction cannot salvage the deprivatory order. As observed by the Supreme Court in AIR 1975 SC 919 : Sadhu Roy v. State of West Bengal ; statutory immunology hardly moves such invalidity and the jurisprudence of detention without trial is not the vanishing point of judicial review.
7. It is appropriate to deal with the grounds relating to the surrender of licence, alleged non-application of mind to material factors and the desirability of specific mention regarding inadequacy of procedures under the common law together as they are interlinked. The factum of surrender of licence has been stressed to submit that in the absence of licence, the possibilities of further trade vanished and therefore, the apprciation of future detrimental acts also consequently disappeared. It ‘is’of -ant to indicate here that the order of detention was passed on 29-8-1990, while it was served on the detenu on 21-10-1997 at 10.30 P. M. and he was lodged in the Circle jail, Cuttack on 24-10-1990 at 10.15 A. M. This position is undisputed. Intimation of intention to discontinue business and to surrender the licence issued under the Orissa Pulses Edible “Oilseeds and Edible Oil Dealers'(Licensing) Order, 1977 (hereinafter referred to as the ‘Licensing Order 1) was filed on 31-8-1990. The contention that after the licence is surrendered, there is no possibility of dealing with the essential commodities has no substance. One of the grounds indicated in the order of detention was non-reflection of sale of 2600 tins of Konark Brand Vanaspati received from the manufacturers during April, 1990. This was also not a part ot the stock exhibited by the detenu for sale. Mere non- possession of a licence is no guarantee for non-involvement of a person in clandestine activities. Similar contention raised by a detenu did not find acceptance by the Supreme Court (See AIR 1975 SC 1093 : Dinanath Pansari v. Collector and District Magistrate, Keonjhar and another). in that case the contention of the detenu was that by virtue of an executive order, there was no-possibility of getting any stock and there was no necessity to continue the detention. The plea was not accepted by the Supreme Court.
8. Coming to the plea that there was non-application of mind to material aspects and that the materials which formed the basis for the order of detention were not accepted by the appellate authority under the Essential Commodities Act, 1955 is based on certain observations made by the appellate authority in a proceeding Under Section 6-C of the said Act. The appellate order was not before the detaining authority at the time the order of detention was passed. The essential distinctive feature, of preventive detention is its qualitative difference from punitive detention. The former is resorted to on the basis of reasonable anticipation and may or may not relate to an offence, while in the later elaborate observance of the .procedure hid down in the concerned law is required. The two are not parallel proceedings and there is no overlapping even if some of the omaterials and evidence are common in both the proceedings. As observed by the Supreme Court in Haradhan Saha v. The State of West Bengal and Ors. : AIR 1974 SC 2I54, the pendency of a prosecution, or a discharge or acquittal does not affect the validity of preventive detention. Therefore, even if certain observations have been made by the appellate authority, that is of no assistance to the detenu. The residual point from the. fluster of contentions now under consideration relates to the non-recording of a specific reason to resort to preventive detention and/or about adequacy of the procedure available under the common law. i his contention is fallacious in view of whit has bean said in Haradhan Sana’s case (supra). in a prosecution under the common law, the accused is sought to be punished for the past act, for a preventive detention the past act may form foundation for the belief but the anticipated aberrations are intended to be avoided. The past conduct or activity is only relevant so as to furnish reasonable ground, and the satisfaction has to be with reference to a person and what is anticipated and the grounds of detention must have nexus with the purpose for which The detention is made keeping in view such conduct and activity. As observed by the Supreme Court in the case of Samir Chatterjee v. State of West Bengal : AIR 1975 SC 1165, merely because a detenu is liable to be tried by a criminal Court for commission of a criminal offence would not debar the detaining authority from taking action for detention. Similar view was also expressed in AIR 1972 SC 2256 ; Brij Mohan Gorey v. State of West Bengal ; The Supreme Ccurt in the case of Mohd. Subrati v. State of West Bengal ; AIR 1973 SC 207, held that the preventive detention has nothing to do with trial and punishment of persons for commission of offences and the same could be resorted to even if the criminal prosecution has not been launched. In Suru Mallick v. State of West Bengal : AIR 1974 SC 2305, the order of detention’ was held to be valid not withstanding the fact that no specific instances were possible to be established against ‘he detenu for ‘ want of evidence or because- witnesses were not willing to come forward to depose. As observed by the Gauhati High Court in disease of Jyoti Prasad Baruah v. State of Assam and Ors. : 1384 Crl. L. J. 470 to which” my Lord the Chief justice (as he then was) was a party, an ‘ order of detention will not necessarily be bad due to non-application of mind about the possibility of prosecution under the common law. Further, if on persual of the grounds it is noticed that the alleged mistakes or infirmities are not so important or serious in nature so as to vitiate the order of detention, then no ‘interference is railed for (See AIR 1987 SC’ 1748, Pushpadevi Jatra v. Union of India and others). Judged in’ this background alleged non-mention of the ground for not resorting to the procedures ‘available under the common law and/or inadequacy thereof cannot be a ground for invalidating the order of detention.
9. Coming to the’ question whether the absence of the detenu at the time of inspection and his liability for acts of the person in charge of the management of the business is concerned, the undisputed position is that the detenu was the person ‘who was proprietor of the business, and the licence to carry on trade in essential’ commodities was issued to him if the contention that because of his absence fie had immunity is accepted; then the very purpose of enact enactment of the Act would’ be lost. A businessman may be carrying on business activities at several ‘ places, It would not be physically practicable and possible ‘for him to be present at all the places’ where his business activities are conducted.’ The transactions’ are conducted at ‘different places under his ‘authority and he is legally ‘responsible for any infraction, it is not suggested that’ the person who was managing the business had .no authority to do so and on the contrary there is tacit acceptance of the positron; Therefore, ‘there’ is nothing illicit in holding the detenu liable for the contraventions ‘ alleged by the detaining authority.
10. The residual question is the alleged denial of opportunity to make an effective and purposeful representation. According to the detenu, he can only understand the Hindi language and the .grounds of detention Were not” served in a language known to him It is asserted that he made an inadequate representation in Oriya language, and was also prejudiced because ‘ of’ non-supply’ of copies of the documents relied upon by the District Magistrate arid referred to in she grounds of detention. The allegation of non-supply of copies of documents has been stoutly denied by the detaining authority in the return filed in this Court. The details of the papers that were supplied to the detenu., at his request, -have already been listed. What is mandated( |n Artt. 22(5,1 is that the grounds of detention, should be. indicated to the detenu and therefore, it must follow as an imperative that the grounds of detention must be communicated to the detenu in the language known to him so that he can make an effective representation In the case of Prakash Chandra Mehta v. Commissioner, and Secretary, Government of Kerala and Ors. : AIR 1985 SC 687 considering the nature of representation made’, it was held by the Supreme Court that there wan effective communication of’ the ‘grounds- of detention to the detenu in that case. As observed by the Supreme Court in AIR 1951 SC 270’: Ram Singh and Ors. v. The State of Delhi and another, (sic) if ‘sufficient particulars are given to enable a detenu to make an effective representation, requirements of Art. 2.;(5) are complied with.
In the instant case, a look at the representation, submitted by the petitioner leaves no manner of doubt that the grounds of detention were communicated to him effectively, and he was not prevented from making an effective and purposeful representation. Therefore, there “has been compliance of the procedural Safeguards as far as practicable. As observed by the Supreme Court in Prakash Chandra Mehta’s case (supra), once material’s exist to show that there was scope taking- a view that the grounds of detention were communication to the detenu, and he had in fact-made an effective representation, ‘the ‘ allegation ‘of non-communication of the grounds the language known to the detenu loses significance; The question whether there has been effective communication of the grounds of detention Would vary from case to case and no strait-jacket formula can be laid down.
11. A reference to the grounds of detention and the list of documents appended thereto, indicates that twenty nine documents were listed. it is not the case of the detenu that any of these documents has not been supplied to him. On the contrary, the letter addressed to the Collector dated 1-11-1990 shows that he wanted- documents which may have been utilised to substantiate: the ‘grounds of detention. This is not a case where documents relied upon have not been supplied to the detenu. On the contrary his demand was for the documents which may have been utilised to substantiate the allegations. There is a gulf of difference between documents which have been relied and which may have been relied upon to form the,, basis for detention. As observed by the Supreme Court, non-supply or documents not referred to in the ground of detention does not invalidate the detention nor does it affect many manner whatsoever the detenu’s; right to make an effective representation in compliance with the provisions of Art. 22(5) of the Constitution of India. (See 1990 II SVIR (Crt). 152 :. syed Farooq Mohammad v. Union of India and Anr. and 1990 SVLR (Cr) 54 : Shri Abdul Sttar Abdul Kadar Shaikh v. Union of India and others, Considering, the facts- of the present case, it is not a case of non-effective communication of the grounds and therefore, the contentions, raised in this regard also are without substance.
12. All the contentions raised to assail the detention having, failed, there is no scope for any interference in this writ application., The: application is accordingly dismissed,
B.L. Hansaria, C.J.
13. I agree.