JUDGMENT
Hari Lal Agrawal, J.
1. The petitioner, who 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 1980 Act) by an order of detention dated 9th Apr., 1980 (annexure ‘4’) passed by the District Magistrate, Singhbhum for alleged violation of the restrictions imposed by notification No. 21423 P. C. Dated 20-12-1954 in the Department of Supply and Commerce of the Government of Bihar, with respect (o the despatch of salt from the State of Bihar to the State of West Bengal, has filed the present writ application for quashing the order of his detention. The main ground on which the detention order has been challenged by Shri A. K. Sen, learned Counsel appearing on behalf of the petitioner, is that the notification, which controlled the movement of salt, itself was not in force and, therefore, the order of detention cannot be sustained.
2. The facts:
The petitioner is resident of a place known as Chakulia, which lies within the district of Singhbhum and is situate only at a short distance from West Bengal, One of his sons, Bharat Kumar, resides with him in the same house and carries on business in salt. The stand of the petitioner is that, he had no connection, whatsoever, with the business of his son. This fact is controverted by the respondents. The reasons and points which have been urged before us in challenge of the order do not necessitate entering into the realm of the disputed fact.
3. On 17th Mar., 1980 the petitioner’s son was summoned by Chakulia Police, but inasmuch as he was out of station, the petitioner himself went there. The Police authorities desired to search thJ premises of his son and search was made in presence of the petitioner of the business premises which is situated in a part of the residential house of the petitioner. The stock registers and cash memos etc. in respect of the salt business (vide seizure list, annexure ‘1’) were seized by the police and the petitioner was asked to accompany them to the police station. And on his arrival, he was suddenly arrested. In the counter-affidavit filed on behalf of respondents Nos. 1 and 2 in this regard, however, this fact is controverted and according to them he was arrested only on the filing of the first information report on the next day, i.e. on 18-3-1980 which was lodged by the Circle Officer, Chakulia, a copy of which has been made annexure ‘2’ to the writ application. The first information report was received at 21.30 hours and was registered as Chakulia P.S. Case No, 7 dated 18-3-1980 Under Section 7 of the Essential Commodities Act and Section 471 of the IPC against the petitioner and his son, aforesaid.
It has been alleged in the first information report that:
….Hemraj Jhunjhunwala has been violating the ban on the export of salt out of territories of the Bihar State. This is the cognizable offence Under Section 7. E.C, Act, and the notification No. 21423 dated 20-12-54 of the Depart, of supply and commerce, Govt, of Bihar. Besides this, Mi. Jhunjhunwala has committed the act of tampering with a document which by itself is a substantive crime. Apart from that he has also tried to cheat the authorities by despatch of salt in the name of fictitious or benami firms. Keeping stock book at residence is also improper.
In the body of the report particulars of various discrepancies regarding despatches of salt made from Chakulia to West Bengal were stated.
4. An application for bail was made on 18-3-1980 on behalf of the petitioner before the Additional Chief Judicial Magistrate, Singhbhum, but the same was rejected and thereafter the petitioner moved this Court on 8-4-1980. The matter was finally heard on the next day by a learned single Judge of this Court. It was alleged by the petitioner that the officers concerned with the detention of the petitioner were present in the Court and his bail application was strenuously opposed by the State, so that thepetitioner may not come out of the custody. However, this Court allowed the bail application ‘ by order dated 9-4-1980 (Annexure ‘3’, The undertaking given on behalf of the petitioner that he”…will not deal, in salt till the disposal of G.R. Case No. 156 of 1980 pending in the court of the Addl. Chief Judicial Magistrate, Jam-shedpur” was also recorded. The petitioner has further pleaded that the authorities were determined to detain the petitioner and frustrate the order of bail and as such they caused the detention order to be issued Under Section 3 of the 19S0 Act. The detention order, which is dated 9-4-1080, was served on the petitioner in jail on 10-4-1980, a copy of which has been made annexure ‘4’. It states that
…With a view to preventing Shri Hemraj Jhunjhunwala son of late Dharam Chand Jhunjhunwala of Chakulia, P.S. Chakulia, District Singhbhum from acting in any manner prejudicial to the prevention of Black Marketing and Maintenance of Supplies of Essential Commodities to the Community, it is necessary to make an order that he-is detained.
It was accordingly directed that the petitioner should be detained, tie result feeing that the petitioner, in spite of the order of his release, could not come out of the jail. Two days thereafter on 12th April, the petitioner was served with the grounds of detention issued by the District Magistrate. The petitioner thereafter filed his representation.
5. The law:
In order to appreciate the main argument advanced by Mr. AK. Sen it is necessary to notice the legislative history. In view of the provisions contained in the Government of India Act, 1935, the India (Central Government and Legislature) Act, 1946 was passed by the British Parliament empowering the Central Parliament to make laws. with respect to the matters which under the 1935 Act were within the competence of the provincial Legislatures and Essential Supplies (Temporary Powers) Act, 1946 was passed by the Central Legislature. This Act was kept alive up to the 26th Jan., 1955 by successive Acts of Parliament. It is not disputed that the provisions of the 1946 Act contained provisions similar to the Essential Commodities Act, 1955, including the power of delegation and such delegation was made by the notification dated 21-10-1946 by the Government of India (Department of Food) in relation to food stuffs to the Provincial Governments. In pursuance of this delegated powers, an order was made by the State Government regulating export of salt from the State of Bihar on permits by the notification dated 20-12-1954, a copy of which has been made annexure ‘6’. It is this notification which is the sheet anchor of the order of detention. The notification provides as follows:
(a) No person shall export or carry or cause to be exported or carried by rail, river, road or otherwise any quantity of the commodities specified in the schedule annexed hereto from any place in the State of Bihar to any place outside the State except with the written permission of the Chief, Controller of Prices and Supplies, Bihar, the Central Government or any competent authority subordinate to the Central Govt.
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6. On 1-4-1955 the Central Legislature enacted a permanent legislation with respect to the Essential Commodities, namely, the Essential Commodities Act, 1955 after repealing the Essential Commodities Ordinance No. 1 of 1955(hereinafter referred lo as the 1955 Act). On coming into force of this Act, 1946 Act, which had come into force on and from the 1-10-1946, expired. The 1955 Act contains a saving clause in Section 16 as usual. II prescribes that in spite of the repealed Ordinance No. 1, 1955 which in its turn repealed the 1946 Act. “notification made thereunder as well will continue to be in force except when it is superceded by any order that may be made under the Essential Commodities Act, 1955.”
7. Ordinance no. 1 of 1955 provided that
Whereas the Essential Supplies (Temporary Powers) Act, 1946(XXIV of 1940, which confers powers to control the production, supply and distribution of and trade and commerce, in certain commodities expires on the 21th day of January, 1955.
And whereas it is necessary in the interest of the general public, to provide for the continuance of such powers in relation to some of the commodities specified in that Act and certain other commodities;
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The Ordinance was being promulgated by the President under Article 123 of the Constitution. Curiously enough the date from which the said Ordinance was to come into force, was 26th’ Jan., 1955. This is the entire relevant legislative history with respect to the law, under the provision of which the impeached action of the respondents has to be examined.
8. It has already been said that under (he Government of India Act 1935 the power to make laws with respect lo trade and commerce in relation to various essential commodities etc. was with the Provincial Governments until the British Parliament had passed the (Central Government and Legislature) Act, 1946 and it was then that the 1946 Act was passed,
9. Mr. A. K. Sen based his argument mainly on Article 369 of the Constitution which gave temporary power lo the Parliament to make laws with respect to certain matters in the State List as if they were matters in the concurrent list, for a period of five years from the commencement of the Constitution, namely, 26th Jan., 1950. It further provided that “…any law made by the Parliament, which Parliament would not but for the provisions of llrs article have been competent to make, shall, to the extent of the incompelency, cease to have effect on the expiration of Ihe said period, except as respects things done or omit led to be done before the expiration thereof”. It was not disputed that left to itself Ihe 1946 Ad would come to its natural end by virtue of the above provision, inasmuch as it would expire on 26th Jan, 1955. The stand of the petitioner, which was also emphasised liy a supplementary affidavit, is that Ordinance no. 1 of 1955, which was promulgated by The President on 21st Jan., 1955, could not operate beyond 26th Jan., 1955 in the absence of any legislative competence in the Central Parliament to that effect. In this regard CL (3) of Article 123 was relied on.
In support of the above case, the petitioner has referred lo entry no, 33 of the Concurrent List of ihe VII Schedule of the Constitution. This entry as it originally stood before Ihe 3rd amendment of the Constitution in the year 1954 simply provided for “Trade and commerce in, and the production, supply and distribution of the products of any industry where the control of such industry by the Union is declared by Parliament by law to be expedient in the Public interest….”
It is not disputed that under this entry, as it stood, the Central Legislature was not compentent to pass any law with respect to the essential commodities. Entry 33, however, was amended by the third amendment in the year 1954 and by Section 2 thereof, on 22-2-1955, a new Entry was substituted, which apart from making some marginal changes in the original Entry also added under Clause (b) food stuffs, including edible oil seeds and oils. It was said that thus in between 26-1-1955 on the expiry of the 1946 Act and 22-2-1955 there was an interregu-num and, therefore, Ordinance no. 1 of 1955(21-1-55) could not revive or save any matters or things under the 1946 Act as until the amendment of Entry 33, the President himself had no authority to enforce any law which the Parliament itself was not empowered.
It is, accordingly argued that the saving clause contained in Section 16 of the Ordinance no. 1 of 1955 would be of to consequence and did not save the 1954 notification which had already become defunct on 26-1-1955. Section 16 of the Ordinance, no doubi, purported to save the orders made or deemed to be made under the 1946 Act in force immediately before the commencement of the Ordinance, as if it was made under the Ordinance itself. Similarly the Essential Commodilies Act also in Section 16 contained a similar saving provision. It is well settled that the repealing and saving provision by its very nature can repeal or save only a law or thing which continues to be in force until the saving provisions itself came into play and can save only such Order or action etc which is in force under the law they were passed which law is then repealed. If the law sought, to be repealed itself stands lapsed or expired, then the saving provisions cannot revive or restore any dead and defunct law. This legal position was not contested by the learned Government Pleader and in my opinion, rightly.
10. In the supplementary counter-affidavit, which was filed after the supplementary affidavit of the petitioner, the respondents have conceded that the 1946 Act lapsed automatically on 26th Jan., 1955 by virlue of the provisions of Article 369 of the Constitution ‘and that in order to empower the Central Parliament to make laws in regard to those matters, Entry no. 33 of the Concurrent list was amended by the 1954(Third Amendment) Ad, which came into force on 22-2-1955. In view of this circumstance the respondents took a stand that the Stale Government was competent to legislate under Article 246 read with Entry no. 42 of List I which deals with inter-State trade and commerce. It was then said that the Central Government was fully competent to regulate inter-State trade and commerce of any commodity. The clear stand of the respondents is that l.he Ordinance, no. 1 of 1955 was issued by the President, aa Entry no. 42 of the Union List empowered the Parliament to regulate the inter-State trade of all commodities, inasmuch as the impugned notification (annexure ‘6’) banned the export of salt outside Bihar. It came in the category of inter-State trade and commerce. Thus the said notification was kept alive till the enactment of the Essential Commodities Act, i.e. during the interregnum and, therefore, there was no break in the legislation and the field always remained occupied.
It is quite obvious that this plea, on the face of it, is erroneous, inasmuch as Ordinance no. 1 of 1955 cannot be said to have been issued under Article 246 read with entry 42 of the Union List, inasmuch as the very preamble of the Ordinance said that it was to provide for the control of the production, supply and distribution of, and trade and commerce in certain commodities and Section 3 of the Ordinance conferred extensive powers on the Government in this regard “for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.” Perhaps on becoming alive of the above infirmity in the stand the learned Government Pleader adopted an entirely new argument during the course of his reply. He took the stand that salt was an industrial product and, therefore, was covered under item no. 52 of the Union List. Item no. 52 of the Union List reads as follows :
Industries, the control of which by the Union is declared by Parliament…
In order to substantiate his argument that salt was a manufactured commodity, the learned Government Pleader referred to various provisions of the Central Excises and Salt Act, 1944. He also placed reliance upon Entry no. 58 of this very List which reads as follows:
Manufacture, supply and distribution of salt by Union agencies; regulation and control of manufacture, supply and distribution of salt by other agencies.
In support of this proposition, he also strongly placed reliance upon Tikaramji v. State of U. P. ). In this case it was observed that the 1954 amendment of the Constitution only enlarged the scope of Entry No. 33 and set a limit on the exclusive jurisdiction which the State Legislature possesses under Entry No. 26 and Entry No. 27 respectively of the State List over “trade and commerce within the State” and “production, supply and distribution of goods”. An ‘industry’ falls under Entry 24 of the Slate List and ‘production, supply and distribution of its products’ fall under Entry No. 27. But the Parliament which has power under Entry 52 of List I may vest the control of that industry in the Union of India. Then neither Entry No. 24 nor entry No. 27 of the State List would apply. Trade and commerce in the product of that industry and production, supply and distribution of those products then become subject matter of the concurrent jurisdiction of both Parliament and State Legislatures under this Entry. Tn this case the question was whether the State of U. P. could legislate with respect to the raw material, namely, sugarcane, the finished products thereof, i.e., sugar which was a subject matter of a Central legislation and a controlled industry,
It was accordingly held that U. P. Sugarcane (Regulation of Supply and Purchase) Act (Act 24 of 1953) was fully intra vires of the U. P. Legislature. The Supreme Court clearly laid down that after amendment of Entry 33 whereas it was possible for the Central Parliament also to legislate in relation to sugarcane, but that in no way affected the legislative competence of the State legislation as well to legislate on the same subject matter, the effect of the amendment being simply to enlarge the scope of the entry and not to affect the legislative competence of the Parliament and (he State Legislature. This case was again referred to by the Supreme Court in the case of A. K. Jain v. Union of India ) where it was observed thai Essential Commodities Act. 1955 and various control orders passed by the Slate Governments as delegates of the Central Government under the Essential Commodities Act were enacted, under this Entry and not under Entry No. 52 of the List I. This decision, therefore, is of no assistance to the respondents.
11. Mr. A. K. Sen look an objection that the respondents should not be permitted to take a new stand, for the first time in the reply argument and thereby lake the petitioner by surprise. However, he contended that even assuming for the sake of argument that salt would be held to be an Industrial product, that by itself would not empower the Parliament to legislate with respect to an industry unless it was declared by the Parliament by law to be expedient to control such an industry in public interest. He cited various instances in support of his contention that such declaration was a sine qua non for legislating with respect to any industry. Reliance was placed on the case of Bai-jnalh Kedia v. Stale of Bihar ) and the Industry (Development and Regulation) Act, 1951, whereby the sugar industry became ‘a controlled industry’. Trade and commerce of the controlled industry and production, distribution and supply of those products then become the subject matter of concurrent jurisdiction of both the Parliament and the State Legislature within Entry No. 33, as was held by the Supreme Court in Tikaram’s case.
Even assuming, therefore that salt was an industrial product, trade and commerce in salt, which was the resultant product of the industry would not be covered by Entry 52 of List I, but would fall under Entry No. 33 of List III. Clause (a) of Entry No. 33 also says that trade and commerce and production, supply and distribution etc., of the products of only that industry would fall under this article which is “declared by Parliament by law to be expedient in the public interest”. It is, therefore, obvious that a declaration by Parliament with respect to each specific industry is a condition precedent to cover its products under Entry 33 for its regulation by the Parliament or the State. In the absence, therefore, of any further materials to show (that such a declaration was made by the Parliament with respect to the salt industry, the argument of the learned Government Pleader does not hold good that the impugned notification or Ordinance No. 1 of 1955 could be upheld under the above constitutional powers.
12. Coming to Entry No. 58, which covers manufacture, supply and distribution of salt, Mr. Sen invited our attention to corresponding item No. 47 of List I in the Government of India Act, 1935, where it was simply ‘salt. He, therefore, contended that under the 1935 Act, Legislation with regard to salt without any limitation was within the reasonable legislative competence of the Central Legislature. This contention finds support from the decision in Lahore Municipality v. Daulat Ram AIR 1942 FC 14). But under the present Entry, the Union Parliament has reasonable jurisdiction with regard to the manufacture, supply and distribution of salt by Union agencies. With respect to manufacture, supply and distribution by other agencies, i, e., the agencies other than the Union agencies, it has only the power of regulation and control and not with respect to its manufacture, supply and distribution.
13. Mr. Sen seems to be right in his contention. He also referred to Rule 2 of the Salt Act, lo derive support for his contention that the said rules contemplated provision of agency by grant of licence. He further argued that when the salt came into market as a finished product manufactured by the Central Agency or by any other agency, there was no law to regulate its distribution and supply. The argument of the learned Government Pleader in his attempt to save Ordinance No. 1 under the spell of Entry No 58 of List I seems to be far-fetched. The Ordinance which was followed by the Act in its very “statements of objects and reasons” says that t:as public interest required that the Centre should continue to have even after 26-1-1955, the same legislative power as it had under Article 369 of the Constitution, a bill providing for necessary amendment of Entry No. 33 of List 3 in 7th Schedule, lo the Constitution was passed by both Houses of Parliament in September last year” and-that Ihe amendment having become law and 1946 Act having expired “an ordinance was promulgated to take effect on 26-1-1955 which provided for the regulation of trade and commerce in and the production, supply and distribution of the commodities which fell within the first category referred to in the preceding paragraph”. With respect to Entry No. 42 of the Union List, the statement itself stated that under the said Entry the Parliament has had power to regulate only inter-State trade and commerce, and Section 4 of the 1955 Ordinance was limited in the first instance only to wheat, raw cotton and sugarcane.
The Statement further says that:
Pending the passing of the Central law providing for control in respect of all essential commodities; now falling within Entry 33 of the Concurrent List. … the present Bill sought to replace the Central Ordinance and at the same time include within the definition of ‘essential Commodities’ those commodities which had to be left out by reasons for passing the Essential Commodities Act itself, therefore, do not bear out the arguments advanced by the learned Government Pleader.
14. Having considered the rival arguments advanced by learned Counsel for the parlies on the main question as above, I, feel inclined to accept the argument of Mr. A. K. Sen and to hold that after the expiry of the Essential Supplies (Temporary Powers) Act, 1946 on 26-1-1955 a vacuum prevailed in the legislative field until 22-2-1955, that is, until Entry No. 33 was amended by the Constitution 3rd Amendment Act, 1954, which empowered the Central Parliament to make laws with respect to foodstuffs and various other commodities. The intention of the Parliament that Ordinance No. 1 of 1955 and Act No, 10 of 1955 were issued under the authority derived by it after the amendment of entry No. S3 is also quite obvious. In that view of the matter, it must be held that the notification dated 20-12-1954(Annexure 6) issued Under Section 3(1) of the 1946 Act, prohibiting export of salt from any place in the State of Bihar to any place outside thereof without obtaining permit from the authorities mentioned therein ceased to be operative on 26-1-1955 by the provisions contained in Article 360 of the Constitution and, therefore, the said notification could- not be deemed to have been saved by the repeal and the saving provisions contained in Section 16 either of the Ordinance or the Act of 1955.
It is not disputed that after coming into force of the 1955 Act, no provision of’ the nature as the notification dated 20-12-54, has been issued. It therefore, must be held that the petitioner cannot be said to have violated any law in force by despatching salt from Chakulia, a place inside the territory of Bihar, lo places oulside thereof. This is the main ground for the petitioner’s detention under the impugned order; but as Mr. Sen challenged the order of detention on some other grounds as well, I would like to consider some of them which were pressed with some vehemence.
15. The next ground which was argued with equal force by Mr. Sen was that the main purpose of the provisions of the Prevention of Blackmarkeling and Maintenance of Supplies of Essential Commodities Act, 1980 was “prevention of blackmarketing etc.” In other words the argument was that the preventive detention being to prevent a person from acting in future to the detriment of the maintenance of supplies etc., and not to punish him for his pasl laches in view of the undertaking given by the petitioner before this Court in the bail matter, which was a condition for the grant of his bail, whereby the petitioner undertook not to deal in salt until the criminal case instituted against him by the respondents, on the basis of the first information report, already noticed earlier, the very purpose of the petitioner’s detention became meaningless and no order should have been passed. Reliance was placed in support of this contention on the case of P. L. Lakhanpal v. Union of India AIR 1%7 SC 908).
In reply to this argument Mr. Government Pleader argued that inasmuch as the order of detention itself was passed on 9-4-1980 at Chaibasa, the District Magistrate cannot be said to be aware of this development and, therefore, the order cannot be impeached on this ground. The argument of the learned Government Pleader is fallacious raas-much as, as rightly contended by Mr. Sen, the order oj detention having been approved by the State Government Under Section 3(3) of the Preventive Detention Act on 21-4-1980, it cannot be said that even by that time, the respondents were not aware of the undertaking of the petitioner. Proceeding further Mr. Sen argued that in any view of the matter, the petitioner having been already lodged in jail on 18-3-80, in pursuance of the criminal proceeding instituted against him for the alleged violation of the provisions of the notification (annexure ‘6’, there was no question of his indulging in any business activity which could call for his detention under the Act.
Long statements have been made in the writ petition to show that ihe respondents have passed the orders simply as a vindictive measure, inasmuch as neither there was any control of price of distribution of supply of salt, the commodity being available in open market in abundance, nor there was any embargo on Us entry in the State of West Bengal directly from the manufacturing centre. It being more convenient to import the commodity from the producing centres at Chakulia due to transportation facilities, the business men were importing salt at that place instead of directly to the places in West Bengal. Such business admittedly was coming on from more than a decade and to the knowledge of all the authorities and the despatches were also made through the Railways. The only purpose of the large scale import was for its sale and despatch outside the State where it had not so much market or was in demand.
16. It is not ‘he case of Ihe respondents nor any statement to this effect has been made in the counter affidavit that on account of the despatches of salt from Bihar to West Bengal, there was created any scarcity or shortage of the commodity or for that matter, it occasioned any price rise for the excesive sales by the petitioner and various other business men of the locality. It seems obvious that the petitioner and some other business men of the locality, against whom also such measures have been taken by the respondents and who have come to this Court, were transporting salt to oilier places in West Bengal, as according to the own case of the respondents, Chakulia was not a field where such a large quantity of salt could be imported for local consumption. According to the case of the respondents themselves, therefore, the imported quantity of salt was in far excess of the local consumption and, therefore, if that was diverted outside the surplus area to places where it was in demand, I fail.to understand as to how such an action would amount to adversely affecting the maintenance and distribution of its supply.
The question of blackmarketing in the absence of any fixation of price at any stage, is simply a misnomer. It has been repeatedly held by the Supreme Court that the scheme of such provisions presupposes that on the date of the order of detention or in the near future, the person sought to b detained has or will have freedom of action. Therefore, the inclination of a person to act in any prejudicial manner indicated in Section 3 of the Act is a sine qua non for making an order of detention, There must be a proximate nexus between the preventive action and the past activity of the detenu on Which the order is founded.
In the case of Rameshwar v. District Magistrate, Burdwan and Dulal Roy v. District Magistrate, Burdwan , where the detention orders were passed against persons while they were in jail custody as under-trial prisoners and the grounds of detention related to the same incidents as it is in the case before us, for which they were being prosecuted it was held that in the absence of a clear and complete counter-affidavit on behalf of the State giving any explanation or apparent reason as to why the making of the preventive order was deemed necessary jeven while the detenu was already in jail custody and had no freedom of action, the inescapable conclusion that would follow, in such circumstances, would be that the impugned orders had been passed mechanically and as a colourable exercise of jurisdiction. In the case before us, not only was that the petitioner in jail custody at the time when the detention order was made and served upon him, but he had already undertaken to a Court that he would not carry on the offensive business’ m future for some time.
To meet this argument learned Gov-vernment Pleader placed reliance upon the case of Dr. Ramakrishna v. District Magistrate Jabalpur , where it was held that detention order can be validly made against a person who is in jail custody. This case in my view is of no assistance to the respondents, as the petitioner in this case was detained in security proceeding itself Under Section 151/117 of the Criminal P, C. On the basis of the antecedent activities in the proximate past, the detaining authority had reasonably, reached to a conclusion that the person was likely to indulge in the activities prejudicial to the maintenance of the public order after his release on the termination of the security proceedings. I would, therefore, following the line in the above cases, hold that the order of detention . against the petitioner has been passed mechanically and without any foundation.
17. Mr. Sen advanced yet another ground in challenge of the detention order and that was that some of the grounds of the petitioner’s detention were either irrelevant or non existent. In this connection he referred, in particular, to grounds Nos. 6 and 7, which say that there was a ban on the export of salt outside the State of Bihar imposed by the notification dated 20-12-1954(annexure 6) and that the illicit business has been going on for at least last five to six years which was an offence under the provisions of the Essential Commodities Act, 1955. It was contended that both these grounds, which were the backbone of the order of detention, were either irrelevant or non-existent, in view of the fact that there was no licensing order controlling the business in salt nor was there any prohibition in the eye,of law imposing any ban for the export,
18. For the view I have taken, with respect to the first question, this argument also must be accepted. No authority is needed for the well settled proposition that where some of the grounds of detention are either irrelevant or non-existing, any order of detention cannot be sustained.
19. Now remains for consideration a subsidiary argument advanced by Mr. Sen and that was (that where an ordinary criminal prosecution could well serve the purpose, the detaining authority must, satisfy the Court that the order of detention was not passed in a mechanical manner without, keeping present to its mind the Question whether it was necessary to make such an order. He contended that inasmuch admittedly the ‘so called clandestine’ business in salt was going on to the knowledge of all the authorities for the last 10-15 years and the grounds of detention were all the same which were the grounds for prosecution of the petitioner in the criminal proceeding, the authority should have been satisfied that the ordinary criminal prosecution could well serve the purpose and should not have taken recourse to this extraordinary measure.
In this connection, he referred to the case of Kanchanlal Maneklal v. State of Gujarat ). On the fact and in the circumstances of the case discussed above, particularly that the offending act of the petitioner did not create any scarcity or price rise of salt in the State, much leas in the area, where the admitted case of the respondents being that the import itself was surplus, in my view the anxiety of the law could be well satisfied by taking recourse to the ordinary procedure, proceeding against the petitioner under the existing machinery, namely, the provisions of the Essential Commodities Act. 1955, if a case was made out against him. After all, the responsible officer must be conscious of the value of the civil liberty.
20. No other matter remains for consideration and having given my anxious consideration to all the questions canvassed before us by the learned Counsel for both the parties and on the facts and circumstances of the case, I hold that the order of detention passed against the petitioner cannot be upheld. I would, accordingly, allow this application, quash and set aside the order of detention and direct that the petitioner be set at liberty forthwith.
S. Roy, J.
21. I agree.