JUDGMENT TARKUNDE J. - This petition has been filed under Article 226 of the Constitution and section 491 of the Criminal Procedure Code to challange an order of detention passed against the petitioner on October 7, 1965, by the Commissioner of Police, Greater Bombay, under rule 30 (1) (b) of the Defence of India Rules, 1962. 1. According to the petitioner, he is a petty grocer doing business in that line for over 25 years, the daily turnover in his shop is not more than Rs. 25, the total value of the goods lying in his shop at a time is not more than Re. 400, and his monthly income is about Rs. 100. The petitioner has further alleged that his shop and residence are adjacent to each other, that he has not engaged any servant, and that his wife attends to his business when he retiree for rest in the afternoon. That the shop of the petitioner is a .mall one, and that it deal in retail food grains has been admitted in the affidavit filed In reply by the Commissioner of Police. The commissioner of Police, however, states that he has no knowledge about the daily turnover or the total value of the goods lying in the petitioners shop. 3. The detention of the petitioner was the sequel to an incident which occurred on September 29, 1965. About that incident there are two version According to the petitioner, a raid on his shop was carried out on that day by the C. I. D. (Controls) during which one and half kilos of imported rice was found in the shop. The petitioner claims that this was the balance of hit own ration, and that it was lying in his shop as his residence and shop are situated side by side and as his wife attends to his business from time to time. According to the affidavit filed in reply by the Commissioner of Police, information had been received by the office of the Controller of Foodgrains, Bombay, "by the end of September, 1965" that the petitioner was indulging in black market activities by selling imported grains at prices far above the controlled rates. The information was verified by the office of the Controller of Foodgrains, and was then conveyed to the Crime Branch (Controls) C. I. D., Bombay. The information was verified by the office of the Controller of Foodgrains, and was then conveyed to the Crime Branch (Controls) C. I. D., Bombay. On September 29, 1965, a trap was laid and a bogus customer was sent to the petitioner. The bogus customer asked the petitioner for one kilo of imported rice, which the petitioner sold him for as 2, although the controlled price of imported rice was only 65 nPs. per kilo. It was not denied in the affidavit in reply that the total quantity of imported rice found in the petitioners shop on that day was one and half kilos only, and the learned Additional Government Pleader who appeared for the respondents fairly told us that we might take it as an admitted fact that the total quantity of imported rice in the petitioners shop on that day, including the quantity sold to the bogus customer, was one and half kilos. 4. It is common ground that the petitioner was arrested on that day after the raid and was let off by the police on bail of RI. 500. As required by the police he presented himself the next day before a Presidency Magistrate, when the police filed a remand application which showed that the petitioner was charged under clause 3 of the Imported Foodgrains (Prohibition of Un-authorised Sale) Order, 1958, read with section 25 of the Defence of India Act. At the request of the police the period of bail granted to the petitioner was extended to December 1, 1965. In the meantime, however, the petitioner was served on October 7, 1965, with the impugned order of detention and was arrested and removed to the Yerawada Prison at Poona. It was stated in the impugned order that it was necessary to detain the petitioner with a view to preventing him from acting in any manner prejudicial to the maintenance of supplies essential to the life of the community. 5. In the petition it was alleged inter alia that the impugned order wall a gross. It was stated in the impugned order that it was necessary to detain the petitioner with a view to preventing him from acting in any manner prejudicial to the maintenance of supplies essential to the life of the community. 5. In the petition it was alleged inter alia that the impugned order wall a gross. abuse of the powers given by the Legislature, that the powers of detention were not intended to be used in such trivial circumstances, that the petitioner was detained because the case which was made against him under the Imported Foodgrains (Prohibition of Unauthorised Sale) Order, 1958, was weak and could not-be sustained, and that the petitioner had become a "guinea pig" for wide publicity against hoarders and black-marketeers by the respondents. These allegations were denied by the Commissioner of Police, who claimed in his affidavit that the impugned order was passed as he was satisfied that unless the petitioner was detained, he was likely to carry on the black-marketing activities of the type mentioned earlier." 6. After the petition was filed a further ground against the impugned order was added by amending the petition. The ground was that in issuing the impugned order the provisions of section 44 of the Defence of India Act were not complied with. It was averred that the purpose of the order could have been achieved with equal efficacy by resorting to other powers conferred by rule 30 (1), such as powers contemplated by clauses (f), (g) or (n) of rule 30 (1). A supplementary affidavit in reply to the amended petition was filed by the Commissioner of Police, in the course of which he stated that the impugned order was made after he was "satisfied that no other order of a lesser rigour under the various clauses of rule 30 of the Defence of India Rules would be sufficient to prevent the petitioner from carrying on his black-market activities." 7. On these averments it may be taken as established that the petitioner is a very petty retail dealer. It has not been claimed by the Commissioner of Police that the petitioner was a habitual black-marketeer. On these averments it may be taken as established that the petitioner is a very petty retail dealer. It has not been claimed by the Commissioner of Police that the petitioner was a habitual black-marketeer. On the contrary, it was expressly stated in the Commissioners affidavit that information about the petitioners black-market activities was received by the Controller of Food grains for the first time "by the end of September 1965." Almost immediately thereafter, on September 29, 1965, the alleged trap was laid and the petitioners shop was raided. In this raid the petitioner was found to be in possession of only one and half kilos of imported rice. We will assume that, of this quantity, he sold one kilo to a bogus customer at much above its fair price. 8. On behalf of the petitioner Mr. Chagla attacked the impugned detention order on the following three grounds: (1) that the provisions of rule 30 of the Defence of India Rules cannot be invoked for the purposes of preventing black-market activities; (2) that in any event, on the facts of the present case, the Commissioner of police could not have been genuinely and reasonably satisfied either that the petitioners activities were prejudicial to the maintenance of supplies essential to the life of the community or that it was necessary to detain the petitioner with a view to preventing him from carrying on such activities; and (3) that the impugned order contravened the provisions of section 44 of the Defence of India Act and was, therefore, invalid. 9. We do not find it possible to accept Mr. Chaglas first contention that the provisions of rule 30 can in no case be invoked for preventing back-market activities. It is true that hoarding of essential commodities and profiting therein can hardly be prevented or substantially checked by subjecting a few persons concerned in such activities to preventive, as distinguished from punitive, detention. It cannot, however, be asserted that preventive detention cannot be a proper remedy even in the case of those who resort to hoarding and profiteering in essential commodities on a substantial scale. It cannot, however, be asserted that preventive detention cannot be a proper remedy even in the case of those who resort to hoarding and profiteering in essential commodities on a substantial scale. The terms of rule 30 (1) (b) are wide enough to permit a detention order to be passed where the authority is satisfied that it is necessary to issue such an order with a vie" to prevent any person from acting in a manner prejudicial to the maintenance of supplies essential to the life of the community. 10. We, however, agree with Mr. Chagla that in the case of the Present petitioner the Commissioner of Police could not have been genuinely and reasonably satisfied that the petitioners activities were prejudicial to the maintenance of essential supplies or that it was necessary to detain the petitioner in order to prevent him from acting in the alleged prejudicial manner. On the question whether the alleged black-marketing activities of the petitioner could be regarded as prejudicial to the maintenance of essential supplies, it is necessary to bear in mind that the alleged black-marketing of the petitioner was in imported foodgrains. It is common ground that food grains are imported on Government account, that they are sold through licensed fair price shops, and that the petitioners shop was not licensed for that purpose. In order to explain how the petitioner could nevertheless indulge in black-market activities in imported foodgrains, the Commissioner of Police stated in his supplementary affidavit: "In or about. 1957 the system of rationing was introduced in what is known as Fair Price Distribution Scheme. By the introduction of the scheme, these imported foodgrains were sold to persons holding ration cards at a price fixed by the Government. A sale to any person not holding a ration card was not permissible and was penal. In the last month of 1964, the price of foodgrains began to shoot up. At about the lame time here came into circulation a large number of bogus ration cards and these were being used to divert rationed imported foodgrains to black market with the result that many ration-card holders also were unable to get adequate ration. It was discovered that a large quantity of imported rice was finding its way to the black-market and the maintenance of supply of rice to people bolding ration cards was becoming more and more difficult. It was discovered that a large quantity of imported rice was finding its way to the black-market and the maintenance of supply of rice to people bolding ration cards was becoming more and more difficult. It was necessary to see that the imported foodgrains given to the authorized dealers to be sold through the Fair Price Shops reached the ration cards holder and this object was being frustrated by the petitioner and several other persons who dealt in black-market. I was therefore, satisfied that it was necessary to detain the petitioner for the purposes mentioned in the order," 11. It is clear from what is stated above that the process by which imported foodgrains were diverted from the proper channels of distribution consisted of the use of bogus ration cards. The persons whose activities were prejudicial to the maintenance of essential supplies were the persons who were responsible for the use of the bogus ration cards. It was not alleged against the petitioner that he was involved in that activity. The learned Additional Government Pleader argued that another mode by which imported foodgrains could be diverted to the black-market was to give Bart supplies to ration card holders. But that course could be adopted only by the owners and managers of licensed fair price shops, and the petitioner was not one of them. It must follow that the alleged activities of the petitioner could not be said to be directly prejudicial to the maintenance of supplies essential to the life of the community. 12. Could it then be said that the alleged activities of the petitioner were prejudicial to the maintenance of essential supplies in some indirect manner In answering this question, the obvious test was whether the prejudicial activities of those who diverted foodgrains from the normal channels of distribution, by use of bogus ration cards or by giving short supplies to ration cardholders, would be adversely affected by the detention of the petitioner and the stoppage of his personal activities. The answer to this question must necessarily be in the negative. The position might possibly have been different if the petitioner were a large-scale operator in illegally procured food grains. On the facts available to the Commissioner of Police, that was not the case. The answer to this question must necessarily be in the negative. The position might possibly have been different if the petitioner were a large-scale operator in illegally procured food grains. On the facts available to the Commissioner of Police, that was not the case. The stoppage of activities of a petty dealer like the petitioner could not have been expected to exert any restrictive influence on those who diverted foodgrains from the proper channels. Thus there was no rational basis for supposing that the activities of the petitioner were prejudicial to the maintenance of supplies essential to the life of the community. 13. Supposing, however, that there was some basis for the satisfaction of the detaining authority that the petitioner was engaged in activities prejudicial to the maintenance of essential supplies, there was no basis whatever for the further satisfaction of the detaining authority that it was necessary to detain the petitioner in order to prevent him from acting in the alleged prejudicial manner. It is true that the Court has no reason to enquire into the question whether there were adequate grounds for the subjective satisfaction of the detaining authority about the likelihood of the petitioner indulging in prejudicial activities and the necessity of detaining him for the prevention of such activities. But the Court must enquire, in appropriate cases, whether there was any rational basis at all for the alleged satisfaction or whether it was merely the result of caprice or carelessness. For, as Lord Wright observed in a comparable context in Liversidge v. Sir John Anderson (1): “.... Satisfied must mean reasonably satisfied. It cannot import an arbitrary or irrational state of being satisfied." In the present case, the petitioner was a petty retail dealer who was found in unlawful possession of one and half kilos of imported rice. He was not known to have been a habitual or persistent offender. Evidence was available, according to the detaining authority, to have him prosecuted and punished under clause 3 of the Imported Foodgrains (Prohibition of Unauthorized Sale) Order 1958. The object of punishment for offences is both punitive and preventive. He was not known to have been a habitual or persistent offender. Evidence was available, according to the detaining authority, to have him prosecuted and punished under clause 3 of the Imported Foodgrains (Prohibition of Unauthorized Sale) Order 1958. The object of punishment for offences is both punitive and preventive. The activities of a petty dealer like the petitioner could not possibly be regard so potentially dangerous that it was necessary to subject him to preventive detention and that too without having him punished for the offence committed by him and without ascertaining whether his prejudicial activities persisted after the punishment. Supposing, however, that some preventive action, other than prosecution and punishment for an offence already committed, was felt to be necessary in the case of the petitioner, it was open to the detaining authority, as will presently appear, to make an order much less restrictive than that of detention, and such an order would have been wholly adequate on any rational view of the matter. The detaining authority could not therefore, have been rationally satisfied that it was necessary to go to the extent of detaining the parishioner with a view to preventing him from acting in the alleged prejudicial manner. This last consideration leads us to the third contention of Mr. Chagla regarding the failure of the detaining authority to abide by the principle of section 44 of the Defence of India Act. 14. The third contention of Mr. Chagla was that the order of detention contravened the provisions of section 44 of the Defence of India Act. Section 44 lays down: "Ordinary avocation of life to be interfered with as little as, possible,-Any authority or person acting in pursuance of this Act shall interfere with the ordinary avocation of life and the enjoyment of property as little as may be consonant with the purpose of ensuring the public safety and interest and the defence of India and civil defence." On the basis of this provision it was argued that it was the duty of the detaining authority not to make any order which was more restrictive of personal liberty and enjoyment of property than was required to meet the situation created by the alleged activities of the petitioner. It was urged that no action other than the prosecution of the petitioner for the alleged offence was called for, and that, supposing any further action was necessary, it would have sufficed to give appropriate directions under clauses (f) to (b) of rule 30 (1) of the Defence of India Rules. Under rule 30 (1) (f) any restriction could have been impugned upon the petitioner in respect of his business; under rule 30 (1) (g) the petitioner could have been prohibited from possessing any article; and under rule 30(1)(h) an order could have been made regulating the conduct of the petitioner in any other way. It was within the power of the Commissioner of Police to issue directions under these provisions so as to prohibit the petitioner from dealing in rationed goods, or even from carrying on any business in all essential commodities. It was, therefore, urged that the impugned order was passed in contravention of the terms of section 44. 15. On the scope and effect of the terms of section 44, rival contentions were urged before us by Mr. Chagla for the petitioner and the learned Additional Government Pleader for the respondents. Mr. Chagla urged that the terms of section 44 are mandatory, so that non-compliance with those term must have the consequence of invalidating the action taken by the authority or the person concerned. Mr. Chagla also contended that the rule laid down in lection 41, which for brevity may be called the rule of least interference, is in the nature of an objective standard for judging the validity or otherwise of any action taken by any authority or person in pursuance of the Defence of India Act and the Defence of India Rules. It was on the other hand urged by the learned Additional Government Pleader that the term8 of section 44 are purely recommendatory, that no action can be held to be invalid on account of non-compliance with those terms, and that in any case the question whether an authority or person had failed to comply with those terms is not a justiciable question. 16. In our view, neither of these extreme positions accords with the true scope and effect of section 44. 16. In our view, neither of these extreme positions accords with the true scope and effect of section 44. It appears to us on the one hand, that the standard of compliance with section 44 is a subjective standard, and that the section does not purport to lay down any objective or impersonal standard. In other words, the section requires that every authority or person, acting in pursuance of the Act, shall adopt such action as in its, or hi, judgment accords with the principle of least interference. It appears to us, on the other hand that the terms of that section are mandatory, that authorities and persons looting in pursuance of the Act are bound to abide by the principle laid down in that section, and that acts done in violation of that principle are invalid. This does not, however, mean that the question whether in a particular case the provisions of that section have been complied with is non-justiciable. If an authority or person makes any order which, in his considered opinion, is in conformity with the principle enunciated in that section, it cannot be challenged in a Court of law on the ground that another order of less severity would have sufficed to meet the situation. If, however, an authority or person makes an order without regard to the principle enunciated in that section, he acts in breach of a legislative mandate and his order can be held by the Court to be invalid. In our view, section is thus mandatory, and the question of compliance or otherwise with that section is also justiciable in the limited sense mentioned above. 17. There are several reasons why section 44 cannot be held to lay down an objective standard by which compliance or non-compliance therewith can be judged. In the first place, the section is in terms of an injunction addressed to authorities or persons acting in pursuance of the Act. It says that such authorities or persons shall act in a particular manner, and not that their actions will satisfy a particular standard. In the first place, the section is in terms of an injunction addressed to authorities or persons acting in pursuance of the Act. It says that such authorities or persons shall act in a particular manner, and not that their actions will satisfy a particular standard. Secondly, the intention of the Legislature in this behalf can be gathered from section 45 (1), which lays down that: "No order made in exercise of any power conferred by or under this Act shall be called in question in any Court." Section 45 (1) could not have the effect of protecting an order which is passed in violation of a mandatory provision of the Act or the Rules and is invalid. The intention of the Legislature in passing section 45 (1) must have been that no Court will be called upon to consider the propriety, as distinguished from the legality, of any order purporting to be passed under the Act or the Rules. It would, therefore, follow that if an authority or person makes an order which, according to him, complies with the principle laid down in section 44, the Court cannot consider whether the discretion so exercised by the authority or person was correct, and whether some other order might .have been in greater conformity with the principle laid down in section 44. 18. There is another and a weightier reason why the standard of compliance with section 44 must be taken to be a subjective standard. Section 44 applies without exception to all actions which might be adopted and all order which might be made in pursuance of the Act and the Rules. The Act and the Rules confer very extensive powers of control and interference with the ordinary avocations of life and the enjoyment of property during a grave national emergency. Now the present Act and the present Rules are very similar to the Defence of India Act of 1939 and the Defence of India Rules of 1939. It can be safely assumed that, when the present Defence of India Act was passed, the Legislature was well aware of the extensive powers of control and interference which would be granted to various authorities and persons y the Rules which might be made in pursuance of the Act. The use of those powers involves the exercise of executive discretion in a wide variety of matters. The use of those powers involves the exercise of executive discretion in a wide variety of matters. It is hardly possible that the Legislature desired the judiciary to examine the propriety of steps taken and orders made in the exercise of such executive discretion. Many of the powers granted by the rules are expressly exercisable on the basis of the subjective satisfaction of the authorities or persons concerned, and it is not possible that the application of section 44 to the exercise of such powers was expected to involve any objective standard of judgment. Under rule 30 (1) (b), for instance, an order of detention is to be passed on the basis of a subjective satisfaction regarding the necessity of that order, and it cannot be 8upposed that an objective standard of judgment was expected to be applied in judging whether the order complied with the principle of least interference laid down in section 44. There are several other rules which expressly provide for powers to be exercised on the basis of a subjective satisfaction, such as rule, 12 relating to control and winding up of organization, rule 43 relating to control of local authorities, and so forth. What is more, even in the case of other rules where the powers conferred thereby are not expressed to be exercisable on the basis of a subjective satisfaction, it cannot be held that the Legislature intended that the que3tion whether the exercise of those powers in a particular case was in compliance with the principle laid down in section 44 should be judged by an objective standard. Instances of such rules are rule 13 (power to close roads), rule 46 (power to impose censorship), rule 57 (evacuation of areas), rule 59 (accommodation of evacuated persons), rule 63 (billeting), rule 80 (carrying and possession of arms and explosives), rule 83 (control of processions, meetings, etc.), rule 85 (power to restrict use of motor vehicles), etc. It is not possible that if authorities or persons make orders under these rules with due regard to the principle of least interference laid down in section 44, a Court of law was expected by the Legislature to decide whether the executive discretion of the authority or person was correctly exercised and whether some other order would not have been more in consonance with the principle of least interference. 19. 19. While there are these compelling reasons for holding that the standard of compliance laid down in section 44 is a subjective standard, there are equally compelling reasons why that section must be held to be mandatory and not merely directory. In the first place, the terms of the section are mandatory. It says that any authority or person acting in pursuance of the Act "shall" interfere with the ordinary avocations of life and the enjoyment of property as little as may be in consonance with the purposes mentioned in that section. The use of the word "shall" shows that the provision is prima facie mandatory, though that test it by no means conclusive. As observed by the Supreme Court in the State of U. P. v. Babu Ram (1): "When a statute uses the word shall prima facie, it is mandatory, but the Court may ascertain the real intention of the Legislature by carefully attending to the whole scope of the statute." Secondly, the object of section 44 is to safeguard the liberty of person and the right to property to the extent possible, and a provision having this object is usually mandatory. The Supreme Court observed in the Collector of Monghur v. Keshav Prasad (2): "The question whether any requirement is mandatory or directory has to be decided not merely on the basis of any specific provision which, for instance, sets out the consequences of the omission to observe the requirement, but on the purpose for which the requirement hall been enacted, particularly in the context of the other provisions of the Act and the general scheme there of it would, inter alia, depend on whether the requirement is insisted on as a protection for the safeguarding of the right of liberty of person or of property which the action might involve." Thirdly, if the provision of section 44 were held merely directory and not mandatory, that provision is bound to be in fructuous in most oases and the object of the Legislature in passing that section is bound to be defeated. Many of the orders which can be passed under the Defence of India Rules, particularly by the central Government and the State Governments, are not subject even to an administrative review, and a total disregard of the provision of section 44 in such cases would be incapable of being corrected. Many of the orders which can be passed under the Defence of India Rules, particularly by the central Government and the State Governments, are not subject even to an administrative review, and a total disregard of the provision of section 44 in such cases would be incapable of being corrected. In Maxwell on Interpretation of Statutes (11th Edn, p. 362) the learned author, after observing that the question whether a statute is imperative or directory depends on what intention is to be attributed by inference to the Legislature, says: ……..Where, indeed, the whole aim and object of the Legislature would be plainly defeated if the command to do the thing in a particular manner did not imply a prohibition to do it in any other, no doubt can be entertained al to the intention." Similarly, in collector of Monghyr v. Keshav Prasad (1), which has been referred to above, the Supreme Court observed in connection with a certain provision of the Bihar Private Irrigation Works Act which was held to be mandatory (p. 1701): “……we consider that the object with which the provision was inserted would be wholly defeated and the protection afforded nullified, if it were held that the requirement was anything but mandatory." 20. There is yet another reason why the provision of section 44 must be bold to be mandatory. That reason is that the provision qualifies the exercise of powers granted by the Act and not the performance of duties enjoined there. by Powers are usually granted for the performance of duties, and provisions with regard to the performance of duties and the exercise of powers are often inter. related. A particular provision in a statute, however, may be designed to qualify the performance of duties and another the exercise of powers. The latter type of provision is usually mandatory. It is observed in Maxwell on Interpretation of Statutes (11th Edn., p.364): ……A strong line of distinction may be drawn between oases where the prescription of the Act affect the performance of a duty and where they relate to a privilege or power. The latter type of provision is usually mandatory. It is observed in Maxwell on Interpretation of Statutes (11th Edn., p.364): ……A strong line of distinction may be drawn between oases where the prescription of the Act affect the performance of a duty and where they relate to a privilege or power. Where powers, right or immunities are granted with a direction that certain regulation, formalities or conditions shall be complied with, it seems neither unjust nor inconvenient to exact a rigorous observance of them as essential to the acquisition of the right or authority conferred, and it is therefore probable that such was the intention of the Legislature. But when a public duty is imposed and the statute requires that it shall be performed in a certain manner, or within a certain time, or under other specified Condition., such prescriptions may well be regarded as intended to be directory only in cases when injustice or inconvenience to others who have no control over those exercising the duty would result if such requirement were essential and imperative." Section " provides that the wide and far-reaching powers granted under the Act and the rules shall be so exercised as to interfere with the ordinary avocations of life and the enjoyment of property as little as may be consonant with the objects mentioned in that section. Thus the section qualifies the exercise of powers granted by or under the Act. For all these reasons the provisions of section 44 must be held to be mandatory. 21. The result is that an authority or person exercising powers under the Act is bound to have regard to the principle enunciated in section 44, that the Court will not examine the propriety of an action adopted by an authority or person after paying due regard to that principle, but that the Court can strike down any such action where it is shown that the authority or person concerned paid no heed to that principle or could not have rationally adopted the action if the principle had been taken into consideration. 22. Turning to the authorities, some of them arose under the Defence of India Act, 1939, and the Defence of India Rules, 1939. Sections 15 and 16 (1) of the Defence of India Act, 1939, were virtually in the same terms as sections 44 and 45 (1) respectively of the present Defence of India Act. 22. Turning to the authorities, some of them arose under the Defence of India Act, 1939, and the Defence of India Rules, 1939. Sections 15 and 16 (1) of the Defence of India Act, 1939, were virtually in the same terms as sections 44 and 45 (1) respectively of the present Defence of India Act. In a. Bug Palm v. collector of Bombay (1), Mr. Justice Bhagwati, sitting singly, dealt with the validity of an order of requisition made under rule 75A of the Defence of India Rules, 1939, in the light of the provisions contained in section 15 of the Defence of India Act, 1939. The learned Judge held that the provisions of that section were mandatory and not merely directory or recommendatory. He stated (p. 1053): “…..I am not prepared to hold that the provisions of section 15 of the Defence of India Act are not mandatory but are merely directory or recommendatory. The language of section 15 of the Defence of India Act is very clear on the point. It provides that the authority or person acting in pursuance of the Act shall interfere with the ordinary avocations of life and the enjoyment of property as little as may be consonant with the purposes therein mentioned." It appears, moreover, that Mr. Justice Bhagwati was of the view that the standard of compliance with section 15 was subjective and not objective. For he went on to say (p. 1053): "….Though the question whether the interference with the ordinary avocations of life and the enjoyment of property is in a particular cases as little as may be consonant with the purpose therein mentioned may have to be determined by the authority or person who is passing the order in the exercise of the powers vested in him under the Defence of India Act and the Defence of India Rules framed thereunde the provisions of section 15 of the Defence of India Act are nonetheless mandatory. They have got to be complied with," 23. A passing reference to the effect of section 15 was made by a Full Bench of the Lahore High Court in the Lahore Electric Supply company, Limited, Lahore v. The Province of Punjab (2). They have got to be complied with," 23. A passing reference to the effect of section 15 was made by a Full Bench of the Lahore High Court in the Lahore Electric Supply company, Limited, Lahore v. The Province of Punjab (2). The main decision in that case was that rule 75A of the Defence of India Rules, 1939 which empowered the requisition or acquisition of movable or immovable property, could not be invoked for the requisition or acquisition of an undertaking or a going concern. On the effect of section 15, Young C. J., observed (p. 642): “….While cannot hold that section 15 of the Defence of India Act is a statutory limitation of the powers conferred by the Act, I do think that it can be used a guide in considering whether the powers invoked by Government were exercised bona fide or not. It appears to me that the action of Government, tested by the principal laid down in section 15, goes far beyond anything which could be considered consonant with the purpose of ensuring the public safety and interest and the defence of British India.” It is rather difficult to reconcile the earlier part of the passage quoted above, which says that section 15 was not a statutory limitation on the powers conferred by the Act, with the later part where it is stated that the action of the Government could be tested by the principles laid down in that section. It appears to us that these observations can be reconciled if it is held that no objective test of compliance was laid down by section 15, but that the action of the Government was not valid if it did not comply with the subjective test provided therein. 24. The legality of an order of requisition issued under rule 751A of the Defence of India. Rules, 1939, was also considered by a Division .Bench of the Madras High Court in Kewalram v. collector of Madras (1). In that case the order of requisition of a house was challenged on the ground that other houses of a suitable type were vacant and were available for requisition, and that the order was, therefore, not in consonance with section 15 of tae Defence of India Act, 1939. In that case the order of requisition of a house was challenged on the ground that other houses of a suitable type were vacant and were available for requisition, and that the order was, therefore, not in consonance with section 15 of tae Defence of India Act, 1939. In rejecting this contention the court observed (p. 288): ".….This section is directory and must be read in conjunction with section 16 which says that no order made in exercise of any power conferred by or under the Act shall be called in question in any Court of course, this does not prelude the Court from decide in whether a power has been conferred or whether a power which has been conferred has been abused. The Court went on to say that no attempt was made by the petitioner to prove that any other house of a suitable type was vacant at the time of requisition. No reasons were given in the judgment in support of the statement that section 15 was directory. 25. The scope and effect of section 44 of the present Defence of India Act were, however, elaborately considered in a recent judgment of a Division Bench of the Madras High Court in Thangamani v. Government of Madras (2). There the court dealt with two petitions in which certain restrictions imposed on detenus, who had been detained under rule 30 (1)(b) of the Defence of India Rules, were challenged on the ground that the imposition of those restrictions Wall inconsistent with the provisions of section 44 of the Defence of India Act. The Court held that there was no justiciable right in a detenu to question either his order of detention or the terms and restrictions imposed upon him on the ground of an alleged violation of section 44, that section 44 ill directory in the sense that an order made in contravention of that section it not ipso facto void, and that any other construction of section 44 would be incompatible with the provision contained in section 45 (1) which provides that no order made in exercise of any power conferred by or under the Act shall be called in question in any Court. The following passage from the judgment of the Senior Judge in that cases summarises the reasons which led the Court to the above view (p. 232): "On a very careful consideration of this aspect, we are inclined of hold that the Legislature did not intend section 4 to be mandatory, in the senile that an infringement of it immediately renders the orders made under the Act, or rules, invalid and void ipso facto……In our view, the most important consideration is that the Legislature equally enacted section 45(1) in juxtaposition with section 44, and that provision is meaningless if the intendment had been that non compliance with section 44 would be per, se justiciable in Courts. Further as we had occasion to stress this earlier, no logical distinction can ready be maintained between the order of detention. Itself, and any order imposing, terms and conditions of detention or specifying the place of detention. But, if the propriety of an order of detention could be canvassed, in the context of section would necessarily compel the Government to disclose information which may be prejudicial to the security of the country, particularly during an emergency." We are, with great respect, unable to agree with these observations. In the first place, section 45 (1) applies to all orders "made in exercise of any power conferred by or under this Act and is not confined to such order all may be challenged on the ground of non-compliance with section 44. The reasoning of the learned Judges implies, with great respect, that no provision of either the Defence of India Act or the Defence of India Rules can be mandatory, because every order which may be passed in contravention of any of those provision, is protected by section 45 (1) and is incapable of being called in question in any Court. In fact, however several provisions of the Defence of India Rule a have been treated as mandatory, and Action taken in contravention of those provisions has been held invalid by Courts. It was thus held by this Court that where the Commissioner of Police or a District Magistrate issued an order of detention but did not report the fact forthwith to the State Government required by rule 30A (5), his order was invalid and the detenu was entitled to be set at liberty. It was thus held by this Court that where the Commissioner of Police or a District Magistrate issued an order of detention but did not report the fact forthwith to the State Government required by rule 30A (5), his order was invalid and the detenu was entitled to be set at liberty. It was also held by this Court as well as by the Supreme Court that where an order of detention was not reviewed within six months by the reviewing authority as provided in rule 30A (7), the detenu could no longer be lawfully kept in detention and was entitled to be released. The correct position, with great respect, appears to be that the question whether a particular provision of the Defence of India Act or the Defence of India Rules is mandatory or directory cannot be decided with reference to the provision contained in section 45 (1). This is because if any provision of the Act or the Rules is mandatory, and if an order is made in contravention of such amendatory provision, the order cannot be held to have been "made in exercise of any power conferred by or under this Act," and section 45 (1) cannot, therefore, come in the way of such order being called in question in an appropriate Coon. As observed by us earlier, the provision of section 45 (1) means that a Court cannot examine the propriety, as distinguished from the legality, of an order, made in exercise of any power conferred by or under the Act. The provision contained in 180tion 46 (1) is thus helpful in deciding whether the standard of compliance with section 44 is subjective or objective, and not whether a particular provision in the Act or the Rules is mandatory or directory. 26. Secondly, it is assumed in the above decision of the Madras High Court that the question whether a provision is mandatory or directory depends upon whether a contravention of that provision is justiciable or not. With great respect, this assumption does not appear to us to be correct. The learn ed Judges in the above cases have quoted with approval an observation from Maxwell on Interpretation of Statutes (11th Edn., p. 369) to the effect that the neglect of directory provision may be penal, but does not affect the validity of the Act done in disregard of them. The learn ed Judges in the above cases have quoted with approval an observation from Maxwell on Interpretation of Statutes (11th Edn., p. 369) to the effect that the neglect of directory provision may be penal, but does not affect the validity of the Act done in disregard of them. The learned Judges, with great respect, appear not to have observed that a breach of a directory provision cannot be penal, unless that breach is justiciable. A breach of a provision may be justiciable whether the provision is mandatory or directory. 27. Lastly, in holding that a breach of the provision of section 44 is no justiciable, the learned Judges have observed that no logical distinction can be maintained between a case where an order of detention is challenged on the ground of non-compliance with section 44 and a case where an order imposing certain terms and conditions of detention is challenged on the same ground. This observation is consistent with our view that the standard of compliance with section 44 is a subjective standard, which however does not mean that a breach of that section is non-justiciable. The standard of compliance contained in rule 30 (1) (b) of the Defence of India Rules is also subjective, since the satisfaction which is the precondition of a valid order of detention is the subjective satisfaction of the detaining authority. Yet several orders of detention have, in fact, been set aside by High Courts and the Supreme Court, either because the detaining authority was not genuinely satisfied about the necessity of the detention order or because the satisfaction of the detaining authority was, under the circumstances, not rationally possible. Similarly, an order caused in contravention of section 44 can be set aside either because the authority or person did not pay any attention to the principle contained in that section, or because the order passed by the authority or person concerned could not have been passed by any rational individual if attention had been paid to that principle. 28. A reference may finally be made to certain observations of the Supreme Court in Godavari v. State of Maharashtra (1), which were relied upon by Mr. Chagla in support of his contention that the question whether an order complied with section 44 can be judged by a Court with reference to an objective standard. 28. A reference may finally be made to certain observations of the Supreme Court in Godavari v. State of Maharashtra (1), which were relied upon by Mr. Chagla in support of his contention that the question whether an order complied with section 44 can be judged by a Court with reference to an objective standard. One of the objections taken in that cases to the orders of detention was that the orders did not show on their face that section 44 was kept in mind when they were made. In rejecting this objection, the Supreme Court held that the statement contained in the orders that it was necessary to detain the petitioners with a view to restraining the petitioners prejudicial activities meant that, in the opinion of the detaining authority, the only way to meet the situation was to detain the petitioners. After so holding the Supreme Court observed (p. 1135): “……It will then be for the detenu to how that the order had gone beyond he need of the situation and was therefore, contrary to section 44. No such thing has been shown in the present cues and we are satisfied that the orders in question cannot be said to go beyond the needs of the situation, even assuming that section 44 is mandatory as urged on behalf of the appellant and not merely directory a. urged on behalf of he State." We do not think that these observations can be looked upon as a decision of the Supreme Court that compliance with section 44 can be judged by an objective standard. The Supreme Court decided that compliance with section 44 did not require that an order of detention should say anything more than that the order was necessary with a view to preventing the proposed detenu from acting in a prejudicial manner. Questions with regard to the scope and effect of section 44 were left open by the Supreme Court. 29. For the reasons given above we cannot agree with Mr. Chagla that the terms of section 44 enable us to consider whether it was proper, in the circumstances of the present case, to detain the petitioner for the purpose of ensuring the maintenance of supplies essential to the life of the community and whether a Jess restrictive order would have been adequate to meet the situation. Chagla that the terms of section 44 enable us to consider whether it was proper, in the circumstances of the present case, to detain the petitioner for the purpose of ensuring the maintenance of supplies essential to the life of the community and whether a Jess restrictive order would have been adequate to meet the situation. On the other hand, we cannot accept the contention of the learned Additional Government Pleader either that section 44 is merely directory or hat an alleged breach of that section is not justiciable. In the context of an order of detention passed under rule 30 (1) (b) of the Defence of India Rules, the provision of section 44 requires that the satisfaction of the detaining authority regarding the necessity of passing an order of detention must include his satisfaction that a less restrictive order would not suffice to meet the situation arising from the anticipated prejudicial activities of the proposed detenu. As observed by us before, it is clear from the admitted facts of the present case that the detention of the petitioner could not possibly have been helpful to the maintenance of supplies essential to the life of the community. Supposing any action had to be taken against the petitioner, apart from prosecuting him for the breach of the Imported Foodgrains (Prohibition of unauthorized Sale) Order, 1958, there was no reason whatever why the extreme step of detaining the petitioner should h8ve been adopted and why a more moderate order under rule 30 (1) (f), (g) or (h) would not have been quite sufficient to meet the situation. It seems to us clear that if the detaining authority had applied his mind to the circumstances of the case and the requirements of section 44, he could not have rationally come to the conclusion that it was necessary to pass an order of detention against the petitioner The impugned order of detention is wholly arbitrary, and such an order cannot be held to comply even with the subjective standard by which compliance with section 44 is to be judged. 30. We are accordingly of the view that the impugned order is bad on account of non-compliance with the requirements of rule 30 (1) (b) of the Defence of India Rules as well as section 44 of the Defence of India Act. 30. We are accordingly of the view that the impugned order is bad on account of non-compliance with the requirements of rule 30 (1) (b) of the Defence of India Rules as well as section 44 of the Defence of India Act. The order of detention is, therefore, set aside, rule is made absolute and the petitioner is directed to be set at liberty. The petitioner will get his costs from the respondents. Order set aside.