P. D. DESAI, V. V. BEDARKAR, J. ( 1 ) THE petitioner has been detained by the first respondent (District Magistrate Surat) in exercise of the powers conferred by sub-sec. (2) of sec. 3 of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act 1980 (herein after referred to as the Act) upon being satisfied that the detention was necessary with a view to preventing him from acting in any manner prejudicial to the maintenance of supplies of commodities essential to the community. The order of detention Annexure A is dated 10-9-1982. Pursuant to the said order the petitioner was detained on the same day. The grounds of detention Annexure B dated 10-9-1982 were served upon the petitioner soon after he was detained. The petitioner made two representations to the second respondent (State of Gujarat ). The first representation was received by the said respondent on 22/09/1982 and the second on the next day i. e. on 23/09/1982 The State Government rejected both the representations on 29/09/1982 and communicated the rejection to the petitioner on 30/09/1982 Meanwhile on 20/09/1982 the second respondent approved the order of detention under sub-sec. (3) of sec. 3 of the Act and it made a report to the Central Government under sub-sec. (4) of sec. 3 of the Act on 23/09/1982. ( 2 ) THE present petition was instituted on 24/09/1982 It was posted for preliminary hearing on 27/09/1982 Rule was issued on the petition on the same day and it was made returnable on 11/10/1982 The petition reached hearing yesterday and its hearing having concluded today it is being disposed of by this judgment. ( 3 ) THE petitioner is a Government servant holding the post of Assistant Engineer in the Irrigation Department of the State Government At the material time he was discharging duties as Assistant Engineer Jhuj Head Works Division no. 1 at Vansda District Bulsar. One Ramanlal Ramjibhai Parmar who too has been detained and whose detention is under challenge in a companion matter (Special Criminal Application no. 1399 of 1982) was also discharging duties as Assistant Engineer alongwith the petitioner at Jhuj Head Works Division No. 1 Vansda. Large quantities of cement used to be indented for the irriga- tion project in question and the petitioner as well as the co-detenu Parmar were closely connected with the disbursement and/or utilisation of such cement. 1399 of 1982) was also discharging duties as Assistant Engineer alongwith the petitioner at Jhuj Head Works Division No. 1 Vansda. Large quantities of cement used to be indented for the irriga- tion project in question and the petitioner as well as the co-detenu Parmar were closely connected with the disbursement and/or utilisation of such cement. On the allegation that the petitioner and the co-detenue Parmar in collusion with each other were disposing of in black market the cement received for the irrigation project through the intervening agency of one Yusufbhai Mahamud Hafezi of Bardoli (who is also detained and whose detention is under challenge in a companion matter viz. Special Criminal Application no. 1438 of 1982) and were supplying the cement to a building contractor named Omprakash Gulabchand Varma alias Homjibhai Contractor (who also has been detained and whose detention is under challenge in a companion matter viz. Special Criminal Application no. 1417 of 1982) the petitioner was detained under the impugned order. ( 4 ) THE grounds of detention Annexure B are in Gujarati language and they run into 24 pages. Besides numerous documents which have been compiled in three separate volumes have been relied upon in support of the order of detention. The entire material comprised in the grounds as well as in the accompanying documents however relates to the petitioners involvement in the clandestine disposal of 600 bags of cement on two different days. We shall briefly summarise the substance of the allegations against the petitioner contained in the grounds. . . . . . . . . . . . . . . . . . ( 5 ) ALL these material facts came to light during the investigation which was carried on by the Mamlatdar of Valod after the seizure of the two trucks on 29/06/1982 During the course of investigation statement of several persons including those of the petitioner and the co-detenus were recorded. Documentary evidence including the gate passes used for the removal of cement was also collected during the course of investigation. It transpired during the course of investigation that Sardar Cement Pipe Factory had not entered into any contract with the Jhuj Head Works Sub-Division No. 1 Vansda for supply of any material and that therefore the instructions issued to the truck drivers who had lifted 400 bags of cement on June 29 1982 were false and misleading. It transpired during the course of investigation that Sardar Cement Pipe Factory had not entered into any contract with the Jhuj Head Works Sub-Division No. 1 Vansda for supply of any material and that therefore the instructions issued to the truck drivers who had lifted 400 bags of cement on June 29 1982 were false and misleading. It further transpired that 400 bags of cement lifted in the two trucks on 29/06/1982 under Gate passes nos. 5 and 8 made out in the name of Amar Construction Company were in fact not indented by the said Construction Company and that the name of the said Construction Company was used with the end in view of clothing the transaction with some sort of legality or regularity. The investigation further revealed that 600 bags of cement removed under the two consignments were not entered in the register maintained at the Vansda office in token of their having been received by the said office. The details of the modus operandi of the petitioner and the co-detenue Assistant Engineer Parmar which came to light revealed that both of them had jointly planned: (1) to arrange for the removal of cement from the godowns by issuance of forged gate passes (2) to credit the stock of cement so removed in the stock register maintained in their office (3) to debit equivalent quantity of cement in the name of the contractor and (4) to make report to the Deputy Engineer after making stock adjustments accordingly. Pursuant to these facts coming to light during the course of investigation carried out as aforesaid the petitioner and the co-detenus were detained under separate detention orders. ( 6 ) THE material facts as emerging from the grounds of detention which have been set out hereinabove would show that the case against the petitioner is that he and his colleague Assistant Engineer Parmar had in collusion diverted the cement meant to be used for the Irrigation Project for personal gain through the intervening agency of Yusufbhai and that the cement so diverted was to be utilised by Homjibhai Contractor in the construction work which wile had undertaken at Diamond Nagar. ( 7 ) IT would be convenient at this stage to extract the material portions of the grounds of detention since the ultimate decision of the petition turns upon the averments which find place in those portions. ( 7 ) IT would be convenient at this stage to extract the material portions of the grounds of detention since the ultimate decision of the petition turns upon the averments which find place in those portions. Paragraphs 3 4 13 14 and 15 of the grounds of detention are reproduced hereinbelow duly translated from Gujarati:" (3)YOU are holding the post of Assistant Engineer in the Irrigation Department. Large quantities of cement are being regularly received for Government Irrigation Projects in the irrigation Department. In that manner you are always closely connected with transactions in cement and you have an opportunity always to commit irregularities on a large scale in regard to cement. " (4)AS explained above large quantities of cement are being received at Jhuj Project Vansda for the construction of Dam where you are presently discharging duties as Assistant Engineer. Out of the cement so received for the construction of Dam you are time and again disposing of cement in black market to Homjibhai of Surat who is a building contractor through the intervening agency of one Yusufbhai Mahamud Hafezi of Bardoli in collusion with Shri R. R. Parmar who is working with you as Assistant Engineer of the Project. This is proved from the facts which are set out hereinbelow. "x x x x x x" (13) From the facts set out above it is clearly established that you and Assistant Engineer Shri R. R. Parmar of your office and the intermediary Shri Yusufbhai Hafezi of Bardoli and the building contractor Shri Homjibhai of Surat are illegally selling cement in collusion with each other. On 29-6-1982 you have illegally sold in black market 200 bags of cement and 400 bags of cement of Jhuj Project were seized by the Mamlatdar of Valod when they were being despatched for being disposed of in black market by preparing gate passes in an illegal manner. "" (14) In the light of the facts set out above you have illegally sold the cement in collusion with each other. The cement has been used for a purpose other than that for which it was meant and the price in excess of that fixed by Government has been realised. By acting accordingly you have committed breach of clauses 3 20 and 22 of the Gujarat Essential Articles (Licensing Control and Stock Declaration) Order 1981 and also of sec. The cement has been used for a purpose other than that for which it was meant and the price in excess of that fixed by Government has been realised. By acting accordingly you have committed breach of clauses 3 20 and 22 of the Gujarat Essential Articles (Licensing Control and Stock Declaration) Order 1981 and also of sec. 3 of the Essential Commodities Act 1955 and thereby committed an offence punishable under sec. 7 of the said Act. " (15) From the entire facts set out above it clearly transpires that in collusion with Assistant Engineer Shree R. R. Parmar you have sold cement to building contractor Shri Homjibhai of Surat through Shri Yusufbhai Hafezi. In this manner in collusion with each other you have been regularly misappropriating cement illegally and thereby encouraging black marketing by abetment. Furthermore from the facts set out above it appears clearly that you are habituated to commit such offences since a long time. Under the circumstances until you are detained there is every likelihood of your continuing to commit such offences. Besides thousands of bags of cement are being regularly received in the Irrigation Department and on that account there is every possibility of continuance of misappropriation of large quantities of cement and commission of such irregularities. Therefore you are being detained in order to prevent such harmful activities of yours. " ( 8 ) THE detention order has been challenged on several grounds in the memo of petition. At the hearing of the petition however the challenge was confined to. he following grounds: (1)THERE is nonapplication of mind on the part of the detaining authority on a material aspect which has a vital bearing on the question of the need to detain the petitioner; the petitioner has been placed under suspension since 19/07/1982 the material fact that the petitioner has thus been placed out of the harms way by having been deprived of an opportunity to misuse his office and to commit irregularities in respect of the quota of cement received from time to time for the Irrigation Project at Vansda was not present to the mind of the detaining authority when the impugned order was passed on 10/09/1982 the subjective satisfaction of the detaining authority is therefore not arrived at in accordance with law and the impugned order based on such subjective satisfaction is illegal and invalid. (2)THERE was failure on the part of the detaining authority to consider the possibility of launching a criminal prosecution in regard to the alleged breaches of law and the consequential commission of the alleged offences by the petitioner; since the mind of the detaining authority was not applied to the said vital and material aspect which assumes considerable significance on the facts and in the circumstances of the case the subjective satisfaction is not arrived at in accordance with law and the impugned order based on such subjective satisfaction is illegal and invalid. (3) The grounds furnished to the petitioner show in unmistakable terms that the satisfaction of the detaining authority with regard to the need of detaining the petitioner was reached inter alia on the basis of the alleged activities carried on by the petitioner since long time past with a view to prejudicially affecting the maintenance of supplies of commodities essential to the community; such satisfaction is vitiated because: (A) the relevant portion of the grounds ex facie discloses nonapplication of mind on the part of the detaining authority on this material and vital aspect; (B) there was no material whatever before the detaining authority so as to enable it to reach such a conclusion; (C) on the material if any before the detaining authority it could not rationally have reached such a conclusion; and (D) in the grounds furnished to the petitioner no particulars are furnished with regard to such past activities of the petitioner and therefore the petitioner had no reasonable opportunity to meet such an allegation. (4) The detention order is based on materials not communicated to the petitioner with the result that there was denial of an opportunity to make an effective representation against the order of detention. ( 9 ) IN our opinion the petitioner is entitled to succeed on the basis of each of the first two grounds of challenge. It is not necessary therefore to pronounce upon the validity or otherwise of the other two grounds. In the course of this judgment we shall confine our attention only to the first two grounds. ( 9 ) IN our opinion the petitioner is entitled to succeed on the basis of each of the first two grounds of challenge. It is not necessary therefore to pronounce upon the validity or otherwise of the other two grounds. In the course of this judgment we shall confine our attention only to the first two grounds. ( 10 ) THE substance of the grounds of detention set out above clearly points in the direction that it is by virtue of the post occupied by the petitioner and the co-detenue Assistant Engineer Parmar that they could indulge in the objectionable activities in which they are alleged to have been involved. The substance of the grounds read alongwith the relevant material goes to show: (1) that large quantities of cement were being received for the irrigation project with which the petitioner and his colleague were associated in their official capacity. (2) that they had effective control over the issue and disposition of such cement from the godowns where it used to be stocked; and (3) that by misusing their position they could divert large quantities of such cement in black market with a view to making gain for themselves at the cost of maintenance of supplies of cement for the Irrigation Project in question. Indeed the grounds of detention furnished to the petitioner make no secret of the fact that the subjective satisfaction of the detaining authority was arrived at in the instant case having regard to such pivotal position of the petitioner and the co-detenu. Paragraphs 3 and 15 of the grounds of detention state in so many words that in view of the fact that large quantities of cement were being released for and received by the Irrigation Department for its different projects and in the light of the fact that the petitioner in virtue of the post occupied by him was closely connected with the transactions of cement the petitioner had ample opportunity to indulge in malpractices in regard to such cement and that he was likely to continue to indulge in such activities in future and therefore it was necessary to detain him with a view to preventing him from carrying on such activities in future. Under the circumstances it cannot be gainsaid that the removal if any of the petitioner from the pivotal position from where he could indulge in such nefarious activities is a very material and vital fact. ( 11 ) AGAINST the aforesaid background let us examine the validity of the first ground of challenge. The fact that the petitioner was placed under suspension on and with effect from 19/07/1982 i. e. nearly one month and three weeks before the order of detention was passed is not in dispute. An order of interim suspension has the effect of preventing a public servant from performing the duties of his office though he might continue to enjoy the status of a public servant. Such suspension prevents him from doing anything in the discharge of the duties of his office. The purpose of such suspension inter alia is to ensure that pending departmental inquiry or criminal prosecution or both which might have been instituted or which might have been under contemplation such public servant is not in a position to misuse his authority in the same way in which he might have been found to have done in the past. The order of suspension passed against the petitioner therefore served the same purpose and had the same effect which was sought to be attained by his detention. The petitioner was thereby put out of the harms way and prevented from indulging in future in his objectionable activities detrimental to the maintenance of supply of an essential commodity. ( 12 ) NOW this vital and material fact is not shown to have been taken into consideration by the detaining authority before arriving at the subjective satisfaction. the detaining authority viz. the first respondent has himself not filed any affidavit. This is because he has been sent for administrative training and is presently undergoing the training course at the Lal Bahadur Shastri National Academy at Massoorie. This may or may not amount to sufficient cause for not filing the affidavit; we express no opinion on that question in the present case though we cannot help observing that in absence of the affidavit of the detaining authority himself it is difficult to appreciate how a challenge of this nature could have been met at all. This may or may not amount to sufficient cause for not filing the affidavit; we express no opinion on that question in the present case though we cannot help observing that in absence of the affidavit of the detaining authority himself it is difficult to appreciate how a challenge of this nature could have been met at all. Affidavit on behalf of the detaining authority has been filed by the Incharge Collector and District Magistrate who has been holding the charge of the said office since July 1 198 He asserts in the course of his affidavit that he is fully conversant with the facts as well as with the record of the case and that as such he is in a position to depose to the relevant facts and meet with the points arising in the case. When we turn to the affirmation clause we find that all the material paragraphs of the affidavit are stated to have been based on information and belief and amongst such paragraphs is included paragraph 8 which deals with the point under consideration. The conclusion is inevitable therefore that what is deposed to in paragraph 8 is not based on his personal knowledge and that it is founded on the information derived and the belief entertained by him. The source of such information and belief is not stated. It would not be unreasonable to assume however that such source could only be the record which was before him when he made the affidavit. For the purpose of meeting the challenge under consideration therefore the record of the case constitutes the sole foundation. ( 13 ) THE material part of paragraph 8 of the affidavit reads as follows:". . . . . . I say that there is no nonapplication of mind as alleged. The detaining authority has considered the aspect of suspension of the petitioner and R. R. Parmar. As stated above the petitioner R. R. Parmar and their conspirators form an inseparable link. The petitioner holds an important position and had an opportunity to deal with huge stocks of cement. Because of his preeminent position in the department he is in a position to influence and induce his subordinates and join them in his objectionable activities. It is therefore imperative to detain him without which the detaining authority felt that his activities could not be curbed. Because of his preeminent position in the department he is in a position to influence and induce his subordinates and join them in his objectionable activities. It is therefore imperative to detain him without which the detaining authority felt that his activities could not be curbed. "when this portion of the affidavit was read to us we asked the Special Public Prosecutor to produce the record in order to ascertain whether the record showed that the mind of the detaining authority was applied to the impact of the order of suspension on the question of the need of detention of the petitioner. When we perused the record we found that this aspect was nowhere shown to have been present to the mind of the detaining authority. In fact the record does not contain even a reference to the factum of the petitioners suspension. The learned Special Public Prosecutor when confronted with this position fairly stated that the record does not disclose that this aspect was borne in mind or taken into consideration by the detaining authority. Under those circumstances the Incharge Collector and District Magistrate who had sworn the earlier affidavit filed another affidavit on the next day stating as follows:" My attention has been drawn to paragraph no. 8 of the said affidavit and particularly the words The detaining authority has considered the aspect of suspension of the petitioner and R. R. Parmar. . . . I say that from the endorsement of the District Magistrate Surat based on the materials on record there is no material to sustain this statement contained in my said affidavit. I say that the same has been stated due to inadvertence which I regret and for which I am sorry. "in view of the second affidavit it is clearly manifest that the detaining authoritys mind was not at all applied to the vital aspect relating to the impact of the suspension of the petitioner on the need of the exercise of the power of detention on the facts and in the circumstances of the case. This is a very pertinent aspect and non-application of mind to such an aspect leads to the legitimate inference that the power of detention is vitiated because the subjective satisfaction which the law enjoins the detaining authority to arrive at has not been legitimately reached. On this ground alone the detention order must fail. This is a very pertinent aspect and non-application of mind to such an aspect leads to the legitimate inference that the power of detention is vitiated because the subjective satisfaction which the law enjoins the detaining authority to arrive at has not been legitimately reached. On this ground alone the detention order must fail. ( 14 ) THIS however is not all. The detenu is entitled to succeed even on the ground that the possibility of launching a criminal prosecution is not shown to have been considered by the detaining authority. The position in regard to this aspect is no better than that with respect to the aspect of suspension. In paragraph 9 of the affidavit the Incharge Collector and District Magistrate has stated as follows:". . . IT is submitted that the detaining authority has considered the possibility of criminal proceedings as an effective measure to check the objectionable activities of the petitioner. Criminal prosecution by itself is a matter of long process and in all probability the petitioner will be allowed bail. A criminal prosecution alone therefore will not be sufficient to prevent the petitioner from pursuing his object ionable activities. "when we looked at the original record however we found that the detaining authoritys mind was not applied at all to the possibility of launching a criminal prosecution against the petitioner and such prosecution if any being an effective deterrent against his continuing the objectionable activities alleged against him. The record nowhere discloses this material aspect having been taken into consideration by the detaining authority. We need not repeat what we have stated earlier while dealing with the question of suspension viz. that in absence of the affidavit of the detaining authority one can only go by the record and that the affidavit in the present case is in fact founded only on the material on record. Under such circumstances there is no escape from the conclusion that the assertion made in paragraph 9 of the affidavit that the detaining authority had considered the possibility of criminal proceedings as an effective measure to check the objectionable activities of the petitioner is not correct and that to take the most charitable view it appears to have been made inadvertently. ( 15 ) THE question then is as to what is the effect of omission to take into account this material aspect. ( 15 ) THE question then is as to what is the effect of omission to take into account this material aspect. In Special Criminal Application No. 790 of 1982 and another matter which were decided on 3/08/1982 a Division Bench of this Court of which one of us (myself) was a member had an occasion to consider the legal position in this behalf as emerging from the decisions of the Supreme Court in BHUT NATH V. STATE OF WEST BENGAL A. I. R 1974 S. C. 806 KANCHANLAL MANEKLAL CHOKSHI V. STATE OF GUJARAT A. I. R. 1979 S. C. 1945 and SMT. HEMLATA KANTILAL V. STATE OF MAHARASHTRA A. I. R. 1982 S. C. 8. Having considered the ratio of those decisions the Division Bench speaking through me summarised the law on the subject in the following words:". . . . . . The detention power cannot be used to subvert supplant or to substitute the punitive law merely because it is irksome to undertake the inconvenience of proving guilt in Court of law. In other words the ordinary criminal process is not to be circumvented or shortcircuited by ready resort to preventive detention. However the fact that a criminal prosecution can possibly be launched is not an absolute bar to the making of an order of preventive detention. If the detaining authority is satisfied that the offender has a tendency to go on violating the laws then there will be no bar against his detention in order to disable him to repeat such offences Besides merely because the possibility of criminal prosecution is not present to the mind of the detaining authority the order of detention would not be rendered necessarily invalid. However on the facts and in the circumstances of a case the failure of the detaining authority to consider the possibility of launching a criminal prosecution may lead to the conclusion that there was non application of mind on the part of the detaining authority to the vital question whether it was necessary to make an order of preventive detention. However on the facts and in the circumstances of a case the failure of the detaining authority to consider the possibility of launching a criminal prosecution may lead to the conclusion that there was non application of mind on the part of the detaining authority to the vital question whether it was necessary to make an order of preventive detention. Where an express allegation is made that the order of detention was issued in a mechanical fashion without keeping present before the mind the question whether it was necessary to make such an order when an ordinary criminal prosecution could well serve the purpose the detaining authority must satisfy the Court that that aspect too was borne in mind before the detention order was made. In such a case what is required is that detaining authority must satisfy the Court that it had in mind the question whether the prosecution of the offender was possible and sufficient in the circumstances of the case. In some cases for example it may not be possible to bring the culprit to book even if he is prosecuted such as when he is a professional bully or a murderer or a dacoit as witnesses would not come forward to depose against him out of fear; or when the culprit is a member of an inter national smuggling machinery or a member of a gang of conspirators who have undertaken preplanned activities on a large scale to divert from the regular channel supplies of essential commodities and it may not be possible to collect all necessary evidence without unreasonable delay and expenditure to prove the guilt beyond reasonable doubt. If the detaining authority fails to satisfy the Court that the detaining authority applied its mind to all the relevant aspects bearing on the question of the possibility of launching a prosecution the Court would be justified in drawing the inference that there was nonapplication of mind by the detaining authority to the vital question whether it was necessary to preventively detain the detenu. " ( 16 ) AGAINST the aforesaid background there is no manner of doubt that the possibility of criminal prosecution being not present to the mind of the detaining authority in the instant case renders the detention order invalid. As earlier pointed out the petitioner having been suspended is placed out of the harms way. " ( 16 ) AGAINST the aforesaid background there is no manner of doubt that the possibility of criminal prosecution being not present to the mind of the detaining authority in the instant case renders the detention order invalid. As earlier pointed out the petitioner having been suspended is placed out of the harms way. He would no longer be in a position to carry on his objectionable activities. Under such circumstances ordinary criminal prosecution would well serve the purpose which is sought to be achieved by the detention. One cannot overlook in this connection that the detention power is preventive and not punitive in character. The petitioner can be detained not with a view to penalising him for having indulged in the activity of black marketing of cement on the two occasions in question. He can be detained only with a view to preventing him from indulging in such activities in future. In a case like the present where the wings of a person carrying on such activities are cut off by removing him from his pivotal position criminal prosecution would ordinarily be sufficient to achieve the purpose sought to be at tained by detention because it would deter him from acting similarly in future even if a stray opportunity came by. The petitioner is not a professional bully a murderer a dacoit or the like against whom prosecution may not succeed for want of evidence because witnesses would not be willing to come forward. Nor is this a case where it would not be possible to collect necessary evidence without unreasonable delay and expenditure to prove the guilt beyond reasonable doubt. Evidence collected during the course of investigation including the documentary evidence would prima facie appear to be sufficient for the purposes of launching a prosecution. Under these circumstances since the detaining authority has failed to satisfy us that its mind was applied to the possibility of launching a prosecution we would be justified in drawing the inference that the subjective satisfaction is vitiated on account of non-application of its mind to a very vital and material aspect. This is yet another ground on which the order of detention must fail. ( 17 ) BEFORE parting with the case we would like to observe that in detention cases the Court expects meticulous care being taken by the detaining authority in filing the return. This is yet another ground on which the order of detention must fail. ( 17 ) BEFORE parting with the case we would like to observe that in detention cases the Court expects meticulous care being taken by the detaining authority in filing the return. The exercise of power impinges upon the exercise of a very important fundamental right by a citizen. Exercise of the power depends upon subjective satisfaction of the Executive Authority. Under such circumstances when the detention is challenged and the Court is called upon to pronounce upon its validity it would be legitimate to expect that the authority places before the Court all the facts truly correctly and faithfully. Any lease in this behalf will legitimately invite strictures from the Court because it may tend to affect the fountain of justice by reason of the fact that reliance upon an affidavit which does not correctly reflect the record may result in miscarriage of justice. ( 18 ) IN the result the writ petition succeeds and it is allowed. The impugned order of detention is quashed and set aside. The petitioner is ordered to be set at liberty forthwith so far as the present case is concerned. Rule made absolute in the aforesaid terms. .