JUDGMENT : ( 1. ) THIS is a petition under Article 226 of Constitution of India for issuance of writ of Habeas Corpus. ( 2. ) THE facts, giving rise to this petition, are as under :-Manoj Kumar Jain son of Pannalal Jain is resident of Guna, who is at present under detention in Central Jail, Gwalior. He is under detention under an order passed by District Magistrate, Guna. The order of detention purports to have been passed by the District Magistrate, Guna, on 2-12-1981 under section 3 (1) of the Prevention of Blackmarketing and maintenance of Supplies of Essential Commodities Act, 1980 (No. 7 of 1980) (hereinafter referred to as the Act ). Section 3 of the Act empowers the Central Government, State Government or any officer empowered under that section to take action under the said section. The competent authority, on being satisfied that with a view to preventing the person concerned from acting in any manner prejudicial to the maintenance of supplies of commodities essential to the community it is necessary so to do, may make an order directing such person to be detained under the said provision. The District Magistrate has passed the order, which is challenged before us. ( 3. ) TO understand the submissions of the learned counsel for the petitioner, we will first consider the section itself, under which the action is taken. Section 3 of the Act is as under:- 3. Power to make orders detaining certain persons.- (1) The Central government or a State Government or any officer of the Central Government not below the rank of a Joint Secretary to that Government specially empowered for the purposes of this section by that Government, or any officer of a State Government, not below the rank of a Secretary to that government specially empowered for the purposes of this section by that government, may, if satisfied, with respect to any person that with a view to preventing him from acting in any mariner prejudicial. to the maintenance of supplies of commodities essential to the community it is necessary so to do, make an order directing that such person be defamed. to the maintenance of supplies of commodities essential to the community it is necessary so to do, make an order directing that such person be defamed. " There is explanation to the section which makes clear the meaning of the expression "acting in any manner prejudicial to the maintenance of supplies of commodities essential to the community" and it reads as below :- " (a) committing or instigating any person to commit any offence punishable under the Essential Commodities Act, 1955, (10 of 1955) or under any other law for the time being in force relating to the control of the production, supply or distribution of, or trade and commerce in, any commodity essential to the community; or (b) dealing in any commodity- (i) which is an essential commodity as defined in the Essential commodities Act, 1955 (10 of 1955) or (ii) with respect to which provisions have been made in any such other law as is referred to in clause (a), with a view to making gain in any manner which may directly or indirectly defeat or tend to defeat the provisions of that Act or other law aforesaid. " The purpose of explanation and how it is to be interpreted was considered in principles of Statutory Interpretation (2nd Edition) by Guru Prasanna Singh, learned Chief Justice of Madhya Pradesh, on page 135 of the book and it is observed as under :- "an explanation is at times appended to a section to explain the meaning of words contained in the section. It becomes a part and parcel of the enactment. The meaning to be given to an explanation must depend upon its terms, and "no theory of its purpose can be entertained unless it is to be inferred from the language used. " But if the language of the Explanation shows a purpose and a construction consistent with that purpose can be reasonably placed upon it, that construction will be preferred as against any other construction which does not fit in with the description or the avowed purpose. In the Bengal Immunity Co. s case the Explanation appended to Article 286 (1) was restricted to its avowed purpose of explaining an outside sale for purpose of clause (1) and was construed as not conferring any taxing power or as restricting the ban imposed, by clause (2) of the same Article. In the Bengal Immunity Co. s case the Explanation appended to Article 286 (1) was restricted to its avowed purpose of explaining an outside sale for purpose of clause (1) and was construed as not conferring any taxing power or as restricting the ban imposed, by clause (2) of the same Article. However, an identical explanation contained in a State legislation was construed differently and was held as conferring taxing power. The context and setting of the two enactments, it was pointed out, made the entire difference although the language was identical. An Explanation may be added to include something within or to exclude something from the ambit of the main enactment or the connota-tion of some word occurring in it. Even a negative Explanation which excludes certain types of category from the ambit of the enactment may have the effect of showing that the category leaving aside the excepted types is included within it. An Explanation, normally, should be so read as to harmonise with and clear up any ambiguity in the main section and should not be so construed as to widen the ambit of the section. But it is also possible that an Explanation may have been added ex abundanti cautela to allay groundless apprehensions. " ( 4. ) THE explanation Uses the word means, and when the word used is means, it shows the intention of the legislation that the meaning given to the expression used is restrictive and net extensive, that is to say that if the case is not covered under the definition given in the statute; then the action taken under the Act holding that the acts of the petitioner are covered by the explanation, will be bad in law. ( 5. ) IT will have to be shown that the acts of the petitioner are covered either under section 3 (l) (a) or 3 (l) (b) of the Act and if the activities of detenu aire not covered under either of the limbs of the explanation, then it will go to show that the subjective satisfaction of the authority is not based on proper appreciation of facts and that the order of detention cannot be justified and allowed to remain in force. The ambit of explanation and how it be interpreted came before Karnatak High Court and it is observed in smt. Leharibai v. The State of Karnataka and others, 1981 Cri. The ambit of explanation and how it be interpreted came before Karnatak High Court and it is observed in smt. Leharibai v. The State of Karnataka and others, 1981 Cri. L J 1048. that:-"following the rules of interpretation of statutes the Explanation to section 3 of the above Act should be treated as an integral part of that section and not as being independent of or apart from it. It should not also be construed as being illustrative in nature. The Explanation "circumscribes the scope of the power conferred by section 3 but for which it might have taken within its fold every conceivable activity bearing, directly or indirectly, upon the maintenance of supplies of commodities essential to the community. For instance, sabotage of transport, pilferage of stocks or even the strikes by workmen at the production or distribution level might have also attracted the provision. The Explanation while expressly limiting the operation of the said expression to the acts falling either under clause (a) or clause (b) impliedly excludes all other activities even if they may bear upon the supply of essential commodities. " The above Act confers on the executive an extraordinary power to detain a person without recourse to the ordinary laws of the land on the mere subjective satisfaction of a designated authority. The sufficiency of the grounds or the adequacy of the materials alleged against the detenu are not justiciable. However, the Courts in view of the Constitutional pledge under Article 22 (5) against deprivation of the liberty of a person except in accordance with the procedure established by law should be alert while at the same time aware of the need for and the urgency of maintenance of supplies essential to the community which the Act seeks to achieve. The detaining authority must in each case be shown to have applied its mind to the activities alleged against the person and indicate in its order itself that it is necessary to detain him for preventing commission of the acts falling under one or the other or both the heads set out under the Explanation to section 3. If this is not so, then the authority can be taken to have not applied its mind but made the order mechanically. If this is not so, then the authority can be taken to have not applied its mind but made the order mechanically. The order of detention m this case which by its first part stated that the authority was satisfied that it was necessary to detain the person for preventing him from acting in any manner prejudicial to the maintenance of supplies essential to the community and by its second part recited the source of its power of detention as clause (b) of sub-section (2) of section 3 was held not in conformity with the terms of section 3 of the Act and the mandate of Article 22 (5) of the Constitution. Though the authority had furnished to the detenu full particulars of his activities, the order by its mechanical reproduction of the words of sub-section (1) of section 3 and its significant silence as to under which of the two clauses of the Explanation such activities fall succumbs to the pleas that the order was made in a casual way and without application of the mind to the activities alleged against the detenu, and it becomes clear that the order of detention must show that the authority has applied its mind keeping in view the alleged activities of the detenu and whether those activities are sufficient to form a subjective satisfaction of the authority. We are aware that it is the subjective satisfaction of the authority and we cannot substitute our satisfaction but even otherwise the order must indicate clearly the material which the authority took into consideration in deciding the matter. It is not as if every activity, which may affect the maintenance of supply the essential commodity, is included in the explanation. ( 6. ) WE will first consider the order of detention, passed in this case, which, if translated in English, will be as under:- "as I, Sudheernath, District Magistrate, Guna, am satisfied that shri Manoj Kumar Jain, resident of Dharna Wada, District Gunas detention, under section 3, sub-section (1) of the Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act, 1980, with a view to preventing him from acting in any manner prejudicial to the maintenance of supplies of commodities essential to the community is necessary. Therefore, under the powers given under the said Act under subsection 2 (a) of section 3, I, Sudheernath, District Magistrate, Guna, order that Shri Manoj Kumar son of Pannalal Jain be detained and kept in central Jail, Gwalior. 2-12-1981. Sd/-Sudheernath, district Magistrate, guna (M. P.)The detention order does not disclose as to under which part of the explanation the activities of the petitioner come and, therefore, the learned counsel for the petitioner submits that the order is bad for the reasons indicated in smt. Leharibais case (supra ). ( 7. ) THE learned counsel for the petitioner has submitted additional grounds to show that the order is bad in law. He has referred to us the representation which the detenu made to the State, which is Annexure II, in which he has submitted that his representation may be kept before the advisory Board, that he be allowed to have his say before the Board in person and that he is not a dealer in the commodity alleged, nor he is an officebearer of any society dealing in cloth, that the action is taken against him on the basis of an incident, alleged to have taken place on 19-8-1981 in the night. It is said that on the said date, Station Officer, Guna, received an information that some bales of control cloth are being removed from Government Control Cloth Shop. On the said information, Station Officer came on the spot and some bales were found on the spot. One Laxmi Narayan claimed them as his There were two other persons present and they were one Tillu alias Anil and one Ramchandra, wrongly mentioned as Ramcharan, but as Laxminarayan claimed the bales as his, it is clear that the petitioner cannot be connected with the incident even remotely. ( 8. ) IN the said representation, the petitioner has made a complaint that he has not been supplied with a copy of the first information report, that the witnesses do not name the petitioner. Similarly, one Babukhans statement was recorded, but his statement was recorded twice, once on 19-8-1981 and secondly on 20-8-1981. He also does not implicate the petitioner. ) IN the said representation, the petitioner has made a complaint that he has not been supplied with a copy of the first information report, that the witnesses do not name the petitioner. Similarly, one Babukhans statement was recorded, but his statement was recorded twice, once on 19-8-1981 and secondly on 20-8-1981. He also does not implicate the petitioner. In his statement, Babukhan mentions that his statement was recorded before and in that statement, he has named the petitioner, but copy of the statement is not supplied to the petitioner and because the copies were not supplied, he could not make effective representation. ( 9. ) IT was submitted by the learned Government Advocate before us that non-supply of the copies of first information report and statements, as alleged by the petitioner, will not have effect on the order and further, he did not ask for the same before making the representation. He has referred us to Manakchand Jain v. State of M. P. and others, 1981 MPLJ 547 =1981 JLJ194. in which it is held that:- "mishra J. has further held that the petitioners detention is unwarranted on the additional ground that certain documents, particularly the Food-Inspectors report referred to in the first ground, were not furnished to the petitioner nor particulars thereof supplied to him despite his making a ground in that behalf in his representation. He has placed reliance on the following observations of their Lordships of the Supreme court in the case of Ramchandra A. Kamat v. Union of India and others, AIR 1980 SC 765 . :-"when the grounds of detention are served on the detenue, he is entitled to ask for copies of the statements and documents referred to in the grounds of detention to enable him to make an effective representation. When the detenu makes a request for such documents, they should be supplied to him expeditiously. The detaining authority in preparing the grounds would have referred to the statements and documents relied on in the grounds of detention and would be ordinarily available with him when copies of such documents are asked for by the detenu the detaining authority should be in a position to supply them with reasonable expedition. " In that case, there was undue delay in furnishing copies of statements of some witnesses and documents referred to in the grounds of detention. " In that case, there was undue delay in furnishing copies of statements of some witnesses and documents referred to in the grounds of detention. The copies were applied for by the detenus counsel for the purpose of making a representation against the detention order. Their Lordships further observed as follows: "if there is undue delay in furnishing the statements and documents referred to in the grounds of detention the right to make effective representation is denied. The detention cannot be said to be according to the procedure prescribed by law. When the Act contemplates the furnishing of grounds of detention ordinarily within five days of the order of detention, the intention is clear that the statements and documents which are referred to in the grounds of detention and which are required by the detenu and are expected to be in possession of the detaining authority should be furnished with reasonable expedition. " "the Act nowhere lays down that the detaining authority shall furnish the detenue with copies of statements and documents referred to in the grounds of detention. The latter part of Section 8 (1) lays down only that the authority shall afford him the earliest opportunity of making a representation. Therefore, the authority is not bound to supply the copies unless the detenue asks for the same in order to enable him to make representation. If he does not do so, he is not entitled to make a ground in that respect. In the case of Ramchandra A. Kamat (supra), copies were asked for before making representation for the purpose of making representation, whereas, in the present case, copies were never asked or applied for. Therefore, the observations made by their Lordships in that case are, in my opinion, not applicable in the present case. Thus, I find myself unable to agree with the above view expressed by Mishra J. " So, the point for consideration in this case is as to whose duty it is to supply the copies. Whether they are to be asked for by the detenu or whether they are to be supplied by the Detaining Authority as a matter of course, i. e. , whether or not they are asked for by the detenu. This controversy was resolved in Abdul Aziz v. Delhi Administration and others, 1981 Cri. L J 1011. Whether they are to be asked for by the detenu or whether they are to be supplied by the Detaining Authority as a matter of course, i. e. , whether or not they are asked for by the detenu. This controversy was resolved in Abdul Aziz v. Delhi Administration and others, 1981 Cri. L J 1011. in which it is held that:- "the admitted position is that a copy of the statement of Mohd. Yamin on which the grounds of detention are based has not been supplied to the detenu. The detenu, we may mention here, is detained under the national Security Act and a point was sought to be made on behalf of the respondents that in cases of detention under the National Security Act it is not necessary to supply copies of documents on which orders of detention are based unlike cases of detention under the cofeposa. This question has already been considered by this Court in Smt. Khatoon begum v. Union of India, Writ petitions Nos. 293, 391 and 392 of 1981 decided on 9-3-1981 (A I R 1981 sc 1077 ). In view of the decision of this Court we are unable to agree with the submission of the learned counsel for the respondents. We have, therefore, no alternative except to direct the release of the detenu forthwith. It is so ordered. " The above view was taken by the Supreme Court as to when under the Act it was not necessary to supply the copies. But to make an effective representation and to guard personal liberty zealously, in our opinion, no other view is possible. Therefore, the submission of the learned Government Advocate cannot be accepted and we reject the same, and in our opinion the order cannot be allowed to stand on this ground also. This point is further clarified by the Supreme Court in Mohd. Zakir v. Delhi Administration, A I R 1982 SC 696, in which it is held as under:- "it is the constitutional mandate which requires the detaining authority to give the documents relied on or referred to in the order of detention pari passu the grounds of detention in order that the detenu may make an effective representation immediately instead of waiting for the documents to be supplied with. It is manifest that question of demanding the documents is wholly irrelevant. It is manifest that question of demanding the documents is wholly irrelevant. The infirmity in this regard is violative of constitutional safeguard enshrined in Art. 22 (5) of constitution. A I R 1980 Supreme Court 1983 and A I R 1981 Supreme court 814, Foll. " ( 10. ) THE other submission made by the learned counsel for the petitioner is that there is delay and because of delay, the whole proceedings should be struck down. The relevant dates are as under:- What is the effect of delay in such matters was considered in Harish Pahwa v. State of U. P. and others, A I R 1981 SC 1126. and it is held that:- "we may make it clear as we have done on numerous earlier occasions, that this Court does not look with equanimity upon such delays when the liberty of a person is concerned. Calling comments from other departments, seeking the opinion of Secretary after Secretary and allowing the representation to lie without being attended to is not the type of action which the State is expected to take in a matter of such vital import. We would emphasise that it is the duty of the State to proceed to determine representation of the character above mentioned with the utmost expedition, which means that the matter must be taken up for consideration as soon as such a representation is received and dealt with continuously (unless it is absolutely necessary to wait for some assistance in connection with it)until a final decision is taken and communicated to the detenu. This not having been done in the present case we have no option but to declare the detention unconstitutional. " Therefore, looked from this angle also, the order cannot be sustained and it will have to be set aside. ( 11. ) THERE was an attack by the learned counsel for the petitioner regarding the affidavit filed in support of the petition. The affidavit should have been by the authority concerned or of a person who has been authorised to do with reasons showing as to why the authority is not in a position to file its affidavit. It is observed as under in Smt. T. M. Sabira v. State of Karnataka and another, 1981 Cri. L J106. The affidavit should have been by the authority concerned or of a person who has been authorised to do with reasons showing as to why the authority is not in a position to file its affidavit. It is observed as under in Smt. T. M. Sabira v. State of Karnataka and another, 1981 Cri. L J106. when a similar point came before Karnataka High Court:- "when a rule nisi is issued by a Court in a habeas corpus petition the proper person to file the counter-affidavit is the authority who has passed the order of detention under section 3 of the Act and if for some good reason that person is not available, the next best thing would be to furnish the affidavit of a senior officer who personally dealt with the case of the detenu in the Secretariat or put it to the ministers for orders. " But, as we are setting aside the order on other grounds, we do not feel that not filing of affidavit by authority concerned should be fatal to the case. We feel that it would be better if the affidavit of the Authority concerned is filed, or reasons for not filing it are given. We are of the opinion that this ground only is not sufficient to set aside the order passed against the detenu. ( 12. ) THE other submission of the learned counsel for the petitioner is that the grounds for detention, given in Annexure-4, are vague and there is no evidence worth name, from which it can be said that the grounds are made out and even if it is shown that one of the grounds, mentioned in it, is vague or not made out, then it will be difficult to know as to what weighed most on the mind of the competent authority for his satisfaction and as such the whole proceedings will be bad in the eye of law. We may refer to Manak-chand Jain v. State of M. P. and others in which, while considering this type of aspect, it was observed as under :- "statement of the grounds of detention constitutes an essential part of the detention order and that it must be in consonance with the detention order. If it discloses material disparity with the detention order the disparity would have the effect of rendering the detention order invalid. If it discloses material disparity with the detention order the disparity would have the effect of rendering the detention order invalid. If, in the statement of the grounds of detention furnished to the detenu, something foreign to the scope of section 3 (1) is stated to be the ground of satisfaction, that with the detention order at the root and the detention order collapses. A I R 1950 SC 494, relied on. " The first ground describes the incident which occurred on 19-8-1981 and it mentions the names of two witnesses, Tillu and Ramcharan, and presence of laxminarayan, but does not even mention the name of petitioner. On the contrary, in ground No. 5, it is mentioned that the petitioner got the cloth from control shops situated at Nai Sarai, Shadhora, Gharnawada. These two allegations are self-destroying. Either petitioner must be responsible for the incident of 19-8-1981 or for getting the cloth from the shops, mentioned above, but both the incidents cannot be true at the same time. The second ground mentions that from the statements of Babukhan, Tillu, Ramcharan, Ram-kishore, Mahavirsingh Tomar, it is clear that the cloth was in Black Market and from their evidence, the incident dated 19-8-1981 is proved. We were taken through the evidence of the above witnesses, but after reading their evidence, we do not see that any ground, much less ground No. 2, is made out against the petitioner. Ground No. 3 mentions that the stock in shops of upbhokta Sahakari Bhandar, Guna, situated at Shadora, Nai Sarai, were checked and the report is prepared. The report is filed with the petition as well but from the report, nothing is brought out against the petitioner, nor the learned Government Advocate could show us as to how the reports help the order passed by District Magistrate, Guna. ( 13. ) THE grounds do not, even in a remotest way, say that the petitioner is committing or instigating any person to commit any offence punishable under the Essential Commodities Act, 1955 (1. ( 13. ) THE grounds do not, even in a remotest way, say that the petitioner is committing or instigating any person to commit any offence punishable under the Essential Commodities Act, 1955 (1. 0 of 1955) or under any other law for the time being in force relating to the control of the production, supply or distribution of, or trade and commerce in any commodity essential to the community; or he is dealing in any commodity (i) which is an essential commodity as defined in the Essential Commodities Act, 1955 (10 of 1955) or (ii) with respect to which provisions have been made in any such other law as is referred to in clause (a), with a view to making gain in any manner which may directly or indirectly defeat or tend to defeat the provisions of that Act or other law aforesaid. ( 14. ) THEREFORE, taking all the facts and relevant law into consideration and for the grounds discussed above, we are of the opinion that the order of detention cannot be allowed to stand and it is hereby set aside. ( 15. ) THE result, therefore, is that the petition of habeas corpus, filed by the petitioner, is allowed. He will be released forthwith. Petition allowed.