JUDGMENT S. B. MAJMUDAR, S. L. TALATI, J. ( 1 ) IN these two special criminal applications the concerned petitioners have prayed for a writ of habeas corpus or any other suitable writ under Article 226 of the Constitution of India for setting them at liberty by quashing the orders passed by the first respondent State of preventively detaining them in exercise of powers conferred on them by section 3 (1) of the Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act 1980 hereinafter referred to as the Act. . . . . . . . . . . . . . ( 2 ) FACTS leading to Spl. Cr. Application No. 345/84. THE petitioner is working as a paid manager of one Shiv Shakti Consumers Co-operative Society Limited hereinafter referred to as the society. The said society employer of the petitioner is distributing controlled cloth as it is recognised by the Government as a wholesale dealer as well as a retail dealer under different licences. The society is governed by the provisions of the Gujarat Co-operative Societies Act 1961 The controlled cloth was received by the society for distribution. During the working of the society certain illegalities and irregularities were noticed by the Department of Civil Supplies of the State of Gujarat. After due inspection the petitioner was served with an order of detention under section 3 (1) of the Act on 8. 6. 1984 and on that very day grounds of detention were furnished to the petitioner. The grounds are annexed to the petition as annexure A. It was alleged in these grounds that the petitioner was working as the manager of the society situated near Kalupur gate behind Pan Market in the city of Ahmedabad since last six years. The society is distributing the controlled cloth as in is recognized by the Government both as a wholesale dealer and also a retail dealer under two separate licences. That the Chairman of the society is one Arjundas Daswani. The petitioner was doing the work of the society. That on 18. 1. 1984. the Assistant Director and Investigating staff from the office of the Director of Food and Civil Supplies under the instructions from the Director have taken a surprise visit of the shop of the society and various defects were found out as a result of the said inspection. Amongst others. That on 18. 1. 1984. the Assistant Director and Investigating staff from the office of the Director of Food and Civil Supplies under the instructions from the Director have taken a surprise visit of the shop of the society and various defects were found out as a result of the said inspection. Amongst others. it was found that there was surplus stock of grey Dhoti patta while there was deficit of grey cloth and Dhoti Viramgam. These irregularities emerged on the verification of the stock position as existing in the books of account of the society on 18. 1. 1984. It has been further mentioned in the grounds of detention that in connection with defects found at the time of inspection bill book of the retail sale was seized in order to find out whether the bills were correct or not and on cross checking it was found that false bills were prepared as under: (A) Through the inspecting staff cross checking of 35 bills of sale was done. In this connection out of 35 bills in 27 bills the persons in whose names the bills were prepared were found not residing at the address as given in the bills and in 5 bills of sale the persons shown in the bills had not purchased the stock of controlled cloth and the details shown in the bills were not correct. (B) The authorisation letter was given to the society for sale of controlled cloth to the card holders in Ahmedabad city. Inspite of that as shown in appendix B out of the 426 bills in the bill book which had been seized 50 bills of sale were prepared in the names of persons living outside. (D) In the city of Ahmedabad the last serial number of the cards which were printed for the families was 475000. Beyond this serial number no card was printed for the families. However bills were prepared showing bogus card numbers and stock was disposed of in an unauthorised manner. It was further stated in the grounds of detention that one Chunilal Chhaganlal Shah (petitioner in companion writ petition) who is holding a fair price shop was issued a licence (authorisation letter) from the office of the Director of Food and Civil Supplies for selling controlled cloth. His licence number was D. 22. It was further stated in the grounds of detention that one Chunilal Chhaganlal Shah (petitioner in companion writ petition) who is holding a fair price shop was issued a licence (authorisation letter) from the office of the Director of Food and Civil Supplies for selling controlled cloth. His licence number was D. 22. As per the said licence the said retail dealer was attached to the society which was granted wholesale licence as a nominee and where the petitioner was serving. However the name of said Shri Chunilal Chhaganlal Shah was attached to another nominee viz. Kanaiyalal Ramprasad with effect from 26. 3. 1983. During the course of inspection it was noticed that the hills had been issued from the society showing sale of cloth (controlled) in the name of said Chunilal Chhaganlal Shah. In this way though said Chunilal Shah was not grouped with the society as a retail dealer the controlled cloth was sold to him. Said Chunilal Shah in his statement dated 22. 2. 1984 had admitted that he had made an understanding with the societys bill clerk Rohitbhai that the society would prepare the bills of sale in the name of Chunilal Shah and would make adjustment of the said sale while in fact the society would sell that cloth direct and that Rohitbhai had further told Chunilal that he would not be responsible for such sale and that for this work which would be done by Chunilal the society would give him 3% commission. In pursuance of this understanding the society had prepared bills in the name of Chunilal details of which were given in Schedule D. It was further alleged that for getting the signatures of Chunilal the bill clerk Rohitbhai used to visit Chunilal and this was admitted by Rohitbhai and Chunilal in their statements. Rohitbhai said in his statement that as per the direction he used to obtain the signatures of Chunilal. The stock which was shown to have been sold to Chunilal had been shown by Chunilal in his stock register but on inspection it was found that the sale of the controlled cloth in his stock register was shown on different dates viz 11 12 17 22 25 26 and 27-12 1983. It was further found that no bills were prepared and the society had sold that said stock directly. This fact was shown by Chunilal in his statement. It was further found that no bills were prepared and the society had sold that said stock directly. This fact was shown by Chunilal in his statement. It was therefore alleged that the society had directly sold the said stock and had disposed of the same in an unauthorised manner. The grounds further alleged from the petitioners state ment recorded on 1. 3. 1984 as also from the statement of the societys bill clerk it transpired that the petitioner had sold controlled cloth in retail to persons without bills without cards and at a time 70-70 metres or 100-100 meters and in order to adjust the said stock false bills with false details had been prepared. The petitioner had admitted that he had not brought this fact to the notice of the Chairman of the society. It was also forthcoming from the stock register that the acquired stock was lying for a long time. It has been further alleged that the petitioner was not writing true account books of the controlled cloth. On 18. 1. 1984 there was deficit and surplus in the stock. The stock was sold without bills and that he was selling the stock without showing it in the cards and without preparing any bills and at a time 100-100 metres and in order to adjust the said stock he was preparing false bills. In spite of wholesale licence of controlled cloth he did not display the opening stock of the cloth and did not display the rates of all the varieties. It was further alleged that in view of the wholesale trade of the controlled cloth licence though Chunilals nomination was changed the petitioner had prepared some bills of retail sale in the name of retailers and disposed of the stock directly and as per the statement of Chunilal dated 22. 8. 1984 3 commission had been given to him. All these instances showed that the petitioner had committed breaches and irregularities in the smooth distribution of the controlled cloth and by so doing he had committed breach of secs. 3 6 8 and 9 of the Gujarat Essential Commodities (Trade Rules) Order 1977 and also committed offences punishable under the Essential Commodities Act 1955 In view of the aforesaid activities of the petitioner it was found necessary to detain the petitioner prevenlively until the provisions of the Act. 3 6 8 and 9 of the Gujarat Essential Commodities (Trade Rules) Order 1977 and also committed offences punishable under the Essential Commodities Act 1955 In view of the aforesaid activities of the petitioner it was found necessary to detain the petitioner prevenlively until the provisions of the Act. The petitioner of course denied the allegations made against him in the grounds of detention and ultimately filed this petition challenging the order of detention. ( 3 ) FACTS leading to Spl. Cr. Application No. 350/84. SO far as this petition is concerned petitioner Chunilal Chhaganlal Shah is: also detained by an order of the even date. He has been (detained with a view to preventing him from acting in any manner prejudicial to the maintenance of supplies of commodity essential to the community in exercise of the powers conferred by sub-section (1) of section 3 of the Act. In the grounds supplied to him on the same day. it has been stated that the petitioner holds licence No. D-31 of a fair price shop of foodgrains inside Delhi Darwaja in Ahmedabad. The office of the Controller of the Food and Civil Supplies Ahmedabad city had issued an authority letter No. 22 to the petitioner for selling controlled cloth as a retail dealer of controlled cloth. The petitioner was authorised to purchase controlled cloth from the society a wholesale dealer in controlled cloth and nominee on the strength of the said authority letter before 16. 3 (the petitioner in companion petition ). It has been further stated that after 16. 3. 1984 the petitioner was required to purchase the stock of controlled cloth from Kanaiyalal Ramprasad a nominee for sale of controlled cloth. Though the stock of controlled cloth was thus required to be purchased from Kanaiyalal Ramprasad after 16. 3. 1984. it had come to the notice of the Controller that large stock of controlled cloth was being purchased from. the wholesale nominee of controlled cloth viz. the society. Under these circumstances the inspecting; staff was directed to inquire into the matter. Accordingly inspection of the petitioners shop was held on 18. 1. 1984. It was found during the inspection proceedings that besides Kanaiyalal Ramprasad the petitioner had purchased the stock of controlled cloth from the society. The petitioner had admitted the said fact in his statement dated 18. 1. 1984. Accordingly inspection of the petitioners shop was held on 18. 1. 1984. It was found during the inspection proceedings that besides Kanaiyalal Ramprasad the petitioner had purchased the stock of controlled cloth from the society. The petitioner had admitted the said fact in his statement dated 18. 1. 1984. During the course of the inspection two hills prepared in his name by the society were found from the records attached. In para 6 of the grounds of detention if is further stated that from 1. 12. 1983 to 31. 12. 1983 on the strength of the bill books forthe sale of controlled cloth in December 1983 and stock register of the controlled cloth for December 1983 various controlled cloth items appeared to have been sold as found from bill books in the petitioners shop. Looking to the figures of sale and stock register deficit in Madarpat and Dhoti was found on different dates. A statement of the same had been supplied to the petitioner alongwith the grounds of detention. Looking to the figures of the bill books and stock registers the sale of controlled cloth (Madarpat and Dhoti) had been shown in the stock register on 10-12-1983 11 12 16 25 26 and 27-12-1983 However looking to the bill books for the same it transpires that the said bills had not been in fact issued for the sale of stock of controlled cloth. It has been alleged that thus by not preparing bills for the sale of controlled cloth the petitioner had sold the said stock without bills and committed grave irregularity by the sale of controlled cloth. It has been further stated that as per the petitioners admission in his statement the society had prepared bills for the sale of controlled cloth in his name for December 1983 though the petitioner was not authorised to purchase the stock of cantrolled cloth from the society. The petitioner had further admitted that as per the understanding arrived at with the bill clerk Rohitbhai of the said society the petitioner had to keep the stock register for which the said society would prepare bills in his name. The petitioner had further admitted that as per the understanding arrived at with the bill clerk Rohitbhai of the said society the petitioner had to keep the stock register for which the said society would prepare bills in his name. However in fact the said stock would directly be sold by the authorities of the society and the petitioner prepared false bills for the sale and for adjusting the said false sale bills the petitioner would be paid commission at the rate of 3% by the authorities of the society. The admission of the said understanding had been made in the petitioners statement and that looking to the accounts of credit and debit in the stock register for the month of December 1983 and also looking to the bills prepared in the bill books it appeared that the petitioner had credited the stock for which bills were prepared in his name by the society on the following dates 11-12-1983. 13-12-1983 17 and 22-12-1983. The petitioner had also shown the sale of certain stock out of the said stock as mentioned in the stock register. However the bills in respect of the same were not found in his bill books. Therefore there were reasons to believe that the petitioner had credited the said stock in the stock register as per the understanding with the society though in fact the sale of the same had been made directly by the society. The admission made by the petitioner was corroborated by the said fact. It was therefore alleged that the petitioner had written false accounts of stock register and abetted the unauthorised disposal of stock directly made by the society in his name and for doing so the petitioner had derived personal benefit by getting commission at the rate of 3%. The grounds further stated that the stock of controlled cloth is an essential commodity and the said essential commodity is related to distribution system for which the petitioner had been given auhority letter for the sale of controlled cloth in retail. He was required to sell the cloth by preparing bills in quantity after making note in the cards as per the instructions of the Government after purchasing the same from the nominee mentioned in the said authority letter. He was required to sell the cloth by preparing bills in quantity after making note in the cards as per the instructions of the Government after purchasing the same from the nominee mentioned in the said authority letter. Looking to the above facts it was found that the petitioner was not writing correct accounts of controlled cloth and had sold the same without bills by committing illegal activities for economic gain. He had created false bills in respect of the sale of controlled cloth. By this he had committed activities prejudicial to the distribution system and thus committed breach of the provisions of statutory orders and committed offences punishable under the provisions of sections 6 8 and 9 of Gujarat Essential Articles and Dealers (Regulation) Order 1977 He had also committed an offence punishable under the provisions of the Essential Commodities Act 1955 It is in these circumstances that it was allegedly found necessary to preventively detain him as he was likely to continue his said activities in future if not detained. . . . . . . . . . . . . . . . . ( 4 ) IN support of the respective petitioner the learned counsel for the concerned petitioners raised the following contentions:-1 The subjective satisfaction arrived at by the detaining authority against the concerned petitioners was vitiated in law inasmuch as the detaining authority had not kept in view the material circumstances as to whether cancellation of the respective licences of the petitioners would have been a sufficient safeguard for removing the petitioners from the harms way and would have made more drastic remedy of preventtive detention uncurled for;2 The subjective satisfaction underlying the impugned detention orders is equally vitiated on account of non-consideration of another relevant circumstance by the detaining authority viz. prosecution of the concerned petitioners before regular criminal courts. As this circumstance had also a direct bearing on the subjective satisfaction to be arrived at in the respective cases by the detaining authority the subjective satisfaction behind the impugned detention orders had got vitiated on account of non-consideration of this additional material aspect of the matter. . . . . . . . . . . . . . . . ( 5 ) THE first two contentions were raised in common by the learned counsel for the petitioners in both these petitions. . . . . . . . . . . . . . . . ( 5 ) THE first two contentions were raised in common by the learned counsel for the petitioners in both these petitions. We shall first deal with the aforesaid two common contentions covering these petitions and then turn to the consideration of the last contention raised by Mr. Parekh only in special criminal application No. 345 of 1984. ( 6 ) BEFORE we proceed to deal with the first contention in details it is necessary at the outset to note certain subsequent developments which have taken place during the pendency of these two petitions before this court. ( 7 ) IN special criminal application No. 345 of 1984. the society in which the petitioner is serving as manager was issued a notice on 5. 7. 1984 calling upon it to show cause why its licence as a wholesale as well as retail dealer should not be canceled. It has been mentioned in the notice that if no cause is shown at the expiry of 15 days of service of the notice the licence will be deemed to have been canceled. Thus somewhere by 20. 7. 1984 the societys licence will be deemed to have been canceled if the society has not shown any sufficient cause against the proposed action. So far as special criminal application No. 350 of 1984 is concerned a similar notice was issued to the petitioner on 3. 7. 1984 with the result that by 18. 7. 1984 the petitioners licence would have been deemed to have been canceled. But we are told that in the meanwhile the petitioner had filed a writ petition in this court challenging the said notice and had obtained interim stay. Ultimately the said petition has been withdrawn by the petitioner on 6. 8. 1984. From that day onwards the petitioner in special criminal application No. 350 of 1984 can be said to have suffered cancellation of his licence to run the fair price shop. ( 8 ) IT is in the background of the aforesaid subsequent developments that the first contention canvassed by the learned Advocates for the petitioners has to be examined. It was submitted by Mr. ( 8 ) IT is in the background of the aforesaid subsequent developments that the first contention canvassed by the learned Advocates for the petitioners has to be examined. It was submitted by Mr. H. L. Patel for the petitioner in special criminal application No. 350 of 1984 that once the petitioners licence to run the fair price shop is cancelled as he has withdrawn the writ petition in this court on 6. 8. 1984 from that day he is out of harms way. The allegations against the petitioner as shown in the grounds of detention are that he allegedly abused his position as a fair price shop owner. That he had authorised cardholders attached to his shop and only because he was a fair price shop owner that wholesaler like the society could draw upon the service of the petitioner to sell the controlled cloth by taking the help of retailers like the petitioner in the alleged illegal manner. Mr. Patel therefore contended that once the licence as fair price shop owner is cancelled there is po possibility of the petitioner again indulging in any nefarious activities and he would be totally out of harms way which would render his continued detention unnecsary. Now so far as the aforesaid contention of Mr. Patel is concerned. it must be kept in view that the order of detention was passed against the petitioner on 8. 6. 1984 while cancellation of his fair price shop licence can be said to have come into effect after 6. 8. 1984. Till that time proceedings challenging the said cancellation were before this court in a writ petition; Therefore the detaining authority while passing the detention order two months back could not have imagined that the petitioners fair price shop licence will be cancelled in future. Subsequent cancellation of licence cannot obviously have retrospective effect of vitiating the subjective satisfaction arrived at two months back on relevant data when subsequent cancellation could never have bean in contemplation. Mr. Patel placed strong reliance on a decision of Division Bench of this court in Ramniklal v. Food and Civil Supplies Deptt. 22 G. L. R. 797. In the said decision the Division Bench speaking through B. J. Divan C. J. as he then was) was concerned with the question of legality of the detention order passed under section 3 (1) of the Act against the petitioner on 4. 22 G. L. R. 797. In the said decision the Division Bench speaking through B. J. Divan C. J. as he then was) was concerned with the question of legality of the detention order passed under section 3 (1) of the Act against the petitioner on 4. 12. 1980. The petitioner was carrying on business at Rangola in Umrala taluka of Bhavnagar district in the name and style of Nareshkumar Manojkumar Company and he was dealing in light diesel oil (crude oil) in the name of this firm. During the inspection certain irregularities were detected and that resulted in the detention order against him. During the pendency of the writ petition in this court the petitioner voluntarily surrendered both of his licences viz. Licences for sale of crude oil at Rangola and Pipardi. It has been noted in para 6 of the report. Now it is obvious that as surrender of the licences took place pending the petition and after the order of detention was passed against the concerned petitioner it could not have any retrospective effect on the subjective satisfaction arrived at by the detaining authority previous to the happening of the subsequent eventuality viz. surrender of licences. It is true that the contention of the petitioner was to the effect that there was no scope for carrying on sale of crude oil or carrying on blackmarketing after surrender of the licences and hence the contention of the petitioner was that detention would be without any application of mind. But the Division Bench has rightly not based its decision for quashing the detention order on that circumstance as obviously surrender of the licences was subsequent to the arriving of subjective satisfaction on the part of the detaining authority for detaining the petitioner on the then available data. In para 10 of the report ratio of the decision of the Division Bench is found. In the said para it has been observed:-"no attempt has been made by the State Government to satisfy the court that the question whether prosecuting the petitioner rather than detaining him under preventive detention would not meet the requirements of the case. In para 10 of the report ratio of the decision of the Division Bench is found. In the said para it has been observed:-"no attempt has been made by the State Government to satisfy the court that the question whether prosecuting the petitioner rather than detaining him under preventive detention would not meet the requirements of the case. Once the petitioner has surrendered his licence as a dealer in crude oil for the two depots at Rangola and Pipardi it is clear that so far as future activity is concerned or prognosis is concerned the petitioner would not be in a position to deal in crude oil or to indulge in blackmarketing in crude oil because there would be no Parsecs bility for him to get supplies of crude oil from bulk suppliers of crude oil in bulk They can supply crude oil only to licensed dealers and once the licence is surrendered they would not be in a position to supply crude oil to the petitioner. If that is so it is obvious that the detaining authority must satisfy the court why instead of prosecuting the petitioner and his employee Indubhai Hirabhai Pandya the State Government thought it fit to detain the petitioner by preventive detention under the provisions of the Act". Thus the only fault which the Division Bench found with the detention order was that while arriving at the subjective satisfaction for detaining the petitioner relevant consideration whether the petitioner could have been prosecuted instead of detention had not entered the exercise of subjective satisfaction and the facts before the Division Bench did not indicate any such awareness. It is on that basis that detention order was quashed and set aside by the Division Bench in the aforesaid case. Nowhere the Division Bench has ruled that subsequent revocation of licence during the pendency of the detention would retrospectively nullify the subjective satisfaction arrived at earlier when there was no such cancellation or surrender of licence. Consequently the support sought to be derived by Mr. Patel from the observations of the Division Bench in Ramniklals case (supra) cannot stand in any good stead to him. Consequently the support sought to be derived by Mr. Patel from the observations of the Division Bench in Ramniklals case (supra) cannot stand in any good stead to him. If must therefore be held that merely because detenu detained under the Act suffers cancellation of his licence during the currency of the detention or surrenders the same it does not retrospectively make his detention bad on the ground that the subjective satisfaction of the detaining authority got vitiated retrospectively. However this circumstance would be very material for the detaining authority to consider on its own for the purpose of revoking the detention order in the light of subsequent event which may in given facts indicate that continued detention of the concerned detenu in the light of the changed circumstances was no longer called for. But that is entirely the function of the detaining authority. Subjective satisfaction permeating the original detention order cannot get in any way adversely affected to any slightest degree only on account of such subsequent event. ( 9 ) MR. Patel then invited our attention to a decision in Ganeshbhai v. Dist. Magistrate 24 G. L. R. 1016. The Division Bench consisting of D. C. Gheewala and R. J. Shah JJ speaking through Gheewala had an occasion to consider the legality of the detention order of the petitioners before them under the provisions of the very same Act. The petitioners were holding licence for distributing foodgrains at their fair price shops at villages Bharavda district Banaskantha. On account of certain irregularities found in the conducting of these fair price shops they were sought to be detained under the impugned detention order. While challenging the detention order it was contended before this court that the detaining authority had not considered the vital question while arriving at its subjective satisfaction in support of the detention order that there were alternative remedies or possibilities of preventing the petitioners from indulging in the aforesaid nefarious activities which were less drastic than the order of detention and that the detaining authority was armed with a power of suspending and ultimately cancelling the licence of the fair price shop which the petitioners were running. That the detaining authority was required to keep this vital consideration in view before passing the impugned order of detention and if that was not done the subjective satisfaction would get vitiated on account of non-application of mind to this vital aspect. The said contention was accepted by the Division Bench. Gheewala J. speaking for the Division Bench made the following pertinent observations in that connection:"it is not necessary that where alternative remedies or possibilities of preventing the petitioners were present no detention order could have been passed. instead of launching a prosecution it might become necessary in certain cases to detain the detenu and that might be an efficacious way of preventing him from going with objectionable activities. However the court must be satisfied that this possibility was very much present before the detaining authority and after taking into consideration and after knowing the pros and cons the prognisis was arrived at. If this is not done then clearly detention would be bad because it would be suffering from the vice of non application of mind. Held that in the instant case the detaining authority was armed with a power of suspending and ultimately cancelling the licence of the fair price shop which the petitioners were running. They could also have been prosecuted and in fact orders for prosecution have been passed. Therefore the order of detention under sec. 3 (1) of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act must necessarily indicate that these possibilities were considered by the detaining authority and there were overriding reasons to come to the conclusion that that would not have sufficed. There being nothing in the order to indicate that there were the facts which were considered by the detaining authority it should necessarily be held that the order detaining the petitioners was as a result of non application of mind on this very very vitally important aspect". ( 10 ) NOW it is obvious that whether less drastic remedies which can serve the purpose of preventing the petitioner from indulging in alleged nefarious activities can be resorted to will be a vital aspect of the smatter which should enter the subjective satisfaction exercised by the detaining authority before the detention order is passed. ( 10 ) NOW it is obvious that whether less drastic remedies which can serve the purpose of preventing the petitioner from indulging in alleged nefarious activities can be resorted to will be a vital aspect of the smatter which should enter the subjective satisfaction exercised by the detaining authority before the detention order is passed. Alternative remedies may be by way of prosecution under the Act or under the Essential Commodities Act or by way of depart mental action against the concerned licence holders by way of cancellation of licence suspension of licence confiscation of stock etc. This vital consideration must permeate the process of subjective satisfaction of the detaining authority before the orders of detention are passed. If these vital considerations have not entered the exercise the exercise would not be comprehensive enough and would be liable to fail on account of non application of mind to all the material vital aspects having direct impact on the subjective satisfaction to detain the concerned petitioner. But the aforesaid attack on the subjective satisfaction underlying the detention order is miles away from the submission that even after subjective satisfaction is properly arrived at on existing material and on consideration of vital facts and aspects merely because subsequently the licence got cancelled or surrendered the subjective satisfaction would get retrospectively effaced or vitiated. Such an extreme contention cannot be countenanced. Therefore it will be certainly open to Mr. Patel and Mr. Parekh to convince us that at the stage when the impugned detention orders were passed the aforesaid vital considerations were not kept in view by the detaining authority. If they succeed in doing so they would naturally be entitled to succeed. In fact in our last judgment in special criminal application No. 341 of 1984 decided by us on 3. 8. 1984 where Mr. Patel had appeared for the petitioner we set aside the detention order under this very Act on the ground that relevant consideration as to whether cancellation of licence would be sufficient to prevent the petitioner in that case from indulging in such nefarious activities was not kept in view by the detaining authority while arriving at its subjective satisfaction which exercise failed on account of non consideration of this relevant aspect. ( 11 ) WE therefore proceed to consider the fact situation on this aspect so far as both these petitions are concerned. ( 11 ) WE therefore proceed to consider the fact situation on this aspect so far as both these petitions are concerned. But before we proceed to do so we may deal with one ancillary submission of Mr. Patel in support of his present main submission. Mr. Patel submitted that once licence of a dealer is cancelled or surrendered or can be surrendered or cancelled the preventive detention of the petitioner cannot be ordered by the detaining authority as in such a case cancellation would by itself be an effective remedy to keep the concerned detenu out of harms way. Such a universal proposition cannot be accepted for the simple reason that if that is so then in no case where licensed fair price shop owner or dealer who is permitted to deal in essential commodity commits any misconduct armed with such a licence such a person can ever be detained under sec. 3 (1) of the Act as in every such case licence can always be cancelled on the ground of such misconduct. This would amount to putting a total embargo on the power of the detaining authority to detain such dealers. Power of preventive detention would become totally non-existent in all such cases of misconducting licensed fair price shop owners. We do not find any such general exception supposedly made by the legislature while enacting section 3 (1 ). To accept Mr. Patels submission would amount to engrafting an exception or a proviso to section 3 (1) of the Act to the effect that power of preventive detention would not be available in case of misconducting licensed fair price shop holders. Such an extreme contention put forward by Mr. Patel cannot be countenanced as that would amount to an act of legislation on the part of the court. ( 12 ) IT is in these circumstances that we have to address ourselves to the moot question as to whether the detaining authority had addressed itself to the material aspect as to whether cancellation of the petitioners licence would be sufficient on the facts of the case to keep the petitioner out of harms way and would be an effective alternative remedy rendering his preventive detention which is a more drastic action unnecessary. It is obvious that if this material consideration has not entered the process of subjective satisfaction of the detaining authority the petitions must succeed. It is obvious that if this material consideration has not entered the process of subjective satisfaction of the detaining authority the petitions must succeed. ( 13 ) SO far as special criminal application No. 345 of 1984 is concerned the question about consideration of cancellation of petitioners licence is not much relevant for the simple reason that the petitioner has acted as a manager of the society which is the licence bolder. Even though the societys licence is cancelled that obviously cannot have any deterrent effect on the petitioner who can serve other masters having such licences and can utilise his expertise in the matter. Mr. Parekh for the petitioner therefore rightly did not emphasise this aspect in greater details and fairly stated that this aspect may not be of much assistance to the petitioner in special criminal application No. 345 of 1984. However in para 12 of the petition the petitioner has averred that the petitioner craves leave of this court to refer to and rely upon the written statement filed by the petitioner before the advisory board. A copy of the said written statement is annexed as annexure B to the petition. When we turn to annexure B we find in para 4 thereof the following averments:-"government can very wen cancel my licence and seize the stock and give it to somebody else if anybody is prepared to do it". Now these averments obviously are misconceived. The petitioner who is a paid employee does not hold any licence. So there is no question of cancellation his licence. The stock also does not belong to him but it belongs to his master viz. the society. Hence giving away somebodys stock or cancelling the societys licence can have no adverse effect on the paid employee viz. the petitioner. Thus the question whether cancellation of licence of the society would be an alternative remedy in case of the petitioner in special criminal application No. 345 of 1984 does not remain a germane or vital consideration so far as the subjective satisfaction arrived by the detaining authority for his detention goes. ( 14 ) SO far as petitioner in special criminal application No. 350 of 1984 is concerned it is obvious that as seen earlier his services were requisitioned for the alleged illegal and nefarious activities by the manager of the society. ( 14 ) SO far as petitioner in special criminal application No. 350 of 1984 is concerned it is obvious that as seen earlier his services were requisitioned for the alleged illegal and nefarious activities by the manager of the society. The grounds of detention which have been reproduced in extenso earlier show that the material before the detaining authority was that for the month of December 1983 even though the petitioners fair price shop had not remained attached to the society who was a wholeseller for distribution of controlled cloth false bills were prepared in the names of various card holders at the petitioners fair price shop and actually without selling the controlled cloth to them the same was diverted to other channels by the manager of the society on various occasions in December 1983 and the petitioner was given 3% commission for such clandestine illegal activities. Thus false bills in the names of card holders registered at the petitioners shop were used as a camouflage to cover such illegal activities in connection with disposal of the controlled cloth. Under these circumstances the petitioner as a fair price shop owner furnished an easy attraction to the manager of the society and his services were utilised only because he was a licensed fair price shop owner. It is an admitted position between the parties that controlled cloth is made available for retail sale to fair price shop owners only. So the channel of distribution of controlled cloth is via wholesalers through retailers to the concerned card holders registered with the concerned fair price shop. If this is so it is obvious that once licence of fair price shop owner is cancelled he would be out of harms way. This consideration was therefore a very germane consideration which was required to be considered by the detaining authority before being subjectively satisfied about the proposed detention of the detenu. Now let us see whether this vital consideration was kept in view by the detaining authority so far as petitioner in special criminal application No. 350 of 1984 is concerned. It is true that the day on which he was ordered to be detained viz. 8. 6. 1984 the petitioner was still armed with a licence. Now let us see whether this vital consideration was kept in view by the detaining authority so far as petitioner in special criminal application No. 350 of 1984 is concerned. It is true that the day on which he was ordered to be detained viz. 8. 6. 1984 the petitioner was still armed with a licence. However whether cancellation of such licence would be sufficient in the circumstances of the case would still remain a germane consideration which should enter the process of subjective satisfaction to be undertaken by the detaining authority. On this basis relevant position which emerges from the pleadings has to be seen. In para 12 of the petition it has been averred by the petitioner:"he could carry on the aforesaid prejudicial activities in respect of: controlled cloth which he used to receive and sell under a valid licence. It is not the case of the detaining authority that he had other source of receiving controlled cloth. He therefore submits that prejudicial activities in the ground of detention can he prevented by cancelling the licence of the firm and it was not necessary to detain him. The aforesaid vital and important factor has not been taken into consideration by the detaining authority at the time of passing the order of detention. The order of detention is therefore passed without any application of mind". Reply to these averments is found in the affidavit in reply of Mr. G. C. Shah Deputy Secretary to Govt. Food and Civil Supplies Department. It is stated in para 8 of the said reply as under: "with reference to averments made in paragraph 12 of the petition I deny the averments made by the petitioner. I say that while considering the detention of the petitioner the authority has also considered the aspect of cancellation of authorisation of the firm. I say that such power is required to be exercised by the competent authority viz. Food Controller and necessary instruction is already given to the authority to take appropriate step for cancelling authorisation of the petitioner". MR. Patel submitted that this is a bald assertion on the part of the respondent for supporting the detention order. He invited our attention to the various grounds of detention furnished to the petitioner and submitted that nowhere it is mentioned in the grounds that this aspect was kept in view by the detaining authority. Mr. MR. Patel submitted that this is a bald assertion on the part of the respondent for supporting the detention order. He invited our attention to the various grounds of detention furnished to the petitioner and submitted that nowhere it is mentioned in the grounds that this aspect was kept in view by the detaining authority. Mr. Patel is right when he contends as above in the light of the grounds of detention. However the respondents could still show to us with reference to the relevant file as to whether this relevant aspect was kept in view by the detaining authority and whether the statement made in the affidavit in reply is borne out from the relevant file. For that purpose the learned Public Prosecutor Mr. Bhatt made available the relevant file for our scrutiny. We looked into the relevant file and also made it available for inspection of the learned Advocate for the petitioner. On scrutiny of the file we found that as a result of inspection undertaken by the officers of the civil supplies department both at the shop of the society as well as at the shop of the petitioner various illegalities in the working of these concerns were detected and a composite exhaustive report was made in the light of this inception for taking suitable actions against the concerned petitioners viz. the manager of the society as well as the fair price shop owner. The section officer under his signature has submitted a detailed report for consideration of the detaining authority on 4. 5. 1984. In the said report it was clearly mentioned that distribution of the controlled cloth was to be made for middle class and poor class people. The idea of the Government was to help these needy persons so that they can get cloth at cheaper rate. It was therefore essential to have regulated distribution channel and to also see that controlled cloth really reaches the customers for whom it was meant. The important links of this machinery were the wholeseller and retail dealer and if these important links in the chain do not act according to the policy Said down by the Government the very policy of distribution of cloth would fail. The important links of this machinery were the wholeseller and retail dealer and if these important links in the chain do not act according to the policy Said down by the Government the very policy of distribution of cloth would fail. In these circumstances it was necessary to decide whether departmental action or action through court would be sufficient against such defaulters or whether proper steps should be taken for detaining them under the Act. Below this detailed proposal submitted by the section officer on 4. 5. 1984 is found further endorsement of higher officer clearly mentioning that departmental action as well as prosecution would effectively meet the requirement of the case. That endorsement dated 5. 5. 1984 is found below the section officers report. It is below the said endorsement that the detaining authority under his own signature was signed in green ink. It is dated 5. 5. 1984. The endorsement reads that case is sound and case of detention becomes necessary to act as deterrent. Thereafter it appears that further submission was made to the detaining authority for reconsidering the question pointing out that looking to the various judgments of the High Court subjective satisfaction has to be independently arrived at on the question as to whether prosecution should be ordered against the concerned delinquents and that in the recent decision of the High Court in Noorali Bhimanis case issue about prosecuting the detenu has been highlighted. Considering all this the detaining authority was requested to reconsider the question taking into consideration all these relevant facts. This fresh submission was made on 9. 5. 1984. Thereafter on 14. 5 there is a further endorsement below the said submission by the higher authority stating that it was felt that deterrent action should be taken against the manager of the society and the original shop owner while minimum action against all should be taken. The entire matter was placed again for orders before the detaining authority. It is thereafter that the detaining authority passed its directions on 18. 5. 1984 below the entire submission as stated in his own hand that as per the discussion the matter should be resubmitted. thereafter the entire matter was resubmitted to the detaining authority. Detailed reasons were given how different actions can be taken against the concerned delinquents. It is thereafter that the detaining authority passed its directions on 18. 5. 1984 below the entire submission as stated in his own hand that as per the discussion the matter should be resubmitted. thereafter the entire matter was resubmitted to the detaining authority. Detailed reasons were given how different actions can be taken against the concerned delinquents. It was mentioned therein that looking to the statements on record the manager of the society amongst other employees appeared to be guilty while other clerks had merely assisted him. The petitioner who was holding fair price shop licence had collided with the said manager. Thus looking to the conduct of these two persons it was necessary to prevent them in view of their indulging in such activities. It was further pointed out that the manager of the society can be removed from the managership and the licence of the society can be cancelled. Similarly authorisation of Chunilal Chhaganlal Shah (petitioner) can also be cancelled. Steps can also be taken against them through court but lot of time is likely to elapse in the proceedings departmentally as well as through court. In court proceedings there was possibility of court releasing them on bail. Police investigation would take lot of time and in the meantime such persons will go on indulging in their activities. Even through court proceedings such persons can be punished but they immediately cannot be restrained from indulging in illegal activities. In these circumstances it was found necessary to preventively detain these persons. Thereafter four reasons were recorded for arriving at the subjective satisfaction for detaining the petitioner:- (1) Large amount of controlled cloth was being disposed of by these persons and they had obtained great personal advantage because of the same: (2) This large stock was meant for the socially backward and weaker sections of the society. They have been deprived of the same and the concerned delinquents had indulged into illegal activities. (3) In this case arch brain was that of the manager of the society and other persons had abetted him. Other persons can be proceeded against through court but so far as the manager is concerned he is likely to continue his activities after getting authorisation in the names of others. His activities are required to be restrained immediately by detaining him. (4) So far as fair price shop owner viz. Other persons can be proceeded against through court but so far as the manager is concerned he is likely to continue his activities after getting authorisation in the names of others. His activities are required to be restrained immediately by detaining him. (4) So far as fair price shop owner viz. Chunilal Chhaganlal Shah is concerned there were reasonable and proper grounds for detaining him. Looking to the record and other papers it was found necessary to detain him. It is in these circumstances the detaining authority decided to detain the concerned petitioner by his order dated 22. 5. 1984 which is signed by him on that day below the aforesaid recorded reasons. ( 15 ) IN this view of the matter it is obvious that the question whether cancellation of the petitioners licence would be sufficient safeguard to prevent him from indulging in alleged illegal activities was an aspect which was very much pressed in service for consideration of the detaining authority in various written subornations made by the lower authorities. Matter seems to have been considered and reconsidered stage by stage as seen above. It is only ultimately on 22. 5. 1984 that the detaining authority decided to detain the petitioners and gave green signal for the same. On the facts of this case therefore it must be held that the detaining authority had considered the vital question as to whether cancellation of licence of the petitioner would be sufficient on the facts of the case to remove him from harms way and secondly whether criminal prosecution would be sufficient in his case. Therefore those vital considerations have entered the exercise of subjective satisfaction permeating the impugned detention order. On the facts of this case it cannot be said that those vital considerations were not considered or kept in view by the detaining authority while it passed the orders against the petitioner. ( 16 ) HOWEVER Mr. Patel vehemently contended that subjective satisfaction arrived at by the detaining authority is based on mere ipse dixit. He has merely endorsed the submission of the lower authorities in the file viz. departmental action would take time and would not be sufficiently deterrent meaning thereby it would not prevent him from indulging in alleged nefarious activities. He submitted that subjective satisfaction must be based on relevant consideration and the satisfaction must be genuine satisfaction. He has merely endorsed the submission of the lower authorities in the file viz. departmental action would take time and would not be sufficiently deterrent meaning thereby it would not prevent him from indulging in alleged nefarious activities. He submitted that subjective satisfaction must be based on relevant consideration and the satisfaction must be genuine satisfaction. For that purpose he invited our attention to an unreported decision of this court in special criminal application No. 83 of 1984 decided by B. K. Mehta and R. J. Shah JJ. on 11 In that case the petitioner Noorali Bhimani was detained under section 3 (1) of the Act. Two contentions were raised before this court for challenging the detention. The first contention was that the subjective satisfaction underlying the detention order failed as alternative course of prosecution of the detenu was not kept in view while ordering detention and secondly subjective satisfaction of the detaining authority was vitiated and not genuine inasmuch as it was based on a non-existent ground that the detenu was selling cement in black market since there was no evidence worth its name on the basis of which any reasonable man could reach that conclusion. So far as the second contention was concerned the Division Bench speaking through B. K. Mehta J. held accepting the submission of the learned Advocate for the petitioner on the facts of the case that there was not an iota of evidence to that effect and therefore the detaining. authority had pursuaded itself to exercise the power of preventive detention on a non-existent ground and therefore satisfaction was based on non-existing ground was clearly vitiated. We fail to appreciate how the ratio of this judgment can be of any help to Mr. Patel in the facts of this case. Here there was lot of evidence before the detaining authority to indicate that the detenu had indulged in alleged clandestine illegal activities. In the grounds of detention supplied to the detenus themselves it was pointed that there was material to show that false bill books were prepared from 1 to 31-12-1983 and on 7 occasions wrong figures were shown in the stock registers on 10-12-1983 11 12 16 26 and 27-12-1983. In the grounds of detention supplied to the detenus themselves it was pointed that there was material to show that false bill books were prepared from 1 to 31-12-1983 and on 7 occasions wrong figures were shown in the stock registers on 10-12-1983 11 12 16 26 and 27-12-1983. In para 7 of the grounds it was mentioned that the detenu himself had admitted in his statement dated 22-2-1984 that the society had prepared bills for the sale of controlled cloth in his name for December 1983 though he was not authorised to purchase the stock of controlled cloth from she society and that looking to the accounts maintained by the petitioner it was apparent that false accounts were maintained and false bills were prepared on number of occasions in December 1983 only with a view to deriving personal benefit of 3% commission. It is in this light that a conclusion was arrived at in para 10 of the grounds that the petitioner was likely to continue his said activities in future. if not detained. Under these circumstances it cannot be said that subjective satisfaction was arrived at on non-existing facts as was the case before this court in Noorali Bhimanis case. Here on the contrary subjective satisfaction has been arrived at on overwhelming data. It must therefore. be held that the question whether cancellation of the petitioners fair price shop licence would be sufficient on the facts of the case to prevent him from indulging in nefarious activities in future by way of prognosis hag entered the subjective satisfaction exercise undertaken by the detaining authority on the date Oil which he passed the impugned orders against both the petitioners. The apprehension of the detaining authority as seen from various endorsements on the file that departmental action may not work on the facts of this case seems to have been justified even otherwise in vice of the facts of the case in Special Criminal Application No. 350 of 19b4 when inspite of the notice of cancellation of licence given to the petitioner as early as on 3. 7. 1984 cancellation could not come into effect on the expiry of 15 days i. e. from 18. 7. 1984 as in the meantime the petitioner came to this court by way of a writ petition which ultimately was withdrawn by him on 6. 8. 7. 1984 cancellation could not come into effect on the expiry of 15 days i. e. from 18. 7. 1984 as in the meantime the petitioner came to this court by way of a writ petition which ultimately was withdrawn by him on 6. 8. 1984 during the pendency of hearing of the present detention petition before us. It is therefore obvious that the departmental actions which will have to follow their own procedure are time consuming and they are liable to be challenged in a court of law as has in fact happened in the present case. The writ petition filed by the petitioner has demonstrated how cancellation of licence would not be an effective remedy in such a case. Consequently if the detaining authority was subjectively satisfied and in fact it kept in view this material aspect and taken a decision to the effect that mere cancellation of licence may not work on the facts of this case it cannot be said that the said satisfaction was based on a non existent ground or that this material aspect was not considered by the detaining authority. It must be kept in view that this court is not sitting in appeal against the subjective satisfaction arrived at by the detaining authority. It is purely a subjective satisfaction which cannot be judged by objective standards. In the case of State of Punjab v. Jagdev Singh A. I. R. 1984 S. C. 444 Chandrachud C. J. speaking for the Supreme Court has in para 26 of the report placing reliance on the earlier decisions of the Supreme Court in A. I. R. 1974 S. C. 679 and A. I. R. 1972 S. C. 2215 quoted with approval the observations of Sarkaria J. in Shaikh Hanifs case (A. I. R. 1974 S. C. 679 at page 681) as under:-"since the court is precluded from testing the subjective satisfaction of the detaining authority by objective standards it is an the more desirable that in response to the rule Nisi the counter affidavit on behalf of the State should be sworn to by the District Magistrate or the authority on whose subjective satisfaction the detention order under section 3 was passed". It is therefore well settled that this court cannot sit as a court of appeal and reverse the subjective satisfaction on the ground that another view was possible. It is therefore well settled that this court cannot sit as a court of appeal and reverse the subjective satisfaction on the ground that another view was possible. This is entirely the function of the detaining authority. Subjective satisfaction can be challenged only on the well established grounds viz. that there was no genuine satisfaction based on relevant data or that there was no evidence whatsoever to support it or that it was arrived at in colourable exercise of power or in a mala fide manner or that it was not based on consideration of vital factors and hence it involved non-application of mind If such objections or any of them are well made out the detention order will obviously fail. If such grounds are not made out it cannot be urged by the detenu that the court should take a different view of the matter on reassessment of the material before the detaining authority and come to a conclusion that the detaining authority ought not to have been satisfied on such scanty material and therefore the detention order should be quashed and set aside. Such an exercise would take the court in the forbidden field and would indirectly lead to the exercise of appellate jurisdiction under the guise of testing subjective satisfaction on the ground of its alleged genuineness. On the facts of this case it must be held that all relevant considerations pertaining to cancellation of the petitioners licence were kept in view by the detaining authority. All the pros and cons of the situation had been kept in view by the detaining authority and it is thereafter that the orders in question were passed. If they are not palatable to the detenus it cannot be helped as we are not sitting as a court of appeal. The first ground canvassed by the learned Advocates for the petitioners therefore fails. ( 17 ) THAT takes us to the second ground of attack projected on behalf of the petitioners. It was submitted that the question whether the petitioners can be prosecuted by recourse to ordinary criminal court is a vital consideration which should have been kept in view by the detaining authority. So far as this contention is concerned let us first see the averments made by the petitioners in the petitions and the reply put forward by the respondents. So far as this contention is concerned let us first see the averments made by the petitioners in the petitions and the reply put forward by the respondents. ( 18 ) IN special criminal application No. 345 of 1984 it has been averred as noted earlier in the context of the first contention that the petitioner craves leave of this court to refer to and rely upon the Written statement which is annexed as Annexure B to the petition. When we turn to annexure B we find in para 13 thereof that it has been averred:-"if I have admitted the irregularities Government can certainly cancel the licences and put me on the trial. I am ready to face it". So far as this averment is concerned it can be presumed in favour of the petitioner that he wanted to contend that he should have been ordered to be tried by a criminal court instead of being detained. We can also take a further favorable view and hold that what he means to suggest is that this aspect of the matter should have been considered by the detaining authority before arriving at the subjective satisfaction and it had not considered it. Even if such an elastic view is taken of the pleadings let us see what is the reply of the detaining authority on this aspect. In para 13 of the affidavit in reply filed by Mr. G. C. Shah. Deputy Secretary to the Government in the Food and Civil Supplies Department it has been averred as under:- " With reference to contents of para 10 I say and submit that the Irregularities committed by the petitioner were serious and the detaining authority was satisfied that taking proceeding in court would not be sufficient to prevent the petitioner from acting in a manner prejudicial to the maintenance of supply of the controlled cloth an essential commodity. I say and submit that the order of detention has been passed after considering all the material and not in a light minded manner". IN para 18 it has been stated:- " The detaining authority took the decision to detain the petitioner after considering the aspect of taking court proceedings against the petitioner. I say and submit that when the petitioner has committed offences punishable under the Essential Commodities Act and thereby has acted. IN para 18 it has been stated:- " The detaining authority took the decision to detain the petitioner after considering the aspect of taking court proceedings against the petitioner. I say and submit that when the petitioner has committed offences punishable under the Essential Commodities Act and thereby has acted. in a manner prejudicial to the maintenance of supply of an essential commodity no action can be taken under the Co-operative Societies Act to immediately prevent the petitioner from indulging in prejudicial activities and any action if at all which could be taken against the petitioner under the Co-operative Societies Act for any breach of the provisions of the said Act would not be sufficient to prevent the petitioner from acting in a manner prejudicial to the maintenance of supply of an essential commodity". It is true that in the grounds of detention there is no averment that alternative remedy of prosecuting the petitioner was also considered by the detaining authority. ( 19 ) WE may now turn to the State of pleadings in special criminal application No. 350 of 1984. In para 13 of the said petition it has been averred:-"the petitioner can be prosecuted in the ordinary court of law and therefore the extra ordinary measures of preventive detention were not necessary under the circumstances of the case. It has been well settled that the ordinary criminal process is not to be circumvented or short circuited by ready resort to preventive detention. The possibility of launching criminal prosecution should be present to the mind of the detaining authority. The failures of the detaining authority to consider the possibility of launching criminal prosecution in the circumstances of the case leads to the conclusion that the detaining authority had not applied its mind to the vital question whether it was necessary to make an order of preventive detention". So far as the present contention is concerned it has been averred in para 8 of the affidavit in reply as under:- " I say that the detaining authority has also considered that it was not sufficient measure to prevent the detenu from indulging in such activity and therefore after considering this aspect ultimately the detaining authority has passed the impugned order under the provisions of the said Act". IT has been further stated in para 9:- "the detaining authority has considered aspect of prosecution and after considering that aspect the detaining authority has passed the impugned order of detention under the said Act". It is further averred:- "the detaining authority has also considered aspect of launching criminal prosecution and the detaining authority was satisfied that the petitioner is required to be detained to prevent from indulging in activity of the petitioner. I say that while considering the case of the petitioner the authority has also considered that if the case is filed. the person can be released on bail and also take time to complete trial and during the pendency of the trial if the person is released on bail such person can certainly continue with his activity and thereby the detaining authority was satisfied to detain the petitioner immediately by passing order under the said Act". WE have already referred to the factual position that emerged on the file pertaining to the respective case of the petitioners considered by the detaining authority. In the light of the aforesaid respective stands taken by the petitioners and in view of the fact that the detaining authority as seen from the file was alive to the question whether the petitioners could be alternatively prosecuted in stead of being detained it must be held that even the question whether petitioners could be prosecuted instead of being detained had in fact agitated the mind of the detaining authority and having considered this question and its pros and cons the detaining authority has come to its subjective satisfaction. It cannot be said that the said consideration was bypassed by the detaining authority on the facts of the present case. Similarly it cannot be said that the detaining authority had not arrived at a genuine satisfaction on this aspect when it took the view that in prosecution there was possibility of the petitioners being enlarged on bail and once they are on bail they can indulge in the same activities over again. This prognosis can certainly be treated to be most relevant and rational one though it is strictly not for this court to say whether proper or adequate prognosis was arrived at or as that would be purely a subjective administrative function. This prognosis can certainly be treated to be most relevant and rational one though it is strictly not for this court to say whether proper or adequate prognosis was arrived at or as that would be purely a subjective administrative function. The only limited inquiry which is to be addressed on the facts of the case is whether this vital consideration had entered the exercise of subjective satisfaction when the detention orders were passed. On the facts of this case there is no escape from the conclusion that this consideration has also in fact entered the exercise of the subjective satisfaction of the detaining authority. Once that conclusion is reached the limited scope of inquiry before this court comes to an end and the curtain drops. Any effort to raise the curtain further and to try to peep into the mind of the detaining authority in the light of the material on record before it would take us to an impermissible field which we cannot traverse and hence we cannot go into the further question whether the view taken by the detaini ng authority is justified or not in the light of the facts before it. The legal position on this aspect is now well settled. We may usefully refer to the decision of the Supreme Court in the case of Kanchanlal v. State of Gujarat A. I. R. 1979 S. C. 1945 O. Chinnappa Reddy J. speaking for the Supreme Court has made pertinent observations in para 8 of the report. It may incidentally be noted that in an earlier decision in Ashok Murlidhar v. State of Gujarat a Division Bench of this court consisting of Divan C. J. and myself thought that there was a conflict of decisions of the Supreme Court on this aspect and therefore we had granted a certificate of fitness for appeal to the Supreme Court. It may incidentally be noted that in an earlier decision in Ashok Murlidhar v. State of Gujarat a Division Bench of this court consisting of Divan C. J. and myself thought that there was a conflict of decisions of the Supreme Court on this aspect and therefore we had granted a certificate of fitness for appeal to the Supreme Court. The Supreme Court took the view that we had wrongly imagined such a conflict and accordingly the following observations were made by the Supreme Court in para 8 of the report: "in Ashok Murlidhar v. State of Gujarat Divan C. J. and Majmudar J. appeared to think that the Bench of five judges of this court which defied Haradhan Saha v. State of West Bengal had taken a view different from that expressed in Bhutnath v. State of West Bengal Abdul Gaffer v. State of West Bengal Srilal Shaw v. State of West Bengal Dulal Roy v. District Magistrate Burdwan. We do not think that there is any such conflict as though by the Division Bench of the Gujarat High Court. The principles emerging from a review of the above cases may be summarised in the following way: the ordinary criminal process is not to be circumvented or short circuited by ready resort to preventive detention. But the possibility of launching a criminal prosecution is not an absolute bar to an order of preventive detention. Nor is it correct to say that if such possibility is not present to the mind of the detaining authority the order of detention is necessarily bad. However the failure of the detaining authority to consider the possibility or launching a criminal prosecution may in the circumstances of a case lead to the conclusion that the detaining authority had not applied its mind 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 to its 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 question too was borne in mind before the order of detention was made. If the detaining authority fails to satisfy the court that the detaining authority so bore the question in mind the court would be justified in drawing the inference that there was no application of the mind by the detaining authority to the vital question whether it was necessary to preventively detain the detenu". IN view of the aforesaid decision of the Supreme Court. it is obvious that where express allegation is made that the order of detention was issued in a mechanical manner without keeping present to its 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 question too was borne in mind before the order of detention was made. It is obvious that if the detaining authority fails to satisfy the court that the detaining authority so bore the question in mind the detention order would fail. Now the question as to how the detaining authority can satisfy the court that the question of prosecution was borne in mind before the order of detention was passed has also been analysed and highlighted by a later decision of the Supreme Court in the case of Hemlata v. State of Maharashtra A. I. R. 1982 S. C. 8. Baharul Islam J. speaking for the Supreme Court has made the following observations in connection with the question whether detenu could have been prosecuted instead of being detained. In para 8 of the report ratio of decision reported in A. I. R. 1979 S. C. 1945 is extracted and thereafter in para 9 of the report the following observations are made:- " The rule laid down is that prosecution or the absence of it is not an absolute bar to an order of preventive detention the authority may prosecute the offender for an isolated act or acts of an offence for violation of any criminal law but if it is that the offender has a tendency to go on violating such laws then there will be no War for the State to detain him under a Preventive Detention Act in order to disable him to repeat such offences. What is required is that the detaining authority is to satisfy the court that it had in mind the question whether prosecution of the offender was possible and sufficient in the circumstances of the case. In some cases of prosecution it may not be possible to bring home the culprit to book as in case of a professional bully W murderer or a dacoit as witnesses do not come forward to depose against him out of fear or in case of international smuggling it may not be possible to collect all necessary evidence without unreasonable delay and expenditure to prove the guilt of the offender beyond reasonable doubt". The aforesaid para of the report clearly indicates that the authority may prosecute the offender for an isolated act or acts of an offence for violation of any criminal law but if it is satisfied that the offender has a tendency to go on violating such laws then there will be no bar for the State to detain him under a Preventive Detention Act in order to disable him from repeating such offences. It is obvious that if one solitary act is found to have been committed in the entire career of a detenu who was not likely to repeat it prosecution may serve the end. But if on the contrary the material before the detaining authority shows that the detenu was a habitual offender who was likely to repeat such offences then mere prosecution would be of no avail. Atleast this consideration has to be kept in view by the detaining authority while ordering preventive detention. Now the question which survives is as to how the detaining authority can demonstrate before the court when called upon to do so that this consideration was kept in view by the detaining authority while ordering detention. That question has been answered in para 10 of the said report as under:- " In the instant case it has been submitted by Mr. Jethmalani that on the facts of this case the prosecution under the ordinary law would have been sufficient; resort to preventive detention on the face of it was manifestly unreasonable. That question has been answered in para 10 of the said report as under:- " In the instant case it has been submitted by Mr. Jethmalani that on the facts of this case the prosecution under the ordinary law would have been sufficient; resort to preventive detention on the face of it was manifestly unreasonable. In the counter affidavit it has been stated by the detaining authority that it was aware that the detenu was being prosecuted under the ordinary law but it was satisfied that the prosecution under the ordinary law was not sufficient for preventing the detenu from indulging in similar activities in future. This statement of the authority satisfies the requirement of the rule laid down by this court in (1980) 1 SCR 54 (AIR 1979 the aforesaid observations of the supreme Court in para 10 clearly indicate that once the detaining authority states that it was aware that detenu was being prosecuted under the ordinary law but it was satisfied that the prosecution under the ordinary law was not sufficient for preventing the detenu from indulging in similar activities in future the said statement would satisfy the legal requirements as laid down in Kanchanlals case (supra ). It is of course true and cannot be gainsaid that detenu can still demonstrate that such a so called satisfaction as stated in the reply affidavit was a mere eye wash and was a colourable exercise of power or that detaining authority was bent upon detaining the detenu for extraneous reasons or that there was no genuine satisfaction at all and was a mere camouflage. But that would depend upon facts of each case. So far as the question of consideration of the vital aspect as to whether detenu could have been prosecuted in ordinary way rather than being detained is concerned the only requirement for the detaining authority for satisfying the court on this aspect is to submit on affidavit that it had kept this aspect in view. The same procedure is okayed by the Supreme Court in para 10. On the facts of the present case it has been found that the detaining authority did consider from all angles the question whether detention of the detenu can be substituted by regular prosecution. The detaining authority as noted earlier. The same procedure is okayed by the Supreme Court in para 10. On the facts of the present case it has been found that the detaining authority did consider from all angles the question whether detention of the detenu can be substituted by regular prosecution. The detaining authority as noted earlier. seems to have taken the view that there was possibility of detenus being enlarged on bail in criminal proceedings and they may continue their nefarious activities as the material before the detaining authority showed that they were habitual defaulters and that it was not a case of a solitary act. On such material if satisfaction is arrived at in the way it has been arrived at having considered this vital question it cannot be said that the satisfaction is not genuine or that it does not amount to application of mind on relevant aspects. Possibility that the detenu if released on bail may indulge in the same activities. and that would render his preventive detention necessary is an aspect which does not admit of debate or doubt. Even on this topic the Supreme Court has finally spoken in the case of Rausuddin v. State A. I. R. 1984 S. C. 46. In para 3 of the report it has been observed by Balakrishna J. speaking for the Supreme Court. as under:- "as there was a possibility of his being released on bail and continuing to indulge in such activities which were greatly prejudicial to the maintenance of public order it was considered necessary by the detaining authority to place the petitioner: under detention". ( 20 ) THIS special circumstance was considered to be a very relevant circumstance by the Supreme Court for upholding the detention order. In view of the aforesaid settled legal position when applied to the facts of this case it cannot be said that the detaining authority had not arrived at a genuine satisfaction about the need to preventively detain the petitioner. We may now refer to some unreported decisions of this court on which great reliance was placed by Mr. Patel in support of his contention. In special criminal application No. 339 of 1983 decided by B. K. Mehta and S. A. Shah JJ. on 6. 4. 1984 this court was concerned with the question as to whether the detaining authority had considered the vital aspect whether detenu could be prosecuted rather than being detained. Patel in support of his contention. In special criminal application No. 339 of 1983 decided by B. K. Mehta and S. A. Shah JJ. on 6. 4. 1984 this court was concerned with the question as to whether the detaining authority had considered the vital aspect whether detenu could be prosecuted rather than being detained. At page 8 of the judgment B. K. Mehta speaking for the Division Bench applied the legal position emanating from Hemlatas case (supra) and Kanchanlals case (supra) as well as earlier decision of the Supreme Court in Bhutnaths case (supra) and held that on the facts of the case before them the detaining authority did not appear to have kept in view the said vital consideration. The observations made by this court at page 8 read as under:-"in view of this settled legal position we have to find out whether the detaining authority in the present case had applied mind to the relevant facts and considered whether original prosecution was not possible and there were weighty reasons for ruling out the alternative course. On matter of principle and authority since power of detention is not to subvert supplant or to substitute the ordinary course available to the authorities under criminal law the detaining authority must satisfy the court". It was then held that there was nothing on the record to show that this vital consideration had entered the subjective satisfaction of the detaining authority while ordering detention of the petitioner. It is therefore on the facts of that case that this court held in favour of the petitioner. ( 21 ) THE next decision is by a Division Bench of this court consisting of B. K. Mehta and G. T. Nanavati JJ. in Special Criminal Application No. 989 of 1983 decided on 30. 12. 1983. B. K. Mehta J. in the said decision spoke for the Division Bench and having considered Kanchanlals case (supra) and Hemlatas case (supra) and also the decision of the Division Bench of this court in Special Criminal Application No. 790 of 1982 decided by P. D. Desai J. (as he then was) and A. S. Qureshi J. "it was observed on page 8 of the said decision as under: It is in the view of this settled. legal position that we have to examine as to whether in fact and substance the detaining authority kept in mind all the aspects as to why alternative course of prosecution was not possible". Having addressed on this vital question the facts of the case were examined and it was found that it was not the mechanical consideration of the alternative course that the authorities have to bear in mind as pointed out by the Supreme Court in Hemlatas case (supra) as well as by the decision of this court in Special Criminal Application No. 790 of 1982 as to the precise obligation which the detaining authority has to discharge viz. that it has to satisfy the court that it had in mind the question whether the prosecution of offender was possible and sufficient in circumstances of the case and ultimately it was held on the facts of that case that such vital consideration vas not found to have been kept in view by the detaining authority while passing the impugned detenuion order and hence detention order failed. ( 22 ) THE next judgment is a Division Bench judgment in Special Criminal Application No. 1195 of 1983 decided by B. K. Mehta and B. S. Kapadia JJ. On 3. 2. 1984. Similar question once again cropped up before this court. At page 6 of the judgment ratio of Kanchanlals case (supra) was called out and then at page 10 of the report on the facts of the case it was observed:-"except this cryptic and bare assertion more in the nature of ipse dixit nothing has been stated in the reply affidavit so that the court can be satisfied as to why the alternative course of prosecuting the detenu was not possible or adequate. Time and again it has been emphasised and it is unfortunate that the opinion of the courts has gone unheeded particularly in the context of trivial and small infractions of law. We should not be understood to learn that the detention is not competent where prosecution is also possible against the person to be detained. The emphasis of the decisions of the Supreme Court as well as this court is on the tact that it is not a mere empty formality to bear in mind that a person proposed to be detained can be prosecuted. The emphasis of the decisions of the Supreme Court as well as this court is on the tact that it is not a mere empty formality to bear in mind that a person proposed to be detained can be prosecuted. that is really to be borne in mind by the detaining authority before he could be said to be genuinely satisfied subjectively is that the prosecution is not possible or adequate". It is obvious that the aforesaid observations have proceeded on the peculiar facts of the case before the Division Bench. However one clarification is required to be made that when the Division Bench observed that except this cryptic and bare assertion more in the nature of ipse dixit nothing has been stated in the reply affidavit so that the court can be satisfied as to why the alternative course of prosecuting the detenu was not possible or adequate what is really meant is that the court must be satisfied that the detaining authority had kept this question in mind while it ordered detention. No other meaning can be given to these observations as that would clearly run in conflict with the ratio of the decision of the Supreme Court in A. I. R. 1982 S. C. 8 as laid down in paras 9 and 10 thereof. On the facts of the case before the Division Bench the court took the view that this vital consideration was absent when the detaining authority had undertaken the exercise of subjective satisfaction and hence detention failed. ( 23 ) THE last judgment on which reliance was placed by Mr. Patel was delivered in Special Criminal Application No. 83 of 1984 decided by B. K. Mehta and R. J. Shah JJ. on 11. 4. 1984. Similar question once again was considered by the Division Bench speaking through B. K. Mehta J. On page 8 of the judgment similar observations are made as are found in the decision in Special Criminal Application No. 1195 of 1983 in connection with the averments made in the affidavit in reply for opposing the petitioners contentions. It has been observed:"this is the only cryptic explanation to the challenge to the impugned order of detention on the ground of non application of mind about non consideration of the possibility or sufficiency of the alternative course of prosecution". It has been observed:"this is the only cryptic explanation to the challenge to the impugned order of detention on the ground of non application of mind about non consideration of the possibility or sufficiency of the alternative course of prosecution". We have already observed while considering the ratio of the decision in Special Criminal Application No. 1195 of 1983 in connection with similar observations as to what is their true scope and ambit. The same observations would proper vigore apply to the similar observations made in Special Criminal Application Nd. 83 of 1984. It must be stated that decisions in these cases have centered round the peculiar facts of the concerned cases wherein it was consistently found that the detaining authority had failed to consider the vital question as to whether detenu could have been prosecuted in ordinary way rather than being detained. All these judgments proceeding on their own facts cannot be of any assistance to Mr. Patel so far as the facts of the present case go. General observations made by various Division Bench judgments of this court have necessarily to be read in the context of final pronouncements of the Supreme Court in A. I. R. 1979 S. C. 1945 and A. I. R. 1982 S. C. 8. Under these circumstances once it is found on the facts of the present cases that the question of feasibility and possibility of prosecuting the petitioners in ordinary way rather than they being detained was considered by the detaining authority which was very much alive to this aspect when it passed the detention orders the second ground of challenge also must stand repelled. . . . . . . . . . . . . . . . . . . . ( 24 ) BEFORE parting with this judgment we may also note one ancillary submission which Mr. Patel tried to raise at the fag end. He submitted that in para 10 of the grounds of detention furnished to the detenu it is stated that it was found necessary to prevent the petitioner from indulging in alleged nefarious activities. . . ( 24 ) BEFORE parting with this judgment we may also note one ancillary submission which Mr. Patel tried to raise at the fag end. He submitted that in para 10 of the grounds of detention furnished to the detenu it is stated that it was found necessary to prevent the petitioner from indulging in alleged nefarious activities. That it was not stated that the detaining authority had considered whether criminal prosecution in ordinary way would not be sufficient or as to why it was not sufficient and it was also not stated that if the Petitioners were criminal prosecuted instead of being detained there was possibility of their being enlarged on bail which would permit them to carry in the aforesaid activities. As these aspects were not highlighted in the grounds the petitioners lost an important right under Article 22 (5) of making effective representation against the order of detention. Now it is well settled that for the purpose of complying with Article 22 (5) all that is required to be done is to supply all the grounds and material pertaining to the grounds to the detenu to enable him to make an effective representation against the order of detention. If the detenu from the grounds supplied to him finds that any important vital aspect does not appear to have been considered by the. detaining authority before ordering his detention as it is not mentioned in the grounds it would not infringe upon his right of effective representation as guaranteed under Article 22 (5) but would give rise to a separate contention for challenging the detention order on the ground that subjective satisfaction got vitiated on account of such non consideration. Such a contention can be taken up in the court proceedings challenging the legality of the detention order. It is obvious that in such an eventuality the court would call upon the detaining authority to satisfy the court whether this vital consideration was kept in view while arriving at its subjective satisfaction. If the detaining authority fails to satisfy the court on this aspect the detention order would fail on the ground that subjective satisfaction was not arrived at after consideration of all relevant matters and it amounted to non application of mind on vital aspects. If the detaining authority fails to satisfy the court on this aspect the detention order would fail on the ground that subjective satisfaction was not arrived at after consideration of all relevant matters and it amounted to non application of mind on vital aspects. But such an infirmity has nothing to do with the furnishing of grounds and material to the detenu for the purpose of Article 22 (5) of the Constitution. It is obvious that the mandate enshrined in Article 22 (5) for supplying all the grounds and materials in support of grounds to the detenue has no connection with the reasons underlying the subjective satisfaction or process by which the subjective satisfaction was arrived at. That cannot be considered to be a part of grounds or material in support of the grounds. Consequently nondisclosure of what passed in the mind of the detaining authority or what process of reasoning appealed to it while it arrived at its subjective satisfaction on the grounds of detention or what reasons really weighed with the detaining authority when it passed the detention order against the detenu are all aspects which cannot be considered to be forming part of grounds or material supporting the grounds and hence they do not fall within the four corners of Article 22 (5 ). Hence non mention of these aspects of the matter in the grounds of detention cannot be said to have adversely affected the constitutional right of filing an effective representation under Article 22 (5 ). In this connection. we may usefully refer to the observations of the Supreme Court in the case of State of Punjab v. Jagdev Singh (supra) wherein in paras 19 to 24 it has been laid down that it is not the law that evidence gathered by the detaining authority against the detenu is to be supplied to the detenu nor was it necessary to supply the source of information received by the detaining authority to enable the detenu to make effective representation Against the order. It was also held relying on an earlier decision of the Supreme Court in Har Jas Dev Singh v. State of Punjab A. I. R. 1973 S. C. 2469 at 2474 that conclusions drawn from available facts constitute the grounds and that the grounds must be supplied to the detenu. It was also held relying on an earlier decision of the Supreme Court in Har Jas Dev Singh v. State of Punjab A. I. R. 1973 S. C. 2469 at 2474 that conclusions drawn from available facts constitute the grounds and that the grounds must be supplied to the detenu. It was also observed that basic facts and the material particulars which form the foundation of the order of detention were to be supplied to the detenu since in the true sense they form the part of the grounds of detention. It is therefore obvious that details concerning the opinion of the detaining authority or the reasons permeating such opinion as contra distinguished from grounds of detention are not required to be furnished to the detenu for meeting with the constitutional mandate of Article 22 (5 ). ( 25 ) IN view of the aforesaid discussion and in the light of our conclusion that all the contentions canvassed by the learned counsel for the petitioners have no force the inevitable result is that the petitions fail and are. therefore dismissed. (PAP) Petition dismissed.