J. N. Sarma, J.- All these three matters are taken up together for hearing.We have heard Sri JM Choudhury, learned senior counsel for the petitioner in all the Civil Rules and Sri PG Baruah, learned Advocate General, Assam for the respondent Nos.1 and 2 and Sri RP Kakaty, learned Central Govt Standing Counsel for the respondent No.3 in all the cases. Sri Baruah has also produced the records available with him before us. 2. In Civil Rule (HC) 41 of 1996 the petitioner is the Sales Manager in the firm under the name and style of M/s Kishore & Co, Adabari. In Civil Rule (HC) 42 of 1996 the petitioner is the Handyman of the oil tanker and in Civil Rule No.(HC) 46 of 1996 the petitioner is the Pump Operator of the firm M/s Kishore & Co. There was a police case being Jalukbari Police Station Case No.241/1996 under sections 420/120BIPC read with section 7 of the Essential Commodities Act. The allegation was that one NN Buragohain, Inspector of Police (CID) after receipt of a secret information caught redhanded while the oil tanker bearing Lorry No.AS-01C-5448 was offloading blue dyed SK Oil meant for public distribution system into underground diesel reservoir of M/s Kishore & Co, Guwahati. It was further alleged that the oil lorry was loaded with 12,000 litres of blue dyed SK Oil and this was despatched from Dhaligaon Despatch Unit of IOC to be delivered at Tapoff Point of IOC Ltd, at Betkuchi, Guwahati. Instead of offloading the said SK Oil at Betchuki Tapoff Point the said SK Oil was put into underground diesel reservoir of the filling station. 3. 7 persons were named as accuseds in the case. They are as follows : (i) Shri Binod Sarawgi, S/o late Harak Chand Sarawgi, Proprietor of M/s Harak Chand Sarawgi & Sons (A dealer of petroleum products). (ii) Shri Sudesh Kumar Jain, alias Munna, Manager of M/s Kishore & Comapny, Adabari. (iii) Shri Anil Shaw, Handyman of Oil Tanker. (iv) Shri Bhanwarilal Sharma, as described earlier. (v) Shri Rajesh Dubey, employee of M/s Kishore & Company. (vi) Shri Lakhan Deo Rai. (vii) Shri Alai Miah, the owner of the Oil Tanker and the carrying contractor. (ii) Shri Sudesh Kumar Jain, alias Munna, Manager of M/s Kishore & Comapny, Adabari. (iii) Shri Anil Shaw, Handyman of Oil Tanker. (iv) Shri Bhanwarilal Sharma, as described earlier. (v) Shri Rajesh Dubey, employee of M/s Kishore & Company. (vi) Shri Lakhan Deo Rai. (vii) Shri Alai Miah, the owner of the Oil Tanker and the carrying contractor. Out of these 7 accused persons, the potiable and mysterious think is that the authority arrested only the following persons : (i) Sri Anil Shaw (ii) Shri Bhanwarilal Sharma (iii) Rajesh Dubey (iv) Shri Lakhan Deo Rai It is stated that four persons were not arrested, but only three persons were arrested meaning thereby that, Lakhan Deo Rai was not arrested. Be that as it may, the authority without making any attempt to arrest the other accused persons who are the king pin of the alleged crime proceeded in a queer manner in the matter. The three persons named herein were released on bail by the Sessions Judge, Kamrup on 8.8.96,30.8,96 and 4.9.96, put, while they were in jail, the order of detention was passed under section 3 of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980. The ground of detention which is common in all the three cases are as follows: "Ground of detention: Whereas M/s Kishore and Company, Adabari, Guwahati was caught redhanded while mixing blue dyed SK Oil from Oil Tanker No.AS-01C 5448 and whereas M/s Kishore and Company, Adabari jointly with the owner and other staff of the tank lorry involved themselves in malpractices by mixing blue dyed SK Oil meant for public distribution system with the stock of High Speed Diesel Oil of the underground tank of M/s Kishore and Company, Adabari, with the ulterior motive of making undue monetary gain and in the process seriously affecting the public distribution system and thus have violated the provisions of clauses 5 of the Motor Spirit and High Speed Diesel (Prevention of Malpractice in Supply and distribution) Order, 1990." And on this ground the above mentioned 7 persons were ordered to be detained by order dated 31.7.96" but only the three petitioners were detained, nothing was done with others. Thereafter the petitioners filed representations on 14.8.96 Annexure V in all the Civil Rules. Thereafter the petitioners filed representations on 14.8.96 Annexure V in all the Civil Rules. But from the record it is seen that the representation of Bhanwarilal Sharma is dated 14.£96, others are dated 16.8.96 and the representations, it appears were not placed before the Advisory Board as required under section 10 of the Act, 1930. Be that as it may, the Advisory Board confirmed the detention. Hence, these writ petitions. 4. The Advisory Board found that there are sufficient grounds for detention of these persons and therefore the State Govt confirmed the detention. It further appears that the representations which were submitted on 14.8.96 were not disposed of expeditiously. Though no stipulated time is prescribed it is to be disposed of at the earliest in consonance with the mandate of Article 22 (5) of the Constitution. 5. Sri Choudhury, learned counsel for the petitioners submits that the detention order should fall through on the other ground that the detaining authority did not apply its mind at the time of passing the order of detention. He also submits mat the liberty of a person cannot be taken-away or curtailed in a mechanical manner as sought to be done by the authority. The ground of detention has already been quoted and it is argued that itself will show that the involvement of these persons in the alleged crime is not mentioned in the ground. The order dated 31.7.96 which is available in record shows that the authority was aware that these three persons have been arrested as reflected in the order itself. The order was approved by the State Govt. The curious thing is that out of 7 persons three were arrested but even if other four were absconding (presumed by the authority as revealed from record) no further step was taken under the law, though law provides how to deal with such absconders. The record does not reveal anything and the learned Advocate General also failed to point out/clarify on this point. It has been held by the Supreme Court that the obligation of the Government under Article 22 (5) is to consider the representation as soon as it is received by it, because it affects the liberty of a citizen, though it may not be possible to lay down any hard and fast rule as to measure of time taken by the appropriate authority for such consideration. This is a constitutional safeguard against improper or unjustified power of detention. Any delay on the part of the Government to consider the representation must be accounted for, and the Court will in a petition for habeas corpus release the detenu if there was no explanation for the delay or the explanation was unsatisfactory. This right to consider the representation at the earliest being a constitutional right any inaction or delaying procedure adopted will contravene the constitutional mandate. No doubt the delay will depend upon the circumstances of each case/Further, the question of delay is to be pleaded in the petition, otherwise the Court will not enter into any investigation on this point. The High Court under Article 226 does not sit in appeal from the order of preventive detentjon. But the Court is only to see whether the formality as enjoyed by Article 22 (5) had been complied with by the-detaining authority, and if so done, the Court cannot question the sufficiency of the grounds of detention for the subjective satisfaction of the authority. However it is the duty of the Court see that a law depriving the person of this liberty available even to a person charged with crime is strictly complied With. All the three petitions were filed on 27.8.96 before the Court and in para 5 and 15 it has been stated as follows: "5. That the petitioner, begs to state that after -receipt of the said grounds of arrest the petitioner preferred a representation before the respondent No. 1 for revocation of said order of detention with a copy to the respondent No.3. In the said representation the petitioner has categorically stated that he has been highly prejudiced in making the said representation since the copy of the order of detention has not been served upon him. The grounds accompanying with the letter dated 5.8.96 are vague, devoid of material facts and, therefore, the petitioner has been deprived of making representation to the Government rather, it shows that the said order of detention was passed not in bonafide exercise of power. The grounds accompanying with the letter dated 5.8.96 are vague, devoid of material facts and, therefore, the petitioner has been deprived of making representation to the Government rather, it shows that the said order of detention was passed not in bonafide exercise of power. It has been further contended in the said representation that the detaining authority has failed to disclose the compelling reasons for passing the detention order against the petitioner who is already in custody in connection with another criminal case and, therefore, appears that the detaining authority has failed to apply its mind that the petitioner may be detained with a view to prevent him from acting in manner prejudicial to the Maintenance of Supplies of Commodities Essential to the community. 15. That the peitioner begs to state that the representation submitted by him was never been forwarded by the State Government to the Central Government expeditiously and as .such the impugned detention is illegal and unconstitutional." In the affidavit-in-opposition these two paragraphs have been controverted in para 5 and 11 as follows : "5. That as regard to the statements made in paragraph 5 of the writ petition, it is stated, although the date of representation was typed to be 14.8.96, the same was in fact signed by the detenu on 16.8.96 and his signature was attested by the Assistant Jailor on 16.8.96. Thereafter, the Superintendent of District-Jail, Guwahati forwarded the said representation to the Commissioner and "Secretary to the Govt of Assam, Food and Civil Supplies Department at Dispur vide Memo No. 1987 dated 22.8.96. Immediately after receipt of the said representation the Commissioner and Secretary to the Govt of Assam, Food and Civil Supplies Department was pleased to ask for parawise comments regarding the contents of the representation submitted by the detenu from the District Magistrate, Kamrup. Ultimately, on perusal of the records the Commissioner and Secretary to the Govt of Assam, Food and Civil Supplies Department was pleased to pass an order vide his No.FSA 151/96/95 dated 11.9.96 rejecting the said representation. 11. That the statements made in paragraphs 14 and 15 of the writ petition are hereby denied. It is stated that the detention order was passed on the basis of materials available on record and on the basis of adequate satisfaction arrived at by the authorities warranting preventive detention of the detenu. 11. That the statements made in paragraphs 14 and 15 of the writ petition are hereby denied. It is stated that the detention order was passed on the basis of materials available on record and on the basis of adequate satisfaction arrived at by the authorities warranting preventive detention of the detenu. They are specific and very much relevant and based on material particulars on the basis of which the detention order was passed. Further, as stated above, the detention order has already been confirmed by the State Govt within time and the representation submitted by the detenu was also duly considered and disposed of without any delay whatsoever by the State Govt." It is stated in para 5 of the affidavit-in-opposition that representation was disposed of on 21.8.96 and it is verified from record. From the record it is seen that the representation of Bhanwarilal Sharma (CR 41 of 1996) was rejected (as found from the record on 21.8.96, but the representation other two along with I the second representations of Sharma were rejected on 1/1.9.96. Even from jail these representations were forwarded on 22.8.96. The State Govt forwarded the representation to the Central Govt on 3.9.96. Thereafter it was rejected on 11.9.96 by the following order: "Order: Read the representation dated 16.8.96 submitted by Shri Rajesh Dubey S/o Shri Batcha Dubey, an employee of M/s Kishore and Company, Atfabari, Guwahati against the order of detention under section 8 of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980. Also read the relevant records. After examining the relevant records and the points raised in the representation, the Government regret their inability to the request of the detenu for revocation of the detention order passed by the District Magistrate, Kamrup under NoKSL.504/ 96/35, dated 5.8.96. His case of detention has already been confirmed by the State Government vide order No.FSA. 151/96/92 dated 11.9.96 as per report and opinion dated 23.8.96 of the Advisory Board. Sd/- Commissioner and Secretary to the Govt of Assam Food and Civil Supplies Department." The order is same in all three. Curiously enough even in case of Bhanwarilal Sharma, the authority did not apply its mind that it was rejected earlier on 21.8.96, so mechanical is the approach of the authority. The authority roughly took 25 days to dispose of the representation. Curiously enough even in case of Bhanwarilal Sharma, the authority did not apply its mind that it was rejected earlier on 21.8.96, so mechanical is the approach of the authority. The authority roughly took 25 days to dispose of the representation. In a case before the Supreme Court (Gazi Khan vs. State of Rajasthan, AIR 1990 SC 136) delay of 27 days in disposal of the representation was held to be fatal. The same law has been laid down in Mahesh Kumar vs. Union of India, AIR 1990 SC 1455 . Be that as it may, the counsel farther submits that at the relevant time the petitioners were behind the bar and the authority at the time of passing the detention order must apply their mind to that aspect that if they are released, they will act to further prejudice to maintenance of supplies of essential commodities. He further submits that if the authority was not aware of the fact of custody/detention of the petitioners, the detention order is void. An order of detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention lust show that (i) the detaining authority was aware of the fact that the detenu was already in detention, (ii) there was compelling reason justifying such , Mention despite the fact that the detenu was already in detention. The expression compelling reasons in the context of making an order for detention of a person already in custody implies that there must be cogent materials before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities (see DS Chelawa vs. Union of India, AIR 1990 SC 1196 ). Further the detaining authority though can take into account the possibility of bail in the criminal case, it has to be satisfied having regard to his past activities or by reason' of the credible information or cogent reasons, that if he is enlarged on bail, he would do prejudicial activities. Further the detaining authority though can take into account the possibility of bail in the criminal case, it has to be satisfied having regard to his past activities or by reason' of the credible information or cogent reasons, that if he is enlarged on bail, he would do prejudicial activities. Making a bald statement in the ground or order of detention I that he would repeat his activities after coming out of jail is not sufficient » without credible information, material or cogent reason apparent on the record ! to warrant such an inference. It must be warranted from record, that it is not a solitary instance, but he is indulging hi such activities; Detention order cannot ' be made to supplant the criminal prosecution (see A. Prakash vs. State of UP, AIR 1990 SC 516 ). 6. In the case in hand in the order of detention dated 31.7.96 except mentioning that these three persons have been arrested, nothing is mentioned with regard to ground of detention quoted in the earlier part of judgment. Record made available do not show any material to enable the authority to draw an inference with regard to this. Bails as pointed out above were granted subsequent to the order and date of detention. There is not even a whisper mat they would be released on bail and on being released they would continue with their prejudicial activity. It is thus a case of total non application of mind. 7. This point came up for consideration before the, Supreme Court hi the following cases: (i) AIR 1987 SC 137 (Anant Sakharam Raut vs. State of Maharashtra & another) wherein the Supreme Court pointed out that if detention is base&on certain incident and criminal cases pending, in respect of these incidents and the detenu is an undertrial prisoner, if the detaining authority is not made aware of the fact that the detenu had moved applications for bail and that he was enlarged on bail, detention order is silent about these facts, that will amount to total absence of application of mind on the part of the authority and the detention order is void on this ground alone. (ii) AIR 1964 SC 334 (Rameswar Shaw vs. District Magistrate, Burdwan & others). (ii) AIR 1964 SC 334 (Rameswar Shaw vs. District Magistrate, Burdwan & others). This was a decision of the Constitutional Bench wherein the Supreme Court has pointed out inter alia as follows: "It is obvious that before an authority can legitimately come to die conclusion that the detention of the person is necessary to .prevent him from acting in a prejudicial manner, the authority has to be satisfied that if the person is not detained, he would act in a prejudicial manner and that inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, how can it factually be postulated that if he is not detained, he would act in a prejudicial manner ? At the point of time when an order of detention is going to be served on a person, it must be patent that the said person would act prejudicially if he is not detained and that is consideration which would be absent when the authority is dealing with, a person already in detention." Sri Choudhury also relies on the following decisions of the Apex Court, (i) 1993) 3 SCC 194 (Jundanbhaidulalbhai Shaikh vs. District Magistrate, Ahmedabad & others) where in paragraphs 14 and 25 the Supreme Court pointed out as follows: (This is case on the point of representation). "14. From the above, it will be seen that the right to make representation against the order of detention is not only a constitutional right but a statutory right as well. Since the Constitution as also the Act specifically provided that the detenu shall be given the earliest opportunity of making a representation against the order of detention, it is implicit that there is a corresponding duty on the authorities to whom the representation is made to dispose of the representation at the earliest or else the constitutional and the statutory obligation to provide the earliest opportunity of making a representation would lose both its purpose and meaning. 25. Black marketing is a social evil. 25. Black marketing is a social evil. Persons found guilty of economic offences have to be dealt with a firm hand, but when it comes to fundamental rights under the Constitution, this Court, irrespective of enormity and gravity of allegations made against the detenu, has to intervene as was indicated in Mahesh Kumar Chauhan case and in the earlier decision in Prabhu Dayal Deorah vs. District Magistrate, in which it was observed that the gravity of the evil to the community resulting from anti social activities cannot furnish .sufficient reason for invading the personal liberty of a citizen, except in accordance with the procedure established by law particularly as normal penal laws-would still be available for being invoked rather than keeping a person in detention without trial." (ii) AIR 1990 SC 1196 (Dharmendra Suganchand Chclawat & another vs. Union of India & others) wherein the Supreme Court in paragraphs 18 and 19 has pointed out as follows : "18. In N. Meera Rani vs. Govt of Tamil Nadu ( AIR 1989 SC 2027 (supra) the legal position has been summed up as under (para 22): "We may summarise and reiterate the settled principle. Subsisting custody of the detenu by itself does not invalidate an order of his preventive detention and the decision must depend on the facts of the particular case, preventive detention being necessary to prevent the detenu from acting in any manner prejudicial to the security of the State of to the maintenance of public order etc ordinarily it is not needed when the detenu is already in custody; the detaining authority must show its awareness to the fact of subsisting custody of the detenu and take that factor into account while making the order albit, even so, if the detaining authority is reasonably satisfied on cogent material that there is likelihood of his release and in view of his antecedent activities which are proximate in point of time he must be detained in order to prevent him from indulging in such prejudicial activities the detention order can be validly made even in anticipation to operate on his release. This appears to us to be the correct legal position." In this case this Court has pointed out that there was no indication in the detention order read with its annexure that the detaining authority considered it likely that the detenu could be released on bail and that the contents of the order showed the satisfaction of the detaining authority that there was ample material to prove the detenu's complicity in the Bank dacoity including sharing of the booty in spite of absence of his name in the FIR as one of the dacoits. The Court held that the order for detention was invalid since it was, made when the detenu was already in jail custody for the offence of bank dacoity with no prospect of his release. 19. The decisions referred to above lead to the conclusion that an order for detention can be validly passed, against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression' compelling reasons' in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely mat after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities." 8. Sri PG Baruah, learned Advocate General, Assam, relies on the following decisions: AJR1994 SC 1274 (Smti Panaa vs. AS Sarma & others) where in paragraph 7 it is pointed out as follows : "7. There is no force even in the third contention of the learned counsel. The detaining authority hi its affidavit before the High Court stated that he had gone through all the documents placed before him and after full application of mind, he culled Out the grounds of detention. There is no force even in the third contention of the learned counsel. The detaining authority hi its affidavit before the High Court stated that he had gone through all the documents placed before him and after full application of mind, he culled Out the grounds of detention. There is material on the record to support the contention of the learned counsel and as such we see no reason to reject the statement of the detaining authority made on oath before the High Court. Even otherwise the High Court examined the original records and satisfied itself that there was proper application of mind in issuing the detention order." That case does not help the respondents inasmuch as in that the Supreme Court found two things - (i) that in the detaining order there was a statement that all the documents were placed before him and .after full application of mind, he culled out the grounds of detention, (ii) The High Court itself was satisfied on examining the original records that there was proper application of mind in issuing detention order. So, this case does not help the respondents. Sri Baruah with all his fairness submits that except the two things (order of detention and affidavit) there are no other materials to snow that the authority Before passing the detention order was aware of the fact that the petitioners were behind the bar and their continuous detention is necessary to prevent the mischief. He submits that the detention order was served in jail. So, the authority knew about it. (ii) That in the affidavit it has been stated that the authorities were satisfied. That statement of the affidavit in based on record: The record does now show the materials or reasons for satisfaction. The next case relied on by Sri Baruah is AIR 1993 SC 962 (Birendra Kumar Rai vs. Union of India & others). This case need not be at all be considered inasmush as Mr. Choudhury never questioned the power of the authority to arrive at subjective satisfaction. But the vital aspect of the matter as pointed out above, was not at all considered by the authority before passing the order of detention. Accordingly, we come to the a following conclusions: (i) That the orders of detention' are vitiated because of non application of mind and the authority passed the detention orders mechanically. But the vital aspect of the matter as pointed out above, was not at all considered by the authority before passing the order of detention. Accordingly, we come to the a following conclusions: (i) That the orders of detention' are vitiated because of non application of mind and the authority passed the detention orders mechanically. (ii) That the right of the petitioners to get representations disposed of as exeditiously as possible was not adhered to which is violative of Article 22 (5) of the Constitution. 9. Accordingly, all the Civil Rules are allowed and all the impugned orders of detention of the petitioners are quashed. 10. Before we part with the records, we express our deep anguish at the conduct of the authority. Instead of pursuing the matter in right earnest in an alleged serious offence it has resorted to shadow fighting. The action of the authority appears to be not bonafide it is shielding somebody. We hope and c trust that the authority shall pursue the matter in right earliest. That some persons are absoconding is a poor apology and is absolutely pitiable. Records show it is presumed that they are absconding. 11. The petitioners shall be released forthwith if they are not required in connection with any other cases. We have also heard Sri RP Kakaty, reamed ; Central Govt Standing Counsel for the Union of India. 12. We conclude with a quotation "Justice is the right to the maximum of individual independence compatible, with the same liberty for others and compatible with the welfare and good of society." (source: Legal quotations by Simon Jans) with humility we have tried to reach this goal, so that independence/ liberty of a citizen may not be taken away by the authority without following due procees of law. D. N. Chowdhury, J.-"One of the pillars of liberty in that in English law every imprisonment is prima facie unlawful and that/is for the person directing the imprisonment to justify his act" - Lord Atkin recalled (Liversidge vs. Anderson, (1942) AC 206 at 245 (dissenting). The Constitution of India rings the same view. In a Habeas Corpus petition the burden of impugning the order no doubt rests on the detenu but the legal burden or the ultimate burden satisfying the Judge lean on the detaining authority. 14. The Constitution of India rings the same view. In a Habeas Corpus petition the burden of impugning the order no doubt rests on the detenu but the legal burden or the ultimate burden satisfying the Judge lean on the detaining authority. 14. On a bare reading of the language of section 3 (1) of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980; that the exercise of power of detention is made dependant on the subjective satisfaction of the; detaining authority with a view to prevent a person from acting in any manner prejudicial to the maintenance of supplies of commodities essential to the community, it is necessary to detain such person. The words, 'if satisfied' signifies subjective satisfaction of the detaining authority. The satisfaction is hot susceptible of objective determination and thus cannot be judged by objective standards. The Parliament in its wisdom, left it to the satisfaction of the detaining authority. 15. The subjective satisfaction of the detaining authority is not entirely immune from judicial review. The Court can always examine as to whether the requisite satisfaction is arrived at by the authority. The Court can ascertain as to whether the authority acted mechanically in exercise of its power. The exercise of the power would be vitiated, where the power is exercised dishonestly or maliciously or far alien or improper purpose. There are numerous other grounds of judicial review under the Indian jurisprudence. In our legal system there is no such things as unbriddled discretion. "Law has reached its finest moments, when it has freed man from the unlimited discretion of some ruler, some official, some bureucrat. Absolute discretion is ruthless master. It is more destructive of freedom than any of man's other inventions." Justice Douglas in United States vs. Wunderlich (1951) 342 US 98. 16. My learned brother has had recounted the facts. On the 27th of July, 1996 a First Information Report relating to the commission of cognisable offence was lodged by the Inspector of Police, CID, Assam, Guwahati before the Officer In-charge of the Jalukbari Police Station, arraigning seven persons including me three petitioners before us as* accused persons. The police registered the same under sections 420/120B of the IPC and section 7 of the Essential Commodities Act and arrested the petitioners. The police registered the same under sections 420/120B of the IPC and section 7 of the Essential Commodities Act and arrested the petitioners. The accused persons were indicted for violation of rules arid the clauses under the Assam Public Distribution of Articles Order, 1982, the Motor Spirit and High Speed Diesel (Prevention of Malpractices in Supply and Distribution) Order, 1990 and clause 9 of the Kerosine (Restriction in Use and Fixation of Prices) Order, 1993. The grounds of detention were already narrated by my learned brother, which shows that on the same facts a criminal case is already pending. Under such facts situations the detenus were impeded in making an effective and proper representation on the pain of disclosing his defence. The constitutional guarantee under Article 22 (5) of leaking representation against the order has thus become illusory in the instant case, it is no doubt true that the grounds of detention can also be a subject matter of criminal prosecution. The authority has the right to choose either of them and to take hold of the situation. Hie mere fact..., that criminal proceedings in connection with the same incidents had been adopted against the petitioner and he had been discharged by the trying Magistrate does not mean that no valid order of detention could be passed against him in connection with those very incidents, or that such an order can for that reason be characterised as malafide. If might well be that a Magistrate trying a particular person under the Code of Criminal Procedure has insufficient evidence before him and therefore has to discharge such a person. But the detaining authority might well feel that though there was no sufficient evidence admissible under the Evidence Act for a conviction, the activities, of that person, which they had been watching, were of such nature as to justify an order of detention. From, the mere fact, therefore, that the Magistrate discharged the petitioner from the criminal case lodged against him, it cannot be said that the impugned order is incompetent, nor can it be inferred that it was without a basis or malafide" (Mohd Salim Khan vs. CC Bose reported in AIR 1972 SC 1670 ) see also Sahib Singh Dugal vs. Union of India reported in AIR 1966 SC 340 and Subrati vs. State of West Bengal reported in (1973) 3 SCC 250 . But that does mean that the authority can make an order detention despite the prosecution of the same persons on the self same facts. From the facts situations it thus appears that the order of detention was made with a view to bypass the criminal prosecution by abuse of the power of preventive detention. Prevention detention, alter all is a serious inroad to the individual liberty, which is recognised as the most prized possession of an individual. Deprivation of personal liberty of an individual is a matter of grave consequences. The power of detention without trial is drastic in nature and such power is conferred with a view to protect the interests of the community. Those who are charged with the responsibility of upholding the public interests are required to act conscientiously and sensibly and exercise its discretion on fulfilment of the conditions precedents justifying such exercise of powers. If such authority acts with indiscretion and misuse the powers acting arbitrarily, unreasonably or capriciously, the faith and confidence on the authority is eroded. For the reasons and for all the reasons given by my learned brother Hon'ble Mr. Justice J. N. Sarma with which I entirely agree, I too would allow the petitions. Writ petitions are allowed.