JUDGMENT Per : K.J. Rohee, J. 1. Rule. Returnable forthwith. Heard finally by consent of parties. 2. By this petition under Articles 226 and 227 of the Constitution of India, the petitioner has challenged the Detention Order dated 27.7.2006 passed by the Additional Director General and Commissioner of Police, Nagpur City (R-2) directing the detention of the petitioner under the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980; for initiating action against the Deputy Commissioner of Police-II (R-3) for subjecting the petitioner to the alleged custodial violence and for compensation of Rs. 5,00,000/- (Rs. Five Lacs only) from the respondents. 3. According to the petitioner he is a peace loving and law abiding citizen and was never involved in any illegal activities. He is dealing in the business of Transportation of Petroleum Products. He owns a fleet of Tankers for that purpose. The Tankers are duly licensed for transportation of petroleum products. He has employed Drivers and Cleaners on the Tankers. The Tankers are used for transportation of petroleum products from the outlets of the Petroleum Companies. The petitioner has no title over the petroleum products being transported through his Tankers. 4. During the course of such transporting business, offences under the provisions of the Essential Commodities Act at various Police Stations have been registered against the Drivers and Cleaners of the Tankers and the Consignee/Consignor of the petroleum products. According to the petitioner he has also been implicated illegally and unwarrantedly. The list of offences for which he is charged is as under : .................................................................................................... Sr. Crime Nos. Sections Police No. Stations 1] 3033/2002 3/7 of the Hatta, Essential Tahsil - Basmat, Commodities Distt. Hingoli Act 2] 3052/2003 3/7 of the M.I.D.C., Essential Nagpur Commodities Act r/w Clause 3 of the Maharashtra Kerosene Dealer's Licensing Order, 1966 and Clause 3(1) of the Kerosene (Restriction on use and Fixation of Ceiling Price), Order, 1993 3] 3105/2005 3/7 of the M.I.D.C., Essential Nagpur Commodities Act 4] 76/2006 3/7 of the Mouda, Essential Distt. Commodities Nagpur Act r/w Sec. 420, 468, 471 r/w 34 of the Indian Penal Code 5] 3022/2006 3/7 of the Wadi, Essential Nagpur Commodities Act Only in Crime No.76/2006 of P.S. Mouda, District- Nagpur chargesheet has been filed and the remaining offences are still under investigation. 5. Commodities Nagpur Act r/w Sec. 420, 468, 471 r/w 34 of the Indian Penal Code 5] 3022/2006 3/7 of the Wadi, Essential Nagpur Commodities Act Only in Crime No.76/2006 of P.S. Mouda, District- Nagpur chargesheet has been filed and the remaining offences are still under investigation. 5. As regards Crime No.3033/2002 of P.S. Hatta, Tahsil- Basmat, District-Hingoli the petitioner has preferred petition before Aurangabad Bench for quashing the F.I.R. and the same is pending for final hearing. In rest of the offences the petitioner has been released on bail by the concerned Courts. 6. The petitioner was served with a notice dated 8-11-2005 (Annexure-I) u/s 59 of the Bombay Police Act calling upon him to show cause as to why he should not be externed from Nagpur District for a period of two years. The petitioner submitted his explanation on 14.11.2005 (Annexure-II) and after considering the same, the proceedings were dropped. 7. It is alleged by the petitioner that in respect of Crime No.3022/2006 of P.S. Wadi (Nagpur) he was arrested on 6.7.2006 from his residence. On the next day i.e. on 7.7.2006 the petitioner was produced before Chief Judicial Magistrate, Nagpur and police custody was obtained till 10.7.2006. During police custody nothing incriminating was recovered from the petitioner. On 10.7.2006 further police custody remand was sought, but it was rejected and the petitioner was remanded to magisterial custody. The petitioner moved an application for bail and the same was fixed for order on 11.7.2006. However, on 10.7.2006 in the evening instead of taking the petitioner to Central Prison Nagpur, he was carried to the office of Respondent No.3, where the clothes of the petitioner were removed and the petitioner was severely beaten by Respondent No.3. A shoe blow was given on the left hand of the petitioner by Respondent No.3 because of which the petitioner sustained injuries. The petitioner was threatened that he would be implicated in several false cases. Proceedings under Sections 107/110 of the Code of Criminal Procedure were also initiated against the petitioner, who was not allowed to take legal recourse and was carried to Central Prison, Nagpur in the midnight. 8. The petitioner was released on bail on 12.7.2006. After his release from Central Prison, Nagpur the petitioner went to P.S. Sadar (Nagpur) to lodge report about the custodial violence meted out to him. However his report was not accepted. 8. The petitioner was released on bail on 12.7.2006. After his release from Central Prison, Nagpur the petitioner went to P.S. Sadar (Nagpur) to lodge report about the custodial violence meted out to him. However his report was not accepted. On 20.7.2006 the petitioner sent report (Annexure- IV) about the said incident to the Commissioner of Police Nagpur City (R-2). Instead of taking action against Respondent 7 No.3 in pursuance of the report dated 20.7.2006 to the utter surprise of the petitioner detention order (Annexure-VI) were left at his residence in his absence. 9. According to the petitioner the said order of preventive detention is unwarranted and unsustainable. It has been passed to save the skin of the officials involved in the custodial violence meted out to the petitioner. The petitioner has made pre-execution challenge to the said order to protect his personal liberty. The detention order is biased, malafide, arbitrary and illustrates misuse and abuse of the powers by the authorities. The same has been passed for wrong purpose on vague, extraneous, irrelevant grounds and is belated. There is no material for the subjective satisfaction of the detaining authority. The petitioner is innocent and has no concern with the alleged offences. The order of detention is unsustainable and is liable to be quashed. 10. Respondent No.3 (Deputy Commissioner of Police) filed affidavit dated 19.8.2006 denying all the allegations about the custodial violence against the petitioner. 11. Respondent No.2 (Additional Director General and Commissioner of Police, Nagpur City) filed affidavit dated 22.8.2006 contending therein that the petitioner has been habitually indulging in black marketing of kerosene. He has been indulging in buying blue kerosene without due permission and selling it to the truck operators who use the kerosene instead of diesel as fuel. Despite several offences having been registered against the petitioner, he has not shown any sign of improvement in his activities. The unabated illegal activities of the petitioner are hazardous to the public interest and are causing shortage of essential commodity. The preventive action under section 110 of Cr.P.C. was initiated against the petitioner by Police Inspector of Police Station, M.I.D.C., Nagpur wherein the petitioner executed Bond before the Special Executive Magistrate, Ajni Division, Nagpur on 6.3.2006 for keeping good behaviour. However, the preventive action had no deterring impact on the petitioner. 12. The preventive action under section 110 of Cr.P.C. was initiated against the petitioner by Police Inspector of Police Station, M.I.D.C., Nagpur wherein the petitioner executed Bond before the Special Executive Magistrate, Ajni Division, Nagpur on 6.3.2006 for keeping good behaviour. However, the preventive action had no deterring impact on the petitioner. 12. It was further submitted that the ordinary law of the land has been insufficient to deal with the petitioner. If the petitioner remains free he will continue his illegal activities in future also. It is essential to detain him. After taking into consideration the relevant record and on careful examination of the facts, detention order dated 27.7.2006 was passed by Respondent No.2 in pursuance of the powers vested in him u/s 3 of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980. The petitioner somehow learnt about the detention order and absconded. The detention order was pasted at the conspicuous place of his residence on 30.7.2006 and panchanama was drawn by the Police Inspector of Police Station, Sakkardara, Nagpur. As the petitioner absconded, grounds of detention could not be supplied to him. 13. Respondent No.2 further submitted that the Government of Maharashtra has approved the detention order by letter dated 3.8.2006. The entire proceedings of the detention are submitted within time to the Advisory Board constituted under Section 10 of the said Act. Respondent No.2 further submitted that externment proceedings against the petitioner were dropped on 8.8.2006 because the detention order was already passed on 27.7.2006. The detention order 10 being in force the externment process could not have served any meaningful purpose. The offences registered against the petitioner have substantial evidence on record. The detention order passed by Respondent No.2 is justified as per law and is in the public interest. The allegations made by the petitioner about the custodial violence are false. The petition is devoid of any merit and is liable to be dismissed. 14. We have heard Mr. J.M. Gandhi, Advocate for the petitioner and Mr. D.B. Patel, A.P.P. for the respondents/State at length. 15. Mr. Patel, the learned APP for the respondents/State, raised preliminary objection to the tenability of the petition itself. Mr. Patel submitted that passing of order of detention is a preventive action and not a punitive action. Mr. Patel submitted that immediately on learning about passing of detention order against him, the petitioner absconded. 15. Mr. Patel, the learned APP for the respondents/State, raised preliminary objection to the tenability of the petition itself. Mr. Patel submitted that passing of order of detention is a preventive action and not a punitive action. Mr. Patel submitted that immediately on learning about passing of detention order against him, the petitioner absconded. Despite consistent efforts by the police machinery the petitioner could not be found. The petitioner has been successfully avoiding his detention in pursuance of the order of detention which is under challenge. Unless the petitioner surrenders to the order of detention and the order of detention is executed, he is not entitled to challenge the same. The petitioner is avoiding the lawful order of detention by absconding. The petitioner cannot take advantage of his own wrong and cannot challenge the detention order without submitting to it. The petition is, therefore, not tenable on this count. 16. Mr. Gandhi, the learned counsel for the petitioner, on the other hand, submitted that the order of detention has direct connection with the personal liberty of the petitioner. Personal liberty of the citizen is the most cherished goal of the Indian Constitution. The petitioner has every right to challenge the detention order which aims to curtail his personal liberty and this court has the power of judicial review of the said order. It can be challenged without surrendering to the order of detention if the petitioner can prima facie show that the order of detention is unsustainable in law. Mr. Gandhi, therefore, submitted that the preliminary objection has no force, the same is liable to be rejected and the petition should be considered on merit. 17. We have carefully considered the rival submissions. In Additional Secretary to the Government of India and others vrs. Smt. Alka Subhash Gadia and another, 1992 Supp (1) SCC 496 a specific question of law that was formulated for consideration was whether the detenu or anyone on his behalf is entitled to challenge the detention order without the detenu surrendering to it. After reviewing the law on the subject, in para 32 of the judgment, the Court observed that it still leaves open the question as to whether the detenu is entitled to the order of detention prior to its execution at least to verify whether it can be challenged at its pre-execution stage on the limited grounds available. After reviewing the law on the subject, in para 32 of the judgment, the Court observed that it still leaves open the question as to whether the detenu is entitled to the order of detention prior to its execution at least to verify whether it can be challenged at its pre-execution stage on the limited grounds available. The Court said that in view of the discussion aforesaid, the answer to this question has to be firmly in the negative for various reasons. In the same para at the end the court observed that the courts have power to interfere with the detention orders even at the pre-execution stage, but they are not obliged to do so nor will it be proper for them to do so save in exceptional cases. Much less can a detenu claim such exercise of power as a matter of right. The discretion is of the Court and it has to be exercised judicially on well settled principles. 18. In para 30 of the said judgment it is observed that it is not correct to say that the courts have no power to entertain grievances against any detention order prior to its execution. The courts have the necessary power and they have used it in proper cases, although such cases have been few and the grounds on which the courts have interfered with them at the pre-execution stage are necessarily very limited in scope and number, viz., where the courts are prima facie satisfied : (i) that the impugned order is not passed under the Act under which it is purported to have been passed, (ii) that it is sought to be executed against a wrong person, (iii) that it is passed for a wrong purpose, (iv) that it is passed on vague, extraneous and irrelevant grounds or (v) that the authority which passed it had no authority to do so. It is thus clear that the discretionary extraordinary and equitable jurisdiction of this court under Article 226 of the Constitution of India is to be used in exceptional cases. 19. It may be noted that the petitioner is not entitled to know the grounds on which the order of detention has been passed unless he surrenders to the order. However the Court can peruse the grounds in order to satisfy itself about the legality or otherwise of the order of detention. 19. It may be noted that the petitioner is not entitled to know the grounds on which the order of detention has been passed unless he surrenders to the order. However the Court can peruse the grounds in order to satisfy itself about the legality or otherwise of the order of detention. In the present case the respondents have made the record available to us and we have carefully perused the same. We find that the present petition can be entertained at pre-execution stage. Hence we propose to examine whether the impugned order of detention needs to be interfered with on any of the grounds set out in Alka Gadia's case. 20. Mr. Gandhi, the learned counsel for the petitioner, submitted that the petitioner is a transporter and his duty is to transport the goods booked by the consignor to the consignee. Hence if it is found that the consignor obtained blue kerosene illegally and wanted to sell/supply it to unauthorized person, it is the consignor who can be held liable under the relevant provisions of the Maharashtra Kerosene Dealer's Licensing Order, 1966 and the Kerosene (Restriction on Use and Fixation of Ceiling Price) Order, 1993. The petitioner being transporter has no title to the goods which are being transported and hence no offence can be registered against the petitioner. However relying on the offences registered against the petitioner, the impugned order of detention is passed. As such the detention order is sought to be executed against a wrong person and the same needs to be quashed and set aside on this ground. 21. It is true that the petitioner is a transporter and being a transport he has no title to the goods. However the responsibility of a transporter does not end there. Clause 3 (2) of 1993 Order prohibits a dealer or a transporter to sell, distribute or supply kerosene under the public distribution system to any person other than the person to whom the supplies are meant for. So the transporter cannot absolve himself from liability of supplying kerosene to the authorised person only. If the allegations are that the transporter was selling or distributing or supplying blue kerosene to any unauthorized person he would be certainly liable for breach of Clause 3(2) of 1993 Order. So the transporter cannot absolve himself from liability of supplying kerosene to the authorised person only. If the allegations are that the transporter was selling or distributing or supplying blue kerosene to any unauthorized person he would be certainly liable for breach of Clause 3(2) of 1993 Order. If such offences are taken into consideration by the detaining authority for its subjective satisfaction, no fault can be found with the detention order. 22. Mr. Gandhi further submitted that in three offences registered against the petitioner the investigation is yet incomplete. The report of Chemical Analyser is not received. In the absence of Chemical Analyser's report it is not established that blue kerosene was being transported. However the detaining authority took those offences into consideration and passed the detention order. As such the detention order is passed on vague, extraneous and irrelevant grounds and is liable to be quashed and set aside. 23. It is true that in majority of the offences registered against the petitioner the report of Chemical Analyser is yet to be received and it is yet to be established beyond doubt that what was being transported was blue kerosene under the public distribution system. On the basis of smell prima facie the nature of product can be detected. This was therefore one of the grounds for the subjective satisfaction of the detaining authority. No fault can be found with the detention order for considering it as one of the grounds. 24. Mr. Gandhi further submitted that though offences were registered against the petitioner in July-2003, September- 2005 and May-2006 no preventive action was thought necessary to be taken by the concerned authority. It was only after complaint made by the petitioner against Respondent No.3 in respect of custodial violence meted out to the petitioner, that the detaining authority thought it necessary to pass detention order. By demonstrating the facts which led to the arrest of the petitioner in Crime No.3022/2006 of P.S. Wadi (Nagpur); the release of the petitioner on bail by the concerned Magistrate; the alleged custodial violence meted out to the petitioner by Respondent No.3 while in custody and the complaint lodged by the petitioner against Respondent No.3 on 20.7.2006 it was pointed out that the order of detention passed on 27.7.2006 was illegal. It was urged that it was to save the skin of the erring police officials against whom the petitioner had lodged complaint and to pressurize the petitioner that the detention order came to be passed. Thus, according to Mr. Gandhi, the detention order was passed for wrong purpose and not for the purpose of deterring the petitioner from indulging in black marketing of blue kerosene. 25. We find considerable force in this submission. A careful perusal of the events that followed the registration of Crime No.3022/2006 at P.S. Wadi (Nagpur) indicates that the petitioner made allegations against Respondent No.3 about custodial violence immediately on his release. The said complaint dated 20.7.2006 was addressed to Respondent No.2. This complaint was forwarded by Respondent No.2 to DCP-I Nagpur on 26.7.2006 for necessary enquiry and action. A copy of the communication dated 26.7.2006 was also forwarded to the petitioner. Immediately on the next day i.e. on 27.7.2006 detention order was passed by Respondent No.2 even before any enquiry could be made into complaint made by the petitioner against Respondent No.3. The detaining authority should have at least waited till the enquiry into the complaint made by the petitioner was initiated and completed and the result thereof either in the positive or in the negative. Instead of waiting for that, the detaining authority immediately proceeded to pass order of detention against the petitioner which indicates that even without subjective satisfaction the detaining authority hastily passed the order of detention for wrong purpose. This clearly shows that the detention order against the petitioner was passed for a wrong purpose and on this count the same deserves to be quashed and set aside. 26. Mr. Gandhi pointed out that passing of detention order on 27.7.2006 is a belated action. A notice u/s 59 of the Bombay Police Act was issued to the petitioner on 8.11.2005 calling upon him to show cause as to why he should not be externed from Nagpur District for a period of two years for having indulged in black marketing of blue kerosene. The petitioner submitted his reply on 14.11.2005. However, no externment order was passed against him and ultimately the proceedings were dropped. Mr. Gandhi submitted that preventive detention is the last resort and when the authorities did not think it necessary to proceed with externment proceeding the authority was not justified in passing detention order against the petitioner. Mr. The petitioner submitted his reply on 14.11.2005. However, no externment order was passed against him and ultimately the proceedings were dropped. Mr. Gandhi submitted that preventive detention is the last resort and when the authorities did not think it necessary to proceed with externment proceeding the authority was not justified in passing detention order against the petitioner. Mr. Gandhi also pointed out that when the petitioner was in custody in connection with Crime No.3022/2006 of P.S. Wadi (Nagpur) the petitioner was required to execute a Bond for good behaviour u/s 110(f)(i)(e) of Cr.P.C. When the said Bond is in force, the detaining authority should not have passed detention order particularly when there was no allegation that the petitioner committed breach of the conditions of the said Bond. There appears considerable force in this submission. 27. Mr. Gandhi lastly submitted that out of four offences registered in Nagpur District against the petitioner, in Crime No.76/2006 P.S. Mouda, District-Nagpur chargesheet has also been filed against the petitioner under Section 3/7 of the Essential Commodities Act and 420, 468, 471 r/w 34 of Indian Penal Code. Thus the detaining authority has taken recourse to two parallel and simultaneous proceedings which is impermissible. 28. A perusal of the grounds of detention shows that Crime No.76/2006 of P.S. Mouda, District-Nagpur was taken into consideration by the detaining authority for its subjective satisfaction. Now, in case the petitioner wants to make representation to the detaining authority against the order of detention he is required to disclose his defence which may cause prejudice to the petitioner in defending the criminal prosecution. In Biram Chand .vrs. State of Uttar Pradesh and others, AIR 1974 SC 1161 , it has been held that if the authority concerned makes an order of detention under the Act and also prosecutes him in a criminal case on the self-same facts, the detaining authority cannot take recourse to two parallel and simultaneous proceedings nor can take recourse to a ground which is the subject matter of a criminal trial. Thus on this ground also the impugned order of detention cannot be sustained. 29. In the result we are satisfied that the petitioner's case falls under one of the exceptions set out in Smt. Alka Gadia's case. We, therefore, proceed to quash and set aside the said order. 30. Thus on this ground also the impugned order of detention cannot be sustained. 29. In the result we are satisfied that the petitioner's case falls under one of the exceptions set out in Smt. Alka Gadia's case. We, therefore, proceed to quash and set aside the said order. 30. It seems that no action was taken by the respondents on the complaint made by the petitioner to Respondent No.2 on 20.7.2006 about the alleged custodial violence. In this respect the petitioner may file complaint under Section 200 of Cr.P.C. against the concerned officials and the Magistrate may take cognizance in accordance with law. In view of this position we are not inclined to direct any action against Respondent No.3 in this respect. Consequently we are also not inclined to allow the prayer of the petitioner for grant of compensation. Hence the order : The petition is partly allowed. The order of detention dated 27.7.2006 is hereby quashed and set aside. The rest of the prayers of the petitioner are rejected. 31. Rule is made absolute in above terms.