(1.) An order of detention passed by the District Magistrate, Cuttack, under sub-sec. (2)(a) of S. 3 of the Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act, 1980 (hereinafter referred to as the "Act') has been challenged in this writ application before the said order has been executed and before the detenu has been taken to custody. The brother of the detenu is the petitioner. The main grounds on which the order has been assailed are that the order of detention has been passed against a wrong person for a wrong purpose for victimising an employee for the lapse of the employer and has been passed on vague, extraneous and irrelevant grounds. Since the writ application has been filed prior to the execution of the order of detention and consequently has not got a copy of the order of detention or the grounds of detention, this Court by order dated 8-7-1991 had called upon the State Counsel to produce the order of detention as well as the grounds of detention only for the limited purpose of perusal of the Court to-,be satisfied as to whether the grounds on which the order has been attacked can at all be sustained. The said order had been passed by this Court because of the observations made by their Lordships of the Supreme Court in the case of The Additional Secretary to the Government of India v. Smt. Alka Subhash Gadia 1990 (2) SCALE, 1352, to the effect.-
(2.) Mr. Rath, the learned counsel for the petitioner, argues with vehemence that the order of detention in the present case is one which comes within the exceptional cases indicated by their Lordships of the Supreme Court in Smt. Alka Subhash Gadia's case, referred to supra, and, therefore, can be interfered with even at the pre-execution stage. The learned Additional Government Advocate, on the other hand, relying upon a Bench decision of this Court in the case of Padma Kurhar Bhawsinka v. State of Orissa, represented through the Secretary, Food and Civil Supplies Department, Bhubaneswar., 1991 (1) OLR 527, contends that the detention order not having been executed, the party cannot have any right to challenge the same.
(3.) In view of the rival submissions made at the Bar, the first question that crops up for our consideration is whether an order of detention can be interfered with prior to its execution and prior to the detenu surrendering himself to the custody. A Division Bench of the Bombay High Court in Special Civil Appln. No. 2752 of 1975 and Criminal Revn. Application No. 23 of 1980 (Manoharial Narang v. Union of India) decided on 8-7-1980 and in Jayantilal Bhagwandas Shah and etc. v. State of Maharashtra, 1981 Cri. LJ 767, the Delhi High Court in Sh. Abdul Aziz Mohammad v. Union of India, 1984 Cri LJ 1307 and Omar Ahmed Ebrahim Noormani v. Union of India, 1984 Cri LJ 1915; the Kerala High Court in Yogesh Shantilal Choksi v. Home Secretary, Govt. of Kerala, 1983 Cri LJ 393 and the Allahabad High Court in Simmi v. State of U.P., 1985 All LJ 598, have taken the view that an order of detention is executable the moment it is passed and, therefore, a person who is likely to be affected by such order has a right to approach the court the moment he learns about it since he is sought to be deprived of his liberty by the said order. In the Bench decision of this Court reported in 1991 (1) OLR 527 (Sic) on which the learned Additional Government Advocate places reliance, their Lordships have held:-