NARAYAN SAHOO Vs. DISTRICT MAGISTRATE AND ORS.

JUDGEMENT

(1.) The Petitioner has been detained pursuant to an order of detention passed under Sec. 3 of the prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 (hereinafter referred to as the 'Act') passed on 21 -8 -1988 and served on the Petitioner on 23 -8 -1988 I he order of detention has been annexed as Annexure -1. The grounds of detention were served on the Petitioner on 25 -8 -198 which have been annexed as annexure -2 The order of detention was approved by the State Government on 30 -8 -1988. The Petitioner made a representation to the State Government as well as to the Union Government on 18 -9 -1988, a copy where of has been annexed as Annexure -3 The State Government rejected the Petitioner 's representation by order dated 24 -9 -1988 but there has been no communication from the Central Government as to what happened to the representation of the Petitioner addressed to the Central Government. The detention of the Petitioner was confirmed by order dated 14 -10 -1988, in conformity with the report of the Advisory Board dated 7 -10 -1988. The Petitioner thereafter has assailed the legality of his detention in this writ application.

(2.) Mr. Pasayat, the learned Counsel for the Petitioner, the following contentions in assailing the order of detention:

(3.) Coming to the first ground of attack, we find that the order of detention is dated 21st of August. 1988, and the grounds that were served on the detent dearly reveal that one of the grounds is refusal of the detent to release stocks in favour of the retailers though according to the stack register, he had the requisite Slacks an 14 -8 -1988 The refusal by the detenu to the retailers is supported by the written complaints of retailers and one such written complaint is of one Satyaban Sahu Admittedly, the written complaint of Satyaban Sahu addressed to the Supply Inspector, Nimapara is dated 22 -8 -1988. Obviously, therefore, the said complaint was not in existence before the detaining authority, when the order of detention was passed on 21 -8 -1988. It is too well settled that if an order of detention is based on a nonexistent ground the order must be held to have been vitiated. The learned Additional Government Advocate repels the argument of the learned Counsel for the Petitioner on this score on the ground that the Court cannot go behind the subjective satisfaction of the detaining authority and though the statement of Satyaban Sahu is dated 22nd August, 1988, but the fact that he had complained regarding non -receipt of the essential commodity in question was there in the report of the Supply Inspector and the detaining authority was satisfied on the basis of that. We fail to appreciate the contention of the learned Additional Government Advocate. Of Course, the satisfaction of the detaining authority is subjective, but such satisfaction cannot be so unguided or so blanket as to be immune from judicial scrutiny even if the same is arbitrary at based a non -existent material. In the case of Khudiram Das v/s. the State of West Bengal and Ors. : AIR. 1975 S.C. 550 the Supreme Court observed: