1. This is a petition under Article 226 of the Constitution for the issuance of a writ of habeas corpus for the release of the petitioner, who has been detained by an order of detention passed by the District Magistrate, Indore, under Section 3, Prevention of Black Marketing and Maintenance of supplies of Essential Commodities Act, 1980 (hereinafter referred to as 'the Act'), on being satisfied that the detention of the petitioner is necessary with a view to preventing him from acting in any manner prejudicial to the maintenance of supplies of commodities essential to the community.
2. The material facts giving rise to this petition briefly are as follows:
The petitioner carries on business as a retailer at Indore. On 25th February 1983 the Food Controller, Indore, accompanied by the Food Inspector and Assistant Food Controller inspected the shop of the petitioner. They found that the petitioner had, stored for sale in the said shop 312 litres of kerosene oil. They also found that the petitioner had stored 11 quintals 65 kilograms of jawar, which was in excess of the quantity, which could be stored under the provisions of Foodgrains Dealer's Licensing Order, 1965. Thereafter, on 26th February 1983, the District Magistrate, Indore, passed an order under Section 3(2) of the Act directing that the petitioner be detained with a view to preventing him from acting in any manner prejudicial to the maintenance of the supplies of commodities essential to the community. The petitioner contends that the order of detention passed against him is illegal and deserves to be quashed.
3. Though a number of grounds have been urged on behalf of the petitioner, the petition deserves to be allowed on the short ground that though the fact that the petitioner had, by storing jawar in excess of the quantity allowed under the M. P. Foodgrain Dealer's Licensing Order, 1965, violated the provisions of that order, appears to be one of the grounds which weighed with the detaining authority while passing the order of detention; that fact is not mentioned at all in the grounds of detention supplied to the petitioner to enable him to make representation, against the order, In the return filed on behalf of the State, it is stated as under :-
Under the M. P. Foodgrain Dealers' Licensing Order, 1965, the maximum quantity permissible for single item of foodstuff is 10 quintals, whereas the petitioner was found in possession of 11 quintals and 65 kilograms of jawar. This again was a violation of the provisions of the said Control Order issued under Section 3, Essential Commodities Act. Not only that the violation aforesaid was a punishable offence, the same was also a clear case, which manifested the intention of the detenu to defeat the provisions of law relating to maintenance of supplies and distribution of essential commodities. It is clear that it was only with a view to making gain in a manner which directly defeated the provisions of law with respect of essential commodities, namely, Kerosene and Jawar, that the petitioner had stored for sale the said essential commodities at his shop.
In the affidavit filed by the District Magistrate, Indore, it is averred as follows:
A return is being filed on behalf of the respondents by the Officer-in-Charge of the case and I state that the facts stated in the said return have been read and understood by me. They are true according to my knowledge and derived from the official record of the case and believed to be true.
The averment in the return, as aforesaid, that the petitioner had stored for sale kerosene and jawar, with a view to making gain in a manner, which directly defeated the provisions of law with respect to essential commodities, lends assurance to the contention urged on behalf of the petitioner that the fact of storing of jawar by the petitioner was one of the facts taken into consideration by the District Magistrate while passing the order of detention.
4. It was not disputed before us that there is no mention in the grounds of detention furnished to the petitioner about the storing of jawar. As one of the grounds, on which the order of detention can be held to have been based, is not communicated to the petitioner, the petitioner is denied reasonable opportunity of making a representation against the order and the provisions of Section 8 of the Act are violated. The order of detention, therefore, deserves to be quashed on this ground alone.
5. For all these reasons, this petition is allowed. The order of detention passed by the District Magistrate, Indore, on 26th February 1983, against the petitioner, is quashed. The petitioner shall be set at liberty forthwith. No order as to costs.