R.K. Vijayvargiya, J.
1. By this petition under Article 226 of the Constitution the petitioner Vinod Kumar has challenged the detention of his father Gopaldas Nagori who has been ordered to be detained vide order No. Q/Ps/Det 85 dated 27-7-85 (Ann 'A') passed by the District Magistrate, Indore the respondent No. 1 in exercise of the powers conferred upon him by Sub-section (1)(b)(2)(a) of Section 3 of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 (for short 'the Act').
2. The facts disclosed by the grounds of detention communicated to the detenu and the particulars mentioned in the schedule annexed thereto may be summarised as follows:
The detenu is the proprietor of M/s Agrawal Industries Indore, Manager of M/s Usha Enterprises Indore and Attorney of Nagori Cement Private Ltd. Bagh district Dhar. M/s. Agrawal Industries are manufacturing Sagol and Murrum powder while Usha Enterprises are manufacturing Murrum powder.
Sagol and Murrum are being packed in cement bags weighing 50 K.G. and 40 K,G. respectively. The colour of the cement and of the Sagol and Murrum powder is substantially similar. The cement produced by the M/s Nagori Cement Private Ltd. is stored in the premises of M/s. Usha Enterprises. At the time of checking 115 bags of cement were found there. 204 bags Murrum powder was also found in 204 bags of cement in the premises of M/s. Usha Enterprises. 131 bags of Sagol and 168 bags of Murrum powder packed in cement bags were found in the stock of M/s. Agrawal Industries at the time of checking. M/s. Agrawal Industries and Usha Enterprises are located in front of each other. Although according to the provisions of M.P. Cement Apmishran Nivaran Adhiniyam, 1981 (for short 'the Adhiniyam') the weight of the bag in which Sagol and other cementitious material is packed should not exceed 35 k.g. and the gunny bags in which it is packed should be different from the cement bags, in both the establishments of the detenu Sagol and Murrum powder was packed in cement bags weighing 50 and 40 k.g. respectively. The cement produced by the Nagori Cement Private Ltd. was stocked in the premises of M/s. Usha Enterprises. Sagol and Murrum powder is stocked in M/s. Agrawal Industries and murrum powder and cement is stocked in the premises of Usha Enterprises.
3. On the basis of the above fact it is stated by the detaining authority that it is clear that the detenu is a party to the sale of Sagol and Murrum powder as cement to the illiterate general public keeping them in the dark and is indulging in profitering by passing of Sagol and Murrum powder as cement, they being of the same colour, and is carrying on the illegal business of sale of the adulterated cement through the medium of unsocial elements and the act of the detenu is an attempt to defeat the provisions of the Essential Commodities Act, 1955.
4. At the outset it would be useful to refer to the relevant statutory provisions. Section 3 of the Act reads as follows:
3. Power to make orders detaining certain persons. - (1) The Central Government or a State Government or any officer of the Central Government not below the rank of a joint Secretary to that Government specially empowered for the purposes of this section by that Government, or any officer of a State Government, not below the rank of a Secretary to that Government specially empowered for the purposes of this section by that Government, may, if satisfied, with respect to any person that with a view to preventing him from acting in any manner prejudicial to the maintenance of supplies of commodities essential to the community it is necessary so to do, make an order directing that such person be detained.
5. Section 2(c) of the Adhiniyam defines cementitious material as follows:
2. Definitions in this Act, unless the context otherwise requires -
(c) 'cementitious material' means any material (by whatever name called) other than cement such as sagol or other similar material, which is, or may be used for joining two bodies but shall not include lime or hydrated lime;
6. Section 3 of the Adhiniyam which provides for the regulation of sale of cementitious material reads as follows:
'3. Regulation of sale of cementitious material.
No dealer shall sell or expose for sale any cementitious material unless,
(a) it is duly pigmented so as to distinguish it clearly from the usual colour of cement;
(b) It is packed in a container other than a gunny bag usually used for the packing of cement; and
(c) a bag contains not more than 35 kilograms of cementitious material.
7. Section 4 of the Adhiniyam provides that no dealer shall in any form whatsoever, exhibit on the packing of the cementitious material the word 'cement' singly or in combination with other words.
8. Section 5 of the Adhiniyam prohibits a dealer from storing, exposing for sale or selling cementitious material in the premises where cement is stored exposed for sale or sold.
9. Section 6 of the Adhiniyam prohibits a dealer from adulterating cement or mixing cementitious material with cement.
10. The definition of the term 'dealer' includes a manufacturer of cementitious material.
11. The detention of the detenu is challenged on the grounds (i) that the ground of detention is too vague and therefore the detenu was deprived of an opportunity of making effective representation against his detention (ii) that the detaining authority has not applied his mind to the facts of the case and has mechanically passed the order of detention and (iii) that the detaining authority has taken into consideration irrelevant and non-existing matters and therefore the order passed by him is vitiated because there is no knowing as to what extent the mind of the detaining authority was influenced by the irrelevant and non-existent matters.
12. The learned Government Advocate appearing for the respondents supported the detention of the detenu on the ground that the detenu was indulging in the commission of an offence punishable under the Adhiniyam which is a law relating to the control of the production, supply and distribution of, or trade in cement which is a commodity essential to the community as envisaged by explanation (a) to Section 3(1) of the Act. He further contended that on the material on record the detaining authority, the respondent No. 1 was satisfied that with a view to preventing the detenu from acting in any manner prejudicial to the maintenance of supplies of commodities essential to the community it was necessary to detain him under the provisions of the Act and that this Court in a petition under Article 226 of the Constitution has no power to review the order passed by the detaining authority which is based on his subjective satisfaction.
13. Having heard learned Counsel for the parties we have come to the conclusion that the order of detention passed by the detaining authority is vitiated on more than one ground. Firstly, the ground of detention is too vague and therefore the detenu has been deprived of an opportunity to make an effective representation against his detention.
14. It is stated in the ground of detention that the detenu was indulging in profiteering by selling Sagol and Murrum powder as cement to the general and illiterate public through the medium of unsocial elements who are carrying on illegal trade in cement. The names and other particulars of the unsocial elements through whom the detenu was indulging in the sale of Sagol and Murrum powder as cement have not been stated. The person or persons to whom the Sagol and Murrum powder as cement was sold have also not been stated The price at which the Sagol and Murrum powder was being sold by the detenu has also not been stated. In fact not a single instance has been cited in which the Sagol and Murrum powder produced by the detenu has been sold. The allegation in the ground of detention regarding sale of Sagol and Murrum powder as cement is too vague and it appears that a generalisation has been made by the detaining authority without any material.
15. In Prabhu Dayal Deorah v. District Magistrate, Kamrup : 1974CriLJ286 in which the detention of the petitioner was challenged on the ground that jgpund No. 1 of the detention of the detenu was vague, the Supreme Court in para 57 of the judgment observed as follows:
There can be no doubt that the first ground postulated that the petitioners were indulging in unauthorised milling of paddy and also in smuggling the resultant rice to Meghalaya for earning undue profit. As already stated, no particular instance of smuggling was given nor the period during which the smuggling operation was carried on mentioned in the ground........................
The Supreme Court held that the said ground of detention was vague and quashed the order of detention on that ground.
16. In the instant case no particulars whatsoever have been given by the detaining authority and the ground of detention referred to above is too vague and therefore the order of detention passed by the detaining authority is vitiated and deserves to be quashed.
17. The order of detention also suffers from another serious infirmity. It is stated that the detenu is indulging in the production, storage and sale of Sagol and Murrum powder in contravention of the provisions of the Adhiniyam and therefore it has become necessary to detain him under the provisions of the Act.
18. Now it is conceded by the learned Government Advocate that Murrum powder is not covered by the definition of the term 'cementitious material'.
19. Thus, the production, storage and sale of Murrum powder is outside the purview of the Adhiniyam. The detaining authority has taken into consideration the production, storage and sale of Sagol and Murrum powder by the detenu in coming to the conclusion that he was contravening the provisions of the Adhiniyam without making any distinction between Sagol and Murrum powder. Thus, in taking into consideration the production, storage and sale of Murrum powder the detaining, authority has taken into consideration irrelevant material in passing the order of detention and there is no knowing as to what extent the mind of the detaining authority was influenced by taking into consideration that irrelevant material. Moreover, the detenu is said to have contravened the provisions of Section 3 of the Adhiniyam which prohibits a dealer from selling or exposing for sale any cementitious material unless the conditions therein are complied with.
20. Now in the present case it is not the case of the detaining authority that the detenu was selling any cementitious material. It is contended by the learned Government Advocate that the cementitious material found in the premises of the detenu was packed in gunny bags and therefore it was exposed for sale.
21. This contention has no merit. The cementitious material was being produced by the detenu. There was a notice board displayed on the premises that the goods are under process and they are not for sale. It does not appear that the detaining authority has applied his mind to the said fact because it is not the case of the detaining authority that the notice board displayed by the detenu was just a smoke screen and that in spite of that notice board the detenu was selling the cementitious material at the premises where it was being produced. It has also to be borne in mind that the production, sale or storage of cementitious material is regulated in Madhya Pradesh only and not in the other States and it is open to the detenu to sell the cementitious material in the other States without any restriction.
22. In the circumstances in the absence of any material that the cementitious material 'produced by the detenu was exposed for sale or that it was being sold, the detention order cannot be supported on the ground that the detenu was contravening the provisions of Section 3 of the Adhiniyam.
23. In the grounds for detention it has also been alleged that the detenu was indulging in the sale of Sagol and Murrum powder in place of cement through the unsocial elements who were dealing in the illegal business of selling adulterated cement.
24. Now there is no material that the detenu has any associates who are engaged in the illegal business of selling adulterated cement. The learned Government Advocate appearing for the respondents submitted that a sample was taken from out of the cement found in stock and that it was sent for analysis. The detaining authority did not await the report of the analysis and has passed the order of detention in hot haste making vague allegations against the detenu.
25. In the ground of detention it has. further been stated that the cement produced by the Nagori Cement Private Ltd. was stored in the premises of M/s. Usha Enterprises and that 204 bags of Murrum powder was also found in the premises of M/s Usha Enterprises and that Murrum powder was packed in cement bags.
26. Now from the panchnama filed by the respondents it is clear that there is a pacca wall between the premises where cement was stored and the premises of M/s. Usha Enterprises and there is no connecting door in the intervening wall. This fact has also not been considered by the detaining authority.
27. Thus, the order of detention is vitiated because the ground of detention is vague and also the detaining authority has taken into consideration irrelevant and non-existent material in passing the order of detention as discussed above. The order passed by the detaining authority therefore deserves to be quashed.
28. As a result of the discussion aforesaid this petition is allowed. The order of detention (No. Q/PS/Det/85 dated 27-7-85 'Ann. A') passed by the respondent No. 1 detaining the detenu Gopaldas son of Ramnarayan Nagori is quashed. The detenu be set at liberty forthwith. The parties shall bear their own costs of this petition.