N.H. Bhatt, J.
1. These two petitions are filed under Article 226 of the Constitution of India, seeking a writ of habeas corpus or a writ or order of the like nature complaining that the petitioner in each of these two petitions was unlawfully detained by the State of Gujarat pursuant to the identically worded orders both dated 29th June 1981, Annexure 'A' to each of these two petitions, the detention having been ordered in the purported exercise of the powers conferred on the Government by Sub-section (1) of Section 3 of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 (No. 7 of 1980 (the 'Act', for short). The petitioners in both these petitions allege that their detention is otherwise than in accordance with law and they, therefore, pray that they should be set at liberty forthwith. Since these two petitions are almost identical, they can be convenient by dealt with together and disposed of by this common judgment.
2. The petitioners of these two petitions are partners of one firm styled as 'Ravi Emporium' running a business of selling cloth in the city of Rajkot. it was alleged against them as could be gathered from the identical groups of detention furnished to each of them (Annexure 'C' in both the petitions,) that at the premises of this firm 'Ravi Emporium' controlled cloth valued about Rs. 7,000/- was found in a raid made at their business premises on 11th April 1981. The said raid was alleged to have been made because there was information with the authorities that controlled cloth intended to be distributed to the low income group of the society at fixed price and in limited quota on the basis of the ration cards was being sold in blackmarket. These two partners had no authorisation for the purpose of dealing in this controlled cloth. In their statement given to the authorities and in the documents styled as their acknowledgment, they had admitted that they had no such authorisation, that they had purchased this cloth from a place named Narol near the city of Ahmedabad from some undisclosed merchants through the auspices of some undisclosed broker. The grounds further stated that this cloth was meant for the Rajkot District Co-operative Federation and the receipts for the cloth meant for this Federation also were discovered from the premises of Ravi Emporium. It was also alleged that this cloth was being sold to various parties without any bills and that a separate account was being maintained in that regard and the goods were purchased by these persons under the fictitious name of Dinesh Traders. The grounds ultimately stated in paragraph 12 of, the grounds as follows:- 'It is proved from the aforesaid facts and particularly the facts set out in paragraphs 3, 4, 5, 6, 8 and 11 that you are actively associated with the aforesaid scandal regarding controlled cloth. You have indulged in antisocial and censurable activity by keeping away the low income group people from getting the controlled cloth by diverting the said cloth illegally though it was meant to be distributed among such people. Not only that but you have also indulge ed into the activities that would frustrate the distribution of the controlled cloth and encourage blackmarketing, You also are found to have the tendency to continue such nefarious activities.'
The above grounds are translated by us.
3. Under Section 3(1) of the Act, the State 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'. The operative words of the enabling Section 3(1) of the Act have the important phrase 'acting in any manner prejudicial to the maintenance of supplies of commodities essential to the community' and therefore to this Section 3(1) of the Act is appended 'Explanation' which is reproduced below.
For the purposes of this Sub-section, the expression 'acting- in any manner prejudicial to the maintenance of supplies of commodities essential to the community' means-
(a) committing or instigating any person to commit any offence punishable under the Essential Commodities Act, 1955, or under any other law for the time being in force relating to the control of the production, supply or distribution of, or trade and commerce in, any commodity essential to the community; or
(b) dealing in any commodity-
(i) which is an essential commodity as defined in the Essential Commodities Act, 1955, or
(ii) with respect to which provisions have been made in any such other law as is referred to in Clause (a) with a view to making gain in any manner which may directly or indirectly defeat or tend to defeat the provisions of that Act or other law aforesaid.
The said phrase, as is evident from a bare reading of the above Explanation, deals with two kinds of situations, A person who commits, or abets by instigation any other person to commit, any offence punishable under the Essential Commodities Act, 1955 or under any other law for the time being in force relating to the control etc. of any commodity essential to the community, may be said to be so acting. So in order to attract Clause (a) of the Explanation, it must be found before the provisions of Section 3(1) of the Act could be called to aid, that the said person has committed, or has instigated any other person to commit, any offence punishable under the Essential Commodities Act, 1955. No. other similar Act was called to aid and therefore we say that in order to attract Clause (a) of, the Explanation, the authority must have before it material to show that the person sought to be. detained had either committed an offence punishable under the provisions of the Essential Commodities Act, 1955 or had abetted any other person in the commission of any such offence. It is a truism to state that nothing is an offence, unless a specific law defines that act to be so. We, therefore, pointedly asked the learned Public Prosecutor Mr. A. J. Patel to show as to what offence each of these petitioners, in his capacity as the partner of Ravi Emporium, can be said to have committed under the provisions of the Essential Commodities Act, 1955. He invited in this connection our attention to the Cotton Textile (Control) Order, 1948 which is issued by the Central Government in exercise of the powers conferred on it under Section 3 of the Essential Supplies (Temporary Powers) Act, 1946 and which is still in operation. The Textile Commissioner is clothed with certain powers under Clause (30) of the said Cotton Textile (Control) Order, 1948 ('The Textile Control Order,' for short); Under Sub-clause (1) of Clause (30), the Textile Commissioner can direct any manufacturer of controlled cloth of dealer of controlled cloth to sell or deliver specified quantities of cloth or yarn to specified persons or not to sell or deliver cloth, or yarn of specified quantities except to specified persons and subject to such other persons as the Textile Commissioner may specify. In Sub-clause (2) of Clause (30), the Textile Commissioner is further given power to issue directions to any manufacturer or dealer of controlled cloth to sell or deliver specified quantities of cloth or yarn to specified persons, in exercise of the powers vested in him, the Textile Commissioner issued two orders on 9th Oct. 1972. The first notification dated 9th Oct. 1972 fixes the maximum retail price of the aforesaid varieties of cloth at 121/2 per cent over the ex-factory price, The second notification which is relevant for our purposes is reproduced below:
In exercise of the powers conferred by Sub-clause(2) of Clause (30) of the Cotton Textile (Control) Order, 1948, 1 hereby direct that every manufacturer of controlled cloth shall sell or deliver, all stocks of controlled cloth as on 8th Oct. 1972 and the stocks of such cloth Which may accrue after the said date to only the four, channels of distribution mentioned below, namely:
1. Mills' own retail shops
2. Super Bazars '
3. Fair price shops affiliated to the National Co-operative Consumers Federation, and
4. Fair Price shops opened by the State Governments.
Explanation:- For the purpose of this order controlled cloth means and includes controlled dhoti, controlled shriting, controlled long cloth, controlled saree, drill as defined in Textile Commissioner's Notification No. CEA/l/68 dated the 2nd May, 1968.
4. Above are the two statutory orders issued by the Textile Commissioner. The above-quoted second order dated 9th Oct. 1972 gives only one direction and that too to the Textile Mills enjoining upon them to sell or deliver all stocks of controlled cloth with them only to one or other of the four agencies mentioned above. 'What those four agencies should do. how they should further deal with the goods sold or delivered to them is not the subject matter of any statutory order issued by the Textile Commissioner. The subsequent steps that were taken were unfortunately purely on administrative side and not on the basis of any legislation or delegated legislation.
5. After the above-mentioned directive was issued by the Textile Commissioner under Clause (30) of the Textile Control Order, on 30-10-1972, a meeting Was convened of the Textile Commissioner and representatives of the National Co-operative Consumers Federation and the representatives of different states from Civil Supplies Department at Bombay. At this meeting a conjoint administrative decision was taken and Clause (ID thereof provided that out of the four agencies referred to in the statutory order quoted above, the sale of controlled cloth was to be effected through the shops approved by the State Government and not through the private merchants. By no' stretch of imagination can we call this a decision or directive by the Textile Commissioner, much less a directive issued by him pursuant to the powers vested in him under Clause (30) of the Textile Control Order or any other clause of the Textile Control order. 'The merchants shall not be associated with the distribution of this controlled cloth' is not a directive of the Textile Commissioner in his capacity of the authority contemplated by the aforesaid Textile Control Order. It was to all intents and purposes an administrative decision of four possible representative interests so called. There in no order further prohibiting a private dealer from dealing with this cloth. There is nothing in this so called direction loosely embodied in the Government's letter dated 15th Nov. 1972 which would make such an unauthorised shop dealer a person who can be conceived as a person contravening any provisions of the Essential Commodities Act, 1955 or any order issued thereunder. We therefore hold that this was only what the members of that informal meeting of 30-10-1972 hoped for or expected. If it be so, it is difficult for us to say that there was even an iota of material with the Detaining Authority that these petitioners were acting in any manner prejudicial to the maintenance of supplies of commodities essential to the community in the sense of their committing, or instigating any other person to commit, any offence punishable under the Essential Commodities Act, 1955 which, would include any statutory order issued under the said Act either under Section 3 or Section 5 thereof.
6. Alternatively Mr. Patel, the learned Public Prosecutor, tried to bring the case under Clause (b) of the Explanation appended to Section 3(1) of the Act. in order to be called a person acting in any manner prejudicial to the maintenance of supplies of commodities essential to the community in terms of Clause (b) of the Explanation appended to Section 3(1) of the Act, it must be found that (1) the person is dealing in any commodity which is an essential commodity as defined in the Essential Commodities Act, 1955; (2) such dealing is effected by the dealer with a view to making gain in any manner which directly or indirectly defeated or tended to defeat the provisions of the Essential Commodities Act, 1955. The. third aspect of this requirement again would attract the provisions of the Essential Commodities Act or an order issued thereunder. The Detaining Authority must have before its mind some provisions of the Act or the orders issued thereunder which could be said to have been directly or indirectly defeated or sought to be defeated by the dealer. In the case on hand, all that has been alleged against these petitioners is that they were found in possession of the controlled cloth which was with them in suspicious circumstances. It cannot be gainsaid that the said goods were found with them in somewhat fishy circumstances in the sense that they had no regular account books with them in that regard, that they had maintained separate account books, that their bills showed sonie fictitious names, that the purchase bills which were meant for the Rajkot District Co-operative Federation were inexplicably in their custody, etc. It was further in the mind of the Detaining Authority that the atmosphere was rife with rumours that controlled cloth was beinjf sold in blackmarket. The Detaining Authority should have addressed itself specifically to some provisions of the Act which ultimately provide for the non-passing of such goods into the hands of private dealers. All that the statutory order of 9th Oct. 1972 provided was that the manufacturer should deliver the goods only to the one or to the other four categories of purchasers and the matter rested there as far as law goes. A situation can well be conceived as a possible one, though not necessarily a probable one, where a cooperative store having authorisation from the Government in the form of a contract with the Government to deal in this controlled cloth may not be in a position to dispose of the said cloth either for want of proper machinery or for want of proper market with them. There is no provision of law which would prevent them from seeking the help of a private agency in order to get rid of the stock with them. There is not even a whisper of suggestion in the grounds that these petitioners were selling or at any time in the past sold this controlled cloth at a price worked out at more than 121 per cent over the ex-factory price. The use of the term 'blackmarket' is not suggestive of any such thing qua these petitioners. It is pertinent to note that some part of the cloth found with these petitioners was damaged by whiteants or was defective in manufacture, in these circumstance, the Detaining Authority had not applied its mind to the requirements of Clause (b) of the Explanation appended to Section 3(1) of the Act in so far as the Detaining Authority had not before its mind any specific provisions of the Essential Commodities Act, 1955 which were sought to be directly or indirectly defeated by the manner of dealing with, controlled cloth by these petitioners. We are not oblivious of the fact that in the grounds of detention the Detaining Authority may not refer to specific provisions of law by numbers but from the grounds it must be crystal clear that all the requirements of law which went to clothe the Detaining Authority with power to detain, certainly an unusual and abnormal power, were present to the mind of the Detaining Authority when he took on his hands a case for detaining a citizen who was otherwise entitled to freedom of movement. To us it appears crystal clear that these are glaring cases of non-application of mind. The Detaining Authority had not in its mind any provisions of (the Essential Commodities Act, 1955 or any other law referred to in Sub-section (1) of Section 3 of the Act which were sought to be defeaited or which were tended to be defeated either directly or indirectly by the manner in which the petitioners had sought to make gain by dealing in this controlled cloth. All that the elaborate grounds in Annexure 'C' to each of these petitions show is that these petitioners having no authorisation or contract with the Government to deal in controlled cloth had started dealing in controlled cloth it was rumoured that controlled cloth was being sold in black-market.
7. Time and again it has been emphasised 'that the right to liberty is a very valuable right and it can be interfered with only in strict compliance with 'law and only in the manner laid down by the statute. To us it, appears clear that the Detaining Authority had not before its mind any provisions of the Essential Commodities Act, 1955 which were intended to be defeated directly or indirectly by the dealings of these petitioners. We have already referred to the joint decision arrived at a meeting referred to in the letter dated 15-11-1972. As a matter of fact this letter is a letter written by the Secretary of the Government to various Collectors and it inter alia mentions that at the meeting of the Textile Commissioner and other representatives some decisions were taken regarding the method of distribution of controlled cloth in the initial stages. If while devising ways and means to channel the controlled cloth a casual or incidental observation or note was made that cooperative societies alone as contracting parties will be selected for the purpose of distributing and selling the controlled cloth and private merchants would be kept out, it is difficult to refer to such a second-hand reference to the deliberations of the meeting as a direction issued by the competent authority in exercise of its statutory powers. Take either Clause (a) or Clause (b) of the Explanation appended to Section 3(1) of the Act in either case provisions of law prominently figure. Unless they had prominently figured in the consideration of the Detaining Authority, the detention order can not be sustained.
8. In above view of the matter we find that the detention of these two petitioners is not in accordance with law and therefore the detention orders Annexure 'A' in both these petitions are required to be quashed and they are accordingly quashed. Both the petitions are accordingly allowed by making rule absolute with no order as to costs. It is directed that the petitioners shall be set at liberty forthwith so far as these two cases are concerned.