B.J. Divan, C.J.
1. The petitioner herein is the wife of one Jamnadas Naranbhai Patel and she complains about the order of detention passed by the State of Gujarat against her husband directing that her husband should be detained in prison under the provisions of Section 3(1) of the Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act, 1980. The petition is presented under Article 226 of the Constitution praying for a writ of habeas corpus or any other writ, direction or order quashing and setting aside the order of detention at Annexure 'A'. The order of detention was passed against the detenu on Jan. 29, 1981'. It was passed by the State of Gujarat and it has been duly authenticated by the Deputy Secretary to the Government. The order way passed because the Government of Gujarat wa$ satisfied with respect to the detenu 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 was neces-. sary to detain him. The grounds of detention are dated Feb. 1, 1981 and it has been stated in the grounds of detention that the detenu had constructed a multi-storeyed building called Asopalav Apartments in Jagnath Plot in Rajkot City. In the statements made by the detenu on Sept. 18, 1980, Oct. 15, 1980, Oct. 28, 1980 and on Oct. 14, 1980 before Panchas, the detenu had admitted that the detenu was in full charge of all the details regarding the construction of the said Asopalav Apartments. The other partners of the detenu, namely, Sarvashri Dayabhai Ran-chhodbhai Chovatia, Lalitbhai Khodidas Patel and Ratilal Jethabhai Patel, in their respective statements recorded respectively on Sept. 19, 1980. Sept. 1'9, 1980 and Oct. 27, 1980 had stated that the detenu was attending to all the matters connected with the construction of the Aso-palav Apartments. On the basis of a certificate issued by the architects of the detenu, namely, Pattcons Architects, the detenu had applied on December 12, 1979 asking for 8785 bags of cement for the construction of the said Apartments and according to the grounds of detention, in the said application of December 12, 1979 the detenu had stated that on the date of the application the detenu had no stock of cement with him.
2. The Collector of Rajkot by his letter dated December 29, 1'979 bearing No. Food: R. D. Vashi-6838, permitted the detenu to get his plans to be registered with nine cement dealers at Rajkot, namely, Saurashtra Emporium, Apna Bazar, Cambay Investment Corporation, K. P. Brothers, Mozambik Trade Agency, Rajkot Lodhika Sangh, Desai Brothers, Raghuvir Hardware and Jagjivan Kaku-bhai Ralia. In the course of the investigation, according to the grounds of detention, it was found that the six storeyed building which was under construction as Asopalav Apartments by the detenu was largely completed and as against the total requirement of 8785 bags of cement the detenu had only got 939 bags of cement from different cement dealers whose names have been set out in the grounds of detention. In the presence of Panchas, in his statement recorded on October 15, 1980 the detenu, according to the grounds of detention, admitted that for the work which remained to be carried out in the Asopalav Apartments the detenu would be in need of only 1000 bags of cement. Hence, according to the grounds of detention, for the work completed by the time the inspection was carried out of the Asopalav Apartments, that is, on about Oct. 15, 1980, in the said building only 7785 bags of cement could have been utilised for the stage of construction completed till then. In the statement recorded on Oct. 15, 1980 the detenu had claimed that in the construction work and also in the plastering work the detenu had used lime instead of cement and as a result he had been able to save nearly 3000 bags of cement and according to the statement of the detenu, before the construction work commenced, 2000 bags of cement were in stock with the detenu. The grounds of detention proceeded : 'These claims of yours cannot be comprehended and they cannot be accepted'. According to the grounds of detention, from (1) the estimate prepared at the time of inspection of the site, (2)' measurements taken, (3) tests carried out regarding designing and construction and other relevant materials and the details obtained, and (4) from the calculations made by the Executive Engineer, Rajkot, Roads and Buildings Division, Quality Control Circle - from all these four factors it was obvious that in the different items of constructions for Asopalav Apartments nearly 5004 bags of cement had been used and the calculation of accounts given by the detenu was not correct. According to the grounds of detention, there was reason to believe that for the construction of Asopalav Apartments the detenu had obtained a large stock of cement from blackmarket and hence the detenu had committed an offence by contravening Clause 22 of the Gujarat Cement (Licensing and Control) Order, 1978 and thereby rendered himself liable to punishment under the Essential Commodities Act, 1955. According to the grounds of detention, if the detenu was not placed in detention, then, he was likely to continue his illegal activities and in order to prevent such a situation he was being detained. The rest of the contents of the grounds of detention are not necessary for the purposes of this judgment.
3. In his statement recorded on Oct. 28, 1980 the detenu had pointed out that an estimate of 8785 bags of cement as required for the construction of the Asopalav Apartments was' prepared by Pattcons Architects, The estimate had been prepared on the basis of designs for reinforced cement concrete construction on what was mentioned as 'Elastic Theory' but Shri Kirit Parikh, Structural Engineer from Ahmedabad, had prepared designs for the R. C. C. construction not on the basis of Elastic Theory but on the basis of 'Ultimate Load Theory' and when designs were prepared on this basis the requirement of cement for R. C. C. work was reduced to 2900 bags. Along with the statement recorded on Oct. 28, 1980 the detenu had produced the certificate issued by Shri Kirit Parikh, Structural Engineer, regarding the lesser use of cement in the construction of Asopalav Apartments.
4. Throughout the grounds of detention this certificate of Shri Kirit Parikh is not referred to at all and not dealt with at all. It may be pointed out that even according to the report of the Executive Engineer, Roads and Buildings Division, Quality Control Circle, Rajkot, the quality of the construction was quite good and no fault could be found with the quality of construction of Aso-palav Apartments which was inspected by the said Executive Engineer. Even according to the report of the Executive Engineer, the construction was so carried out that lesser quantity of cement could be used than what was originally mentioned in the plans and designs prepared by Pattcons Architects. Yet, this important aspect of use of lesser quantity of cement has been completely overlooked by the detaining authority at the time of passing the detention order.
5. In Ashadevi v. K. Shivraj AIR 1979 SC 447 : 1979 Cri LJ 203 the Supreme Court stated :
It is well settled that the subjective satisfaction requisite on the part of the detaining authority, the formation of which is a condition precedent to the passing of the detention order will get vitiated if material or vital facts which would have a bearing on the issue and would influence the mind of the detaining authority one way or the other are ignored or not considered by the detaining authority before issuing the detention order.
6. In paragraph 6 of the petition it has been stated :
As against the report of the Executive Engineer, Rajkot (Quality Control, Rajkot) there is a report of partnership firm's qualified architect Shri S. V. Patel stating that they had radically changed requirement regarding the use of the cement and therefore the use of the cement was substantially reduced. The structural Engineer Shri K. C. Parikh has also given a certificate stating that the total use of the cement was substantially reduced by changing the technique of construction inasmuch as ultimate-load theory was made applicable in place of elastic theory. It is submitted that in the circumstances, no Government or officer especially empowered for the purpose can ever be satisfied that it was necessary to detain the petitioner's husband to prevent him from acting in any manner prejudicial to the maintenance of supplies of commodity essential to the community.
In paragraph 7 of the petition it has been stated :
The petitioner states that the impugned order at Annexure A and the grounds in support of the said order at Annexure A are general and vague and on the basis of the material which was available, no authority can ever reach to the satisfaction of detaining the petitioner's husband Under Section 3 of the Act. It is submitted that therefore the order is beyond the purview of Section 3 of the Act. The' petitioner states and submits that the order suffers from non-application of mind inasmuch as the detaining authority has not at all taken into consideration the certificate of the structural engineer Shri K. C. Parikh.
In paragraph 7-A it has been pointed out ;..though it was pointed out to the Civil Supplies Authority that the structural design of the construction was radically changed so as to reduce the use of cement to less than 50% estimated requirement as per the advice by the structural engineer Shri K. C. Parikh, no efforts whatsoever were made to find out the correct position from structural engineer Shri K. C. Parikh, clearly show that all the available material was not considered by the detaining authority before the impugned order was passed.' In the affidavit-in-reply, being the affidavit of C. J. Jose, Deputy Secretary to the Government of Gujarat, Food and Civil Supplies Department, Sachivalaya, Gandhinagar, being the affidavit dated Feb. 9, 1981', in para 6 while dealing with para 6 of the petition, the deponent says :...on careful consideration of the relevant record and the grounds of detention, respondent No. 1 was satisfied as stated hereinabove and, therefore, passed the impugned order of detention, I deny that no Government or its officer specially empowered for the purpose can ever be satisfied that it was necessary to detain the petitioner's husband to prevent him from acting in any manner prejudicial to the maintenance of supplies of commodities essential to the community.
In para 7 of the affldavit-in-reply of C. J. Jose it has been stated with regard to para 7 of the petition as under j..respondent No. 1 has, on careful consideration of the relevant record and on the grounds mentioned in the letter of 1-2-1981, passed the order of detention as stated hereinabove, I deny that the order of detention suffers from non-application of mind as alleged and is beyond the scope of Section 3 of the Act.' While dealing with para 7A of the petition, in the further affidavit-in-reply filed by C.,T. Jose, being the affidavit dated Feb. 12, 1981, the deponent denies that the impugned order suffers from non-application of mind or is mala fide for the' reasons alleged in the said para 7A of the petition. According to the deponent, the detenu in his statement dated 15th Oct. 1980 mentioned that lime was used in masonary construction and plaster in Asopalav Apartments. The affidavit-in-reply then proceeds :I say that the said contention regarding lesser use of cement in R. C. C. works due to structural or any other changes was not disputed by the Executive Engineer. I say that contrary to the explanation cement was found to be used in masonary and plaster totally.
Thus it is clear that the certificate issued by K. C. Parikh mentioning how a substantially lesser auantity of cement came to be used, has been totally overlooked and disregarded by the detaining authority at the time when the order of detention was passed. Mr. J. R. Nanavati, learned advocate appearing for the respondents, has very fairly stated that the certificate of K. C. Parikh, Structural Engineer, Ahmedabad was either rejected or not regarded by any Derson before the order of detention came to be passed. Thus, the auestion as to what was the exact auantity of cement used in the construction of Asopalav Apartments uo to the stage that it had reached on Oct. 15, 1980 was the material question and material or vital facts which could have a bearing on the issue and which would influence the mind of the detaining authority one way or the other was ignored and not considered by the detaining authority before passing the order of detention. On this ground alone the detention order deserves to be set aside.
7. But we find that there are further defects in this order of detention. The Executive Engineer has made certain corrections and those corrections were in the original report of the Executive Engineer, Quality Control Circle. Rajkot, before the order of detention was passed. In the body of the report it was mentioned that the total number of bags of cement which could be estimated to have been used was 4645 bags of cement. In the calculations which were annexed to the report, the total number of bags which were said to have been used, according to the estimate, was 5004 bags. Though there was this discrepancy between the figures annexed to the estimate and in the body of the estimate itself, no mind was applied by the detaining authority to find out what was the correct figure of number of bags of cement which, according to the Executive Engineer, were estimated to have been used in the construction of the Asopalav Apartments till the stage that was reached of construction up to Oct. 15, 1980 or about that date. What we are emphasizing is the question of nonapplication of mind as to what was the correct figure, namely, whether 4645 bags or 5004 bags. Though a specific ground has been taken regarding this discrepancy between 4645 bags and 5004 bags and though it has been urged that there was non-application of mind on the part of the detaining authority because of this aspect of the case, yet there is no specific reply regarding this allegation of non-application of mind to this material aspect. After all, the conclusion that the detenu should be detained was being reached on the basis of the estimate which was prepared by the Executive Engineer and on this material aspect there was discrepancy and no effort was made to find out as to what was the correct figure mentioned by the Executive Engineer in his report regarding the quantity of cement used till then.
8. There is a further aspect that in the four matters which were taken into consideration for the purpose of coming to the conclusion that 5004 bags of cement had been used in the construction of Asopalav Apartments, one of the factors was the tests carried out on designing, drawing and other relevant materials and the details which had been taken out. We asked Mr. Nanavati, learned Public Prosecutor appearing for the respondents, as to what were those tests that were carried and what were the details which had been taken out regarding designing, drawing and other relevant materials and the reply was, after consulting the representative of the department concerned, that these details and tests were as set out in the report of the Executive Engineer. We may mention in this connection that the report of the Executive Engineer and the estimate prepared by him is No. 4 in the four items which were taken into consideration before coming to the conclusion that 5004 bags of cement could be said to have been used in the construction of Asopalav Apartments till about Oct. 15, 1980. It is clear that no details of tests and other materials drawn from designing, drawing and other relevant materials as grounds of detention thus had been furnished to the detenu and those materials, apart from what has been set out in the Executive Engineer's report, are not forthcoming from the record of the case. Under these circumstances, this discloses a further non-application of mind and shows the peculiar manner in which the matter was dealt with by the detaining authority at the time when he passed the detention order.
9. The satisfaction of the detaining authority that the detenu should be detained was reached on the basis of the fact that there was a discrepancy between what was stated in the application dated Dec. 12, 1979 when 8785 bags were applied for on the basis of the certificate issued by Pattcons Architects, and the statement made by the petitioner that from his existing stock he had utilised 2000 bags of cement. We have looked at the original application made by the partnership firm and that is at page 40 of the paper book of the writ petition before us. In column No. 11 the heading of the column is 'Has the construction been started or not' and the reply to this was in the negative. Column 12 is 'Whether any quantity of cement had been obtained before the construction work had been started on the proposed work and if so what quantity had been obtained in that connection' and the reply to that was also in the negative. Therefore, the application form merely stated that for the proposed construction work of Asopalav Apartments no bags of cement had been obtained from the authorities concerned prior to the commencement of the construction work of the Asopalav Apartments, but there is no statement whatsoever in this application form that the partnership firm of Desai Construction Company was not in possession of bags of cement from its own stock. There was therefore total non-application of mind when the grounds of detention proceeded on the footing that the application form stated that there were no stocks of cement with the Desai Construction Company at the time when the application was made for 8785 bags of cement on Dec. 12, 1979. The information which was supplied to the Additional Mamlatdar, Rajkot, when the application was made on Dec. 12, 1979 was in connection with the quantity of cement or the supply of cement obtained for the purposes of the proposed construction work. There was no mention whatsoever about the other stock of cement which the builders, namely, Desai Construction Company, might have in its own stock independently of the supply obtained specifically for the construction of Asopalav Apartments. Thus the information which was supplied, though accurate, has not been properly understood and there is total non-application of mind when the detaining authority proceeded on the footing that as regards 2000 bags of cement there was inconsistency between what was set out in the application, dated Dec. 12, 1979 and the statement of the detenu.
10. It has been alleged in the grounds of detention that the detenu had committed acts which were made punishable under the Essential Commodities Act, 1955 by reason of the fact that Clause 22 of the Gujarat Cement (Licensing and Control) Order, 1978 was violated. Clause 22 of the said order provides for restrictions on use or disposal of cement and it is in these terms :
The cement acquired by a person whether under a permit in Form 'E' issued by the Permit Officer or not shall not be used for a purpose other than that for which the cement has been acquired or shall not be disposed of in any other manner :Provided that where the cement so acquired is intended to be used for a purpose other than that for which it has been acquired to be disposed of in any manner, the person who has acquired the cement shall intimate the Collector or the Food and Civil Supplies Controller, Ahmedabad City or Permit Officer, as the case may be, in writing his proposed change of purpose and reasons therefor and shall not so use, or so dispose of, except after obtaining prior permission from the Collector or the Food and Civil Supplies Controller, Ahmedabad City or Permit Officer, as the case may be.
Therefore, if any bags of cement have been obtained by a particular individual on the basis of a permit issued in his favour, then that person has to use that cement for the specific purpose for which the permit was issued to him and he cannot change the use or the purpose for the use of that cement except with the permission of the appropriate authority mentioned in Clause 22, Therefore, it is the person who had obtained the cement on the permit who is guilty of violation of the provisions of Clause 22 if he diverts the cement for use or purpose other than that for which the permit was issued to him, but the person obtaining the cement from that person does not violate Clause 22 of this particular Order, namely, the Gujarat Cement (Licensing and Control) Order, 1978. This is the material distinction which has to be borne in mind in the allegation against the petitioner that he had obtained a large quantity of cement from black-market for the purpose of construction of Asopalav Apartments. Obtaining cement is not a violation of Clause 22 of this particular Cement (Licensing and Control) Order of 1978. It is possible that there may be some other clause somewhere else the violation of which might have been committed by obtaining cement from the blackmarket but by mentioning Clause 22, a non-application of mind is disclosed and to that extent there is a serious non-application of mind on the part of the detaining authority when, relying on Clause 22, it was alleged that the detenu had committed an act which was liable to be punished under the provisions of the Essential Commodities Act.
11. The non-application of mind does not rest here. There is a further serious defect in the order of detention and it is this. Under Clause (1) of Section 3 of the Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act, 1980, that being the Act under which this order of detention has been passed, the Central Government or the 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. The Explanation to Section 3(1) is material for the purpose of this judgment. That Explanation provides :
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.
Therefore the material governing words in this section are 'with a view to preventing an objectional activity carried on by a particular person', namely, '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.' Nothing has been shown in the grounds of detention or anywhere on the record before us as to how the persons constructing Asopalav Apartments could possibly make a gain so as to defeat directly or indirectly the provisions of the Essential Commodities Act. Under these circumstances, the calculations of 2000 bags of cement from the stock as contended for by the detenu and 939 bags obtained against the permit issued to Desai Construction Company on Dec. 29, 1979, would practically account for all the bags of cement which are mentioned in the certificate of Shri Kirit Parikh, Structural Engineer, which is on the record of the State Government. The certificate was shown to us by Mr. Nana-vati from the file of the department and thus it is clear, according to that certificate, that because of the modified designs and change in the mode of construction, a substantially large quantity of cement was saved as compared to the estimate as it was originally prepared by Pattcons Architects.. It is clear even according to the certificate of the Executive Engineer, Quality Control Circle, Rajkot, that there was a substantial saving of cement by the builders and yet the quality of construction was not sacrificed according to the Executive Engineer's report. Instead of being encouraged in the saving of cement the person who has saved the cement by modifying the designs has found himself in jail under detention and that too because of non-application of mind on the part of the detaining authority on material aspects which had a vital bearing on the question whether an offence punishable under the Essential Commodities Act had been committed by the detenu or not. The non-application of mind that we have pointed out was on material aspects. There are some other aspects also which may be considered to be minor, though the petitioner does complain of non-application of mind on those smaller aspects also. But what we have set out hereinabove are the aspects of the non-application of mind on such vital matters and glaring aspects of the case that we are not referring to those other discrepancies which are referred to in para 10 (VI, (a)(b) and (c, and (VIII) and paragraph 10A of the petition. On the ground of non-application of mind alone the order is vitiated and we therefore quash and set aside the same. We therefore allow this special criminal application. We have already passed an order yesterday directing that the detenu should be released forthwith as of yesterday because we felt that this order was not sustainable and deserved to be quashed and set aside and as we did not want the detenu to spend a single night in jail if it could be so helped. The special criminal application is therefore allowed. A direction is issued quashing and setting aside the impugned order of detention at Anne-xure A' but as the petitioner's husband Jamnadas Naranbhai Patel, the detenu, has already been released in pursuance of the order passed yesterday there is no question of directing his release by any further order. Rule made absolute accordingly. There will be no order as to costs.