B.J. Divan, C.J.
1. The petitioner herein is the detenu who has been detained in pursuance of an order passed on Dec. 4, 1980 by the Government of Gujarat. The order is passed Under Section 3 Sub-section (1) of the prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act, 1980 (hereinafter called the Act), and it has been stated in the order of detention that, with a view to preventing him from acting in any manner prejudicial to the maintenance of supplies of commodity essential to the community, it was necessary in the opinion of the State Government to detain him, and that was the reason why the order of detention was passed. The grounds of detention dated Dec. 6, 1980 were served upon the petitioner in proper manner. In the grounds of detention it has been stated in para. 3 that the petitioner is carrying on business at Rangola in Umrala Taluka of Bhavnagar District and at pipardi village in Shihor Taluka of Bhavnagar District in the name and style of Nareshkumar Manojkumar & Company and he is dealing in light diesel oil (crude oil) in the name of this firm. On Nov. 18, 1980 in the early hours of the day at about 2-00 A. M. in the presence of the petitioner a search was carried on at Rangola at the petitioner's place of business and there a trailer bearing No. 4564 was found parked with eleven barrels of crude oil in the trailer. Each barrel contained 220 litres of crude oil. There was no entry in the petitioner's stock register regarding the crude oil contained in these eleven barrels. The explanation of the petitioner was that on Nov. 15, 1980, that day being a Saturday, ten thousand litres of crude oil were to be delivered at Rangola depot of the petitioner and that was the programme for delivery. But in fact the stock of crude oil was meant for the depot at Pipardi belonging to the petitioner, in the statement given by the petitioner on Nov. 19, 1980 the petitioner claimed that on Nov. 17, 1980 the petitioner had despatched 34 barrels of crude oil, that is, 7480 litres of crude oil, to Pipardi depot, and in another statement of the same day the petitioner had stated that two tractor trailers, each containing 14 barrels of crude oil, and another 'tempo' containing six barrels of crude oil, in all thirty-four barrels were despatched from Rangola to Pipardi.
2. In para 4 of the grounds of detention it has been stated that on Nov. 18, 1980, in the presence of Panchas and in the presence of one Indubhai Haribhai Pandya who was looking after the business of the petitioner at Pipardi and who was also related to the petitioner, the stock of crude oil available at the pipardi depot of the petitioner was verified. The stock of crude oil found at Pipardi depot was 19 barrels, that is, 4180 litres of crude oil. In the stock register entries were found under the date Nov. 17, 1980 showing sale of 1800 litres of crude oil in the course of the day. Looking to the supply of crude oil sent to Pipardi depot and considering the entries in the stock register regarding the sales and also considering the counterfoils of the bills for the sales which had been prepared and also considering the stock available at the time of verification, it was found that there was a shortage of 1500 litres of crude oil and neither the petitioner nor Indubhai Haribhai Pandya was able to give any explanation regarding this shortage of 1500 litres of crude oil. Thus, according to the grounds of detention, 1500 litres of crude oil had been disposed of without preparing bills in that behalf and this was done illegally. The statements of the residents of Pipardi village were recorded and those statements showed that the claim of the petitioner that six barrels of crude oil had been despatched to Pipardi depot was not correct because no such supply of six barrels had reached Pipardi depot and according to those residents, six barrels of crude oil had been disposed of illegally.
3. On Nov. 18, 1980, 4180 litres of crude oil found as stock at pipardi depot was short by 8200 litres as compared to the entries in the stock register.
4. In para 6 of the grounds of detention it has been alleged that bogus bills had been prepared in the names of different residents of Sarvedi village and residents of padapan village. The statements of the different residents whose names are mentioned in para 6 showed that only two tractor trailers brought crude oil to the pipardi depot of the petitioner on Nov. 17, 1980 and no sale had taken place either on 17th Nov. or on the following day until the statements of those residents of Pipardi village were recorded. Thus, according to para 6 of the grounds of detention, on Nov. 17, 1980, 1800 litres of crude oil were alleged to have been sold by Pipardi depot of the petitioner by bogus bills in the names of individuals who did not exist and the stock of crude oil was disposed of illegally by the petitioner and bogus bills were prepared to cover up these illegal transactions.
5. In para 7 of the grounds of detention it has been alleged against the petitioner that the residents of Pipardi village whose names are mentioned in that para had stated before the authorities that during the Navratri festival the petitioner had charged more than the pie-scribed price for the crude oil supplied from the Pipardi depot. Instead of charging Rs. 424-47 Paise for 200 litres he had sold the quantities of 200 litres at the rate of Rs. 550/- and one hundred litres at the rate of Rs. 265/- and thus overcharged in this connection and thus it was alleged that the petitioner was habituated to carrying on blackmarketing in crude oil, that he was habituated to sell crude oil without preparing correct bills in that behalf and that he was habituated to make bogus bills and make false entries in the stock register in order to cover up illegal sales and thus he was habituated to violate the provisions of the Gujarat Petroleum Products (Licensing, Control and Stock Declaration) Order, 1979 and hence for all these offences he was liable to be punished under the provisions of the Essential Commodities Act, 1955.
6. In para (18-B) of the petition in the present case it has been contended that both the licences for sale of crude oil of Rangola and pipardi depots have been surrendered by the petitioner after the orders of detention of the petitioner and of Indubhai of Pipardi depot were served. It is contended that there is therefore no scope for carrying on sale of crude oil or carrying on blackmarketing so far as the petitioner is concerned. It is contended that the petitioner would not be able to deal with crude oil in any manner in future. The continuance of the petitioner's detention is thus without any application of mind. The detention of a person is preventive and not punitive and it is contended that preventive detention is a check on his future activity. The detention of a person is therefore necessary only if the said person is able to indulge in his alleged illegal activities in future and the same would not be possible in the petitioner's case.
7. In para (18-C) of the petition it has been contended that the petitioner and the said Indubhai Haribhai Pandya have also been prosecuted for the incidents alleged in the grounds Annexure 'C'. There would be sufficient check on the petitioner's alleged activities by the said prosecution and the further detention of the petitioner was therefore unwarranted under the circumstances of the case. The amendment by which paras (18-B) and (18-C) were iaserted was granted on Jan. 12, 1981 but no affidavit-in-reply to these averments in paras (18-B) and (18-C) has been filed on behalf of the detaining authority, namely, the State Government,
8. The position in cases where criminal prosecution can also be launched against the proposed detenu has been examined by the Supreme Court in Kan-chanlal Maneklal v. State of Gujarat : 1979CriLJ1306 . In para 9 of the iudgment, Chinnappa Reddy J. speaking for the Supreme Court, after examining the earlier decisions of the Supreme Court, culled out the principle as follows:
The principle emerging from a review of the above cases may be summarised in the following way:The ordinary criminal process is not to be circumvented or short-circuited by ready resort to preventive detention. But, the possibility of launching a criminal prosecution is not an absolute bar to an order of preventive detention. Nor is it correct to say that if such possibility is not present in the mind of the detaining authority the order of detention is necessarily bad. However, the failure of the detaining authority to consider the possibility of launching a criminal prosecution may, in the circumstances of a case, lead to the conclusion that the detaining authority had not applied its mind to the vital question whether it was necessary to make an order of preventive detention. Where an express allegation is made that 'the order of detention was issued in a mechanical fashion without keeping present to its mind the question whether it was necessary to make such an order when an ordinary criminal prosecution could well serve the purpose, the detaining authority must satisfy the Court that that question too was borne in mind before the order of detention was made. If the detaining authority fails to satisfy the Court that the detaining authority so bore the question in mind the Court would be justified in drawing the inference that there was no application of mind by the detaining authority to the vital question whether it was necessary to preventively detain the detenu.
In the instant case we find that it has been alleged specifically in para l8-B of the petition that the petitioner had surrendered his licence for dealing in crude oil, both so far as Rangola depot and so far as pipardi depot were concerned. Thus there was no scope for any future activity in the nature of blackmarketing in crude oil so far as the petitioner was concerned. It was only because he was a dealer licensed to deal in crude oil that he got an opportunity of carrying on blackmarketing in crude oil. The allegations which we have set out in extenso herein above go to show that for the different actions of his he was liable to be prosecuted and if found guilty, punished under the provisions of the Essential Commodities Act for committing breaches of the provisions of the Gujarat petroleum Products (Licensing, Control And Stock Declaration) Order, 1979 which was issued in pursuance of the powers conferred upon the State Government by the Essential Commodities Act, 1955.
9. It has been pointed out, by the Supreme Court in Smt. Icchu Devi Choraria v. Union of India : 1SCR640 that in case of an application for a writ of habeas corpus, the practice evolved by the Supreme Court is not to follow strict rules of pleading nor place undue emphasis on the question as to on whom the burden of proof lies. Even a postcard written by a detenu from jail has been sufficient to activate the Court into examining the legality of detention. The Supreme Court has consistently shown great anxiety for personal liberty and refused to throw out a petition merely on the ground that it does not disclose a prima facie case invalidating the order of detention. Whenever a petition for a writ of habeas corpus has come up before the Supreme Court it has almost invariably issued a rule calling upon the detaining authority to justify the detention. Once the rule is issued it is the bounden duty of the Court to satisfy itself that, all the safeguards provided by law have been scrupulously observed and the citizen is not deprived of his personal liberty otherwise than in accordance with law. Where large masses of people are poor, illiterate and ignorant and access to the courts is not easy on account of lack of financial resources, it would be most unreasonable to insist that the petitioner should set out clearly and specifically the grounds on which he challenges the order of detention and make out a prima facie case in support of those grounds before a rule is issued or to hold that the detaining authority should not be liable to do anything more than just meet the specific grounds of challenge put forward by the petitioner in the petition. The burden of showing that the detention is in accordance with the procedure established by law has always been placed by the Court on the detaining authority because Article 21 of the Constitution provides in clear and explicit terms that no one shall be deprived of his life or personal liberty except in accordance with procedure established by law.
10. In the instant case, no attempt has been made by the State Government to satisfy the Court that the question whether prosecuting the petitioner rather than detaining him under preventive detention would not meet the requirements of the case. Once the petitioner has surrendered his licence as a dealer in crude oil, for the two depots at Rangola and Pipardi, it is clear that so far as future activity is concerned or prognosis is concerned, the petitioner would not be in a position to deal in crude oil or to indulge in blackmarkcting in crude oil because there would be no possibility for him to get supplies of crude oil from bulk suppliers of crude oil in bulk. They can supply crude oil only to licensed dealers and once the licence is surrendered, they would not be in a position to supply crude oil to the petitioner. If that is so. it is obvious that the detaining authority must satisfy the Court why, instead of prosecuting the petitioner and his employee Indubhai. Haribhai Pandya, the State Government thought it fit to detain the petitioner by preventive detention under the provisions of the Act before us. The niceties of requirements of drafting or to meet the particular allegations made in the petition cannot be taken mechanically. In the instant case, by and large, the case of the petitioner is that he is not in a position to indulge in blackmarketing in future any longer He has denied the allegations made against him in the grounds of detention, but even if those averments are ultimately established, they would go to show that certain acts which are punishable under the provision of the Essential Commodities Act have been committed by him. The question whether with a view to preventing him from indulging in similar activities in future it is necessary to detain him does not appear to have been examined by the State Government, the detaining authority. It is the bounden duty of the State Government in each and every case, whenever the question of detention under the provisions of this Act or any other preventive detention arises, to consider whether a less drastic remedy than that of preventive detention would not meet the requirements of the particular case under consideration. The file of the case of each detenu must show that the other alternative or less drastic remedies were considered and rejected and ultimately the decision for preventive detention was taken, if these alternatives do not appear on the files and the application of mind to these alternatives, does not appear on the files, it would be a clear case of non-application of mind because preventive detention has to be resorted to only when it is necessary to detain the particular individual concerned so as to prevent him from indulging in obnoxious activities which are sought to be prevented by resorting to preventive detention under the relevant Act providing for such detention. If those alternatives do not appear to have been considered and taken and the reason why the more drastic remedy, namely, preventive detention is resorted rather than a less drastic penalty, is not shown on the file it is obvious that the order of detention cannot be justified and it is the duty of the Court to set aside the order of detention in view of what has been stated by the Supreme Court in Kanchanlal's case (supra),
11. In the instant case the state Government has not even attempted to satisfy the Court about the application of its mind to this aspect of the case. Under these circumstances, continuance of the detention of the petitioner pursuant to the order dt. Dec. 4, 80 is clearly illegal and unjustified. We therefore quash and set aside the order of detention issued against the petitioner and direct that he be set at liberty forthwith so far as the present case is concerned. Rule made absolute accordingly. There will be no order as to costs.