JUDGMENT S.R. Singh and R.K. Dash, JJ.
1. Heard Sri D.S. Mishra, learned counsel for the petitioner and Sri A.K. Tripathi, learned A.G.A. representing the State.
2. We have also perused the impugned detention order dated 17.12.2001 passed by the District Magistrate, Jyotiba Phulenagar in exercise of power under Section 3(2) of Prevention of Black-marketing and Maintenance of Supplies of Essential Commodities Act. 1980. Pursuant to the order Impugned herein, the petitioner has been detained in District Jail, Moradabad. The grounds of detention, copy of which has been annexed as Annexure-2, would indicate that the detention order has been passed on two grounds. The first ground relates to an incident dated 17.3.1999 on the basis of which a Case Crime No. 49 of 1999 under Section 3/7 of the Essential Commodities Act was registered at Police Station Rajabpur d trict Jyotiba Phulenagar. The second incident on which the detention order is grounded is of 30th May. 2001. on the basis of which a Case Crime No. 375 of 2001 under Sections 417, 420, 285, 286, 379, 411, I.P.C. and 23 of Petroleum Act at P. S. Hasanpur as well as another Case Crime No. 342 of 2001 under Sections 379, 411, 285, 286, 420, I.P.C. and 23 of Petroleum Act were registered at P.S. Rajabpur district Jyotiba Phulenagar.
3. The submission made by Sri D.S. Mishra, learned counsel appearing for the petitioner is that the ground No. 1 being too remote and not proximate to the order of detention, the order impugned herein cannot be sustained even on the basis of the second ground, inasmuch as, it is not possible to find as to what extent the mind of the detaining authority was influenced on the basis of the irrelevant ground. Sri Tripathi, learned A.G.A., however, submits that the first ground was not a ground but was stated In the grounds of detention by way of giving criminal antecedents of the petitioner.
4. Having heard learned counsel for both the parties, we are of the considered view that the impugned order of detention is vitiated. In Mohinder Singh Gill v. Chief Election Commissioner, AIR 1978 SC 751, it has been held by the Supreme Court in no uncertain terms that an order must be tested on the touchstone of the reasons given therein and cannot be justified on the basis of averments made in the counter-affidavit. The grounds of detention cannot be supplemented by affidavit or other materials. The detaining authority has stated in specific term, in the ground of detention, that the incident of Case Crime No. 49 of 1999 dated 17.3.1999 is a ground of detention. Now It is not open for the detaining authority to say that the ground No. 1 is not a ground of detention but It is a background. The submission made by Sri D.S. Mishra is squarely covered by the decision of the Supreme Court in Kamlakar Prasad Chaturvedi v. State of M. P. and Anr. 1983 SCC (Cri) 848, for it is not disputed before us that unlike the provisions contained in Section 5A of the National Security Act similar provision in the C.O.F.E.P.O.S.A. Act, there is no provision in the Act in question to save an order passed partly on relevant and partly on irrelevant ground. It cannot be postulated as to what view would have been taken by the detaining authority about the need to detain the petitioner under Section 3(2) of the Act, if he had not taken into account the state and not proximate grounds into consideration in arriving at the subjective satisfaction. Therefore, the order of detention is unsustainable in law and accordingly the detention order deserves to be quashed. Since the petitioner has suffered illegal detention for a period of three months, he is entitled for the costs quantified at Rs. 5,000. The argument of the learned A.G.A, that the petitioner is not entitled to any costs in view of the provisions contained in Section 16 of the Act which affords protection of action taken in good faith cannot be countenanced. Section 16 of the Act in fact provides that no suit or other legal proceeding shall lie against the Central Government or a State Government, and no suit, prosecution or other legal proceeding shall lie against any person, for any thing in good faith done or intended to be done in pursuance of this Act. This section, in our opinion, does not prohibit imposition of costs In case the Court finds that the order of detention is patently Illegal and the detenue has suffered illegal detention, as a result of illegal order passed by the detaining authority.
5. In that view of the matter, the petition is allowed and the impugned order of detention dated 17.12.2001, is hereby quashed. The respondents are directed to set at liberty the petitioner forthwith unless he is wanted in any other case. Let a copy of this order be given to the learned counsel for the parties on payment of usual charges within twenty four hours.