The power of preventive detention is exercised to prevent and not to punish, and strict compliance with the statutory procedure under NSA is essential.

JUDGMENT :

Learned counsel for the rival parties are heard.

1. Present petition filed u/Art. 226/227 of the Constitution of India assails the order of preventive detention passed by the District Magistrate, Gwalior (M.P.) on 28.01.2021 vide P-1 detaining the petitioner for a period of three months by invoking the provisions of Sec. 3(3) of the National Security Act ("NSA" for brevity).

2. Learned counsel for the petitioner Shri Bahirani has raised the following grounds in support of the aforesaid challenge to the impugned order:

(i) The impugned order vitiated by the vice of non-application of mind since petitioner was already in custody on the date of passing of the impugned order of preventive detention, which fact was not taken into account as there is no such recital in the impugned order disclosing that the District Magistrate, Gwalior knew about petitioner being in custody. For this purpose Md. Vakil Vs. State of M.P., [2014 (2) MPLJ 613] and Vijay Kumar Vs. State of Jammu & Kashmir & Others, (1982) 2 SCC 43, Merugu Satyanarayana Vs. State of Andhra Pradesh and Others, (1982) 3 SCC 301 are pressed into service.

(ii) Impugned order is issued in violation of Sec. 3(4) of NSA.

3. Bare facts attending the instant case reveal that petitioner being owner of M/s. Agrawal Maharashtra Transport Company and another transporter, namely, Rahul Agrawal who is co-accused were entrusted with the work of transporting the essential commodities to fair price shops situated in Gwalior and Morar sectors for which express agreements were executed between the petitioner and the State. Complaints were received about the essential commodities not having reached the fair price shops. Enquiry was conducted by the Joint Director, Food, Civil Supplies and Consumer Protection, Assistant Food Supplies Officer and Regional Manager which led to submission of a report before the Directorate which in turn by letter dated 02.11.2020 directed for lodging of FIR inter alia against the petitioner alleging offences punishable u/S. 3 r/w 7 of Essential Commodities Act and u/Ss. 407, 409 and 34 of IPC in respect of large amount of essential food grains i.e. Wheat, Rice, Sugar, Salt, Jwar, Chana, Tuar Dal valued at more than Rs. One Crore which the petitioner was alleged to have misappropriated during the period from March, 2020 to September, 2020. The FIR dated 18.12.2020 bearing Crime No. 562/2020 was registered at Police Station Jhansi Road, Gwalior (M.P.) vide P-4 against the petitioner and the co-accused Rahul Agrawal. Petitioner was taken into custody on 26.12.2020. The bail application u/S. 439 Cr.P.C. of the petitioner was dismissed by the Sessions Court on 11.01.2021. Thereafter, the impugned order of preventive detention was passed on 28.01.2021 when the petitioner was already in custody. The District Magistrate, Gwalior on 29.01.2021 supplied the grounds for detention and supportive material to the petitioner. On 01.02.2021, the District Magistrate forwarded the impugned order along with grounds of detention and supportive material to the State for approval. The State vide order dated 04.02.2021 (Annexure R/2) affirmed the impugned order on 04.02.2021. On 04.02.2021 itself the State forwarded the impugned order along with grounds and the supportive relevant material to the Central Government.

4. Petitioner has challenged the impugned order of preventive detention on the ground that the reasons for passing the impugned order do not pass the test of breach of public order but this Court refrains from going into the said grounds of merits since the petition deserves to be allowed for the reasons infra.

4.1. The concept of preventive detention is not punitive. Its purpose is to prevent the breach of public order or its likelihood in future. Thus, by its very nature, power of preventive detention is exercised to prevent and not to punish. In the present case, indisputably, petitioner was in custody in connection with Crime No. 562/2020 registered on 18.12.2020 an