Dulal Chandra Majumdar Vs. The State of
West Bengal [1974] INSC 227 (5 November 1974)
BHAGWATI, P.N.
BHAGWATI, P.N.
CHANDRACHUD, Y.V.
CITATION: 1974 AIR 2361 1975 SCR (2) 589 1975
SCC (3) 404
ACT:
Maintenance of Internal Security Act. 1971-S.
3(2)(1)-No nexus between the grounds of detention communicated and the
subjective satisfaction effect of.
HEADNOTE:
The order of detention passed under s. 3(2)
(1) of the Maintenance of Internal Security Act, 1971 against the petitioner
stated that with a view to preventing him from acting in a manner prejudicial
to the maintenance of public order, it was necessary to detain him. The grounds
of detention set out one incident of dacoity in a third class compartment of a
running train where cash money was stolen by him. in his affidavit the District
Magistrate stated that he was also satisfied that the petitioner was likely to
act in a manner prejudicial to the maintenance of supplies and services essential
to the community. In a petition under art. 32 of the Constitution it was
contended that there was no nexus between the grounds of detention communicated
to him and the subjective satisfaction of the detaining authority.
Allowing the petition.
HELD : The order of detention must be held to
be invalid since the incident of dacoity in a third class compartment of a
running train for committing theft of money which constituted the solitary
ground of detention was wholly irrelevant and the subjective satisfaction of
the District Magistrate that the petitioner would be likely to act in a manner
prejudicial to maintenance of supplies and services essential to the community
could not be founded upon it and was therefore colourable and no satisfaction
at all. [592BC] (2) The contention that the averment in the affidavit in reply
had crept in through a mistake cannot be accepted as correct. The affidavit in
reply had been made by the District Magistrate himself and it must be presumed
that he made the statements with the sense of responsibility which his high
office necessarily carried. If the District Magistrate was also not
subjectively satisfied in regard to the likelihood of the petitioner to act in
a manner prejudicial to the maintenance of supplies and services essential to
the community, he would not have made such an averment in the affidavit in
reply. [591E-F]
ORIGINAL APPELLATE JURISDICTION: Writ
Petition No. 2371 of 1974.
(Petition under Article 32 of the
Constitution.) R. K. Jain, for the petitioner.
G. S. Chatterjee, for the respondent.
The Judgment of the Court was delivered by
BHAGWATI, J. This petition is directed against an order of detention dated 30th
March, 1973 made by the District Magistrate, Nadia under section 3(2)(1) of the
Maintenance of Internal Security Act, 1971. The order of detention recited the
satisfaction of the District Magistrate that with a view to preventing the
petitioner from acting in any manner prejudicial to the maintenance of public
order it was necessary to detain him and directed that the petitioner be
accordingly detained. Pursuant to the order of detention, the petitioner was
arrested on 3rd April, 1973 and at the time of his arrest the grounds of
detention dated 30th 590 March, 1973 were served upon him together with their
translation in Bengalee language. The grounds of detention started with a
recital that the petitioner was being detained on the ground that he had been
acting in a manner prejudicial to the maintenance of public order and set out
one incident of dacoity committed by him on the basis of which the District
Magistrate had reached his subjective satisfaction in regard to the necessity
of detaining the petitioner. The usual ritual prescribed by the Act was
thereafter followed and the order of detention was approved, by the State
Government, the representation of the petitioner was considered and rejected,
the case of the petitioner was placed before the Advisory Board and on receipt
of the opinion of the Advisory Board, the order of detention was confirmed by
the State Government. The present petition was filed by the petitioner from
jail challenging the validity of this detention.
There were several grounds urged before us on
behalf of the petitioner in support of the petition, but it is not necessary to
refer to all of them since there is one ground which is, in our opinion,
sufficient to invalidate the order of detention. That ground rests on an
averment made by the District Magistrate in paragraph 4 of the affidavit filed
by him in reply to the petition. The District Magistrate stated as follows in
paragraph 4 of his affidavit-in-reply:
"I say that I passed the said order of
detention after being bonafide satisfied from the materials on record as stated
in the grounds of detention and so surrounding circumstances that with a view
to preventing the detenu from acting in any manner prejudicial to the
maintenance of Public Order it was necessary to detain him under the provisions
of the Maintenance of Internal Security Act, 1971-I further state that having
regard to the nature of the act and the manner in which it was committed by the
detenu (as disclosed in the rounds furnished to the detenu) and effect thereof
on the public order I was bonafide satisfied that the said act was sufficient
for making the said detention order. I was also further satisfied that if the
detenu petitioner is not detained under the said Act he is likely to act in a
manner prejudicial to the maintenance of supplies and services essential to the
community." It will be seen from this statement made by the District
Magistrate that from the material on record he was not only satisfied that-was
necessary to detain the petitioner with a view to preventing him from acting in
any manner prejudicial to the maintenance of public order, but was also
satisfied that if the petitioner was not detained, he would be likely to act in
a manner prejudicial to the maintenance of supplies and services essential to
the community. The argument of the petitioner was that there was no nexus at
all between the grounds of detention communicated to the petitioner and the
subjective satisfaction of the District Magistrate that it was necessary to
detain the petitioner with a view to preventing him from acting in any manner
prejudicial to the maintenance of supplies and services essential to the
community and the order of detention based inter alia on such subjective satisfaction
was invalid.
Now, there can be no doubt that if the order
of detention was based on 591 the subjective satisfaction that the petitioner
would be likely. to act in a manner prejudicial to the maintenance of supplies
and services essential to the community, it would be bad because the incident
of dacoity in a third class compartment of a running train set out in the
grounds of detention would be wholly irrelevant to support such subjective
satisfaction. It would be impossible for any rational human being to say that
an incident of dacoity in a third class compartment of a running train where
cash money was stolen is such an act that from it an inference can be raised
that the person committing the dacoity would be likely to act in a manner
prejudicial to the maintenance of supplies and services ,essential to the
community. The respondent realising the seriousness of this difficulty in its
way, contended that the averment in paragraph 4 of the affidavit-in-reply that
the District Magistrate was satisfied that if the petitioner was not detained,
he would be likely to act in a manner prejudicial to the maintenance of
supplies and services essential to the community had crept in through mistake
and it should-not be taken into account by the Court in adjudging the validity
of the order of detention. The argument of the respondent was that the only
subjective satisfaction on which the order of detention was founded was that it
was, necessary to detain the petitioner with a view to preventing him from
acting in any manner prejudicial to the maintenance of public order as recited'
in the order of detention and the grounds of detention and it was not correct
to state that the District Magistrate was also subjectively satisfied that the
petitioner would be likely to act in a manner prejudicial to the maintenance of
supplies and services essential to the community and had on that account made
the order of detention. We do not think we can accept this contention of the
respondent. It must be remembered that the affidavit-in-reply has been made by
the District Magistrate himself and we must presume that the District
Magistrate must have made the statements contained in the affidavit-inreply
with the sense of responsibility which his high office necessarily carries. If
the District Magistrate was also not subjectively satisfied in regard to the
likelihood of the petitioner to act in a manner prejudicial to the maintenance
of supplies and services essential to the community, he would not have made
such an averment in paragraph of his affidavit-in-reply. Ordinarily when an
averment is made by a high officer like the District Magistrate in an affidavit
which is made on oath, the Court is inclined to accept the averment as correct
and the burden lies heavy on the party who alleges to the contrary. We cannot,
therefore, lightly accept the submission of the respondent that the District
Magistrate has made an incorrect statement in paragraph 4 of his affidavit in reply.
The position might have been different if the District Magistrate himself had
made a subsequent affidavit stating on oath that he had made a mistake in the
earlier affidavit-in-reply and explained the circumstances under which he came
to make such mistake. The Court would then have examined the explanation given
by the District Magistrate and if satisfied, as regards the genuineness of the
mistake, the Court would have accepted the subsequent statement of the District
Magistrate and ignored the earlier averment made in the affidavit-reply. But
here there is no affidavit made by the District Magistrate confessing his
mistake in making the earlier averment in paragraph 4 of the
affidavit-in-reply. We must, therefore, accept the averment made by the
District Magistrate in paragraph 4 of his affidavit-in-reply as correct and
proceed on the basis that the order of detention was based not only on his
subjective satisfaction that the petitioner would be likely to act in a manner
prejudicial to the maintenance of public order but also on his further subjective
satisfaction that it was necessary to detain the petitioner with a view to
preventing him from acting in any manner prejudicial to the maintenance of
supplies and services essential to the community. And if that be so, the order
of detention must be held to be invalid since the incident of dacoity in a
third class compartment of a running train for committing theft of money which
constituted the solitary ground of detention was wholly irrelevant and the
subjective satisfaction of the District Magistrate that the petitioner would be
likely to act in a manner prejudicial to the maintenance of supplies and
services essential to the community could not be founded upon it and was
hence-colourable and no satisfaction at all.
We, therefore, allow the petition and make
the rule absolute and direct that the petitioner be set at liberty forthwith.
P.B.R.
Petition allowed.
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