Krishna Murari Aggarwala Vs. The Union
of India & Ors [1975] INSC 132 (15 July 1975)
FAZALALI, SYED MURTAZA FAZALALI, SYED MURTAZA
UNTWALIA, N.L.
CITATION: 1975 AIR 1877 1976 SCR (1) 16 1975
SCC (4) 481
ACT:
Maintenance of Internal Security Act, 1971,
Section 3(1)(a)(iii)-Two grounds of detention-One irrelevant-Effect
of-Detenting Authority more than one-Propriety.
HEADNOTE:
The petitioner was carrying on business in
diesel oil, an essential commodity, in two places. He was detained under s.
3(1)(a)(iii) of the Maintenance of Internal Security Act, 1971, on the basis of
allegations in two grounds that as had committed sets prejudicial to the
maintenance of supplies and services essential to the community. The allegation
in the first ground was that he had stocked a large quantity of light diesel
oil in one of the places without waiting for the licence to be cleared by the
Chief Controller of Explosives in violation of the provisions of the Petroleum
Act. It was also stated in the ground that a complaint had been lodged in the
Magistrate's court for the offence. The allegation in the second ground was
that the petitioner violated the U.P. Sale of Motor Taxation Act and the rules
made there under, in that the names and addresses of customers who had
purchased light diesel from the petitioner, had not been given in the cash
memos.
Allowing The petition,
HELD: (1)(a) There is no allegation by the
detaining authority in the first ground that by storing the huge quantity of
light diesel oil the petitioner had in any way affected the distribution or
sale of that commodity; nor is there any allegation to show that the petitioner
had refused to sell the oil to anybody who required it. Also there is no
suggestion, far less any allegation, that the petitioner had tried to divert
his' stocks from one place to the other and thereby deprived the people of one
place of their share of the oil. Therefore, there is absolutely no correlation
between the act of the petitioner and the disruption of distribution of
essential supplies to the community. [20D-E, F-G] (b) From the violation of the
mandatory provisions of the Petroleum Act and the Rules made there under, no
presumption can be drawn that there was disruption of supply of the essential
commodity. [20G-H] (c) The commission of an offence at a private place or a
violation of a provision or a law by itself does not attract the Maintenance of
Internal Security Act unless, by the Act committed, the supply or an essential
commodity to the community is disrupted or the even flow of the life of the
community is disrupted. [21B] Manu Bhushan Roy Prodhan v. State of Bengal and
others, A. I. R. 1973 S. C. 295, referred to.
(2) The second Ground does disclose a clear
overt act from which an inference can be drawn that the petitioner had made a
number of fictitious sales. But, in view of the finding that the first ground
is irrelevant it is not possible to determine to what extent the subjective
satisfaction of the detaining authority was influenced or affected by the first
ground. When out of 2 grounds one is ague or irrelevant, then the entire order
of detention falls to the ground. [22C, F-G] (3) The Court cannot go behind the
subjective satisfaction the detaining authority but such satisfaction does not
confer a blanket power which may authorise the detaining authority to act in a
ruthless or arbitrary fashion. Judicial decisions have carved out an area
though limited, within which, the subjective satisfaction of the detaining
authority, which is a sine qua non for the exercise of the power, can be tested
on the touchstone of objectivity. [24F-G] 17 (a) The words "make an order
directing that such person be detained" in Section 3 (1) of the Act
postulates three conditions: (i) that the order must be made by the authority
in the section; (ii) The order must be duly signed by the said authority; and
(iii) that only one authority and one authority alone can pass the order of
detention. Therefore, unless the order made and the grounds prepared are signed
by the authority concerned, the order is not made as contemplated by the
section. [25F-G] (b) Further, since the order is based on grounds to be served
on the detenu, he order of detention could be passed only if the grounds are in
existence and are prepared contemporaneously, otherwise the order of detention
becomes illusory. [25H-26A] In the present case, the District Magistrate who
filed the counter-affidavit was acting in place of the permanent District
Magistrate. In the High (court which was moved in the first instance for a writ
of habeas corpus, the District Magistrate stated that the order of detention
was passed by him after being satisfied of the grounds of detention, that he
also framed the draft of the grounds and that the permanent District Magistrate,
who took over from him merely signed and served those grounds on the detenu.
But, in this Court he stated that the order of detention was passed by the two
detaining authorities, namely, both the District Magistrates, after they had
fully satisfied themselves about the existence of the grounds. It is,
therefore. not possible to determine as to who in fact made the order of
detention.
and in view of the contradictory stand taken
in the counter- affidavits filed by the detaining authorities, the exercise of
the jurisdiction to detain the petitioner has not been made with due care and
caution or in a proper and fair manner. [23B-24F] Khudiram Das v. The state of
West Bengal and Other, A.
1. R. 1975 S. C. 550, referred to.
The Court also expressed strong disapproval
of the careless and irresponsible manner in which the counter- affidavit had
been filed by the District Magistrate because the date on which reference was
made to the advisory Board was in correctly stated in the counter-affidavit
which created unnecessary confusion and controversy over a simple issue]
[18F-G]
ORIGINAL JURISDICTION: Writ Petition No. 84
of 1975.
Petition under Art. 32 of the Constitution of
India.
A. k. Sell, D. N. Mukherjee, Narayan Gupta
and C. S.
Chatterjee, for the petitioner.
Girish Chandra, for respondent no. 1.
D.P. Uniyal and O. P. Rana, for respondent
nos. 2-5.
The Judgment of the Court was delivered by
FAZAL ALI, J.- By an order dated November 8, 1974 passed by the District
Magistrate, Badaun, the petitioner was detained under s. 3(1)(a)(iii) of the Maintenance
of Internal Security Act, 1971- hereinafter referred to as 'the Act'-because
the allegations made in the grounds of detention disclosed that he had
committed acts prejudicial to the maintenance of supplies and services
essential to the community. The grounds of the order of detention were served
on the petitioner by the District Magistrate, Badaun, on November 13, 1974. The
State Government approved the order of detention on 18 November 19, 1974 and
made a report to the Government of India on November 22, 1974. According to the
respondents, the Government of U.P. had made a reference to the Advisory Board
constituted under the Act on November 22, 1974 but as it had not received The
representation from the petitioner, the same was forwarded later. The
representation, according to the respondents, was received on November 28, 1974
which was rejected on December 6, 1974. The representation was sent to the
Advisory Board on December 18" 1974 which gave 13 its report holding that
the grounds were sufficient for detention of the petitioner and after receipt
of the opinion of the Advisory Board on January 7, 1975 the order of detention
was finally confirmed by the Government on January 17, 1975.
We might mention at the very outset that
there was some controversy on two points before us. In the first place the
petitioner did not accept the stand of the Government that the reference to the
Advisory Board was made on November 22, 1974 but relied on a counter-affidavit
filed by Mr. S. K. D.
Mathur, the then District Magistrate of
Badaun, in this Court to support his plea that the reference to the Advisory
Board was made on December 20, 1974 vide paragraph 2(vi) of the
counter-affidavit appearing at p. 118 the Paper Book.
It was therefore contended by the learned
counsel for the petitioner that as the reference was made to the Advisory Board
beyond the period mentioned in s. 10 of the Act, there being a violation of the
mandatory provision of the statute, the order of detention fell on this ground
alone. We gave an opportunity to the Government to produce before us materials
to show the exact position and from the original file produced before us we
find that the counter-affidavit filed by Mr. S. K. D. Mathur in this court to
the effect that the reference was made to the Advisory Board on December 20,
1974 was factually incorrect and that the reference was really made on November
22, 1974 by the Government by virtue of letter No. 107/2/48/74. The file also
contains a letter of the Registrar dated January 7, 1975 forwarding the opinion
of the Advisory Board wherein also it was mentioned that the reference was made
on November 22, 1974. In view of these cogent materials Mr. Sen learned counsel
for the petitioner did not choose to press this point. We cannot, however..
Leave this matter without expressing our strong disapprobation on the careless
and irresponsible manner in which the counter-affidavit has been filed by the
respondents, particularly by Mr. S. K. D. Mathur who happened to be the then
District Magistrate, Badaun. We hope the Government will be careful in future
and see that such incorrect affidavit are not filed before this Court, which
may create unnecessary confusion and controversy and make a simple issue so
very much involved.
The petitioner was admittedly a partner of
the firm called Bharat Oil Company which was dealing in the storage and sale of
high speed diesel oil since 1965. According to the petitioner the business was
started at Badaun and Ujhani but later a branch was opened at Bareilly and the
firm transferred its headquarters to Bareilly in 1971. We are not, however,
concerned with the business at 19 Bareilly in this case. Under the Petroleum
Act, 1934, the petitioner could have carried on his business only after
obtaining a licence from the prescribed authority. The District Authorities
could grant licence only to the extent of 22,000 liters but if the dealer
wanted to store high diesel oil to the extent of more than 22,000 litres he had
to get a licence from the Chief Controller of Explosives, Nagpur. The
petitioner's further case is that as high speed diesel oil ran in short supply,
the Indian oil Corporation and the District authorities impressed on the
dealers the necessity of keeping light diesel oil which was available in
sufficient quantities and was necessary for running, crushers and pumps in the
rural areas. The petitioner had undoubtedly secured a licence for storage of li
ht diesel oil which was valid upto March 31, 1975 and had applied for renewal
of the licence thereafter and had also complied with all the necessary
formalities about no objection and the safety certificate to be given by the
District Authorities.
But on the date in question the licence of
the petitioner had not been renewed so far. We might intention in this connection
that the stand taken by the respondents is that although the petitioner had a
licence to stole light diesel oil to the extent of 22,000 litres he did not
possess any licence for storing it at Ujhani. It appears that the godown of the
petitioner was searched by the excise authorities on October 17, 1974 and
November 5, 1974 and in inspection of the godown about 1.64 lakhs litres of
light diesel oil was found stored it Ujhani. The stock register was produced by
the petitioner before the authorities which appeared to be in order and there
is no allegation that there was any manipulation or interpolation in the stock
register Thus the simple allegation against the petitioner is that he had
stocked huge quantity of light diesel oil without waiting for the licence to be
cleared by the Chief Controller of Explosives at Nagpur This forms the
subject-matter of the allegations mentioned in grounds (1)(a) & (b) of the
grounds of detention served on the petitioner. The sheet-anchor of the argument
of Mr. Sen learned counsel for the petitioner was that in so far as ground No
(1) was concerned it was wholly irrelevant and totally unconnected with the
nexus of the Act, because even if the grounds be taken at their face value they
did not disrupt or disturb the essential supplies to the community. Before
dealing with this contention it may be necessary to quote in extenso the
grounds mentioned in (1)(a) & (b) of the detention order:
"(1) That you a partner in the firm
named Bharat oil Company, Mohalla Ayodhya Nagar, Ujhani District Badaun, on
Bareilly-Mathura Road, authorised only to deal in High Speed Diesel and Motor
Spirit were found hoarding Light Diesel oil, without having obtained a licence
for the same from the Chief controller of Explosives, Nagpur as is evident from
the following:- (a) On 17-10-74 at about 4 P.M. the premises of your aforesaid
firm was inspected by Sri S. N. Pandey, District Excise officer, Badaun and it
was found that in the underground tanks within the premises mentioned aforesaid
96,000 litres of Light 20 Diesel oil was stored, for which no licence could be
produced on demand by the District Excise officer aforesaid and thereafter a
complaint has also been lodged in the court of the Chief Judicial Magistrate,
Badaun by the District Excise officer on 8-11-74 (b) On 5-11-74 the premises of
your aforesaid firm Bharat oil Company, Ujhani, was again inspected at about
4.15 P.M. by Sri N. N. Verma S.D.M. Badaun accompanied by District Excise
officer Badaun and Sri Fateh Singh, Dy. S.P. Badaun and it was found that
68,000) litres of Light Diesel oil had during 7th October 1974 to the time of
this inspection been added to the store kept by you of the said Light Diesel
oil of 96,000 litres, in three underground tanks within the premises mentioned
aforesaid and no licence could be produced on demand by the S.D.M. Badaun. For
this also, a complaint has been lodged by the S.D.M. Badaun in the Court of
Judicial Magistrate II Badaun on 8-11-74." Analysing these grounds it
would appear that there is no allegation by the detaining authority that by
storing the huge quantity of light diesel oil the petitioner had in any way
affected the distribution or sale of that commodity, nor is there any
allegation to show that the petition had refused to sell light diesel oil to anybody
who required it. The High Court which was moved in the first instance for a
writ of habeas corpus, appears to have drawn an inference based purely on
speculation that the petitioner had transferred huge quantities of light diesel
oil from his depot at Badaun to his godown at Ujhani. There is, however, no
material on the basis of which the High Court could have drawn such an
inference. There is, however, no suggestion.
far less any allegation, in these grounds
that the petitioner had tried to divert his stocks of light diesel oil from
Badaun to Ujhani and thereby deprived the people of Badaun of their share of
the light diesel oil. In these circumstances, therefore, we arc satisfied that
there is absolutely no correlation between the act of the petitioner and the
disruption of distribution of the essential supplies to the community. The
learned counsel appearing for the respondents submitted that by storing such
huge quantities of light diesel oil in Ujhani the petitioner has committed a
clear violation of the mandatory provisions of the Petroleum Act and the Rules
made thereunder and must be presumed to have disrupted the essential supplies
because light diesel oil had been declared by the order of the Government of
U.P.
to be an essential commodity. We are,
however, unable to agree with this argument. Mr. Sen appearing for the
petitioner does not dispute that the light diesel oil was an essential
commodity, but his argument was that he has in no way tried to disrupt the
essential supplies of this commodity and he merely committed a technical
offence in storing the quantities of light diesel oil in anticipation of the
licence which had been cleared by the District Authorities and which awaited
the 21 sanction of the Chief Controller of Explosives, Nagpur and which would
have in normal routine been granted. It is also admitted in the ground itself
that a complaint had been lodged in the Court of the Chief Judicial Magistrate
against the petitioner for the storage. We have already held in several cases
that the commission of an offence at a private place or a violation of a
provision of law by itself does not attract the Act unless by the act committed
by the petitioner the essential supplies to the community are disrupted or even
flow of the life of the community is disrupted. Reading grounds (1)(a) &
(b) we are unable to hold that they are in any way germane or relevant to the
disruption of maintenance of essential supplies to the community.
In Manu Bhusan Roy Prodhan v. State of West
Bengal and others(1) this Court observed as follows:
"This kind of a solitary assault on one
individual, which may well be equated with an ordinary murder which is not an
uncommon occurrence, can hardly be said to disturb public peace or place public
order in jeopardy, so as to bring the case within the purview of the Act.
It can only raise a law and order problem and
no more;
its impact on the society as a whole cannot
be considered to be so extensive, widespread and forceful as to disturb the
normal life of the community thereby rudely shaking the balanced tempo of the
orderly life of the general public. This ground is, therefore, not at all
relevant for sustaining the order of detention for preventing the petitioner
from acting in a manner prejudicial to the maintenance of public order.
The ratio of this case fully tallies with the
facts of the present case where also grounds (1) (a) & (b) taken at their
face value appear to be irrelevant and do not disclose any causal connection
with the disruption of the essential supplies to the community.
We now take up the other ground, namely,
ground No. (2), which is as follows:
"(2) That you as partner of the firm M/s
Bharat oil Company located at Badaun licensed at Badaun to deal with Light
Diesel oil and required by rule 9(1) of the U.P. Essential Commodities (Price
Display and Control of Supply and Distribution) order, 1971. as amended by
Second Amendment dated' June 13, 1973 framed under Rule 114(2) of the Defence
of India Rules, 1971 to issue every purchaser a correct receipt showing, inter
alia, the name and address of the customer were found to have sold Light Diesel
Oil repeatedly without complying with the said requirement and with the object
make fictitious sale of the 22 Light Diesel Oil a scheduled commodity within
the meaning of the said order, as is evident from the following:
(i) Cash memo no. 62 dated 8-8-74 | | (ii)
Cash memo no, 63 dated 14-8-74 | | (iii)Cash memo no 134 dated 7-10-74 | Name
and address | of the customer (iv) Cash memo no, 135 dated 7-10-74| not
given" | (v) Cash memo no. 145 dated 7-11-74| | (vi) Cash memo no. 146
dated 7-11-74| This ground no doubt discloses a clear overt act on the part of
the petitioner from which an inference can be drawn that the petitioner had
made a number of fictitious sales.
The details of the cash memos by which the
sales had been made have also been given but the cash memos do not disclose the
names and addresses of the customers, as required by the rules. The petitioner
has himself admitted in paragraph-13 of his petition filed in this Court that
there had been a violation of the U.P. Sale of Motor Spirit Taxation Act and the
Rules made thereunder but he sought to explain the omission on the ground that
it was due to the mistake of the Munim and the quantities alleged to have been
sold were actually purchased by the petitioner himself for the use of the pumps
in his own agricultural farm. This explanation does not appear to be convincing
at all. From the file produced before us by the respondents it appears that the
total amount of sale of light diesel oil under these cash memos mentioned in
the ground comes to 21 ,000 litres. We find it impossible to believe that the
petitioner would consume such huge quantity of light diesel oil for his
personal agricultural farms particularly when the petitioner had given no
details of the number of farms and other machines for which this oil was said
to be used. In these circumstances there can be no doubt that these were
fictitious sales made by the petitioner with a view to hoard light diesel oil
and by his conduct the persons who were in genuine need of light diesel oil
were deprived of the same.
Ground No. (2), therefore is quite specific,
but the difficulty is that in view of our finding that ground No.
(1) is irrelevant it is not possible to
determine as to what extent the subjective satisfaction of the detaining
authority was influenced or affected by Ground No. (1) which has been found by
us to be extraneous and irrelevant. It has been held by us in several cases
that were out of two grounds one ground is vague or irrelevant, then the entire
order of detention falls to the ground. In this view of the matter the order of
detention suffers from this serious infirmity and must be quashed.
Secondly it was argued by the learned counsel
for the petitioner that on the materials produced before us the subjective
satisfaction of the detaining authority has also not been established. To begin
with it is not clear at all as to who passed the order of detention and who was
satisfied regarding the sufficiency of the grounds. In the second place the
grounds appear to have been served by Mr.
R. C. Arora the permanent District Magistrate
of Badaun who has also signed the same which shows that he was the detaining 23
authority also. On a consideration of these two points we are of the opinion
that the contention of the learned counsel for the petitioner is well founded
and must prevail.
Coming to the first point we find that Mr. S.
K. D. Mathur has clearly alleged in his counter affidavit that Mr. R. C.
Arora the permanent District Magistrate of
Badaun had proceeded on leave from October 21, 1974 to November 11, 1974 and
during his absence the deponent S. K. D. Mathur was acting as the District
Magistrate of Badaun. It is further stated in the affidavit that Mr. R. C.
Arora rejoined his duty in November 12, 1974 and took charge of his office. The
order of detention, however, appears to have been passed while Mr. S. K. D.
Mathur was officiating as District Magistrate of Badaun and Mr. Mathur makes no
secret of the fact that the order of detention was passed by him after being
satisfied of the grounds of detention. In the counter affidavit submitted by
Mr. S. K. D. Mathur before the High Court, which is Annexure at p. 66 of the
Paper Book Mr. Mathur categorically stated that he himself had passed the
detention order after recording his satisfaction. In this connection paragraph
1 of the counter affidavit before the High Court is as follows:
That the deponent was District Magistrate,
Badaun on 8-11-1974, and he has passed the detention order against the
petitioner after being fully satisfied that the petitioner was acting in a
manner prejudicial to the maintenance of supplies and services essential to the
community and as such he is well acquainted with the facts deposed to
below." This allegation is reiterated and over-emphasised in paragraph 23
of the same affidavit wherein Mr. Mathur makes a categorical averment which is
as follows:
"....the deponent submits that in his
capacity as the District Magistrate he was fully competent to make the impugned
order of detention. The deponent further submits that on the basis of the
evidence and the material placed be before him, to which he has referred above
he was personally and fully satisfied as to the existence of sufficient basis
to make the impugned order with a view to prevent the petitioner from indulging
in activities prejudicial to the maintenance of essential services and
supplies." In this very affidavit Mr. Mathur goes on to state that he had
also farmed draft of the grounds on November 8, 1974 and that Shri R. C. Arora
who took over on November 12, 1974 served these grounds on the petitioner which
were drawn by the deponent Mr. S. K. D. Mathur. In this connection the averment
runs as follows:
"Sri R. C. Arora took over charge on
November 12, 1974 and under his signature Sri Arora served these same grounds
which the deponent had earlier drawn upon the petitioner." According to
the clear and categorical averments made by Mr, S. K. D. Mathur in his
affidavit before the High Court the only role which was 24 assigned to Mr. R.
C. Arora the permanent District Magistrate was A that he signed the grounds and
served them on the detenu. In other words, according to Mr. S. K. D. Mathur,
Mr. R. C. Arora was merely the serving officer and did not perform any other
function in so far as the order of detention passed against the petitioner was
concerned and yet this officer is imprudent enough to allege in paragraph 25 of
the counter-affidavit filed in this Court that the order of detention was
passed not only by him but by the two detaining authorities, namely Mr. R. C.
Arora and Mr. S. K. D. Mathur. In this connection Mr. Mathur averred as
follows.
"That the order of detention was passed
by the detaining authorities after they had fully satisfied themselves about
the existence of the grounds." It would thus appear from this averment
that the order of detention was not passed by one single person but by more
than one person and taking the facts mentioned by the deponent it would appear
that the order of detention appears to have been passed in two stages in he
first instance by Mr. S. K. D. Mathur who was full fledged District Magistrate
on November 8, 1974 when the order of detention was passed, but who according
to his own statement had first prepared a draft of the grounds. The order of
detention was then signed by Mr. R. C. Arora on November 13, 1974 and served on
the detenu. While Mr. S. K. D. Mathur took the clearest possible stand before
the High Court that he alone had made the order of detention and he alone was
satisfied about the sufficiency of the grounds, but in his affidavit before
this Court he seems to suggest that there were two detaining authorities both
of whom were satisfied. This shows the casual and cavalier manner in which the
order of detention against the petitioner appears to have been passed in this
case. Even if the order had been made by Mr. S. K. D. Mathur and signed, by
him, there could have been no objection in Mr. R. C. Arora serving the grounds
on the petitioner, because the law does not require that the person who
actually signs the order or the grounds must also serve the same on the detenu.
But in this case it is not possible to determine as to who in fact made the
order of detention. F It is true that the Court cannot go behind the subjective
satisfaction of the detaining authority, but such satisfaction does not confer
a blanket power which may authorise the detaining authority to act in a
ruthless or arbitrary fashion and the judicial decisions have undoubtedly
carved out an area, though limited. within which the subjective satisfaction of
the detaining authority can be tested on the touchstone of objectivity. It is
obvious that the subjective satisfaction of the detaining authority is a sine
qua non for the exercise of power of detention and it has got to be exercised
properly and discreetly. In Khudiram Das v. The State of West Bengal and
others(1) this Court made the following observations:
"The basic postulate on which the courts
have proceeded is that the subjective satisfaction being a condition precedent
for the exercise of the power conferred on the executive, the 25 court can
always examine whether the requisite satisfaction is arrived at by the
authority; if it is not, the condition precedent dent to the exercise of the
power would not be fulfilled and the exercise of the power would be bad."
In the instant case, in view of the contradictory stand taken by the detaining
authorities, we are satisfied that the exercise of jurisdiction to detain the
petitioner has not been made with due care and caution or in a proper and fair
manner. On this ground also the order of detention stands vitiated. .
Section 3(1) of the Act runs. thus:
"3. (1) The Central Government or the
State Government may, (a) if satisfied with respect to any person (including a
foreigner) that with a view to preventing him from acting in any manner
prejudicial to (i) the defence of India, the relation of India with foreign
powers, or the security of India, or (ii) the security of the State or the
maintenance of public order, or (iii)the maintenance of supplies and services
essential to the community, or (b) if satisfied with respect to any foreigner
that with a view to regulating his continued presence in India or with a view
to making arrangements for his expulsion from India;
It is necessary so to do, make an order
directing that such person be detained." This power can also be exercised
by the officers mentioned in sub-s. (2), and in the instant case we are
concerned with the District Magistrate. The words "make an order directing
that such person be detained " clearly postulate three conditions-(1) that
the order must be made by the authority mentioned in s. 3; (ii) the order must
be duly signed by the said authority; and (iii) that only one authority and one
authority alone can pass such order of detention. The statute does not
contemplate a sort of composite or a joint order passed by several authorities.
In the instant case the original order of detention passed by Mr. S. K. D.
Mathur bears his signature and even the grounds mentioned bear his signature. In
these circumstances we are unable to accept the affidavit of Mr. S. K. D.
Mathur that the grounds framed by him were merely draft grounds prepared by him
which were signed by the permanent District Magistrate later. It is obvious
that unless the order made and the grounds prepared are signed by the authority
concerned, the order is not made as contemplated by s. 3 of the Act. Furthermore,
since the order is based on grounds to be served on the detenu, the order of
detention could be passed only if the grounds are in existence and are prepared
contemporaneously, otherwise the order 26 of detention becomes purely illusory.
In view, however, of the contradictory affidavits given by Mr. S. K. D. Mathur,
it is difficult to determine whether Mr. S. K. D. Mathur or Mr. R. C. Arora
passed the order of detention and as to who among them was satisfied regarding
the grounds of detention.
This is also a very serious infirmity from
which the order of detention suffers and as a result of which the order has to
be set aside. There appears to us to be a clear violation of the provisions of
s. 3 of the Act in this case.
Lastly we may mention that although the
petitioner has pleaded he question of mala fides in the instant case, it is not
necessary for us to decide the same in the view we take in this case, and that
is why it was not seriously pressed by Mr. Asoke Sen ill the course of his
arguments before us.
For the reasons given above, we allow the
petition and quash the order of detention passed against the petitioner on
November 8, 1974 and direct the petitioner to be released forthwith.
V.P.S. Petition allowed.
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