Case: Krishna Murari Aggarwala Vs. The Union Of India &amp; Ors

the facts mentioned by the deponent it would appear that the order of detention appears to have been passed in two stages - in the 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.6. 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.ln Khudiram Das v. State of West Bengal, AIR 1975 SC 550 = (1975 Cri LJ 446) 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 Court can always examine whether the requisite satisfaction is arrived at by the authority; if it is not, the condition precedent 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 bv 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.7. 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 relations 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-section (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- (i) that the order must be made by the authority mentioned in Section 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 Section 3 of the Act. Furthermore, since the order is based an 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 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 Section 3 of the Act in this case.8. Lastly we may mention that although the petitioner has pleaded the 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 in the course of his arguments before us.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]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 affidavits are not filed before this Court, which may create unnecessary confusion and controversy and make a simple issue so very muchare not, however, concerned with the business at Bareilly in thisthese 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 petitioner had refused to sell light diesel oil to anybody who required it. The High Court who was moved in the first instance for a writ of habeas corpus appears to have drawn on 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 are satisfied that there is absolutely no correlation between the act of the petitioner and the disruption of distribution of the essential supplies to theare, however, unable to agree with thisis 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) and (b) we are unable to hold that they are in any way germane or relevant to the disruption of maintenance of essential supplies to theratio of this case fully tallies with the facts of the present case where also grounds (1) (a) and (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 thefind it impossible to believe that the petitioner would consume such a 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 power 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 where out of two grounds one around 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 bebegin 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 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 on 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 ofwould 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 the 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.6. 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 andthe instant case, in view of the contradictory stand taken bv 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 standsthe 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 Section 3 of the Act. Furthermore, since the order is based an 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 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 Section 3 of the Act in this case.8. Lastly we may mention that although the petitioner has pleaded the 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 in the course of his arguments before us.