PETITIONER: DULAL CHANDRA MAJUMDAR Vs. RESPONDENT: THE STATE OF WEST BENGAL DATE OF JUDGMENT05/11/1974 BENCH: BHAGWATI, P.N. BENCH: 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. [592B- C] (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] JUDGMENT:
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
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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
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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 re-
cited’ 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-in-
reply 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 Ma-
gistrate 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 Magis-
7 L 319 Sup CIJ75
592
trate in paragraph 4 of his affidavit-in-ireply 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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