JUDGMENT
R.N. Dutt, J.
1. This is an application under Section 491 of the Code of Criminal Procedure for a Writ in the nature of Habeas Corpus directing release of the petitioner Benoy Kumar Biswas.
2. The petitioner was arrested on January 14, 1965 and detained in the Dum Dum Central Jail under Rule 30(1)(b) of the Defence of India Rules, 1962. The order of detention is set out below;
“Whereas the Governor is satisfied that with a view to preventing Shri Benoy Kumar Biswas, son of Shri Upendra Nath Biswas, of Bongaon Rail Bazar, P. S. Bongaon, Dist. 24 Parganas, from acting in any manner prejudicial to the maintenance of public order, it is necessary to make an order directing that he be detained;
Now, therefore, the Governor in exercise of the power conferred by Rule 30 of the Defence of India Rules, 1962, is pleased hereby to direct that the said person be detained and be kept in custody in the Dum Dum Central Jail during the period of such detention.
BY order of the Governor
Sd/- Illegible
Asstt. Secy, to the Government of West Bengal.”
3. The order recites that the Governor was satisfied that with a view to preventing Benoy Kumar Biswas from acting in any manner prejudicial to, the maintenance of public order it was necessary to detain him. The petitioner alleges that the order of detention is mala fide. It is said that he has a grocers business at Ranaghat, that in connection with that business he had to go to Bongaon at times, that he had some trouble with the Railway Police men and in 1960 the Railway Police started a false prosecution against him but he was acquitted by a Magistrate at Bongaon. It is then said that even thereafter the Police pursued him and there were several other prosecutions but ultimately all ended in his favour. Then again in 1964 the Police prosecuted him under Rule 41(5) of the Defence of India Rules 1962 on the allegation that he had smuggled spices from East Pakistan. He was being tried by a Magistrate at Krishna-gar. While the case was pending there, the petitioner was taken into custody on January” 13, 1961 on the strength of the detention order made on December 21, 1964. It is said that thereafter the case against him was withdrawn. It in alleged that as the Police failed to secure his conviction for any substantive criminal offence he was detained under Rule 30(1)(b) of the Defence of India Rules.
4. Shri Monoranjan Dey, Assistant Secretary, Government of West Bengal, Home Department swore an affidavit on May 31, 1965 on behalf of the State. He stated in that affidavit that he was acquainted with the facts and circumstances of this case. The detention order is also signed him by order of the Governor. Paragraph 9 of that affidavit is as follows:–
“With regard to paragraphs 6, 7, 8 and 9 of the petition I say that the true facts are as follows:–
(a) The petitioner was under going trial at Krishnagar Court in connection with Bongaon G. R. P. S. case No. 4 dated 16th of February, 1964.
(b) On the 13th of Jaunary 1965 after the said case was withdrawn the petitioner came out of the Court and was hoarding a rickshaw when he was arrested.
xxxxx
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Save as such 1 deny each and every allegation contained therein.”
Paragraph 13 of the affidavit is as follows:–
with regard to paragraph 11, of the petition I say that the order of detention was served on the petitioner after the said Criminal case was withdrawn. Save as such I dispute the correctness of the submissions made in the said paragraph.”
This affidavit was filed on July 12, 1965. On July 13, 1965 when the hearing of the Rule commenced Mr. Sen on behalf of the petitioner filed the certified copy of the Magistrate’s order-sheet of the relevant case. We noticed that there was no withdrawal at all of the case against the petitioner, much less on January 13, 1965. We noticed from the return of Service that the Detention Order was served not on January 13, 1965 but on January 14, 1965. Under the circumstances we invited Mr. Sen to formally file the certified copy of the order-sheet before us and we also directed that Shri Monoranjan Dey should file a further affidavit explaining how the affidavit sworn by him on May 31, 1965 contained incorrect statements. Shri Monoranjan Dey filed a further affidavit on July 14, 1965. One Sarada Prasanna Chakrabartti said to be an Inspector of Police also filed an affidavit in support of this further affidavit of Shri Dey. Shri Day in this further affidavit stated that he made the statements in the earlier affidavit on the basis of information received from Inspector Sarada Prasanna Chakrabartti. A copy of a petition for withdrawal was attached to this affidavit as annexure ‘A’ as a true copy of the said petition of withdrawal alleged to have been filed befoxe the Magistrate at Krishnagar on January 14, 1965. The certified copy of the order-sheet of the Magistrate had however no reference to such a petition having been filed on January 14, 1965. The original record of the Magistrate was, therefore, brought and on examination of the record we find that no such petition for withdrawal was at all filed before the Magistrate much less on January 14, 1965. Clearly, therefore, the affidavit sworn by Shri Monoranjan Dey on May 31, 1965 contained statements which were not correct. His affidavit recited that the detention order was served and the petitioner was arrested on January 13, 1965. This statement again is not correct. The detention order was served on the petitioner on January 14, 1965 and he was arrested on January 14, 1965. It is surprising how this incorrect statement could find place in the affidavit of Mr. Dey. Mr. Das submitted that Shri Dey must have been misled by the statement made by the petitioner in his application that the detention order wall served on January 13, 1965. The original service return was in the custody of the State. Mr. Das himself produced it before us. It is not understood why the affidavit was prepared without reference to the original documents in the possession of the State and why or how Shri Dey a responsible officer of the State, dealing with the liberties of the citizens could swear the affidavit without himself being satisfied from the documents in the possession of the State about the truth of the statements made therein. We have said that no application for withdrawal of the case against the petitioner was filed before the Magistrate on January 14, 1965. We have however, found in the record a petition submitted by the Court Sub-Inspector on February 13, 1965 saying that the petitioner had been detained under the Defence of India Rules and the case against him should be filed for the present. Presumably acting on this petition the Magistrate passed an order on February 13, 1965 saying that the case against the petitioner be filed for the present. Thus the case against the petitioner was never withdrawn much less withdrawn on January 13, 1965. The statements made by Shri Dey in his first affidavit that an application for withdrawal was filed and that the case against the petitioner was withdrawn and that the Detention Order was served on the petitioner after the case was withdrawn are all untrue. It is a matter of much regret that such untrue statements found place fn the affidavit of, as we have said, a responsible officer dealing with the liberties of the citizens. These are all matters of record and if the affidavit was prepared with a little carefulness such untrue statements would not have found place there. We may not think that these untrue statements were mala fide but the fact remains that such untrue statements which could have been easily verified with reference to the relevant record were made in an affidavit filed before us by a responsible officer. Mr. Das was all with us about this and he expressed sincere regret and apology on behalf of the State that such untrue statements did find place in the affidavit of Shri Dey. Under the circumstances we do not propose to take further action against Shri Dey or Inspector Chakrabartti on whose information Shri Dey made the statements but it will be for the State to consider what steps should be taken to see that in future affidavits are sworn on proper materials and after proper verification so that the statements made therein may not be untrue.
5. Be that as it may, we find that Shri Dey has said that he made the statements in the affidavits on information from the Police. The Police even produced a copy of an application for withdrawal said to have been filed before the Magistrate at Krishnagar on January 14, 1965. The information furnished by the Police was not correct and Shri Dey was clearly misled by such information. The State Government made the detention order on certain information furnished by the Police. From the materials before us we think that it was more likely than not that the Police took no care to furnish only true or correct information for consideration of the State Government. The halting nature of the affidavit on behalf of the State also shows this. The petitioner has said that he is a humble but honest trader and he has never done anything likely to be prejudicial to the maintenance of public order. He has further said that the State Government could not and did not have any materials before it from which it could be satisfied that the petitioner was acting in any manner likely to be prejudicial to the maintenance of public order. He has also said that there were no grounds whatsoever for the State Government to be satisfied that it was necessary to detain him. The petitioner has finally said in paragraphs 16 and 17 of his application that the order of detention was mala fide and that the police procured the detention order as the police failed to secure his conviction for substantive criminal offences. The affidavit of Shri Dey on behalf of the State Government covers these allegations under paragraph 15 of the affidavit which reads as follows:
“I dispute the correctness of the submissions made in paragraphs 13, 14, 15, 16, 17, 18 and 19 of the petition.”
6. Beyond this, there is no other statement in the affidavit on behalf of the State controverting the specific allegations made by the petitioner that the detention order was mala fide and that this was produced because the police filed to secure his conviction for substantive criminal offences. It is not said on behalf of the State that there were materials before the State even apart from the allegations involved in the pending criminal case before the Magistrate at Krishnagar. Nor is there any specific denial that the detention order was not mala fide Furthermore though the petitioner stated on oath that he had never done anything which was likely to be prejudicial to the maintenance of public order there is no statement on oath on behalf of the State Government that there were materials before the State Government to show that the petitioner was in fact indulging in activities which were likely to be prejudicial to the maintenance of public order. Finally, but most surprisingly though the specific ground of mala fides was taken, nowhere in the affidavit on behalf of the State it is said that the State Government was satisfied on consideration of materials placed before it that it was necessary to detain the petitioner with o view to prevent him from acting in any manner prejudicial to the maintenance of public order. If is true that since the order of detention recites this it is for the petitioner to disclose facts and circumstances from which an inference of mala fide can be made. But when that order is challenged before a court of law on the ground of mala fides it was incumbent on the part of the State to at least say on oath that there was no mala fides and the State Government was bona fide satisfied from materials placed before it that it was necessary to detain the petitioner with a view to prevent him from acting in any manner prejudicial to the maintenance of public order. Since the State Government does not even say this, the obvious inference is that the allegation of mala fides is true.
7. In view of this finding it is not necessary to deal with the other points taken by Mr. Sen.
8. During the course of arguments Mr. Das produced before us the original Government file containing the relevant order for detention of the petitioner. We found that the file dealing with the matter was submitted by the Assistant Secretary, Home (Political) direct to the Chief Minister as the Minister-in-charge, without the matter being examined by the Deputy Secretary or the Secretary, Home Department. We wonder if the Rules of Business permit this. Such files do not deal with routine matters. They concern the Liberties of the Citizens. They require careful consideration of the materials furnished by the Police and this in its turn requires intelligent application of mind. So even if the rules do permit such procedure, we feel that it is desirable that these matters should be considered by officers more responsible than the Assistant Secretary preferably the Home Secretary, before being submitted to the Chief Minister or the Minister-in-charge,
9. In the result the Rule is made absolute. We find that the petitioner is being illegally detained and we direct that he be set at liberty forthwith,
Das, J.
10. I agree.
(Leave to file appeal under Article 134(1)(c) of the Constitution refused.)
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