PETITIONER:
KRISHNA MURARI AGGARWALA
Vs.
RESPONDENT:
THE UNION OF INDIA & ORS.
DATE OF JUDGMENT15/07/1975
BENCH:
FAZALALI, SYED MURTAZA
BENCH:
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 thereunder, in that the names and addresses of
customers who had purchased light diesel from tho
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 thereunder, 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]
JUDGMENT:
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 any body 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 where 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. Further more, 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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