{"id":183527,"date":"1966-02-11T00:00:00","date_gmt":"1966-02-10T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/g-sadanandan-vs-state-of-kerala-anr-on-11-february-1966"},"modified":"2018-11-01T15:46:05","modified_gmt":"2018-11-01T10:16:05","slug":"g-sadanandan-vs-state-of-kerala-anr-on-11-february-1966","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/g-sadanandan-vs-state-of-kerala-anr-on-11-february-1966","title":{"rendered":"G.Sadanandan vs State Of Kerala & Anr on 11 February, 1966"},"content":{"rendered":"
Supreme Court of India<\/div>\n
G.Sadanandan vs State Of Kerala & Anr on 11 February, 1966<\/div>\n
           PETITIONER:\nG.SADANANDAN\n\n\tVs.\n\nRESPONDENT:\nSTATE OF KERALA & ANR.\n\nDATE OF JUDGMENT:\n11\/02\/1966\n\nBENCH:\n\n\nACT:\nDefence of India Rules, 1962 Rule 30(1) (b)-Detention  under\nWrit  petition\tby detenu-Pleas that may be  entertained  by\ncourt  during operation of Emergency and President's  Order-\nObligation   of\t detaining  authority  to   place   material\njustifying  detention before court-Proper affidavit must  be\nfiled by authorised person.\n\n\n\nHEADNOTE:\nThe  petitioner\t was a wholesale dealer in Kerosene  oil  in\nKerala\tState.\tThe State Government detained him  under  r.\n30(1) (b) of the Defence of India Rules, 1962 on the alleged\nground that he was likely to act in a manner prejudicial  to\nthe  maintenance of supplies and services essential  to\t the\nlife  of the community.\t By writ petition under Art.  32  of\nthe  Constitution he challenged his detention as being\tmala\nfide, making certain specific allegations against respondent\nNo.  2, a police official.  In particular, it was  urged  on\nhis  behalf  that  after the coming into  operation  of\t the\nKerala Kerosene Control Order, 1965 which permitted kerosene\ntrade  to  be carried  only under a licence,  there  was  no\njustification for ha detention.\t On :behalf of the State  an\naffidavit was filed by the Home Secretary generally  denying\nthe  petitioner's allegations.\tThe affidavit stated,  inter\nalia,  that  even after the passing of the  Kerala  Kerosene\nControl Order it was possible for the petitioner to obtain a\nlicence and carry on the trade in a prejudicial manner.\nHEID   :   (i)\tThe  Proclamation  of  Emergency   and\t the\nnotification   ,subsequently   issued\tby   the   President\nconstitute a bar against judicial scrutiny in respect of the\nalleged\t violation  of the fundamental rights of  a  detenu.\nNevertheless a detenu can urge in his support such statutory\nsafeguards as are permissible under the Rules, and when this\nCourt  is  satisfied that the impugned\torders\tsuffer\tfrom\nserious\t infirmities on grounds which it is permissible\t for\nthe detenu to urge, the said orders would be set aside. [595\nD, E]\n(ii) The  detention of a citizen under the Defence of  India\nRules  is the result of the subjective satisfaction  of\t the\nappropriate  authority; and so if a prima facie cam is\tmade\nOut  by\t the petitioner that his detention  Is\teither\tmala\nfide, or is the result of a. casual approach adopted by\t the\nappropriate  authority,\t the  appropriate  authority  should\nplace  before the court sufficient material in the  form  of\nprcper affidavit made by a duly authorised to show that\t the\nallegations  made by the petitioner about the  character  of\nthe decision or its mala fides, are not well-founded. [598F]\nIn the present case no such material had been placed  before\nthe court.  Respondent No. 2, though impleaded, had not come\nforward\t to deny the specific allegations made against\thim.\nThe  Home  Secretary had taken it upon himself to  deny\t the\nallegations against respondent No. 2, but his denials  were,\nat  best  based on hearsay evidence.  The  Home\t Secretary's\naffidavit  suffered from the formal defect that it  did\t not\ndistinguish  between datements based on\t personal  knowledge\nand  those  made on the basis of  information  received.  it\nmoreover gave no sufficient justification for the\n591\ncontinuance of the petitioner's detention after' the passing\nof the Kerala Kerosene Control Order. [596 E, F]\nUnder  the  circumstances  there  was  no  escape  from\t the\nconclusion  that the impugned order was clearly and  plainly\nmala fide.\n(iii)\t  It   is   the\t paramount    requirement   of\t the\nConstitution  that  even during Emergency,  the\t freedom  of\nIndian\tcitizens cannot be taken away without the  existence\nof   the  justifying  necessity\t specified  in\tthe   Rulesa\nthemselves.   The  tendency  to treat  these  matters  in  a\nsomewhat  and cavalier manner which may\t conceivably  result\nfrom  the  continuous  use of such  unfettered\tpowers,\t may\nultimately  pose  a serious threat to the  basic  values  on\nwhich the democratic way of life in this country is founded.\nCases  of  this kind may be rare; but even the\tpresence  of\nsuch   rare  cases  constitutes\t a  warning  deserving\t the\nattention of the authorities. [599 B, C]\n\n\n\nJUDGMENT:\n<\/pre>\n
ORIGINAL JURISDICTION : Writ Petition No. 136 of 1965,
\nPetition under Art. 32 of the Constitution of India for\t the
\nenforcement of Fundamental Rights.\n<\/p>\n
M.   K.\t Ramamurthi,  S. C. Agarwal, R. K. Garg\t and  D.  P.
\nSingh, for the petitioner.\n<\/p>\n
Niren  De,  Solicitor-General,\tA. G. Pudissery\t and  M.  R.
\nKrishna Pillai, for the respondents.\n<\/p>\n
The Judgment of the Court was delivered by
\nGajendragadkar,\t C.J.  This petition was heard on  the\t11th
\nFebruary, 1966; and at the close of the hearing, we  allowed
\nthe  petition  and directed that the  petitioner  should  be
\nreleased  forthwith and indicated that our reasons would  be
\npronounced  later.  Accordingly, our present judgment  gives
\nour reasons for the order ,which has already been passed  by
\nus.\n<\/p>\n
The petitioner, G. Sadanandan, has been detained by  respon-
\ndent No. 1, the State of Kerala, under Rule 30(1) (b) of the
\nDefence\t of  India  Rules,  1962  (hereinafter\tcalled\t“the
\nRules”) by an order passed by it on the 20th October,  1965.
\nThe said order recites that from the materials placed before
\nrespondent  No.\t 1,  it was satisfied that with\t a  view  to
\nprevent\t the petitioner from acting in a manner\t prejudicial
\nto the maintenance of supplies and services essential to the
\nlife  of the community it was necessary to detain him.\t The
\nsaid order further shows that under Rule 30(4) of the Rules,
\nrespondent No. 1 had decided that the petitioner be detained
\nin  the Central Prison, Trivandrum, under conditions  as  to
\nmaintenance,  discipline  and  punishment  of  offences\t and
\nbreaches of discipline as provided in the  Travancore-Cochin
\nSecurity  Prisoners Order, 1950.  The petitioner  challenges
\nthe  validity  of this order by his present  petition  filed
\nunder Art. 32 of the Constitution.\n<\/p>\n
The  petitioner\t is a businessman who carries  on  wholesale
\nbusiness in kerosene oil as ESSO dealer and in provisions in
\nhis  places of business at Trivandrum.\tIn  connection\twith
\nhis whole-\n<\/p>\n
592<\/span><\/p>\n
sale  business\tof  selling  kerosene  oil,  the  petitioner
\nreceives kerosene oil either in bulk or in sealed tins\tfrom
\nthe ESSO company.  When the kerosene oil is thus received by
\nhim, the petitioner transfers the kerosene oil from  barrels
\ninto empty tins purchased from the market and sells them  to
\nhis  customers.\t  Until the Kerala Kerosene  Control  Order,
\n1965  was  promulgated, and brought into force on  the\t24th
\nOctober,  1965,\t the petitioner was not required to  take  a
\nlicence\t for carrying on his business in kerosene  oil.\t  As
\nfrom  the  24th October, 1965 the said trade  could  not  be
\ncarried\t on  in Kerala without obtaining a licence.   It  is
\ncommon\tground\tthat the petitioner has not been  granted  a
\nlicence\t in  that  behalf.  To\this  present  petition,\t the
\npetitioner  has joined respondent No. 1 and  N.\t Paramasivan
\nNair, Deputy Superintendent of Police (Civil) Supplies Cell,
\nCrime Branch, Trivandrum, as respondent No. 2.
\nThe  petitioner alleges that respondent No. 2 caused  to  be
\ninitiated criminal proceedings against him in Criminal\tCase
\nNo.  70\t of 1965 in the Court of  the  District\t Magistrate,
\nTrivandrum.   These proceedings were commenced on  the\t20th
\nMay, 1965.  The charge against the petitioner set out in the
\nFirst  Information  Report  was\t that  the  petitioner\t had
\nexhibited a board showing stock “nil” on the 20th May, 1965,
\nat  about  7  .00  p.m. in his\twholesale  shop\t at  Chalai,
\nTrivandrum  when, in fact, there was stock available in\t his
\nshop.  The Police searched the shop that day in the presence
\nof respondent No. 2, though in the relevant papers  prepared
\nin  regard to the said search, no reference was made to\t his
\npresence.  According to the petitioner, the board indicating
\n‘nil’  stock had been exhibited in his shop, because 7\ttins
\nout of the available stock had been sold to one D. N. Siktar
\nin  regard to which a sale memo was being prepared when\t the
\nraid  took place, whereas the two remaining tins were  in  a
\ndamaged\t condition and could not have been sold.   Even\t so,
\nthe  raid was carried out and F.I.R. was lodged against\t the
\npetitioner  alleging  that he had committed  an\t offence  by
\nviolating Rule 125(2) and (3) of the Rules read with  clause
\n4 of the Kerosene (Price Control) Order, 1963.
\nThe  petitioner\t appeared  before  the\tDistrict  Magistrate
\nbefore\twhom the F.I.R. had been filed, and was released  by
\nhim  on\t bail.\t In this case, all  the\t witnesses  for\t the
\nprosecution  had been examined, except the officer  who\t had
\nsubmitted  the\tcharge-sheet.  Except the  Sub-Inspector  of
\nPolice\t(P.W.I.), and the Head Constable (P.W. 2), no  other
\nwitnesses supported the prosecution case, though in all five
\nwitnesses were examined for the prosecution.
\nPending\t the  trial of this case, the Inspector\t of  Police,
\nCrime  Branch  (Food), Trivandrum, who is a  subordinate  of
\nrespondent  No. 2, initiated another case at  his  instance,
\nbeing  case No. 332 of 1965 before the District\t Magistrate,
\nTrivandrum,  on the 29th September, 1965.  In this case,  it
\nwas alleged that the petitioner had
\n\t\t\t    593<\/span>
\nviolated  R. 125(A) of the Rules read with Rules 3 and 4  of
\nthe  Kerosene  (Price Control) Order, 1963, as well  as\t had
\ncommitted an offence under section 420, I.P.C. The F.I.R. in
\nregard to this case was made by Narayan Pillai\tSivasankaran
\nNair  of Tampanoor, Trivandrum.\t This Nair is a salesman  in
\nhis elder brother’s provision store at Trivandrum, and\tboth
\nthese brothers are close relatives of respondent No. 2. This
\ncase was initiated after the search of the petitioner’s shop
\nat  Chalai.   The petitioner was then arrested\tand  brought
\nbefore the District Magistrate on the 30th September,  1965.
\nOn  this  occasion  also, when\tthe  petitioner’s  shop\t was
\nsearched,  respondent No. 2 was present.  During the  course
\nof  the\t search, the police seized one tin weighing  16\t 200
\nkgs.   None of the other 899 tins which were stored  in\t the
\ntwo  rooms  of\tthe place of sale of  the  petitioner,\twere
\nseized.\t  The police party also searched the godown  of\t the
\npetitioner  and took into custody 632 tins of kerosene\toil.
\nSix  barrels of oil were likewise seized.  According to\t the
\npetitioner,  all this was done at the instance of  N.  Siva-
\nsankaran  Nair who is a close relative of respondent  No.  2
\nand  who  had purchased two tins of kerosene  oil  from\t the
\npetitioner  which were produced before the  police  officers
\nfor  the  purpose  of showing that the tins  were  short  of
\ncontents.\n<\/p>\n
The  petitioner\t was  granted  interim\tbail  on  the\t30th
\nSeptember,  1965  by the District  Magistrate,\tand  finally
\nreleased  on  bail on the ,execution of a bail bond  on\t the
\n21st  October,\t1965.\tWhen  the order\t of  bail  was\tmade
\nabsolute  by the District Magistrate, the  Assistant  Public
\nProsecutor  did not oppose the release of the petitioner  on
\nbail.\tThe  petitioner contends that though  the  case\t was
\nposted several times for the submission of the final  report
\nby the prosecution, respondent No. 2 has so managed that the
\nsaid  final report has not been submitted till the  date  of
\nthe present petition.\n<\/p>\n
After the petitioner was released by the District Magistrate
\non  the 21st October, 1965, he reached home at 4 o’clock  in
\nthe evening.  Immediately thereafter, respondent No. 2\tcame
\nin  a jeep to the petitioner’s residence and took  him\tinto
\ncustody.   When the petitioner asked respondent No. 2 as  to
\nwhy  he\t was  being arrested, he  refused  to  disclose\t the
\ngrounds.  Respondent No. 2 took the petitioner into  custody
\nby force and carried him to jail.\n<\/p>\n
The  petitioner’s  wife thereafter instructed  a  lawyer  to
\ncontact\t the  petitioner who in turn tried to get  in  touch
\nwith  the petitioner at Wanchiyoor Police Station,  but\t did
\nnot  succeed.  Under these circumstances,  the\tpetitioner’s
\nwife instructed her advocate to file a writ petition in\t the
\nKerala\tHigh  Court for the production\tof  the\t petitioner.
\nAccordingly, a writ petition was filed on the 22nd  October,
\n1965.\n<\/p>\n
Later,\tthe  advocate engaged by the petitioner’s  wife\t was
\nable to get in touch with the petitioner with the permission
\nof the Home
\n594<\/span>
\nSecretary  in  the  Central Jail  at  Trivandrum.   At\tthis
\ninterview, the advocate was given the detention order  which
\nhad  been served on the petitioner, and instructed  to\ttake
\nsuitable action to challenge the said order.  In view of the
\nfact  that the petition filed by the Advocate in the  Kerala
\nHigh Court under the vague instructions of the\tpetitioner’s
\nwife  contained\t a  very limited  prayer,  the\tpetitioner’s
\nadvocate  withdrew  the said petition on the  27th  October,
\n1965.\tUltimately, the present petition has been  filed  in
\nthis Court on behalf of the petitioner on the 20th November,
\n1965.  That, in brief is the background of the present\twrit
\npetition.\n<\/p>\n
The petitioner challenges the validity of the impugned order
\nof detention mainly on the ground that it is mala fide,\t and
\nhas  been  passed  as a result of the  malicious  and  false
\nreports\t which\thave  been  prepared  at  the  instance\t  of
\nrespondent  No.\t 2. The whole object of\t respondent  No.  2,
\naccording to the petitioner, in securing the preparation  of
\nthese false reports is to eliminate the petitioner from\t the
\nfield  of wholesale business in kerosene oil in\t Trivandrum,
\nso that his relatives may benefit and obtain the  dealership
\nof  the ESSO Company.  The petitioner further  alleges\tthat
\nthe  order  of\tdetention has been passed  solely  with\t the
\npurpose\t of  denying him the benefit of the  order  of\tbail
\nwhich was passed in his favour by the District Magistrate on
\nthe  21st  October, 1965.  In support of the plea  that\t his
\ndetention is malafide, the petitioner strongly relies on the
\nfact  that  on the 24th October, 1965, the  Kerala  Kerosene
\nControl\t Order, 1965 has come into force and in\t consequence
\nunless the petitioner gets a licence, it would be impossible
\nfor  him to carry on his business of kerosene oil; and\tyet,
\nthe  detention\torder  ostensibly passed against  him  as  a
\nresult\tof  his\t activities alleged  to\t be  prejudicial  in
\nrespect\t of  his business in kerosene oil, continues  to  be
\nenforced  against him even after the Control Order has\tbeen
\nbrought into, operation.  It is mainly on these grounds that
\nthe petitioner challenges the validity of the impugned order
\nof his detention.\n<\/p>\n
The allegations made in the petition have been\tcontroverted
\nby  Mr. Devassy who is the Secretary in the Home  Department
\nof  respondent\tNo. 1. In his  counter-affidavit,  the\tHome
\nSecretary has, in a general way, denied all the\t allegations
\nmade in the petition.  The purport of the  counter-affidavit
\nfiled  by the Home Secretary is that the impugned  order  of
\ndetention  has been passed by respondent No. 1 bonafide\t and
\nafter  full  consideration  of\tthe  merits  of\t the   case.
\nRespondent No. 1 was satisfied, says the  counter-affidavit,
\nthat the activity of the petitioner was likely to  prejudice
\nsupplies essential to the life of the community as a  whole;
\nand so, the petitioner’s contention that the impugned  order
\nis malafide is controverted.\n<\/p>\n
In dealing with writ petitions by which orders of  detention
\npassed by the appropriate authorities under r. 30(1) (b)  of
\nthe Rules are
\n\t\t\t    595<\/span>
\nchallenged,  this  Court  has  consistently  recognised\t the
\nlimited\t  scope,   of  the  enquiry  which   is\t  judicially
\npermissible.   Whether or not the detention of a  detenu  is
\njustified  on the merits, is not open to judicial  scrutiny;
\nthat  is  a  matter  left by the  Rules\t to  the  subjective
\nsatisfaction  of  the appropriate authorities  empowered  to
\npass orders under the relevant Rule.  This Court, no  doubt,
\nrealises  in  dealing with pleas for habeas corpus  in\tsuch
\nproceedings  that  citizens  are detained  under  the  Rules
\nwithout\t a trial, and that clearly is inconsistent with\t the
\nnormal\tconcept\t of the Rule of Law in a  democratic  State.
\nBut  having  regard to the fact that an Emergency  has\tbeen
\nproclaimed  under  Art.\t 352 of\t the  Constitution,  certain
\nconsequences  follow; and one of these consequences is\tthat
\nthe  citizens  detained under the Rules are  precluded\tfrom
\nchallenging  the  validity of the Rules on the\tground\tthat
\ntheir\tdetention  contravenes\ttheir\tfundamental   rights
\nguaranteed  by Articles 19, 20 and 21.\tThe presence of\t the
\nProclamation of Emergency and the notification\tsubsequently
\nissued\tby the President constitute a bar  against  judicial
\nscrutiny  in  respect  of  the\talleged\t violation  of\t the
\nfundamental rights of the detenu.  This position has  always
\nbeen  recognised  by this Court in dealing  with  such\twrit
\npetitions.\n<\/p>\n
Nevertheless,  this Court naturally examines  the  detention
\norders\tcarefully  and allows full scope to the\t detenus  to
\nurge such statutory safeguards as are permissible under\t the
\nRules,\tand  it has been repeatedly observed by\t this  Court
\nthat  in  cases\t where\tthis Court  is\tsatisfied  that\t the
\nimpugned  orders suffer from serious infirmities on  grounds
\nwhich  it is permissible for the detenus to urge,  the\tsaid
\norders\twould be set aside.  Subject to this  position,\t the
\nmerits of the, orders of detention are not open to  judicial
\nscrutiny.   That is why pleas made by the detenus  that\t the
\nimpugned  orders  have\tbeen,  passed  by  the\t appropriate
\nauthorities  without applying their minds, properly  to\t the
\nallegations  on\t which\tthe impugned orders  purport  to  be
\nbased,\tor  that  they have been  passed  malafide,  do\t not
\nusually\t  succeed,  because  this  Court  finds\t  that\t the
\nallegations made by the detenus are either not well-founded,
\nor  have  been made in a casual, and  light-hearted  manner.
\nBut cases do come before this Court,. though not frequently,
\nwhere  this Court comes to the conclusion that the  impugned
\norder  of  detention  is  passed  without  the\t appropriate
\nauthority  applying its mind to the problem, or that it\t can
\nwell be regarded as an order passed malafide.  Having  heard
\nMr. Ramamurthi for the petitioner and the learned Additional
\nSolicitor-General for respondent No. 1, we have come to\t the
\nconclusion that the impugned order in the present case\tmust
\nbe characterised as. having been passed malafide.
\nThe  first consideration which has weighed in our  minds  in
\ndealing\t with  Mr. Ramamurthi’s contentions in\tthe  present
\nproceedings. is that respondent No. 2 has not chosen to make
\na counter-affidavit denying the several specific allegations
\nmade against him by the
\n596<\/span>
\npetitioner.   Broadly  stated,\tthe  petition  alleges\tthat
\nrespondent No. 2 is responsible for the criminal  complaints
\nmade  against  the  petitioner, that respondent\t No.  2\t was
\npresent when his premises were searched, and that respondent
\nNo. 2 actually went to the house of the petitioner when\t the
\npetitioner  was forcibly taken into custody and\t removed  to
\nthe  jail.   The petition further alleges  that\t the  second
\ncriminal  complaint  filed against the\tpetitioner  was\t the
\ndirect\tresult of the F.I.R. by Narayan Pillai\tSivasankaran
\nNair  who  and\this brothers are the  trade  rivals  of\t the
\npetitioner and are closely related to respondent No. 2.\t The
\npetition  likewise specifically alleges that the reports  on
\nwhich the impugned order of detention has been passed,\twere
\nthe  result of the instigation of respondent No. 2.  Whether
\n,or not these allegations, if proved, would necessarily make
\nthe impugned order malafide, is another matter; but, for the
\npresent, we are dealing with the point that respondent No. 2
\nwho  has  been\timpleaded to  the  present  proceedings\t and
\nagainst\t whom specific and clear allegations have been\tmade
\nin  the petition, has not chosen to deny them on  oath.\t  In
\nour  opinion, the failure of respondent No. 2 to deny  these
\nserious\t allegations constitutes a serious infirmity in\t the
\ncase of respondent No. 1.\n<\/p>\n
The  significance  of this infirmity is heightened  when  we
\nlook at the counter-affidavit filed by the Home\t Secretary.
\nThis  affidavit\t has not been made in a\t proper\t form.\t The
\ndeponent does not say which of the statements made by him in
\nhis affidavit are based on his personal knowledge and  which
\nare  the  result  of the information received  by  him\tfrom
\ndocuments or otherwise.\t The form in which the affidavit has
\nbeen  made  is\tso irregular  that  the\t learned  Additional
\nSolicitor-General  fairly conceded that the affidavit  could
\nbe ignored on that ground alone.  That, however, is not\t the
\nonly infirmity in this affidavit.\n<\/p>\n
It  is surprising that the Home Secretary should have  taken
\nupon  himself to deny the allegations made by  the  petition
\nagainst respondent No. 2 when it is plain that his denial is
\nbased on hearsay ,evidence at the best.\t It is not easy\t for
\nus  to\tappreciate  why\t the  Home  Secretary  should\thave
\nundertaken the task of refuting serious allegations made  by
\nthe  petition against respondent No. 2 instead of  requiring
\nrespondent  No.\t to  make a specific  denial  on  his own.
\nWhether\t or  not Narayan Pillai Sivasankaran Nair  and\this
\nbrother are close relatives of respondent No. 2 and  whether
\nor  not\t they  are the trade rivals of\tthe  petitioner\t and
\nexpect to receive benefit from his detention, are matters on
\nwhich  the Home Secretary should have wisely refrained\tfrom
\nmaking any statement in his .affidavit.\t He should have left
\nit  to\trespondent No. 2 to make  the  necessary  averments.
\nBesides,  it  is impossible to understand why  the  specific
\nallegations made by the petition against respondent No. 2 in
\nregard\tto  the part played by him either in  searching\t the
\npetitioner’s  shop or in arresting him should not have\tbeen
\ndefinitely
\n\t\t\t    597<\/span>
\ndenied by respondent No. 2 himself.  The statements made  by
\nthe .Home Secretary in his affidavit in that behalf are very
\nvague and unsatisfactory.  We have carefully considered\t the
\naffidavit  made by the Home Secretary and we  are  satisfied
\nthat  apart  from the formal defect from  which\t it  plainly
\nsuffers, even otherwise the statements made in the affidavit
\ndo not appear to us to have been made by the deponent  after
\ndue deliberation.\n<\/p>\n
Take.. for instance, the statements made by the Home  Secre-
\ntary  in  regard  to the petitioner’s  contention  that\t the
\ncontinuance  of\t his  detention after  the  Kerala  Kerosene
\nControl Order, 1965 came into operation on the 24th October,
\n1965, is wholly unjustified.  The petitioner’s grievance  is
\nclear  and  unambiguous.  He says that unless a\t licence  is
\ngranted\t to  him,  he would no longer be able  to  trade  in
\nkerosene  oil;\tand since admittedly, no  licence  has\tbeen
\ngranted\t to him, his continued detention on  the  ostensible
\nground\tthat  his  dealings  in kerosene  oil  amount  to  a
\nprejudicial  activity, is entirely unjustified.\t  Now,\twhat
\ndoes  the Home Secretary say in respect of this\t contention?
\nOn  the\t date of the detention of the petitioner,  says\t the
\nHome  Secretary’s affidavit, the Control Order had not\tcome
\ninto  force, and that, no doubt, is true.  But the  question
\nis  :  is  the continuance  of\tthe  petitioner’s  detention
\njustified  after  the  said  Order  came  into\tforce?\t The
\naffidavit  says that the petitioner is not a licensee  under
\nthe Kerala Kerosene Control Order, 1965, and cannot  legally
\ncarry  on the business as a dealer in kerosene\tat  present;
\nbut  there  is\tnothing under the law  preventing  him\tfrom
\napplying for such licence to carry on the same business.  It
\nis  difficult to understand the logic or the  reasonableness
\nof this averment.  Indeed, we ought to add that the  learned
\nAdditional  Solicitor-General fairly, and we  think  rightly
\nand wisely, conceded that this part of the Home\t Secretary’s
\naffidavit  could  not  be  supported  and  that\t he  saw  no
\njustification  for  the\t continuance  of  the\tpetitioner’s
\ndetention after the Kerala Kerosene Control Order came\tinto
\noperation on the 24th October, 1965.  It is remarkable\tthat
\nin  the whole of his affidavit, the Homo Secretary does\t not
\nsay  how  he  came to know all the facts  to  which  he\t has
\npurported  to  depose in his affidavit.\t We  have,  however;
\nassumed\t that  as Home Secretary, the file relating  to\t the
\ndetention  of the petitioner must have been handled by\thim,
\nthough\tthe  Home Secretary should have\t  realised  that  he
\nshould himself have made a ‘statement to that effect in\t his
\naffidavit.   We have had occasion to  criticise’  affidavits
\nmade by appropriate authorities in support of the  detention
\norders\tin writ proceedings, but we have not come across  an
\naffidavit which shows such an amount of casualness as in the
\npresent\t case.\tWe have carefully examined all the  material
\nand relevant facts to which our attention has been drawn  in
\nthe  present  proceedings  and we see  no  escape  from\t the
\nconclusion  that  the  impugned order  of  detention  passed
\nagainst the petitioner on the 20th October, 1965, and more
\n598<\/span>
\nparticularly, the petitioner’s continued detention after the
\n24th  October,\t1965, must be characterised as\tclearly\t and
\nplainly\t mala  fide.   This is a case in  which\t the  powers
\nconferred on the appropriate authority have, in our opinion,
\nbeen abused.\n<\/p>\n
We are conscious that even if a subordinate officer makes  a
\nmalicious report against a citizen suggesting that he should
\nbe  detained,  the  malice  inspiring  the  report  may\t not
\nnecessarily  or always make the ultimate order of  detention
\npassed\tby  the\t appropriate  authority\t invalid.   Even   a
\nmalicious  report  may be true in the sense that  the  facts
\nalleged\t may be true, but the person making the\t report\t was
\ndetermined  to report those facts out of malice against\t the
\nparty concerned.  But a malicious report may also be  false.
\nIn  either  case, the malice attributable to  the  reporting
\nauthority  cannot,  in law, be attributed to  the  detaining
\nauthority;  but\t in  such cases, it  must  appear  that\t the
\ndetaining  authority  carefully\t examined  the\treport\t and
\nconsidered  all the relevant material available in the\tcase
\nbefore\tpassing the order of detention.\t  Unfortunately,  in
\nthe  present case, the affidavit made by the Home  Secretary
\nis  so defective and in many places so vague  and  ambiguous
\nthat  we do not know which authority acting  for  respondent
\nNo.  1 in fact examined the case against the petitioner\t and
\nwhat  was  the\tnature of the material\tplaced\tbefore\tsuch
\nauthority;  and the affidavit does not contain any  averment
\nthat  after  the material was examined\tby  the\t appropriate
\nauthority, the appropriate authority reached the  conclusion
\nthat it was satisfied that the petitioner should be detained
\nwith  a,  view\tto  prevent him\t from  acting  in  a  manner
\nprejudicial  to\t the maintenance of  supplies  and  services
\nessential to the life of the community.\n<\/p>\n
A After all, the detention of a citizen in every case is the
\nresult\tof  the subjective satisfaction of  the\t appropriate
\nauthority;  and\t so, if a prima facie case is  made  by\t the
\npetitioner that his detention is either malafide, or is\t the
\nresult\tof  the casual approach adopted by  the\t appropriate
\nauthority, the appropriate authority should place before the
\nCourt  sufficient material in the form of  proper  affidavit
\nmade   by  a  duly  authorised\tperson\tto  show  that\t the
\nallegations   made  by\tthe  petitioner\t about\tthe   casual
\ncharacter  of the decision or its mala fides, are not  well-
\nfounded.  The failure of respondent No. 1 to place any\tsuch
\nmaterial  before us in the present proceedings leaves us  no
\nalternative  but to accept the plea made by  the  petitioner
\nthat  the order of detention passed against him on the\t20th
\nOctober,   1965,  and  more  particularly,   his   continued
\ndetention after the 24th October, 1965, are totally  invalid
\nand unjustified.\n<\/p>\n
In  conclusion,\t we  wish to add that when  we\tcome  across
\norders of this kind by which citizens are deprived of  their
\nfundamental  right of liberty without a trial on the  ground
\nthat the Emergency proclaimed by the President in 1962 still
\ncontinues, and the powers
\n599<\/span>
\nconferred  on the appropriate authorities by the Defence  of
\nIndia Rules justify the deprivation of such liberty, we feel
\nrudely disturbed by the thought that continuous exercise  of
\nthe  very wide powers conferred by the Rules on the  several
\nauthorities  is\t likely to make the conscience of  the\tsaid
\nauthorities  insensitive,  if not blunt,. to  the  paramount
\nrequirement of the Constitution that even during  Emergency,
\nthe freedom of Indian citizens cannot be taken away  without
\nthe  existence of the justifying necessity specified by\t the
\nRules themselves.  The tendency to treat these matters in  a
\nsomewhat  casual and cavalier manner which  may\t concievably
\nresult\tfrom the continuous use of such\t unfettered  powers,
\nmay ultimately pose a serious threat to the basic values  on
\nwhich the democratic way of life in this country is founded.
\nIt  is true that cases of this kind are rare; but  even\t the
\npresence  of such rare cases constitutes a warning to  which
\nwe  think  it  is our duty to invite the  attention  of\t the
\nappropriate authorities.  In the circumstances of this\tcase
\nwe  direct that respondent No. I will pay the costs  of\t the
\npetitioner quantified at RS. 500.\n<\/p>\n
Petition allowed-\n<\/p>\n
600<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India G.Sadanandan vs State Of Kerala & Anr on 11 February, 1966 PETITIONER: G.SADANANDAN Vs. RESPONDENT: STATE OF KERALA & ANR. DATE OF JUDGMENT: 11\/02\/1966 BENCH: ACT: Defence of India Rules, 1962 Rule 30(1) (b)-Detention under Writ petition by detenu-Pleas that may be entertained by court during operation of Emergency and President’s […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-183527","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nG.Sadanandan vs State Of Kerala & Anr on 11 February, 1966 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/g-sadanandan-vs-state-of-kerala-anr-on-11-february-1966\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"G.Sadanandan vs State Of Kerala & Anr on 11 February, 1966 - 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