{"id":197620,"date":"1975-07-15T00:00:00","date_gmt":"1975-07-14T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/krishna-murari-aggarwala-vs-the-union-of-india-ors-on-15-july-1975"},"modified":"2018-04-04T19:28:45","modified_gmt":"2018-04-04T13:58:45","slug":"krishna-murari-aggarwala-vs-the-union-of-india-ors-on-15-july-1975","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/krishna-murari-aggarwala-vs-the-union-of-india-ors-on-15-july-1975","title":{"rendered":"Krishna Murari Aggarwala vs The Union Of India & Ors on 15 July, 1975"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Krishna Murari Aggarwala vs The Union Of India & Ors on 15 July, 1975<\/div>\n
Equivalent citations: 1975 AIR 1877, \t\t 1976 SCR (1)\t 16<\/div>\n
Author: S M Fazalali<\/div>\n
Bench: Fazalali, Syed Murtaza<\/div>\n
           PETITIONER:\nKRISHNA MURARI AGGARWALA\n\n\tVs.\n\nRESPONDENT:\nTHE UNION OF INDIA & ORS.\n\nDATE OF JUDGMENT15\/07\/1975\n\nBENCH:\nFAZALALI, SYED MURTAZA\nBENCH:\nFAZALALI, SYED MURTAZA\nUNTWALIA, N.L.\n\nCITATION:\n 1975 AIR 1877\t\t  1976 SCR  (1)\t 16\n 1975 SCC  (4) 481\n\n\nACT:\n     Maintenance of  Internal Security\tAct,  1971,  Section\n3(1)(a)(iii)-Two grounds  of detention-One irrelevant-Effect\nof-Detenting Authority more than one-Propriety.\n\n\n\nHEADNOTE:\n     The petitioner  was carrying on business in diesel oil,\nan essential commodity, in two places. He was detained under\ns. 3(1)(a)(iii) of the Maintenance of Internal Security Act,\n1971, on the basis of allegations in two grounds that as had\ncommitted sets\tprejudicial to\tthe maintenance\t of supplies\nand services  essential to  the community. The allegation in\nthe first ground was that he had stocked a large quantity of\nlight diesel  oil in  one of  the places without waiting for\nthe licence  to\t be  cleared  by  the  Chief  Controller  of\nExplosives in  violation of  the provisions of the Petroleum\nAct. It\t was also  stated in the ground that a complaint had\nbeen lodged  in the  Magistrate's court for the offence. The\nallegation in  the second  ground was  that  the  petitioner\nviolated the  U.P. Sale\t of Motor Taxation Act and the rules\nmade  thereunder,   in\tthat  the  names  and  addresses  of\ncustomers  who\t had  purchased\t  light\t diesel\t  from\t tho\npetitioner, had not been given in the cash memos.\n     Allowing The petition,\n^\n     HELD: (1)(a)  There is  no allegation  by the detaining\nauthority in  the first\t ground that  by  storing  the\thuge\nquantity of  light diesel  oil the petitioner had in any way\naffected the  distribution or sale of that commodity; nor is\nthere any allegation to show that the petitioner had refused\nto sell the oil to anybody who required it. Also there is no\nsuggestion, far less any allegation, that the petitioner had\ntried to  divert his' stocks from one place to the other and\nthereby deprived  the people  of one place of their share of\nthe oil.  Therefore,  there  is\t absolutely  no\t correlation\nbetween the  act of  the petitioner  and the  disruption  of\ndistribution of essential supplies to the community. [20D-E,\nF-G]\n     (b) From  the violation  of the mandatory provisions of\nthe  Petroleum\t Act  and  the\tRules  made  thereunder,  no\npresumption can be drawn that there was disruption of supply\nof the essential commodity. [20G-H]\n     (c) The  commission of an offence at a private place or\na violation  of a  provision or\t a law\tby itself  does\t not\nattract the  Maintenance of Internal Security Act unless, by\nthe Act\t committed, the\t supply or an essential commodity to\nthe community  is disrupted  or the even flow of the life of\nthe community is disrupted. [21B]\n     Manu Bhushan Roy Prodhan v. State of Bengal and others,\nA. I. R. 1973 S. C. 295, referred to.\n     (2) The  second Ground  does disclose a clear overt act\nfrom which an inference can be drawn that the petitioner had\nmade a\tnumber of  fictitious sales.  But, in  view  of\t the\nfinding that  the first\t ground\t is  irrelevant\t it  is\t not\npossible  to   determine  to   what  extent  the  subjective\nsatisfaction of\t the detaining\tauthority was  influenced or\naffected by  the first\tground. When out of 2 grounds one is\nague or irrelevant, then the entire order of detention falls\nto the ground. [22C, F-G]\n     (3)  The\tCourt  cannot\tgo  behind   the  subjective\nsatisfaction the  detaining authority  but such satisfaction\ndoes not  confer a  blanket power  which may  authorise\t the\ndetaining authority  to\t act  in  a  ruthless  or  arbitrary\nfashion. Judicial  decisions have  carved out an area though\nlimited, within\t which, the  subjective satisfaction  of the\ndetaining authority,  which  is\t a  sine  qua  non  for\t the\nexercise of  the power,\t can be\t tested on the touchstone of\nobjectivity. [24F-G]\n17\n     (a) The words \"make an order directing that such person\nbe detained\"  in Section  3 (1)\t of the Act postulates three\nconditions: (i) that the order must be made by the authority\nin the\tsection; (ii)  The order  must be duly signed by the\nsaid authority;\t and (iii)  that only  one authority and one\nauthority alone\t can pass the order of detention. Therefore,\nunless the order made and the grounds prepared are signed by\nthe  authority\t concerned,  the   order  is   not  made  as\ncontemplated by the section. [25F-G]\n     (b) Further,  since the order is based on grounds to be\nserved on  the detenu, he order of detention could be passed\nonly if\t the grounds  are  in  existence  and  are  prepared\ncontemporaneously, otherwise  the order of detention becomes\nillusory. [25H-26A]\n     In the  present case, the District Magistrate who filed\nthe counter-affidavit  was acting  in place of the permanent\nDistrict Magistrate.  In the  High (court which was moved in\nthe first instance for a writ of habeas corpus, the District\nMagistrate stated  that the order of detention was passed by\nhim after  being satisfied of the grounds of detention, that\nhe also\t framed the  draft  of\tthe  grounds  and  that\t the\npermanent District Magistrate, who took over from him merely\nsigned and  served those grounds on the detenu. But, in this\nCourt he  stated that  the order  of detention was passed by\nthe two\t detaining authorities,\t namely, both  the  District\nMagistrates, after they had fully satisfied themselves about\nthe existence of the grounds. It is, therefore. not possible\nto determine  as to who in fact made the order of detention.\nand in view of the contradictory stand taken in the counter-\naffidavits filed  by the detaining authorities, the exercise\nof the\tjurisdiction to\t detain the  petitioner has not been\nmade with  due care  and caution  or in\t a proper  and\tfair\nmanner. [23B-24F]\n     Khudiram Das  v. The state of West Bengal and Other, A.\n1. R. 1975 S. C. 550, referred to.\n     The Court\talso expressed\tstrong\tdisapproval  of\t the\ncareless and  irresponsible manner  in\twhich  the  counter-\naffidavit had  been filed by the District Magistrate because\nthe date  on which  reference was made to the advisory Board\nwas in\tcorrectly  stated  in  the  counter-affidavit  which\ncreated unnecessary  confusion and controversy over a simple\nissue] [18F-G]\n\n\n\nJUDGMENT:\n<\/pre>\n
     ORIGINAL JURISDICTION: Writ Petition No. 84 of 1975.
\n     Petition under Art. 32 of the Constitution of India.
\n     A. k.  Sell, D.  N. Mukherjee,  Narayan Gupta and C. S.
\nChatterjee, for the petitioner.\n<\/p>\n
     Girish Chandra, for respondent no. 1.\n<\/p>\n
     D.P. Uniyal and O. P. Rana, for respondent nos. 2-5.
\n     The Judgment of the Court was delivered by
\n     FAZAL ALI,\t J.- By\t an order  dated  November  8,\t1974
\npassed by  the District\t Magistrate, Badaun,  the petitioner
\nwas detained  under s.\t3(1)(a)(iii) of\t the Maintenance  of
\nInternal Security Act, 1971- hereinafter referred to as ‘the
\nAct’-because  the   allegations\t made\tin  the\t grounds  of
\ndetention disclosed  that he  had committed acts prejudicial
\nto the maintenance of supplies and services essential to the
\ncommunity. The grounds of the order of detention were served
\non the\tpetitioner by  the District  Magistrate, Badaun,  on
\nNovember 13,  1974. The\t State Government approved the order
\nof detention on
\n18<\/span>
\nNovember 19,  1974 and\tmade a\treport to  the Government of
\nIndia\ton November  22, 1974. According to the respondents,
\nthe Government\tof U.P. had made a reference to the Advisory
\nBoard constituted  under the Act on November 22, 1974 but as
\nit had\tnot received The representation from the petitioner,
\nthe same  was forwarded later. The representation, according
\nto the\trespondents, was received on November 28, 1974 which
\nwas rejected  on December  6, 1974.  The representation\t was
\nsent to\t the Advisory  Board on December 18″ 1974 which gave
\n13 its\treport holding\tthat the grounds were sufficient for
\ndetention of the petitioner and after receipt of the opinion
\nof the\tAdvisory Board\ton January  7,\t1975  the  order  of
\ndetention was finally confirmed by the Government on January
\n17, 1975.\n<\/p>\n
     We might mention at the very outset that there was some
\ncontroversy on\ttwo points before us. In the first place the
\npetitioner did\tnot accept  the stand of the Government that
\nthe reference to the Advisory Board was made on November 22,
\n1974 but relied on a counter-affidavit filed by Mr. S. K. D.
\nMathur, the  then District  Magistrate of  Badaun,  in\tthis
\nCourt to support his plea that the reference to the Advisory
\nBoard was  made on December 20, 1974 vide paragraph 2(vi) of
\nthe counter-affidavit  appearing at  p. 118  the Paper Book.
\nIt was\ttherefore contended  by the  learned counsel for the
\npetitioner that\t as the\t reference was\tmade to the Advisory
\nBoard beyond the period mentioned in s. 10 of the Act, there
\nbeing a violation of the mandatory provision of the statute,
\nthe order of detention fell on this ground alone. We gave an
\nopportunity to the Government to produce before us materials
\nto show\t the exact  position  and  from\t the  original\tfile
\nproduced before\t us we find that the counter-affidavit filed
\nby Mr.\tS. K. D. Mathur in this court to the effect that the
\nreference was  made to\tthe Advisory  Board on\tDecember 20,
\n1974 was  factually incorrect  and that\t the  reference\t was
\nreally made on November 22, 1974 by the Government by virtue
\nof letter  No. 107\/2\/48\/74.  The file also contains a letter
\nof the\tRegistrar  dated  January  7,  1975  forwarding\t the
\nopinion of  the Advisory Board wherein also it was mentioned
\nthat the reference was made on November 22, 1974. In view of
\nthese cogent  materials Mr.  Sen  learned  counsel  for\t the
\npetitioner did\tnot choose  to press  this point. We cannot,
\nhowever.. Leave\t this matter  without expressing  our strong
\ndisapprobation on  the careless\t and irresponsible manner in
\nwhich  the   counter-affidavit\thas   been  filed   by\t the
\nrespondents,  particularly  by\tMr.  S.\t K.  D.\t Mathur\t who
\nhappened to be the then District Magistrate, Badaun. We hope
\nthe Government\twill be\t careful in future and see that such
\nincorrect affidavit  are not  filed before this Court, which
\nmay create  unnecessary confusion and controversy and make a
\nsimple issue so very much involved.\n<\/p>\n
     The petitioner  was admittedly  a partner\tof the\tfirm
\ncalled Bharat  Oil Company  which was dealing in the storage
\nand sale  of high  speed diesel oil since 1965. According to
\nthe petitioner the business was started at Badaun and Ujhani
\nbut later  a branch  was opened\t at Bareilly  and  the\tfirm
\ntransferred its\t headquarters to  Bareilly in  1971. We\t are
\nnot, however, concerned with the business at
\n19<\/span>
\nBareilly in  this case.\t Under the  Petroleum Act, 1934, the
\npetitioner could  have carried\ton his\tbusiness only  after
\nobtaining a  licence  from  the\t prescribed  authority.\t The
\nDistrict Authorities  could grant licence only to the extent
\nof 22,000  liters but  if the  dealer wanted  to store\thigh
\ndiesel oil  to the  extent of more than 22,000 litres he had
\nto get\ta licence  from the  Chief Controller of Explosives,
\nNagpur. The  petitioner’s further case is that as high speed
\ndiesel oil  ran in short  supply, the Indian oil Corporation
\nand the\t District authorities  impressed on  the dealers the
\nnecessity of keeping light diesel oil which was available in
\nsufficient  quantities\t and  was   necessary  for  running,
\ncrushers and  pumps in\tthe rural  areas. The petitioner had
\nundoubtedly secured  a licence\tfor storage  of li ht diesel
\noil which  was valid upto March 31, 1975 and had applied for
\nrenewal of the licence thereafter and had also complied with
\nall the\t necessary formalities\tabout no  objection and\t the
\nsafety certificate  to be given by the District Authorities.
\nBut on\tthe date  in question  the licence of the petitioner
\nhad not\t been renewed  so far.\tWe might  intention in\tthis
\nconnection that\t the stand  taken by the respondents is that
\nalthough the  petitioner had a licence to stole light diesel
\noil to\tthe extent  of 22,000  litres he did not possess any
\nlicence for storing it at Ujhani. It appears that the godown
\nof the\tpetitioner was searched by the excise authorities on
\nOctober 17,  1974 and  November 5, 1974 and in inspection of
\nthe godown  about 1.64\tlakhs litres of light diesel oil was
\nfound stored  it Ujhani.  The stock register was produced by
\nthe petitioner\tbefore the  authorities which appeared to be
\nin order  and there  is no  allegation that  there  was\t any
\nmanipulation or interpolation in the stock register Thus the
\nsimple allegation  against the\tpetitioner is  that  he\t had
\nstocked huge  quantity of  light diesel\t oil without waiting
\nfor the\t licence to  be cleared\t by the\t Chief Controller of
\nExplosives at  Nagpur This  forms the  subject-matter of the
\nallegations mentioned in grounds (1)(a) & (b) of the grounds
\nof detention  served on\t the petitioner. The sheet-anchor of
\nthe argument  of Mr.  Sen learned counsel for the petitioner
\nwas that  in so\t far as\t ground No  (1) was concerned it was
\nwholly irrelevant  and totally unconnected with the nexus of
\nthe Act, because  even if the grounds be taken at their face
\nvalue they did not disrupt or disturb the essential supplies
\nto the community. Before dealing with this contention it may
\nbe necessary  to quote\tin extenso  the grounds mentioned in
\n(1)(a) & (b) of the detention order:\n<\/p>\n
\t  “(1) That  you a  partner in the firm named Bharat
\n     oil Company,  Mohalla Ayodhya  Nagar,  Ujhani  District
\n     Badaun, on\t Bareilly-Mathura Road,\t authorised only  to
\n     deal in  High Speed  Diesel and Motor Spirit were found
\n     hoarding Light  Diesel oil,  without having  obtained a
\n     licence for  the same  from  the  Chief  controller  of
\n     Explosives, Nagpur as is evident from the following:-<\/p>\n
\t  (a)  On 17-10-74  at about  4 P.M. the premises of
\n\t       your aforesaid  firm was\t inspected by Sri S.
\n\t       N. Pandey,  District Excise  officer,  Badaun
\n\t       and it  was found  that\tin  the\t underground
\n\t       tanks within the premises mentioned aforesaid
\n\t       96,000 litres of Light
\n20<\/span>
\n\t       Diesel oil  was stored,\tfor which no licence
\n\t       could be\t produced on  demand by the District
\n\t       Excise officer  aforesaid  and  thereafter  a
\n\t       complaint has  also been\t lodged in the court
\n\t       of the  Chief Judicial  Magistrate, Badaun by
\n\t       the District Excise officer on 8-11-74\n<\/p><\/blockquote>\n
\t  (b)  On 5-11-74  the premises\t of  your  aforesaid
\n\t       firm Bharat  oil Company,  Ujhani, was  again
\n\t       inspected at  about 4.15\t P.M. by  Sri N.  N.
\n\t       Verma S.D.M.  Badaun accompanied\t by District
\n\t       Excise officer  Badaun and  Sri Fateh  Singh,
\n\t       Dy. S.P. Badaun and it was found that 68,000)
\n\t       litres of  Light Diesel\toil had\t during\t 7th
\n\t       October 1974  to the  time of this inspection
\n\t       been added  to the  store kept  by you of the
\n\t       said Light  Diesel oil  of 96,000  litres, in
\n\t       three underground  tanks within\tthe premises
\n\t       mentioned aforesaid  and no  licence could be
\n\t       produced on  demand by the S.D.M. Badaun. For
\n\t       this also, a complaint has been lodged by the
\n\t       S.D.M.  Badaun\tin  the\t Court\tof  Judicial
\n\t       Magistrate II Badaun on 8-11-74.”\n<\/p><\/blockquote>\n
Analysing these\t grounds it  would appear  that there  is no
\nallegation by  the detaining  authority that  by storing the
\nhuge quantity  of light diesel oil the petitioner had in any
\nway affected the distribution or sale of that commodity, nor
\nis there  any allegation  to  show  that  the  petition\t had
\nrefused to  sell light\tdiesel oil  to any body who required
\nit. The High Court which was moved in the first instance for
\na writ\tof habeas corpus, appears to have drawn an inference
\nbased  purely\t on  speculation  that\tthe  petitioner\t had
\ntransferred huge  quantities of\t light diesel  oil from\t his
\ndepot at  Badaun to his godown at Ujhani. There is, however,
\nno material  on the basis of which the High Court could have
\ndrawn such  an inference.  There is, however, no suggestion.
\nfar  less   any\t allegation,   in  these  grounds  that\t the
\npetitioner had\ttried to  divert his  stocks of light diesel
\noil from Badaun to Ujhani and thereby deprived the people of
\nBadaun of  their share\tof the\tlight diesel  oil. In  these
\ncircumstances, therefore,  we arc  satisfied that  there  is
\nabsolutely no  correlation between the act of the petitioner
\nand the disruption of distribution of the essential supplies
\nto the\tcommunity. The\tlearned counsel\t appearing  for\t the
\nrespondents submitted  that by\tstoring such huge quantities
\nof light diesel oil in Ujhani the petitioner has committed a
\nclear violation of the mandatory provisions of the Petroleum
\nAct and\t the Rules  made thereunder  and must be presumed to
\nhave disrupted\tthe essential  supplies because light diesel
\noil had been declared by the order of the Government of U.P.
\nto be  an essential  commodity. We  are, however,  unable to
\nagree  with   this  argument.  Mr.  Sen\t appearing  for\t the
\npetitioner does not dispute that the light diesel oil was an
\nessential commodity,  but his argument was that he has in no
\nway  tried   to\t disrupt  the  essential  supplies  of\tthis
\ncommodity and  he merely  committed a  technical offence  in
\nstoring the  quantities of  light diesel oil in anticipation
\nof the\tlicence which  had  been  cleared  by  the  District
\nAuthorities and which awaited the
\n21<\/span>
\nsanction of  the Chief\tController of Explosives, Nagpur and
\nwhich would  have in normal routine been granted. It is also
\nadmitted in  the ground\t itself that  a complaint  had\tbeen
\nlodged in the Court of the Chief Judicial Magistrate against
\nthe petitioner\tfor the\t storage. We  have already  held  in
\nseveral cases that the commission of an offence at a private
\nplace or  a violation  of a  provision of law by itself does
\nnot attract  the Act  unless by\t the act  committed  by\t the
\npetitioner the\tessential  supplies  to\t the  community\t are
\ndisrupted or  even flow\t of the\t life of  the  community  is
\ndisrupted. Reading  grounds (1)(a)  & (b)  we are  unable to
\nhold that  they are  in any  way germane  or relevant to the
\ndisruption of  maintenance  of\tessential  supplies  to\t the
\ncommunity.\n<\/p>\n
In Manu\t Bhusan Roy  Prodhan v.\t State of  West\t Bengal\t and
\nothers<\/a>(1) this Court observed as follows:\n<\/p>\n
     “This kind\t of a  solitary assault\t on one\t individual,
\n     which may well be equated with an ordinary murder which
\n     is not  an uncommon  occurrence, can  hardly be said to
\n     disturb public peace or place public order in jeopardy,
\n     so as  to bring the case within the purview of the Act.
\n     It can  only raise a law and order problem and no more;
\n     its  impact  on  the  society  as\ta  whole  cannot  be
\n     considered to  be so extensive, widespread and forceful
\n     as to  disturb the normal life of the community thereby
\n     rudely shaking  the balanced  tempo of the orderly life
\n     of the  general public.  This ground is, therefore, not
\n     at all  relevant for  sustaining the order of detention
\n     for preventing  the petitioner  from acting in a manner
\n     prejudicial to the maintenance of public order.\n<\/p><\/blockquote>\n
The ratio  of this  case fully tallies with the facts of the
\npresent case where also grounds (1) (a) & (b) taken at their
\nface value  appear to  be irrelevant and do not disclose any
\ncausal connection  with\t the  disruption  of  the  essential
\nsupplies to the community.\n<\/p>\n
     We now  take up  the other\t ground, namely,  ground No.
\n(2), which is as follows:\n<\/p>\n
\t  “(2) That  you as  partner of\t the firm M\/s Bharat
\n     oil Company  located at  Badaun licensed  at Badaun  to
\n     deal with Light Diesel oil and required by rule 9(1) of
\n     the  U.P.\tEssential  Commodities\t(Price\tDisplay\t and
\n     Control of\t Supply and  Distribution) order,  1971.  as
\n     amended by Second Amendment dated’ June 13, 1973 framed
\n     under Rule\t 114(2) of  the Defence of India Rules, 1971
\n     to issue  every purchaser\ta correct  receipt  showing,
\n     inter alia,  the name  and address of the customer were
\n     found to  have sold Light Diesel Oil repeatedly without
\n     complying with the said requirement and with the object
\n     make fictitious sale of the
\n22<\/span>
\nLight Diesel Oil a scheduled commodity within the meaning of
\nthe said order, as is evident from the following:\n<\/p><\/blockquote>\n
     (i)  Cash memo no. 62 dated 8-8-74\t |
\n\t\t\t\t\t |\n<\/p><\/blockquote>\n
     (ii) Cash memo no, 63 dated 14-8-74 |
\n\t\t\t\t\t |\n<\/p><\/blockquote>\n
     (iii)Cash memo no 134 dated 7-10-74 |  Name and address
\n\t\t\t\t\t |  of the customer\n<\/p><\/blockquote>\n
     (iv) Cash memo no, 135 dated 7-10-74|  not given”<\/p><\/blockquote>\n<\/blockquote>\n
\t\t\t\t\t |\n<\/p><\/blockquote>\n
     (v)  Cash memo no. 145 dated 7-11-74|
\n\t\t\t\t\t |\n<\/p><\/blockquote>\n
     (vi) Cash memo no. 146 dated 7-11-74|
\nThis ground   no  doubt discloses  a clear  overt act on the
\npart of\t the petitioner from which an inference can be drawn
\nthat the  petitioner had  made a number of fictitious sales.\n<\/p><\/blockquote>\n
The details  of the  cash memos\t by which the sales had been
\nmade have also been given but the cash memos do not disclose
\nthe names and addresses of the customers, as required by the
\nrules. The  petitioner has  himself admitted in paragraph-13
\nof his\tpetition filed\tin this\t Court that there had been a
\nviolation of  the U.P. Sale of Motor Spirit Taxation Act and
\nthe Rules  made thereunder  but he  sought  to\texplain\t the
\nomission on the ground that it was due to the mistake of the
\nMunim and  the quantities  alleged to  have been  sold\twere
\nactually purchased  by the petitioner himself for the use of
\nthe pumps  in his  own agricultural  farm. This\t explanation
\ndoes not  appear to  be convincing  at all.  From  the\tfile
\nproduced before\t us by\tthe respondents\t it appears that the
\ntotal amount  of sale  of light\t diesel oil under these cash
\nmemos mentioned\t in the\t ground comes  to 21 ,000 litres. We
\nfind it\t impossible to\tbelieve that  the  petitioner  would
\nconsume such  huge quantity  of light  diesel\toil for\t his
\npersonal agricultural farms particularly when the petitioner
\nhad given  no details  of the  number  of  farms  and  other
\nmachines for  which this  oil was  said to be used. In these
\ncircumstances  there   can  be\tno  doubt  that\t these\twere
\nfictitious sales made by the petitioner with a view to hoard
\nlight diesel  oil and by his conduct the persons who were in
\ngenuine need  of light diesel oil were deprived of the same.
\nGround\tNo.  (2),  therefore  is  quite\t specific,  but\t the
\ndifficulty is  that in\tview of\t our finding that ground No.
\n(1) is irrelevant it is not possible to determine as to what
\nextent\tthe   subjective  satisfaction\t of  the   detaining
\nauthority was influenced or affected by Ground No. (1) which
\nhas been found by us to be extraneous and irrelevant. It has
\nbeen held  by us  in several  cases that  where out  of\t two
\ngrounds one  ground is\tvague or irrelevant, then the entire
\norder of  detention falls to the ground. In this view of the
\nmatter the  order of  detention suffers\t from  this  serious
\ninfirmity and must be quashed.\n<\/p>\n
     Secondly it  was argued  by the learned counsel for the
\npetitioner that\t on the\t materials produced  before  us\t the
\nsubjective satisfaction\t of the detaining authority has also
\nnot been  established. To  begin with it is not clear at all
\nas to  who  passed  the\t order\tof  detention  and  who\t was
\nsatisfied regarding  the sufficiency  of the grounds. In the
\nsecond place  the grounds  appear to have been served by Mr.
\nR. C.  Arora the permanent District Magistrate of Badaun who
\nhas also  signed the  same  which  shows  that\the  was\t the
\ndetaining
\n23<\/span>
\nauthority also.\t On a  consideration of\t these two points we
\nare of\tthe opinion  that  the\tcontention  of\tthe  learned
\ncounsel for the petitioner is well founded and must prevail.
\nComing to  the first  point we find that Mr. S. K. D. Mathur
\nhas clearly  alleged in his counter affidavit that Mr. R. C.
\nArora  the  permanent  District\t Magistrate  of\t Badaun\t had
\nproceeded on  leave from  October 21,  1974 to\tNovember 11,
\n1974 and during his absence the deponent S. K. D. Mathur was
\nacting as  the District\t Magistrate of Badaun. It is further
\nstated in  the affidavit  that Mr.  R. C. Arora rejoined his
\nduty in November 12, 1974 and took charge of his office. The
\norder of  detention, however,  appears to  have been  passed
\nwhile Mr.  S. K.  D.  Mathur  was  officiating\tas  District
\nMagistrate of  Badaun and  Mr. Mathur makes no secret of the
\nfact that  the order  of detention  was passed\tby him after
\nbeing satisfied\t of the grounds of detention. In the counter
\naffidavit submitted  by Mr.  S. K. D. Mathur before the High
\nCourt, which  is Annexure  at p.  66 of\t the Paper  Book Mr.
\nMathur categorically  stated that  he himself had passed the
\ndetention order\t after recording  his satisfaction.  In this
\nconnection paragraph  1 of  the counter affidavit before the
\nHigh Court is as follows:\n<\/p>\n
\t  That the  deponent was District Magistrate, Badaun
\n     on 8-11-1974,  and he  has passed\tthe detention  order
\n     against the petitioner after being fully satisfied that
\n     the petitioner  was acting\t in a  manner prejudicial to
\n     the maintenance  of supplies  and services essential to
\n     the community  and as  such he  is well acquainted with
\n     the facts deposed to below.”\n<\/p><\/blockquote>\n
This  allegation   is  reiterated   and\t over-emphasised  in
\nparagraph 23  of the same affidavit wherein Mr. Mathur makes
\na categorical averment which is as follows:\n<\/p>\n
\t  “….the deponent  submits that in his capacity as
\n     the District  Magistrate he was fully competent to make
\n     the impugned  order of  detention. The deponent further
\n     submits that  on the  basis of  the  evidence  and\t the
\n     material placed be before him, to which he has referred
\n     above he  was personally  and fully satisfied as to the
\n     existence of  sufficient basis  to\t make  the  impugned
\n     order with\t a  view  to  prevent  the  petitioner\tfrom
\n     indulging in  activities prejudicial to the maintenance
\n     of essential services and supplies.”\n<\/p><\/blockquote>\n
In this\t very affidavit\t Mr. Mathur goes on to state that he
\nhad also farmed draft of the grounds on November 8, 1974 and
\nthat Shri  R. C.  Arora who  took over\ton November 12, 1974
\nserved these  grounds on  the petitioner which were drawn by
\nthe deponent  Mr. S.  K. D.  Mathur. In\t this connection the
\naverment runs as follows:\n<\/p>\n
\t  “Sri R.  C. Arora took over charge on November 12,
\n     1974 and  under his  signature Sri\t Arora served  these
\n     same grounds  which the deponent had earlier drawn upon
\n     the petitioner.”\n<\/p><\/blockquote>\n
According to the clear and categorical averments made by Mr,
\nS. K.  D. Mathur  in his affidavit before the High Court the
\nonly role which was
\n24<\/span>
\nassigned  to   Mr.  R.\t C.  Arora  the\t permanent  District
\nMagistrate was\tA that he signed the grounds and served them
\non the\tdetenu. In  other words,  according to\tMr. S. K. D.
\nMathur, Mr.  R. C.  Arora was merely the serving officer and
\ndid not perform any other function in so far as the order of
\ndetention passed  against the  petitioner was  concerned and
\nyet this  officer is imprudent enough to allege in paragraph
\n25 of  the counter-affidavit  filed in\tthis Court  that the
\norder of detention was passed not only by him but by the two
\ndetaining authorities,\tnamely Mr. R. C. Arora and Mr. S. K.
\nD. Mathur. In this connection Mr. Mathur averred as follows.\n<\/p>\n
\t  “That the  order of  detention was  passed by\t the
\n     detaining authorities  after they\thad fully  satisfied
\n     themselves about the existence of the grounds.”\n<\/p><\/blockquote>\n
It would  thus appear  from this  averment that the order of
\ndetention was  not passed  by one  single person but by more
\nthan one  person and  taking  the  facts  mentioned  by\t the
\ndeponent it would appear that the order of detention appears
\nto have\t been passed  in two  stages in he first instance by
\nMr. S. K. D. Mathur who was full fledged District Magistrate
\non November  8, 1974 when the order of detention was passed,
\nbut who\t according to his own statement had first prepared a
\ndraft of the grounds. The order of detention was then signed
\nby Mr.\tR. C.  Arora on\t November 13, 1974 and served on the
\ndetenu. While Mr. S. K. D. Mathur took the clearest possible
\nstand before the High Court that he alone had made the order
\nof  detention\tand  he\t  alone\t was   satisfied  about\t the
\nsufficiency of the grounds, but in his affidavit before this
\nCourt he  seems to  suggest that  there were  two  detaining
\nauthorities both  of whom  were satisfied.  This  shows\t the
\ncasual and  cavalier manner  in which the order of detention
\nagainst the  petitioner appears\t to have been passed in this
\ncase. Even if the order had been made by Mr. S. K. D. Mathur
\nand signed,  by him,  there could  have been no objection in
\nMr. R.\tC. Arora  serving the  grounds\ton  the\t petitioner,
\nbecause the  law  does\tnot  require  that  the\t person\t who
\nactually signs\tthe order or the grounds must also serve the
\nsame on\t the detenu.  But in this case it is not possible to
\ndetermine as to who in fact made the order of detention. F
\n     It\t is  true  that\t the  Court  cannot  go\t behind\t the
\nsubjective satisfaction of the detaining authority, but such
\nsatisfaction does  not confer  a  blanket  power  which\t may
\nauthorise the  detaining authority  to act  in a ruthless or
\narbitrary  fashion   and   the\t judicial   decisions\thave
\nundoubtedly carved out an area, though limited. within which
\nthe subjective\tsatisfaction of\t the detaining authority can
\nbe tested  on the  touchstone of  objectivity. It is obvious
\nthat the  subjective satisfaction of the detaining authority
\nis a sine qua non for the exercise of power of detention and
\nit has\tgot to\tbe exercised  properly\tand  discreetly.  In
\nKhudiram Das  v. The State of West Bengal and others<\/a>(1) this
\nCourt made the following observations:\n<\/p>\n
\t  “The basic  postulate on  which  the\tcourts\thave
\n     proceeded is  that the  subjective satisfaction being a
\n     condition precedent  for  the  exercise  of  the  power
\n     conferred on the executive, the
\n25<\/span>
\n     court  can\t  always  examine   whether  the   requisite
\n     satisfaction is  arrived at  by the authority; if it is
\n     not, the  condition precedent  dent to  the exercise of
\n     the power\twould not  be fulfilled\t and the exercise of
\n     the power would be bad.”\n<\/p><\/blockquote>\n
In the\tinstant case,  in view\tof the\tcontradictory  stand
\ntaken by  the detaining\t authorities, we  are satisfied that
\nthe exercise  of jurisdiction  to detain  the petitioner has
\nnot been  made with  due care and caution or in a proper and
\nfair manner.  On this  ground also  the order  of  detention
\nstands vitiated.   .\n<\/p>\n
\t  Section 3(1) of the Act runs.\t thus:\n<\/p>\n
\t  “3.  (1)  The\t Central  Government  or  the  State
\n     Government may,\n<\/p>\n
     (a)  if satisfied with respect to any person (including
\n\t  a foreigner)\tthat with  a view  to preventing him
\n\t  from acting in any manner prejudicial to\n<\/p>\n
\t  (i)  the defence  of India,  the relation of India
\n\t       with  foreign  powers,  or  the\tsecurity  of
\n\t       India, or\n<\/p>\n
\t  (ii) the  security of the State or the maintenance
\n\t       of public order, or\n<\/p>\n
\t  (iii)the  maintenance\t of  supplies  and  services
\n\t       essential to the community, or\n<\/p>\n
     (b)  if satisfied\twith respect  to any  foreigner that
\n\t       with  a\tview  to  regulating  his  continued
\n\t       presence in  India or  with a  view to making
\n\t       arrangements for his expulsion from India;
\n     It is  necessary so to do, make an order directing that
\n     such person be detained.”\n<\/p>\n
This power  can also  be exercised by the officers mentioned
\nin sub-s. (2), and in the instant case we are concerned with
\nthe District  Magistrate. The words “make an order directing
\nthat such  person be  detained\t ” clearly  postulate  three
\nconditions-(1) that  the order must be made by the authority
\nmentioned in s. 3; (ii) the order must be duly signed by the
\nsaid authority;\t and (iii)  that only  one authority and one
\nauthority alone\t can  pass  such  order\t of  detention.\t The
\nstatute does  not contemplate a sort of composite or a joint
\norder passed by several authorities. In the instant case the
\noriginal order\tof detention  passed by\t Mr. S. K. D. Mathur
\nbears his  signature and even the grounds mentioned bear his
\nsignature. In  these circumstances  we are  unable to accept
\nthe affidavit of Mr. S. K. D. Mathur that the grounds framed
\nby him\twere merely draft grounds prepared by him which were
\nsigned by  the permanent  District Magistrate  later. It  is
\nobvious that  unless the order made and the grounds prepared
\nare signed by the authority concerned, the order is not made
\nas contemplated\t by s. 3 of the Act. Further more, since the
\norder is  based on  grounds to\tbe served on the detenu, the
\norder of  detention could  be passed only if the grounds are
\nin existence  and are  prepared contemporaneously, otherwise
\nthe order
\n26<\/span>
\nof detention  becomes purely  illusory. In view, however, of
\nthe contradictory  affidavits given  by Mr. S. K. D. Mathur,
\nit is  difficult to determine whether Mr. S. K. D. Mathur or
\nMr. R.\tC. Arora passed the order of detention and as to who
\namong them was satisfied regarding the grounds of detention.
\nThis is\t also a\t very serious infirmity from which the order
\nof detention  suffers and as a result of which the order has
\nto be set aside. There appears to us to be a clear violation
\nof the provisions of s. 3 of the Act in this case.\n<\/p>\n
     Lastly we\tmay mention that although the petitioner has
\npleaded he question of mala fides in the instant case, it is
\nnot necessary  for us to decide the same in the view we take
\nin this\t case, and  that is why it was not seriously pressed
\nby Mr. Asoke Sen ill the course of his arguments before us.\n<\/p>\n
     For the  reasons given above, we allow the petition and
\nquash the  order of  detention passed against the petitioner
\non November 8, 1974 and direct the petitioner to be released
\nforthwith.\n<\/p>\n
V.P.S.\t\t\t\t\t   Petition allowed.\n27<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Krishna Murari Aggarwala vs The Union Of India & Ors on 15 July, 1975 Equivalent citations: 1975 AIR 1877, 1976 SCR (1) 16 Author: S M Fazalali Bench: Fazalali, Syed Murtaza PETITIONER: KRISHNA MURARI AGGARWALA Vs. RESPONDENT: THE UNION OF INDIA & ORS. DATE OF JUDGMENT15\/07\/1975 BENCH: FAZALALI, SYED MURTAZA BENCH: […]<\/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-197620","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nKrishna Murari Aggarwala vs The Union Of India & Ors on 15 July, 1975 - 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\/krishna-murari-aggarwala-vs-the-union-of-india-ors-on-15-july-1975\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Krishna Murari Aggarwala vs The Union Of India & Ors on 15 July, 1975 - 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