# G.SADANANDAN v. STATE OF KERALA & ANR

- **Citation:** [1966] 3 S.C.R. 590
- **Court:** Supreme Court of India
- **Decided:** 1966-02-11
- **Case number:** Writ Petition No. 136 of 1965
- **Bench:** P. B. Gajendragadkar, K. N. Wanchoo, M. Hidyatullah, J.C. Shah, S. M. S!Kri
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/g-sadanandan-v-state-of-kerala-anr-3616
- **Pages:** 10

## Headnote

Defence of India Rules, 1962 Ruic 30(1)(b)-DetentiOn underWril petition by de1enu-Pleas that may be entertained by court durin1
operation of Emergency and Presidenl's Order--Obllga1wn of detaining
authoriry to place material justifying detention before coll1't-Proper affi.
davll mu.st be filed by authorised person.
The petilioner was a wholesale dealer in Ker09elle oil in Kera!a State.
The State Government detained him under r. 30(l)(b) of the Defence
of India Rules, 1962 on the alleged ground that he was likely to act in
a manner prejudicial to the maintenance of supplies and services essential
to the life of the community. By writ petition under Art. 32 of the Constitution ho challenged his detention as being maia fide, making certain specific
allegations against respondent No. 2, a police official.
In particular, it
was urged on his behalf that after the coming into operation of the Kerala
Keroaene Control Order, 1965 which permitted kerosene trade to be carried
on only under a licence, Ibero was no justification for bis detention. On
behalf of the State an affidavit was filed by the Home Secretary generally
denying the petitioner's allegations. The affidavit stated, Inter alia, that
even after the passing of the Kerala Kerosene Control Order it was possi·
blc for the petitioner to obtain a licence and carry on the trade in a pre·
judicial manner.
HELD : (i) The Proclamation of Emergency and the
notification
subsequently issued by the President constitute a bar against judicial scrutiny in respect of the alleged violation of the fundamental right\ of a
detenu.
Nevertheless a detenu can urge in his support such statutory
safeguards as
are pcrmis.ible under the Rules, and when this Court is
satisfied that the impugned orders suffer from serious infirmities on grounds
which it is permissible for the detenu to urge, the aaid orders would be set
aide. (595 D, E]
(ii) The detention of a citizen under the Defence of India Rules is
the result of the subjective satisfaction of the appropriate authority; and
so if a prime facie case is made out by the petitioner that hi• dctontion ii
either ma/a fide, or is the result of a casual approach adopted by the appropriate authority, the appropriate authority should place before the court
sufficient material in the form of proper affidavit made by a duly authorised
person to show that the allegations made by the petitioner about the
casual character of the decision or it> ma/a fules, are not well-founded. (598
Fl
In the present case no such material had been placed before the court.
Respondent No. 2, though implcaded, had not come forward to deny the
specific lllcgations made against him. The Home Secretary had taken it
upon himself to deny the allegations against respondent No. 2, but hia
denials were at best based on hearsay evidence. The Home Secretary"•
affidavit suff~red from the formal defect that it did not distinguiYI ~
statements based on personal knowledge and those made on the basis of
information received.
It moreover gave no sufficient )ustification for the
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lilADANANDAN V. KERALA (Gajendragadkar, C.l.)
591
continuance of the petitioner's detention after the passing of the Kerala
Kerosene Control Order. {596 E, FJ
Under the circumstances there was no escape from the conclusion that
the impugned order was clearly and plainly ma/a {idt.
(iii) It is the paramouut requirement of the Constitution that even
during Emergency, the freedom of Indian citizens cannot be taken away
without the existence of the justifying necessity specified in the Rules
themselves.
The tendency to treat these matters in a somewhat casual
and cavalier manner which may conceivably result from the continuous
use of such unfettered powers, may ultimately pose a seiious threat to the
basic values on which the democratic way of life in this couutry is founded.
Cases of this kind may be rare; but even the presence of such rare case&
constitutes a warn

## Text

590
G.SADANANDAN
v.
STATE OF KERALA & ANR.
February 11, 1966
[P. B. GAJENDRAGADKAR, C. J., K. N. WANCHOO,
M. HIDYATULLAH, J.C. SHAH AND
S. M. S!KRI, JJ.)
Defence of India Rules, 1962 Ruic 30(1)(b)-DetentiOn underWril petition by de1enu-Pleas that may be entertained by court durin1
operation of Emergency and Presidenl's Order--Obllga1wn of detaining
authoriry to place material justifying detention before coll1't-Proper affi.
davll mu.st be filed by authorised person.
The petilioner was a wholesale dealer in Ker09elle oil in Kera!a State.
The State Government detained him under r. 30(l)(b) of the Defence
of India Rules, 1962 on the alleged ground that he was likely to act in
a manner prejudicial to the maintenance of supplies and services essential
to the life of the community. By writ petition under Art. 32 of the Constitution ho challenged his detention as being maia fide, making certain specific
allegations against respondent No. 2, a police official.
In particular, it
was urged on his behalf that after the coming into operation of the Kerala
Keroaene Control Order, 1965 which permitted kerosene trade to be carried
on only under a licence, Ibero was no justification for bis detention. On
behalf of the State an affidavit was filed by the Home Secretary generally
denying the petitioner's allegations. The affidavit stated, Inter alia, that
even after the passing of the Kerala Kerosene Control Order it was possi·
blc for the petitioner to obtain a licence and carry on the trade in a pre·
judicial manner.
HELD : (i) The Proclamation of Emergency and the
notification
subsequently issued by the President constitute a bar against judicial scrutiny in respect of the alleged violation of the fundamental right\ of a
detenu.
Nevertheless a detenu can urge in his support such statutory
safeguards as
are pcrmis.ible under the Rules, and when this Court is
satisfied that the impugned orders suffer from serious infirmities on grounds
which it is permissible for the detenu to urge, the aaid orders would be set
aide. (595 D, E]
(ii) The detention of a citizen under the Defence of India Rules is
the result of the subjective satisfaction of the appropriate authority; and
so if a prime facie case is made out by the petitioner that hi• dctontion ii
either ma/a fide, or is the result of a casual approach adopted by the appropriate authority, the appropriate authority should place before the court
sufficient material in the form of proper affidavit made by a duly authorised
person to show that the allegations made by the petitioner about the
casual character of the decision or it> ma/a fules, are not well-founded. (598
Fl
In the present case no such material had been placed before the court.
Respondent No. 2, though implcaded, had not come forward to deny the
specific lllcgations made against him. The Home Secretary had taken it
upon himself to deny the allegations against respondent No. 2, but hia
denials were at best based on hearsay evidence. The Home Secretary"•
affidavit suff~red from the formal defect that it did not distinguiYI ~
statements based on personal knowledge and those made on the basis of
information received.
It moreover gave no sufficient )ustification for the
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lilADANANDAN V. KERALA (Gajendragadkar, C.l.)
591
continuance of the petitioner's detention after the passing of the Kerala
Kerosene Control Order. {596 E, FJ
Under the circumstances there was no escape from the conclusion that
the impugned order was clearly and plainly ma/a {idt.
(iii) It is the paramouut requirement of the Constitution that even
during Emergency, the freedom of Indian citizens cannot be taken away
without the existence of the justifying necessity specified in the Rules
themselves.
The tendency to treat these matters in a somewhat casual
and cavalier manner which may conceivably result from the continuous
use of such unfettered powers, may ultimately pose a seiious threat to the
basic values on which the democratic way of life in this couutry is founded.
Cases of this kind may be rare; but even the presence of such rare case&
constitutes a warning deserving the attention of the authorities. [599 B, CJ
ORIGINAL JURISDICTION : Writ Petition No. 136 of 1965.
Petition under Art. 32 of the Constitution of India for the
enforcement of Fundamental Rights.
M. K. Ramamurthi, S. C. Agarwal, R. K. Garg and D. P. Singh,
for the petitioner.
Niren De, Solicitor-General, A. G. Pudissery and M. R. Krishna
Pillai, for the respondents .
The Judgment of the Court was delivered by
Gajendragadkar, C.J. This petition was heard on the 11th
February, 1966; and at the close of the hearing, we allowed the
petition and directed that the petitioner should be released forthwith and indicated that our reasons would be pronounced later.
Accordingly, our present judgment gives our reasons for the order
which has already been passed by us.
The petitioner, G. Sadanandan, has been detained by respondent No. I, the State ofKerala, under Rule 30(1) (b) of the Defence
of India Rules, 1962 (hereinafter called "the Rules") by an order
passed by it on the 20th October, 1965. The said order recites
that from the materials placed before respondent No. I, it was
satisfied that with a view to prevent the petitioner from acting in a
manner prejudicial to the maintenance of supplies and services
essential to the life of the community it was necessary to detain
him. The said order further shows that under Rule 30(4) of the
Rules, respondent No. I had decided that the petitioner be detained
in the Central Prison, Trivandrum, under conditions as to maintenance, discipline and punishment of offences and breaches of
discipline as provided in the Travancore-Cochin Security Prisoners
Order, 1950: The petitioner challenges the validity of this order
by his present petition filed under Art. 32 of the Constitution.
_
The petitioner is a businessman who carries on wholesale
business in kerosene oil as ESSO dealer and in provisions in his
places of business at Trivandrum. In connection with his whole-
\ ...__
592
SUPlll!Mll COUil T llEPOR TS
[1966] 3 S.C.R.
sale business of selling kerosene oil, the petitioner receives kero1ene oil either in bulk or in sealed tins from the ESSO company.
When the kerosene oil is thus received by him, the petitioner transfers the kerosene oil from barrels into empty tins purchased from
the market and sells them to his customers. Until the Kerala
Kerosene Control Order, 1965 was promulgated, and brought into
force on the 24th October, 1965, the petitioner was not required to
take a licence for carrying on his business in kerosene oil. As
from the 24th October, 1965 the said trade could not be carried on
in Kerala without obtaining a licence. It is common ground that
the petitioner has not been granted a licence in that behalf. To
his present petition, the petitioner has joined respondent No. l and
N. Paramasivan Nair, Deputy Superintendent of Police (Civil)
Supplies Cell, Crime Branch, Trivandrum, as respondent No. 2.
The petitioner alleges that respondent No. 2 caused to be
initiated criminal proceedings against him in Criminal Case No. 70
of 1965 in the Court of the District Magistrate, Trivandrum.
These proceedings were commenced on the 20th May, 1965. The
charge against the petitioner set out in the First Information Report
was that the petitioner had exhibited a board showing stock "nil"
on the 20th May, 1965, at about 7 ·00 p.m. in his wholesale shop at
Chalai, Trivandrum when, in fact, there was stock available in
his shop. The Police searched the shop that day in the presence of
respondent No. 2, though in the relevant papers prepared in regard
to the said search, no reference was made to his presence. According to the petitioner, the board indicating 'nil' stock had been
exhibited in his shop, because 7 tins out of the available stock had
been sold to one D. N. Siktar in regard to which a sale memo
was being prepared when the raid took place, whereas the two
remaining tins were in a damaged condition and could not have been
sold. Even so, the raid was carried out and F.1.R. was lodged
against the petitioner alleging that he had committed an offence
by violating Rule 125(2) and (3) of the Rules read with clause 4 of
the Kerosene (Price Control) Order, 1963.
The petitioner appeared before the District Magistrate before
whom the F.l.R. had been filed, and was released by him on bail.
In this case, all the witnesses for the prosecution had been examined,
except the officer who had submitted the charge-sheet. Except the
Sub-Inspector of Police (P.W.l.), and the Head Constable (P.W. 2),
no other witnesses supported the prosecution case, though in all
five witnesses were examined for the prosecution.
Pending the trial of this case, the Inspector of Police, Crime
Branch (Food), Trivandrum, who is a subordinate of respondent
No. 2, initiated another case at his instance, being case No. 332 of
t 965 before the District Magistrate, Trivandrum, on the 29th September, 1965. In this case, it was alleged that the petitioner bad
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SADANANDAN v. KBRALA (Gajendragadkar, C.J.)
593
violated R. 125(A) of the Rules read with Rules 3 and 4 of the
Kerosene (Price Control) Order, 1963, as well as had committed.
an offence under section 420, I.P.C. The F.l.R. in regard to this
case was made by Narayan Pillai Sivasankaran Nair of Tampanoor, Trivandrum. This Nair is a salesman in his elder brother's
provision store at Trivandrum, and both these brothers are close
relatives of respondent No. 2. This case was initiated after the
search of the petitioner's shop at Chalai. The petitioner was then
arrested and brought before the District Magistrate on the 30th
September, 1965. On this occasion also, when the petitioner's shop
was searched, respondent No. 2 was present. During the course
of the search, the police seized one tin weighing 16 · 200 kgs. None
of the other 899 tins which were stored in the two rooms of the
place of sale of the petitioner, were seized. The police party also
11earched the godown of the petitioner and took into custody 632
tins of kerosene oil. Six barrels of oil were likewise seized. According to the petitioner, all this was done at the instance of N. Sivasankaran Nair who is a close relative of respondent No. 2 and who
had purchased two tins of kerosene oil from the petitioner which
were produced before the police officers for the purpose of showing
that the tins were short of contents.
The petitioner was granted interim bail on the 30th September,
1965 by the District Magistrate, and finally released on bail on the
execution of a bail bond on the 21st October, 1965. When the
order of bail was made absolute by the District Magistrate, the
Assistant Public Prosecutor did not oppose the release of the petitioner on bail. The petitioner contends that though the case Wai
posted several times for the submission of the final report by the
prosecution, respondent No. 2 has so managed that the said final
report has not been submitted till the date of the present petition.
After the petitioner was released by the District Magistrate on
the 21s! October, 1965, he reached home at 4 o'clock in the evening.
Immediately thereafter, respondent No. 2 came in a jeep to the
~etitioner's residence and took him into custody. When the petitioner asked respondent No. 2 as to why he was being arrested he
refused to disclose the grounds. Respondent No. 2 took 'the
petitioner into custody by force and carried him to jail.
The petitioner's wife thereafter instructed a lawyer to contact
the petitioner who in turn tried to get in touch with the petitioner at
Wanchiyoor Police Station, but did not succeed. Under these
circumstances, the petitioner's wife instructed her advocate to file
a writ petition in the Kerala High Court for the production of the
petitioner. Accordingly, a writ petition was filed on the 22nd
October, 1965.
Later, the advocate engaged by the petitioner's wife was able to
get in tonch with the petitioner with the permission of the Home
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594
SUPREME COURT REPORTS
[1966] 3 S.C.R.
Secretary in the Central Jail at Trivandrum. At this interview, the
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advocate was given the detention order which had been served on
..
the petitioner, and instructed to take suitable action to challenge the
said order. In view of the fact that the petition filed by the Advocate in the Kerala High Court under the vague instructions of the
petitioner's wife contained a very limited prayer, the petitioner's
advocate withdrew the said petition on the 27th October, 1965.
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Ultimately, the present petition has been filed in this Court on behalf
of the petitioner on the 20th November, 1965. That, in brief
is the background of the present writ petition.
The petitioner challenges the validity of the impugned order of
detention mainly on the ground that it is ma/a fide, and has been c
passed as a result of the malicious and false reports which have been
prepared at the instance of respondent No. 2.
The whole object of
respondent No. 2, according to the petitioner, in securing the preparation of these false reports is to eliminate the petitioner from the
field of wholesale business in kerosene oil in Trivandrum, so that his
relatives may benefit and obtain the dealership of the ESSO Com·
,
pany. The petitioner further alleges that the order of detention
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has been passed solely with the purpose of denying him the benefit
of the order of bail which was passed in his favour by the District
Magistrate on the 21st October, 1965. In support of the plea that
his detention is malafide, the petitioner strongly relies on the fact
that on the 24th October, 1965, the Kerala Kerosene Control Order,
1965 has come into force and in consequence unless the petitioner
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gets a licence, it would be impossible for him to carry on his business of kerosene oil; and yet, the detention order ostensibly passed
against him as a result of his activities alleged to be prejudicial in
respect of his business in kerosene oil, continues to be enforced
against him even after the Control Order has been brought into
operation. It is mainly on these grounds that the petitioner chalF
lenges the validity of the impugned order of his detention.
The allegations made in the petition have been controverted by
Mr. Devassy who is the Secretary in the Home Department of respondent No. I. In his counter-affidavit_. the Home. Secretary. ~as,
in a general way, denied all the allegations made m the pet1tton.
The purport of the counter-affidavit filed by the Home Secretary
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is that the impugned order of detention has been passed by respon-
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dent No. I bona fide and after full consideration of the merits oft~~
case. Respondent No. I was satisfied, says the counter-affida"'.1t,.
that the activity of the petitioner was likely to prejudice supplies
essential to the life of the community as a whole; and so, the pell·
•,
tioner's contention that the impugned order is ma/a fide is controH
verted.
In dealing with writ petitions by whkh orders of detention passed by the appropriate authorities under r. 30(1) (b) of the Rules are
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SADANANDAN V. KBRALA (Gajendragadkar, C.J.)
595
challenged, this Court has consistently recognised the limited scope
of the enquiry which is judicially permissible. Whether or not the
detention of a detenu is justified on the merits, is not open to judicial scrutiny; that is a matter left by the Rules to the subjective
satisfaction of the appropriate authorities empowered to pass
orders under the relevant Rule. This Court, no doubt, realises in
dealing with pleas for habeas corpus in such proceedings that citiz:ens are detained under the Rules without a trial, and that clearly is
inconsistent with the normal concept of the Rule of Law in a democratic State. But having regard to the fact that an Emergency
has been proclaimed under Art. 352 of the Constitution, certain
consequences follow; and one of these consequences is that the
citizens detained under the Rules are precluded from challenging
the validity of the Rules on the ground that their detention contravenes their fundamental rights guaranteed by Articles 19, 20 and 21.
The presence of the Proclamation of Emergency and the notification subsequently issued by the President constitute a bar against
judicial scrutiny in respect of the alleged violation of the fundamental
rights of the detenu. This position has always been recognised
by this Court in dealing with such writ petitions.
Nevertheless, this Court naturally examines the detention orders
carefully and allows full scope to the detenus to urge such statutory
safeguards as are permissible under the Rules, and it has been repeatedly observed by this Court that in cases where this Court
is satisfied that the impugned orders suffer from serious infirmities
on grounds which it is permissible for the detenus to urge, the said
orders would be set aside. Subject to this position, the merits of the
orders of detention are not open to judicial scrutiny. That is why
pleas made by the detenus that the impugned orders have been
passed by the appropriate authorities without applying their minds
properly to the allegations on which the impugned orders purport
to be based, or that they have been passed malafide, do not usually
1ucceed, because this Court finds that the allegations made by the
detenus are either not well-founded, or have been made in a casual
and light-hearted manner. But cases do come before this Court,
though not frequently, where this Court comes to the conclusion
that the impugned order of detention is passed without the appropriate authority applying its mind to the problem, or that it can well
be regarded as an order passed malafide. Having heard Mr. Ramamurthi for the petitioner and the learned Additional SolicitorGeneral for respondent No. 1, we have come to the conclusion that
the impugned order in the present case must be characterised as.
having been passed mala fide.
The first consideration which has weighed in our minds in dealing with Mr. Ramamurthi's contentions in the present proceedings
is that respondent No. 2 has not chosen to make a counter-affidavit
denying the several specific allegations made against him by the
~96
SUPREME COURT REPORTS
[1966) 3 S.C.R.
petitioner. Broadly stated, the petition alleges that respondent
No. 2 is responsible for the criminal complaints made against the
petitioner, that respondent No. 2 was present when his premises
were searched, and that respondent No. 2 actually went to the house
of the petitioner when the petitioner was forcibly taken into custody
and removed to the j:1il. The petition further alleges that the second
criminal complaint filed against the petitioner was the direct result
of the F.l.R. by Narayan Pillai Sivasankaran Nair who and his
brothers are the trade rivals of the petitioner and are closely related
to respondent No. 2. The petition likewise specifically alleges that
the reports on which the impugned order of detention has been pass-
·cd, were the result of the instigation of respondent No. 2.
Whether
or not these allegations, if proved, would necessarily make the
impugned order ma/a fide, is another matter; but, for the present,
we are dealing with the point that respondent No. 2 who has been
impleaded to the present proceedings and against whom specific
and clear allegations have heen made in the petition, has not chosen
to deny them on oath. In our opinion, the failure of respondent
No. 2 to deny these serious allegations constitutes a serious infirmity in the case of respondent No. I.
The significance of this infirmity is heightened when we look at
the counter-affidavit filed by the Home Secretary. This affidavit
has not been made in a proper form. The deponent does not say
which of the statements made by him in his affidavit are based on
his personal knowledge and which are the result of the information
received by him from documents or otherwise. The form in which
the affidavit has been made is so irregular that the learned Additional Solicitor-General fairly conceded that the affidavit could be
ignored on that ground alone. That, however, is not the only
infirmity in this allidavit.
It is surprising that the Home Secretary should have taken
upon himself to deny the allegations made by the petition against
respondent No. 2 when it is plain that his denial is based on hearsay
evidence at the best. It is not easy for us to appreciate why the
Home Secretary should have undertaken the task of refuting serious allegations made by the petition against respondent No. 2 instead of requiring respondent No. 2 to make a specific denial on his
own. Whether or not Narayan Pillai Sivasankaran Nair and his
brother are close relatives of respondent No. 2 and whether or not
they are the trade rivals of the petitioner and expect to receive benefit from his detention, are matters on which the Home Secretary
&hould have wisely refrained from making any statement in his
affidavit. He should have left it to respondent No. 2 to make the
necessary averments. Besides, it is impossible to understand why
the specific allegation.s made by the petition against respondent No.
2 in regard to the part played by him either in searching the petitioner's shop or in arresting him should not have been definitely
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SADANANDAN v. KERALA (Gajendragadkar, C.J.)
597
denied by respondent No. 2 himself. The statements made by the
Home Secretary in his affidavit in that behalf are very vague and
•nsatisfactory. We have carefully considered the affidavit made
by the Home Secretary and we are satisfied that apart from the
formal defect from which it plainly suffers, even otherwise the statements made in the affidavit do not appear to us to have been made
by the deponent after due deliberation.
Take, for instance, the statements made by the Home Secretary in regard to the petitioner's contention that the continuance of
bis detention after the Kerala Kerosene Control Order, 1965 came
into operation on the 24th October, 1965, is wholly unjustified.
The petitioner's grievance is clear and unambiguous. He says that
unless a licence is granted to him, he would no longer be able to
trade in kerosene oil; and since admittedly, no licence has been
granted to him, his continued detention on the ostensible ground
that his dealings in kerosene oil amount to a prejudicial activity,
is entirely unjustified. Now, what does the Home Secretary
5AY in respect of this contention? On the date of the detention of
the petitioner, says the Home Secretary's affidavit, the Control
Order had not come into force, and that, no doubt, is true. But the
question is : is the continuance of the petitioner's detention justified
after the said Order came into force? The affidavit says that the
petitioner is not a licensee under the Kerala Kerosene Control
Order, 1965, and cannot legally carry on the business as a dealer in
kerosene at present; but there is nothing under the law preventing
him from applying for such licence to carry on the same business.
It is difficult to understand the logic or the reasonableness of this
averment. Indeed, we ought to add that the learned Additional
Solicitor-General fairly, and we think rightly and wisely, conceded
that this part of the Home Secretary's affidavit could not be supported and that he saw no justification for the continuance of the
petitioner's detention after the Kerala Kerosene Control Order
came into operation on the 24th October, 1965. It is remarkable
that in the whole of his affidavit, the Home Secretary does not say
how he came to know all the facts to which he has purported to
depose in his affidavit. We have, however, assumed that as Home
Secretary, the file relating to the detention of the petitioner must
have been handled by him, though the Home Secretary should have
realised that he should himself have made a statement to that effect
in his affidavit. We have had occasion to criticise affidavits made
by appropriate authorities in support of the detention orders in writ
proceedings, but we have not come across an affidavit which shows
such an amount of casualness as in the present case. We have
carefully examined all the material and relevant facts to which our
attention has been drawn in the present proceedings and we see no
escape from the conclusion that the impugned order of detention
passed against the petitioner on the 20th October, 1965, and more
598
SUPREME COURT REPORTS
[1966) 3 S.C.R.
particularly, the petitioner's continued detention after the 24th
October, 1965, must be characterised as clearly and plainly ma/a
fide.
This is a case in which the powers conferred on the appropriate authority have, in our opinion, been abused.
We are conscious that even if a subordinate officer makes a
malicious report against a citizen suggesting that he should be detained, the malice inspiring the report may not necessarily or always
make the ultimate order of detention passed by the appropriate
authority invalid. Even a malicious report may be true in the sense
that the facts alleged may be true, but the person making the report
was determined to report those facts out of malice against the
party concerned. But a malicious report may also be false. In
either case, the malice attributable to the reporting authority cannot, in law, be attributed to the detaining authority; but in such
cases, it must appear that the detaining authority carefully examined the report and considered all the relevant material available in
the case before passing the order of detention. Unfortunately, in
the present case, the affidavit made by the Home Secretary is so
defective and in many places so vague and ambiguous that we do
not know which authority acting for respondent No. I in fact
examined the case against the petitioner and what was the nature
of the material placed before such authority; and the affidavit docs
not contain any avermcnt that after the material was examined by
the appropriate authority, the appropriate authority reached the
conclusion that it was satisfied that the petitioner should he detained
with a view to prevent him from acting in a manner prejudicial to
the maintenance of supplies and services essential to the life of the
community.
After all, the detention of a citizen in every case is the result of
the subjective satisfaction of the appropriate authority; and so,
if a prima facie case is made by the petitioner that his detention is
either ma/a fide, or is the result of the casual approach adopted by the
appropriate authority, the appropriate authority should place before
the Court sufficient material in the form of proper affidavit made by
a duly authorised person to show that the allegations made by the
petitioner about the casual character of the decision or its ma/a jides,
arc not well-founded. The failure of respondent No. 1 to place any
such material before us in the present proceedings leaves us no alternative but to accept the pica made by the petitioner that the order of
detention passed against him on the 20th October, 1965, and more
particularly, his continued detention after the 24th October, 1965,
arc totally invalid and unjustified.
In conclusion, we wish to add that when we come across orders
of this kind by which citizens arc deprived of their fundamental
right of liberty without a trial on the ground that the Emergency
proclaimed by the President in 1962 still continues and the powers
c
E
F
G
II
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B
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SADANANDAN v. KERALA (Gajendragadkar, C.I.)
599·
conferred on the appropriate authorities by the Defence of India
Rules justify the deprivation of such liberty, we feel rudely disturbed by the thought that continuous exercise of the very wide
powers conferred by the Rules on the several authorities is likely to
make the conscience of the said authorities insensitive, if not blunt,
to the paramount requirement of the Constitution that even during
Emergency, the freedom of Indian citizens cannot be taken away
without the existence of the justifying necessity specified by the
Rules themselves. The tendency to treat these matters in a somewhat casual and cavalier manner which may concievably result from
the continuous use of such unfettered powers, may ultimately pose
a serious threat to the basic values on which the democratic way of
life in this country is founded. It is true that cases of this kind are
rare; but even the presence of such rare cases constitutes a warning
to which we think it is our duty to invite the attention of the appropriate authorities. In the circumstances of this case we direct that
respondent No. I will pay the costs of the petitioner quantified at
Rs. 500.
Petition allowed.