# JAICHAND LALL SETHIA v. STATE OF WEST BENGAL & ORS

- **Citation:** [1966] Supp. 1 S.C.R. 464
- **Court:** Supreme Court of India
- **Decided:** 1966-07-27
- **Case number:** Criminal Appeal No. 110 of 1966
- **Bench:** K. N. Wanchoo, M. Hidayatullah, S. M. SllCRI, V. ilAMASWAMI, J. M. Shelat
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/jaichand-lall-sethia-v-state-of-west-bengal-ors-3876
- **Pages:** 9

## Headnote

Defence of India Rules, 1962. r. 30-Detention under-Plea of
mala fide wliether can be raised-Detenue whether entitled to insvect file containi141 order of detention-No mala fides alleged against
Chief Minister who passed order-His affidavit not necessary.
A
B
The appellant was detained under r. 30 of the Defence of India
C
Rules, 1962. He challenged the ocdcr of detention by a petition under
Art. 226 of the Constitution which was ctsmissed. In appeal before
this Court by special leave it was urged on behalf of the appellant
that: (i) the order of detention was mala fi_M; (ii) the High Court in
not calling for the file of the case and permitting the appellant to
inspect the matcr;al on the basis of which the order of detention was
made. committed an error of law; (iii) the High Court should have
asked for an affidavit from the Chief Minister of the State who
D
passed the order of detention.
HELD: (i) Although in view of the decisions of this Court the
appellant was entitled to raise the plea of mala Mes despite the
Proclamation of Emergency and the President's Order which followed, the facts of the present case did not justify the plea. [468Hr
Makhan Singh Tarsikka v. State of Punjab, [19641 4 S.C.R. 932
and Duraadas Shirali v. Union of India. (1966] 2 S.C.R. 573 referred
~
B
<
(ii) The satisfaction of the G<>vernment which justifies the order
of detention under r. 30 is a subjective satisfaction. A court can
not normally enquire whether grounds existed which would have
~-
created that satisfaction on which alone the order could have been
made, in the mind of a reasonable person. If therefore an authenti·
cated order of detention is on its face regular and in conformit,y
with the language of r. 30, it is not ordinarily open to a court to
enter into an investigation about the suffic:cncy of the material on
r
which the order of detention is based. f 469 C-D]
King Emperor v. S'iibnath Banerjee, 72 I.A. 241, Liversidae v.
Sir Jolin Anderson (19421 A.C. 206 and Greene v. Secretary of State
for Ilome Affairs [19421 A.C. 284, referred to.
Even though the order as drawn up recites that the State Government was satisfied the accuracy of that recital can be challenged in court to a lim:.ted extent. The accuracy can be challenged in
two ways, either by proving that the State G<>vernment nC"Ver apG
plied its mind to the matter or that the authorities of the State
Government acted mala fide, In a normal case the existence of such
a recital in a duly authenticated order will. in the absence of any
evidence as to its inaecuracy, be accepted by the court as establishing that the necessary condition was fulfilled. However, if the
order of detention itself suffers from any lacuna it is open to a court
to call for an affidavit from the Chief Minister or other Minister conH
cerned or to call for the relevant file from the State Government in
order to satisfy itself as to the accuracy of the recital made In the
order af detention. [470 F-Hl
•
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JAICHAND LAL 11. w. BENGAL (Ramaswami, J.)
465
Biren Dutta etc. v. Chief Commissioner. of Trir:ura,
[19641 8
S.C.R. 295 and Jagannath Misra v. State of Orissa. [1966]' 3 S.C.R. 134,
referred to.
In the circumstances of the present case summi:>ning of
th~ file
by the High Court was not necessary, and the High Court nghtly
rejected the appellant's prayer for inspection of the file. [471 E-F]
(iii) As there was no allegation of mala fides or lack of bona fi~es
with regard to the Chief Minister, it was not necessary for the High
Court to call for his affidavit. The affidavit of the Deputy Secretary
to the State Government was in the circumstances of the case, sufficient. r471G-472A]
1966.

## Text

.JAICHAND LALL SETHIA
v.
STATE OF WEST BENGAL & ORS.
July 27, 1966
[K. N. WANCHOO, M. HIDAYATULLAH, S. M. SllCRI, V. ilAMASWAMI
AND J. M. SHELAT, JJ.]
Defence of India Rules, 1962. r. 30-Detention under-Plea of
mala fide wliether can be raised-Detenue whether entitled to insvect file containi141 order of detention-No mala fides alleged against
Chief Minister who passed order-His affidavit not necessary.
A
B
The appellant was detained under r. 30 of the Defence of India
C
Rules, 1962. He challenged the ocdcr of detention by a petition under
Art. 226 of the Constitution which was ctsmissed. In appeal before
this Court by special leave it was urged on behalf of the appellant
that: (i) the order of detention was mala fi_M; (ii) the High Court in
not calling for the file of the case and permitting the appellant to
inspect the matcr;al on the basis of which the order of detention was
made. committed an error of law; (iii) the High Court should have
asked for an affidavit from the Chief Minister of the State who
D
passed the order of detention.
HELD: (i) Although in view of the decisions of this Court the
appellant was entitled to raise the plea of mala Mes despite the
Proclamation of Emergency and the President's Order which followed, the facts of the present case did not justify the plea. [468Hr
Makhan Singh Tarsikka v. State of Punjab, [19641 4 S.C.R. 932
and Duraadas Shirali v. Union of India. (1966] 2 S.C.R. 573 referred
~
B
<
(ii) The satisfaction of the G<>vernment which justifies the order
of detention under r. 30 is a subjective satisfaction. A court can
not normally enquire whether grounds existed which would have
~-
created that satisfaction on which alone the order could have been
made, in the mind of a reasonable person. If therefore an authenti·
cated order of detention is on its face regular and in conformit,y
with the language of r. 30, it is not ordinarily open to a court to
enter into an investigation about the suffic:cncy of the material on
r
which the order of detention is based. f 469 C-D]
King Emperor v. S'iibnath Banerjee, 72 I.A. 241, Liversidae v.
Sir Jolin Anderson (19421 A.C. 206 and Greene v. Secretary of State
for Ilome Affairs [19421 A.C. 284, referred to.
Even though the order as drawn up recites that the State Government was satisfied the accuracy of that recital can be challenged in court to a lim:.ted extent. The accuracy can be challenged in
two ways, either by proving that the State G<>vernment nC"Ver apG
plied its mind to the matter or that the authorities of the State
Government acted mala fide, In a normal case the existence of such
a recital in a duly authenticated order will. in the absence of any
evidence as to its inaecuracy, be accepted by the court as establishing that the necessary condition was fulfilled. However, if the
order of detention itself suffers from any lacuna it is open to a court
to call for an affidavit from the Chief Minister or other Minister conH
cerned or to call for the relevant file from the State Government in
order to satisfy itself as to the accuracy of the recital made In the
order af detention. [470 F-Hl
•
•
\,
'
A
B
c
D
E
'
F
G
H
JAICHAND LAL 11. w. BENGAL (Ramaswami, J.)
465
Biren Dutta etc. v. Chief Commissioner. of Trir:ura,
[19641 8
S.C.R. 295 and Jagannath Misra v. State of Orissa. [1966]' 3 S.C.R. 134,
referred to.
In the circumstances of the present case summi:>ning of
th~ file
by the High Court was not necessary, and the High Court nghtly
rejected the appellant's prayer for inspection of the file. [471 E-F]
(iii) As there was no allegation of mala fides or lack of bona fi~es
with regard to the Chief Minister, it was not necessary for the High
Court to call for his affidavit. The affidavit of the Deputy Secretary
to the State Government was in the circumstances of the case, sufficient. r471G-472A]
1966.
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 110
of 1966.
Appeal by special ,reave from the judgment and order dated
February 8, 1966 of the Calcutta High Court in Criminal Misc.
Case No. 266 of 1965.
N. C. Chatterjee, S. K. Dutta and D. N. Mukherjee, for the
appellant.
C. K. Daphtary, Attorney-General, B. Sen, P. K. Chatterjee
and P. K. Bose, for the respondents.
The Judgment of the Court was delivered by
Ramaswami, J. This
appeal
is
brought, by special
leave, against the judgment of the Calcutta High Court dated
February 8, 1966 in Criminal Misc. Case No. 266 of 1965 refusing
to grant a writ in the nature of habeas corpus ordering the release
of the appellant, Jaichand Lal Sethia from detention under an
order passed by the Government of West Bengal under r. 30 of
the Defence of India Rules.
After the conclusion of arguments in this case on May 3,
1966 we expressed the view that this appeal should be dismissed
and the reasons will be sta,ted later. We now proceed to express
those reasons.
The case of the appellant is that he was carrying on business
of purchasing and selling goods like cloves, cinnamon, dye-stuff
etc. in the city of Calcutta. In the month of January, 1963 the
appellant had some trouble with the police of Burrabazar, P.S. in
Calcutta, particularly with
the
Sub-Inspector Ka!yan Dutt,
Officer-in-charge of that Police Station .. The appellant also said
that he incurred the displeasure of the officers of the Customs De·
partment who had illegally seized the goods of the appellant and
also prevented him from participating at the auction-sales of Customs Department. The appellant had made a complaint to the
higher authorities of the Customs Department in this respect. On
September 27, 1965 the order of detention of the appellant was
made by the Government of West Bengal under r. 30 of the
Defence of India Rules and in pursuance al' that order the appel1
!ant was detained in the Presidency jail at Calcutta. The order of
466
StPHEME C..'OURT REPORTS
i.llfi6j SUPP.
~.C.R.
detention being No. 7~22 H.S. of the Government of West Bengal
.l
Home Department Special Section reads as follows:
"Whereas the Governor is satisfied that with a view to
preventing Sri Ja ichand Lal Sethia, son of Sri Dipchand
Sethia of 9 Decres Lane, Calcutta from acting in any manner
prejudicia.! to the maintenance of Public Order, it is neces·
8
sary to make an order directing that he be detained.
Now, therefore, the Governor in exercise of the power
conferred by Rule 30 of the Defence of India Rules, 1 %2, is
pleased hereby to direct that the said person be detained and
be kept in custody in the Presidency Jail during the period
of such detention."
The appellant obtained a rule from the Calcutta High Court asking the respondents to show cause why a writ in the nature of
habeas corpus should not be granted directing the release of the
appellant from detention. The case of the appellant was that the
order of detention was made ma/a fide because the appellant had
incurred the personal hostility of some officers in the police and
Customs Departments. It was contended that the order of detention was procured ma/a fide upon false reports made vindictively
under the Defence of India Rules by the officers in the police and
Customs Departments. It was said that the order was made by the
Chief Minister, West Bengal not because he was satisfied about
the necessity of detaining him in the interest of public order but
for ulterior considerations. In response to the notice an affidavit
was filed on behalf of the State of West Bengal denying the allegations of the appellant. Affidavits were also filed by Kalyan Dutt
and Debranjan Dutta controverting the allegations of the appellant so far as they were concerned. After hearing the parties, the
Calcutta High Court hei!d that the order of detention was lawfully
made by the Chief Minister of West Bengal and the allegation of
ma/a fide had not been established by tbe appellant. The High
Court accordingly dismissed the application of the appellant for
grant of a writ of hab,·a~ corpus.
On behalf of the appellant it was submitted by Mr.
N. C.
Chatterji that the order of detention was made on the basis of reports submitted by the police and Customs
authorities
whose
enmity had been incurred by the appellant. It was
pointed out
that on August 16, 1964 the appellant had sent a representation to
the Chief Minister of West Bengal and other higher authorities
saying that the police had been creating fictitious
records for
putting the appellant under detention under the Defence of India
Rules. In July, 1965 three defamation cases were started against
the appellant at the instance of the Customs Officers. In August
and September, 1965 the appellant had sent representations against
the police and Customs officers to the Chief Minister, West Bengal
and other higher authorities. The contention of the appellant is
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.JAif'HA~D LAL r. \\', HBNf}AL (Raill't·~/,Cffifl.i, J.)
467
that the order of detention was made on September 27, 1965 by
the Chief Minister, West Bengal not because of any material suggesting that the appellant was acting, in any manner, prejudicial
to the maintenance of public order but because of the false reports made by the police and Customs officers. The next contention of the appellant is that there is no affidavit filed on behalf of
the Chief Minister, West Bengal showing that he applied his mind
to the case of the appellant and that he had the requisite satisfaction as required by the statutory rule. It was also submitted that
the High Court did not permit the appellant to inspect the material on the basis of which the order of detention was made and
the High Court committed an error of law in not permitting the
appellant to go beyond the authenticated order of detention and
to find out whether the sa.tisfaction of the Chief Minister, West
Bengal was based upon sufficient material.
Before proceeding to deal with these points raised on behalf
of the appellant it is necessary to state that in Makhan Singh Tarsikka v. The State of Punjab(') and in Durgadas Shirali v. The
Union of India and Anr.(') this Court had occasion to consider
the legal effect of the proclamation of Emergency issued by the
President on October 26, 1962 and two orders of the Presidentone dated November 3, 1962 and the other dated November 11,
I 962 issued in exercise of the powers conferred by cl. (I) of Art.
359 of the Constitution. It was held by this Court that the
scope of Art. 359(1) and the Presidential Order issued under it is
wide enough to include all claims made by citizens in any Court
of competent jurisdiction when it is shown that the said claims
cannot be effectively adjudicated upon without examining the
question as to whether the citizen is, in substance, seeking to enforce fundamental rights under Arts. 14, 19, 21 and 22. It was
pointed out that during the pendency of the Presidential Order
the validity of the Ordinance or any rule or order made thereunder cannot be questioned on the ground that it
contravene~
Arts. 14, 21 and 22. But this limitation cannot preclude a citizen
from challenging the validity of the Ordinance or any rule or
order made thereunder on any other ground. If the appellant
seeks to cha1lenge the validity of the Ordinance, rule or order
made thereunder on any ground other than the contravention of
Arts. 14, 21 and 22, the Presidential Order cannot come into
operation. It is not also open to the appellant to challenge the
Order on the ground of contravention of Art. 19, because as soon
as a Proclamation of Emergency is issued by the President under
Art. 358 the provisions of Art. 19 are automatically suspended.
But the appellant can challenge the validity of the order on a
ground other than those covered by Art. 358, or the Presidential
Order issued under Art. 359(1). Such a challenge is outside the
I') (1964] 4 S.C.R. 932.
(')
(1966] 2 S.C.R. 573.
(68
81.JPREM& COURT REPORTS
[l!m) 81.JPP
f.C'.ll.
purview of the Presidential Order. For instance, a citizen will not
be deprived of the right to move an appropriate Court for a writ
of habeas corpus on the ground that his detention
has
been
ordered ma/a fide. Similarly, it will be open to tbe citizen to challenge the order of detention on the ground that any of the grounds
given in the order of detention is irrelevant and there is no real
11
and proximate connection between the ground given and the
object which the legislature has in view. It may be stated in this
context that a ma/a fide exercise of power does not necessarily
imply any moral turpitude as a matter of law. It only means that
the sta.tutory power is exercised for purposes foreign to those for
which it is in Jaw intended. In other words, the power conferred
by tbe statute has been utilised for some indirect purpose not 0
connected with the object of the statute or the mischief it seeks to
remedy.
!t is contended, in the first place, on behalf of the appellant
that the order of detention is bad because the Chief Minister had
taken into account the reports from the police and Customs offi.
cers falsely made against the appellant. It is argued by Mr. N. C
Chatterji that the order of detention is bad because the statutory
D
power has been exercised ma/a fide that is to say, it has been
utilised for some indirect purpose not connected with the object of
the statute or the mischief which it seeks to remedy. The allegation of the appellant has been denied by Mr. Sen Gupta, Deputy
Secretary to the West Bengal Government, Home Department in
his affidavit made on behalf of the Government of West Bengal
It is stated by Mr. Sen Gupta that in making the order of deten-
•
tion dated September 27, 1965 the Chief Minister, West Bengal
did not take into consideration the criminal proceedings pending
against the appellant before the Police and Customs authorities.
Mr. Sen Gupta further said that all papers available to State
Government as to the activities of the appellant Jaichand Lal
Sethia were placed before the Chief Minister who was personally
satisfied that the appellant was engaged in illegal activities preju1
dicial to the maintenance of public order and as such an order of
detention of the appellant was necessary. It was also stated by Mr.
Sen Gupta in his affidavit that the appellant was engaged not only
as a dealer in spices but was engaged in procuring and selling
goods il!egally and clandestinely.
The allegation of the appellant has also been denied by
G
Kalyan Dutt in his affidavit. Mr. Kalyan Dutt states that he never
created fictitious records against the appel.lant and never prepar·
ed or forwarded any history-!iheet or any note to any authority
recommending the detention of the appellant under the Defence
of India Rules. There is also an affidavit by Mr. Debaranjan Dutta
denying the allegations made by the appellant. On perusal of the H
various affidavits filed in the case the High Court reached the
conclusion that the allegation of ma/a fide made by the appellant
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JAICHAND LAL v. w. BENGAI, (Ramaswami, J.)
4.69
had not been substantiated and the order of detention ma.de by
the Government of West Bengal could not be held to be legally
invalid on this account. We see no reason to take a view different
from that of the High Court on this point. We are accordingly of
the opinion that Mr. N. C. Chatterji on behalf of the appellant is
unable to make good his submission on this aspect of the case.
It was next contended on behalf of the appellant that the
High Court should have called upon the State Government to produce the ft.le concerning detention of the appellant in order to
determine for itself whether the Chief Minister had sufficient
material before him for satisfying himself as to the necessity for
the detention of the appellant. We are unable to accept this argument as correct. The satisfaction of the Government which justifies
the order of detention under r. 30 is a subjective satisfaction. A
court cannot normally enquire whether grounds existed which
would ha.ve created that satisfaction on which alone the order
could have been made in the mind of a reasonable person. If
therefore an authenticated order of detention is on its face regular
and in conformity with the language of r. 30 it is not ordinarily'
open to a court to enter into an investigation about the sufficiency
of the material on which the order of detention is based. The
legal position has been explained by the Judicial Committee in
King Emperor v. Shibnath Banerjee(') as follows:
"It is quite a different thing to question the accuracy of
a recital contained in a duly authenticated order, particularly
where the recital purports to state as a fact the carrying out
of what I regard as a condition necessary to the valid making
of that order. In the normal case the existence of such ~
recital in a duly authenticated order will, in the absence of
any evidence as to its inaccuracy, be accepted by a court as
est~blishing that the necessary condition was fulfil11ed. The
presence of the recital in the order will place a difficult burden on the detenu to produce admissible evidence sufficient to
establish even a prima faciea case that the recital is not accurate".
Reference may be made, in this connection, to Liversidge v. Sir
John Anderson(') and Greene v. Secretary of State for Home Affairs ('). The question in those cases was whether the Home Secretary
had reasonable cause to believe that certain persons were of hostile
associations and that by reason thereof it was necessary to exercise control over them. It was held that the matter was one for
the executive discretion of the Secretary of State, and that the
Court was not entitled to investigate the grounds on which the
Secretary of State came to believe the persons concerned to be of
(') 72 LA. 241 at p. 261.
(') [1942] A.C. 206.
(') [1942] A.O. 284.
!70
~' PRF'.\IE l'Ol'RT nr:f>u~ I'!'!
( J 966] 8UPP. 8.l'.R.
hostile associations. or to believe that by reason of such associations it was necessary to exercise control over them.
In Liversiclge0s(') case Viscount Maugham observed as follow~:
"In my opinion. the well-known presumption omnia esse
rite acta applies to this order. and, accordingly. assuming
the order to be proved or admitted, it must be taken prtma
facie, that is until the contrary is
proved, to
have been
properly made and that the requisite as to the belief of the
Secretary of State was complied with."
In Greene's('! case Vi-count Maughan again
quoted
with approval the following passage from the judgment of Goddard L.J.
in the Court of Appeal :
"I am of opinion that where on the return an order or
warrant which is valid on its face
is produced it
is for
the prisoner to prove the facts necessary to controvert it, and
in the present case this has not been done. I do not say that
in no case is it necessary for the Secretary of State to file an
affidavit. It must depend on the ground on which the return
is controverted, but where all that the prisoner says in effect
is 'I do not know why I am interned. I deny that I have done
anything wrong', that does not require an answer because it
in no way shows that the Secretary of State had not reasonable cause to believe. or did not believe. otherwise ...
It is manifest that an order of detention under r. 30 of the
Defence of India Rules can only be passed if the State Govern·
ment is satisfied that the detention of a particular person is necessary on any ground referred to in that Rule. Even though the
order as drawn up recites that the State Government was satisfied,
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the accuracy of that recital can be challenged in court to a limited
extent. The accuracy can be challenged in two ways either by
.,
proving that the State Government never applied its mind to the
matter or that the authorities of the State Government acted ma/a
fide. In a normal case the existence of such a recital in
a duly
authenticated order will. in the absence of any evidence as to ii!
inaccuracy, be accepted by the court as establishing that the necessary condition was fulfilled. In other words. in a normal case the
existence of such a recital in a duly authenticated order that the
G
State Government was satisfied will, in the absence of any evidence
to the contrary, be accepted by the court as establishing that fhe
State Government was so satisfied. If the order of detention itself
suffers from any lacuna it is open to a court to call for an affidavit from the Chief Minister or other Minister concerned or to
call for the relevant file from the State Government in order to
H
(') [1942) A.C. 201;,
l'l I I!J.12) A.O. 281.
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1AJCHAND LAL v. w. BENGAL (Ramaswanii, l.)
471
satisfy itself as to the accuracy of the recital made in the order of
· detention.
For instance, in Biren Dutta etc. v. Chief Commissioner of
Tripura,(') this Court made an order directing the Chief Secretary
to the Tripura Administration to transmit to this Court the original files in respect of the detenus and also directed the Minister
concerned or the Secretary or the Administrator to file an affiJavit in this Court stating all the material facts indicating whether
the
decision arrived at was duly communicated to tlite detenus
concerned. But the order for production of the file and for affi-·
davit from the Minister or the Secretary concerned was made in
that case because the appellant alleged that the order of review
had not been reduced to writing under r. 30A(8) and the relevant
conditions prescribed by the rule had not been complied with and
that it had not been commnnicated to him. Reference was made
by Mr. N. C. Chatterji to another case-Jagannath Misra v. The
State of Orissa(')-in which this Court ordered the Home Minister
to file an affidavit. In that case the order of detention was defective
because the authenticated copy of the order mentioned six
grounds with the disjunctive "or" mentioned in the affidavit of
the Chief Secretary. Some of these grounds were followed
by
"etc.". In view of the ambiguity of the order this Court made a
direction asking the State Government to produce the original
order which was in the form of a document and al:so called for an
affidavit from the Home Minister who was in-charge of matters of
detention. In the present case, the material facts are different from
those in the Jagannath
Misra(') case, in the Biren Dutta(')
case. It follows therefore that the High Court was
justified
in not making an order for discovery or production of the origiinal
Jepartmental file containing the activities of the appellant by the
Government of West Bengal.
Lastly it was contended for the appellant that the High
Court should have asked the Chief Minister to file an affidavit and
rejected the affidavit filed by the Deputy Secretary Mr. Sen Gupta
as insufficient to controvert the allegations of the appellant. We do
not think there is any substance in this point. There is no allegation made by the appellant that the Chief Minister himself was
acting ma/a fide. The allegation of the appellant was that Mr.
Kalyn Dutt and the Customs Officers
had acted
mala
fide
against the appellant. The a1Jegation of the appellant on this
point has been denied by Mr. Kalyan Dutt in his affidavit. As
there is no allegation of ma/a {hies or lack of bona /ides with
regard to the Chief Minister of West Bengal who is the authority
for deciding as to the necessity for detention of the appel!lant it
(') [196~] 8 S.Q,R. 296.
(') [1966] 3 S.C.R. 134.
J,/SSSCJ
8Ul'!!F.lllC COl:RT P.EPORT~
(!966) SOPP. B.C.R.
was not necessary for the High Court to call for an affidavit from
A
the Chief Minister and the affidavit filed by Mr. Sen Gupta on
behalf of the Government of West Bengal was rightly considered
by the High Cou1t as sufficient in the circumstances of the case.
For these reasons we hold that there is no merit in this
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appeal and that it should be dismissed.
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Appeal dismissed.
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