# KRISHNA MURARI AGGARWALA v. THE UNION OF INDIA & ORS

- **Citation:** [1976] 1 S.C.R. 16
- **Court:** Supreme Court of India
- **Decided:** 1975-07-15
- **Bench:** N. L. Untwalia, S. M. Fazal Ali
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/krishna-murari-aggarwala-v-the-union-of-india-ors-6482
- **Pages:** 11

## Headnote

Mailuenance of Internal Security Act, 1971,
Section
3(1),(a)(iiiJ-Two
grounds of detention-One irrelevant-Effect of-Detaining Authority, more
than one-Prdpriety.
The petftioner was carrying on business in diesel oil, an essential commodity, in two places. He was detained under s. 3(1){a)(iii) of the Maintenance
of Internal Security Act, 1971, on the basis of allegations in lWo grounds that
as had committed sets prejudicial to the maintenance of supplies and services
'l!ssentlal to the communit¥.
The allegation in' the first ground was that he
had stocked a large quantity of light dioesel oil in one of the places without
waiting for the licence to be cleared by the Chief Controller of Explosives in
violation of the provisions of the Petroleum Act.
It was also stated in the
ground that a complaint had be-en lodged in the ~lagistrate's court for the
offence.
The allegation in the second ground was that the petitioner violated
the U.P. Sale of Motor Taxation Act and the rules made thereunder, in that
the names and addresses of customers who had purchased light diesel from
the petitioner, had not been given in the cash memos.
Allowing the petition,
HELD: (l)(a) There is no allegation by the detaining authority in the
first ground that by storing the huge quantity of light diesel oil the petitioner
had in any way affected the distribution or sale of that commodity; nor is
there any allegation to show that th-e petitioner had refused to sell the oil to
anybody who required it.
Also there is no suggestion, far less any allegation,
that the petitioner had tried to divert his stocks from one place to the other
and thereby deprived the people of one place of their share of the oil. Therefore, there i's ab,!iolutely no correlation between the act of the petitioner and
the disruption of distribution of essential supplies to the community. {20D-E, F-G]
(b) Fron1 the violation of the mandatory provisions of the Petroleum Act and
the Rules made thereunder, no presumption can be drawn that there was a
disruption of supply of the e~scntial commodity.
[20G-H1
(c) The commission of an offence at a private place or a violation of a provision of law by itself docs not attract the Maintenance of Internal Security Act
unless, by the act committed, the supply oi' an essential commodity to the community is disrupted or the even flow of the life of the community is disruoted.
[21B]
Manu Bhusha11 Roy Prodha11 v. State of Bent;oi' and Otl1ers, ,A.. l. R. 1973
S. C. 29'5, referred to.
(2) The second ground does di.sdose a clear .overt act from which an inference can be drawn that the petitioner had made a number of fictitious sales.
But, in view of the finding that the first ground is irrelevant, it is not possible
to determine to what extent the subjectivie satisfaction of the detaining authority
was influenced or affected by the first ground.
When out of 2 grounds one is
vague or irrelevan't, then the entire order of detention falls to
the
ground.
[22C, F-Gl
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(3) The Court cannot go behind the subjective satisfaction of the detaining
authority but such satisfaction does not confer a blanket power which may
authorise the detaining ttuthority to act in a ruthless or arbitrary fashion._ J udL
H
cial decisions have carved out an area. though limited, within which, the subjective satisfaction of the detaining authority, which is a si~e qu_a non for the
exercise of the power, can be tested on the touchstone of ob1ect1vity.
[24F-GJ
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K. M. AGGARWALA v. UNION (Fazal Ali, J.)
17
(a) Tile words '"mile an order directing that such person be detained" in
ieetion 3 ( 1) of the Act postulates three conditions : (i) that the order must
be made by the authority in the section; (ii) The order must be duly signed by
the 11aid authority; and (iii) that only one authority and one authority alone caa
pass the order of detention. Therei'ore, unless the order made and the ground.:f
prepared are signed by the authority concerned, the order is not made

## Text

16
KRISHNA MURARI AGGARWALA
v.
THE UNION OF INDIA & ORS.
July 15, 1975
[N. L. UNTWALIA AND S. M. FAZAL ALI, JJ.]
Mailuenance of Internal Security Act, 1971,
Section
3(1),(a)(iiiJ-Two
grounds of detention-One irrelevant-Effect of-Detaining Authority, more
than one-Prdpriety.
The petftioner was carrying on business in diesel oil, an essential commodity, in two places. He was detained under s. 3(1){a)(iii) of the Maintenance
of Internal Security Act, 1971, on the basis of allegations in lWo grounds that
as had committed sets prejudicial to the maintenance of supplies and services
'l!ssentlal to the communit¥.
The allegation in' the first ground was that he
had stocked a large quantity of light dioesel oil in one of the places without
waiting for the licence to be cleared by the Chief Controller of Explosives in
violation of the provisions of the Petroleum Act.
It was also stated in the
ground that a complaint had be-en lodged in the ~lagistrate's court for the
offence.
The allegation in the second ground was that the petitioner violated
the U.P. Sale of Motor Taxation Act and the rules made thereunder, in that
the names and addresses of customers who had purchased light diesel from
the petitioner, had not been given in the cash memos.
Allowing the petition,
HELD: (l)(a) There is no allegation by the detaining authority in the
first ground that by storing the huge quantity of light diesel oil the petitioner
had in any way affected the distribution or sale of that commodity; nor is
there any allegation to show that th-e petitioner had refused to sell the oil to
anybody who required it.
Also there is no suggestion, far less any allegation,
that the petitioner had tried to divert his stocks from one place to the other
and thereby deprived the people of one place of their share of the oil. Therefore, there i's ab,!iolutely no correlation between the act of the petitioner and
the disruption of distribution of essential supplies to the community. {20D-E, F-G]
(b) Fron1 the violation of the mandatory provisions of the Petroleum Act and
the Rules made thereunder, no presumption can be drawn that there was a
disruption of supply of the e~scntial commodity.
[20G-H1
(c) The commission of an offence at a private place or a violation of a provision of law by itself docs not attract the Maintenance of Internal Security Act
unless, by the act committed, the supply oi' an essential commodity to the community is disrupted or the even flow of the life of the community is disruoted.
[21B]
Manu Bhusha11 Roy Prodha11 v. State of Bent;oi' and Otl1ers, ,A.. l. R. 1973
S. C. 29'5, referred to.
(2) The second ground does di.sdose a clear .overt act from which an inference can be drawn that the petitioner had made a number of fictitious sales.
But, in view of the finding that the first ground is irrelevant, it is not possible
to determine to what extent the subjectivie satisfaction of the detaining authority
was influenced or affected by the first ground.
When out of 2 grounds one is
vague or irrelevan't, then the entire order of detention falls to
the
ground.
[22C, F-Gl
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(3) The Court cannot go behind the subjective satisfaction of the detaining
authority but such satisfaction does not confer a blanket power which may
authorise the detaining ttuthority to act in a ruthless or arbitrary fashion._ J udL
H
cial decisions have carved out an area. though limited, within which, the subjective satisfaction of the detaining authority, which is a si~e qu_a non for the
exercise of the power, can be tested on the touchstone of ob1ect1vity.
[24F-GJ
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K. M. AGGARWALA v. UNION (Fazal Ali, J.)
17
(a) Tile words '"mile an order directing that such person be detained" in
ieetion 3 ( 1) of the Act postulates three conditions : (i) that the order must
be made by the authority in the section; (ii) The order must be duly signed by
the 11aid authority; and (iii) that only one authority and one authority alone caa
pass the order of detention. Therei'ore, unless the order made and the ground.:f
prepared are signed by the authority concerned, the order is not made as con ...
templated by the section.-
{25F-G]
.
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(b) Further. since the order is based on grounds to be served on the detenu,
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the order of detention could be passed only if the grounds are in existence and
are prepared contemporaneously, otherwise the order of detention becomes
illusory.
[25H-26A]
In the present case, the District ~fagistrate who filed the counter·affidaYit
Wal acting in place of the permanent District Magistrate. In the Hig!i Court,
which was moved in the first instance for a writ of luibeas corpNS, the District
l\fagistrate stated that the order of detention was passed by him after being
satisfied of the grounds of detention, that he also framed the draft of the grou.ndi
and that the permanent District 1fagistrate, who took over from him merely
signed and served thOSe grounds on the detenu.
Bl.it, in this Court he stated
that the order of detention was passed by the two detaining authorities, namely,
both the District Afagistrate!I. after they had fully satisfied the~eives about tho
exi3tence of the grounds. It is,, therefore, not possible to determine as to v.:ho
in fact made the order of detentionl. __ and in view of the contradictory stand
taken in the counter-affidavits. filed oy the detaining au~horitics, the exercise
of the jurisdiction to detain the petitioner has not been made with due care and
caution or in a proper and fair manner. [23B-24FJ
J(hudiram Da.t v. The Stafe of rVest Bengal· and Other,, A. l. R. 1975.
S. C. 550, referred to.
[The Court also expressed strong disapproval of the careless and irre5ponsible
manner in lvbich the counter-affidavit had been filed by the Distrir:t. Magistrate,
because the date on which reference was made to the Advisory Board was incorrectly stated in tho counter-affidavit which created unnecessary coofuiion
: and -~_ontroversy over a simple is5~.] [18P-G]_
0RTGI!<AL, JURISDICTION : Writ Petition No. 84 of 1975.
Petition under Art. 32 of the Constitution of India.
F
A. K. Sen, D. N.· Mukherjee, Narayan Gupta and G. S, Chatterjee;
fur the petitioner.
Girish Chandra, for respondent no. I.
D. P. Ur.iyal and O. P. Rana, f~r respondent nos. 2-5.
,G
The. Judgment of the Court wa5 delivered by
FAZAL ALI, J.-By an order dated November 8, 1974 passed by.
the District Magistrate, Badaun, the petitioner was detained under
s. 3(l)(a)(iii) of the Maintenance of Internal Security Act, 1971hereinafter referred to as 'the. Act'-because the allegations made in
. the . grounds of detention disclosed that he had committed acts preH . judicial to the maintenance of supplies and services essential to the
community. The grounds of. the order of detention were served on
the petitioner by the District Magistrate,· Badaun, on November· 13,
1974 .. The. State Government approved the order of detention on
3-'L714SupCI/75
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18
SUPREME COURT REPORTS
[1976) 1 S.C.R.
November 19, 1974 and made a report to the Government of India
on November 22, 1974. According to the respondents, the Government of U.P. had made a reference to the Advisory Board constituted
under the Act on November 22, 1974 but as it had not received the
representation from the petitioner, the same was forwarded later. The
representation, according to the respondents, was received on November
28, 1974 which was rejected on December 6, 1974. The representa·
tion was sent to the Advisory Board on December 1~, 1974 which gave
its report holding that the grounds were sufficient for detention of the
petitioner and after receipt of the opinr0n of the Advisory Board on
January 7, 1975 the order of detention was finally confirmed by the
Government on January 17, 1975.
We might mention at the very outset that there was some controversy on two points before us.
In the first place the petitioner did
not accept the stand oe the Government that the reference to the
Advisory Board was made on November 22, 1974 but relied on a
counter-affidavit filed by Mr. S. K. D. Mathur, the then District Magistrate of Badaun, in this Court to support his plea that the reference
to the Advisory Board was made on December 20, 1974 vide paragraph 2(vi) of the counter-affidavit appearing at p. 118 0£ the Paper
Book.
It was therefore contended by the
learned counsel for the
petitioner that as the reference was made to the Advisory Board
beyond the period mentioned in s. 10 of the Act, there being a vr0lation
of the mandatory provision of the statute, the order of detention fell
on this ground alone. We gave an opportunity to the G0vernment to
produce be.fore us materials to show the exact position and from the
original file produced before us we find that the counter-affidavit filed
by Mr. S. K. D. Mathur in this Court to th" effect that the reference
was made to the Advisory Board on December 20, 1974 was factually
incorrect and that the reference was really made on November 22.
1974 by the Government by virtue of letter No. 107/2/48(74. TI1e
file also contains a letter of the Registrar dated January 7, 197 S
forwarding the opinion of the Advisory Board wherein also it was
mentioned that the reference was made on November 22, 1974. In
view of these cogent materials Mr. Sen
learned counsel for
the
petitioner did not choose to press this point.
We cannot, however.
leave this matter without expressing our strong disapprobation on
the careless and irresponsible manner in which the counter-affidavit
has been filed by the respondents, particularly by Mr. S. K. D. Mathur
who happened to be the then District Magistrate, Badaun. We lw•pc
the Government will be careful in futt1re and see that such incorrect
affidavits arc not filed before this Court, which may create unneccssarv
confusion and controversy and make a simple issue so very much
involved.
The petitioner was admittedly a partner of the firm called Bharat
Oil Company which was dealing in the storage and sale of high speed
diesel oil since 1965. According to the petitioner the business was
started at Badaun and Ujhani but later a branch was opened at Bareilly
and the firm transferred its headquarters to Bareilly in 1971. We
are not,
however,
concerned
with
the
business
at
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K. M. AGGARWALA v. UNION (Faza) Ali, !.)
19
Barcilly in this case. Under the Petroleum Act, 1934, the petitioner
could have carried on his business only after obtaining a licence from
the prescribed authority. The District Authorities could grant licence
only to the extent of 22,000 litres but if the dealer wanted to store
high diesel oil to the extent of more than 22,000 litres he had to get
a licence from the Chief Controller of
Explosives, Nagpur..
The
petitioner's further case is that as high speed diesel oil ran in short
supply, the Indian Oil
Corporation and the
District
authorities
impressed on the dealers the necessity of keeping light diesel oil which
was available in sufficient quantities and was necesrnry for running
crushers and pumps in the rural areas. The petitioner had undoubtedly
secured a licence for storage of light diesel oil which was valid upto
March 31, 1975 and had applied for renewal of the licence thereafter
and had also complied with all the necessary formalities
about n-o
objection and the safety
certificate to be given
by
the
District
Authorities. But on the date in question the licence of the petitioner
had not been renewed so far. We might mention in this connection
that the stand taken by the respondents is that although the petitioner
had a licence to store light diesel oil to the exent of 22,000 litres he
did not possess any licence for storing it at Ujhani. It appears that
the godown of the petitioner was searched by the excise authorities
on October 17, 1974 and November 5, 1974 and on inspection of the
godown about 1.64 lakhs litres of light diesel oil was found stored
at Ujhani. The stock register was produced by the petitioner before
the authorities which appeared to be in order and there is no allegation
that there was any manipulation or interpolation in the stock register.
Thus the simple allegation against the petitioner is that he had stocked
huge quantity of light diesel oil without waiting for the licence to be
cleared by the Chief Controller of Explosives at Nagpur. This forms
the subject-matter of the allegations mentioned in grounds (l)(a) &
(b) of the grounds of detention served on the petitioner. The sheetanchor of the argument of Mr. Sen learned counsel for the petitioner
was that in so fur as gmund No. (1) was concerned it was wholly
irrelevant and totally unconnected with the nexus of the Act, because
even if the grounds be taken at their face value they did not disrupt
or disturb the essential supplies to the community.
Before dealing
with this contention it may be necessary to quote in extenso the grounds
mentioned in (l)(a) & (b) of the detention order:
"(l) That you a partner in the firm named Bharat' Oil
Company, Mohalla Ayodhya Nagar, Ujhani District Badaun,
on Bareilly-Mathura Road, authorised only to deal in High
Speed Diesel and Motor Spirit were found hoarding Light
Diesel Oil, without having obtained a licence for the same
from the Chief Controller of Explosives, Nagpur as is evident
from the following :-
(a) On 17-10-74 at about 4 P.M. the premises of
your aforesaid firm was inspected by Sri S. N.
Pandey, District Excise Officer, Badaun and it was
found that in the underground tanks within the
premises mentioned aforesaid 96,000 litres of Light
20
SUPREME COURT REPORTS
(1976] 1 S.C.R.
Diesel Oil was stored, for which no licence could
be produced on demand by the District Excise
Officer aforesaid and thereafter a complaint has
also been lodged in the court of the Chief Judicial
Magistrate, Badaun by the District Excise Officer
on 8-11-74.
(b) On 5-11-74 the premises of your aforesaid firm.
Bharat Oil Company, Ujhani, was again inspected
at about 4.15 P.M. by Sri N. N. Verma S.D.M.
Badaun accompanied by District Excise Officer
Bad.aun and Sri Fateh Singh, Dy, S.P. Badaun
and it was found that 68,000 litres of Light Diesel
Oil had during 17th October 1974 to the time of
this inspection been added to the store kept by
you of the said Light Diesel Oil of 96,000 litres,
in three underground tanks within the premises
mentioned aforesaid and no licence could be produced on demand by the S.D.M. Badaun. For this
also, a complaint has been lodged by the S.D.M.
Badaun in the Court of Judicial Magistrate II.
Badaun on 8-11-74."
Analysing these grounds it would appear that there is no allegation
by the detaining authority that by storing the huge quantity ofl light
diesel oil the petitioner had in any way affected the distribution or
sale of that commodity, nor is there any allegation to show that the
(ktitimier had refused to sell light diesel oil to any body who required
it. The High Conrt which was moved in the first instance for a writ
of habeas corpus, appears to have drawn an inference based purely
on speculation that the petitioner had transferred huge quantities of
, light diesel oil from his depot at Badaun to his godown at Ujhani.
There is, however, no material ·on the basis of which the High Court
could have drawn such an inference. There is, however, no suggestion,
far less any allegation, in these grounds that the petitioner had tried
to divert his stocks of light diesel oil from Badaun to Ujhani and
thereby deprived the people of Badaun of their share of the light diesel
oil.
In these circumstances, therefore, we are satisfied that there is
absolutely no correlation between the act of the petitioner and tho
disruption of distribution of the essential se!pplies to the community.
The learned counsel appearing for the respondents submitted that
by storing such huge quantities of light diesel oil in Ujhani the petitioner
has committed a clear violation of the mandatory provisions of the
Petroleum Act and the Rules made thereunder and must be presumed
to have disrupted the essential supplies because light diesel oil had
been declared by the order of the Government of U.P. to be an essential
commodity. We are, however, unable to agree with this argument.
Mr. Sen appearing for the petitioner does not dispute that the light
diesel oil was an essential commodity, but his argument was that
he has in no way tried to disrupt the essential supplies of this commodity and he merely committed a technical offence in storing the
quantities of light diesel oil in anticipation of the licence which had
been cleared by the District Authorities and which
awaited
the
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K. M. AGGARWALA v. UNION (Fazal Ali, J.)
21
sanction of the Chief Controller of Explosives, Nagpur and which
would have in normal routine been granted. It is also admitted in
the ground itself that a complaint had been lodged in the Court of
the Chie.f Judicial Magistrate against the petifroner for the storage.
We have already held in several cases that the commission of an
offence at a private place or a violation ofl a provision of law by
itself does not attract the Act unless by the act committed by the
petitioner the essential supplies to the community are disrupted or
even flow of the life of the community is disrupted. Reading grounds
(l)(a) & (b) we are unable to hold that they are in any way germane
or relevant to the disruption of maintenance of essential supplies to
the community.
In Manu Bhusan Roy Prodhan v. State of West Bengal and Others(')
this Court observed as follows :
"This kind of a solitary assault on one individual, which
may well be equated with an ordinary murder which is not
an uncommon occurrence, can hardly
be said to disturb
public peace or place public order in jeopardy, so as to
bring the case within the purview ot the Act. It can only
raise a law and order problem and no more; its impact on
the society as a whole cannot be considered to be so extensive, widespread and forceful as to disturb the normal life
of the community thereby rudely
shaking
the
balanced
tempo of the orderly life of the general public.
This ground
is, therefore, not at all relevant for sustaining the order of
detention for preventing the petitioner from acting in a manner prejudicial to the maintcna'.1ce of public order."
The ratio of this case fully tallies with the facts. of the present case
where also grounds (I) (a) & (b) taken at their face value appear
to be irrelevant and do not disclose any causal connection with the
F
disruption of the essential supplies to the community.
G
H
We now take up the other ground, namely, ground No. (2),
which is as follows :
"(2) That you as partner of the firm M/s Bharat Oil
Company located at Badaun licensed •at Badaun to . deal
with Light Diesel Oil and required by rule 9(1) of the
U.P. Essential Commodities (Price Dirnlay
and
Control
of Supply and Distribution) Order, 1971. as amended by
Second Amendment dated' June 13, 1973 framed under
Rule 114(2) of the Defence of India Rules, 1971 to issue
every purchaser a correct receiot showing, inter alia, the
name and address of the customer were found to have sold
Light Diesel Oil reoeatedly without comolving with the said
requirement and with the object make fictitious sale of the
I) A. I. R. 1973 S. C. 295.
22
SUPREME COURT REPORTS
[1976] 1 S,C.R.
Light Diesel Oil a scheduled commodity within the meaning of the said order, as is evident from the following :
(i) C;sh memo no. 62 dated 8-8-74
(ii) C.ish memo no. 63 dated 14-8-74
(iii) Cash memo no. 134 dated 7-10-74
(iv) C,sh memo no.135 dated 7-10-74
(v) Cnh m:mo no. 145 dated 7-11-74
(vi) C.1511 rn:mo no. 146 dated 7-11-74
I
l
Name and address
of
the customer
not given."
This ground no do_ubt dis~loses a clear overt act on the part ?~ the
petitioner from which an mference can be drawn that the petitioner
had made a number of fictitious sales.
111e details of the cash memos
by which the sales had been made have also been given but the cash
memos do not disclose the names and addresses of the customers,
as required by the rules.
The petitioner has himself admitted in
paragraph-13 of his petition filed in this Court that there had been a
violation of the U.P. Sale of Motor Spirit Taxation Act and the Rules
made thereunder but he sought to explain the omission on the ground
that it was due to· the mistake of the Munim and the quantities alleged to have been sold were actually purchased by the petitioner himself for the use of the pumps in his OW!Ji agricultural farm.
This
explanation does not appear to be convincing at all.
From the file
produced before us by the respondents it appears that the total amount
of sale of light diesel oil under these cash memos mentioned in the
ground comes to 21,500 litres.
We find it impassible to believe
that the petitioner would consume such huge quantity of light diesel
oil for his personal agricultural farms particularly when the petitioner
had given no details of the number of farms •and other machines for
which this oil was said to be used. In these circumstances there can
be no doubt that these were fictitious sales made by the petitioner
with a view to hoard light diesel oil and by his conduct the persons
who were in genuine need of light diesel oil were deprived of
the
same.
Ground No. (2), therefore, is quite specific, but the difficulty
is that in view of our finding that ground No. (1) is irrelevant it is
not possible to determine as to what extent the subjective satisfaction
of the detaining authority was influenced or affected by Ground No.
(1) which has been found by us to be extraneous and irrelevant. It
has been held by us in several cases that where out of two grounds
one gronnd is vague or irrelevant, then the entire· order of detention
falls to the ground.
In this view of the matter the order of detention
suffers from this serious infirmity and must be quashed.
Secondly it was argued by the learned counsel for the petitioner
that on the materials produced before us the suhjective satisfaction
of the detaining authority has also uot been established. To begin
with it is not clear at all as to who passed the order of detention and
who
wa~ satisfied regarding the sufficiency of the grounds.
Jn
the second place the
grounds
appear
to have
been served
by Mr. R. C. Arora the permanent District Magistrate of Badaun
who has also signed the same which shows that he was the detaining
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K. M. AGGARWALA v. UNION (Fazal Ali, J.)
23
authority also.
On a consideration of these two points we are of
the opinion that the contention of the learned counsel for the petitioner is well founded and must prevail.
Coming to th~ first point
we find that Mr. S. K. D. Mathur has clearly alleged in his couuteraf!idavit that Mr. R. C. Arora the permanent District Magistrate of
Badaun had proceeded on leave from October 21, 1974 to November
11, 1974 and during his absence the· deponent S. K. D. Mathur was
acting as the District Magistrate of Badaun. It is further stated in the
affidavit that Mr. R. C. Ar01a rejoined his duty on November
12,
197 4 and took charge of his office.
The order of detention, however, appears to have been passed while Mr. S. K. D. Mathur was
officiating as District Magistrate of Badaun and Mr. Mathur makes
no secret of the fact that the order of detention was passed by him
after being satisfied of the grounds of detention. In the COU!lteraffidavit submitted by Mr. S. K. D. Mathur before the High Court,
which is Annexure D at p. 66 of the Paper Book Mr. Mathur categorically stated that he himself had passed the detention order after
recordirig his satisfaction. In this connection paragraph l of
the
counter-affidavit before the High Court is as fo!lows :
"That the deponent was District Magistrate, Badaun on
8-11-1974, and he has passed the detention order against
the petitioner after being fully satisfied that the petitioner was
acting in a ma110er prejudicial to the maintenance of supplies
and services essenfral to the community and as such he is well
acquainted with the facts deposed to below."
This allegation is reiterated and
over-emphasised in
paragraph 23
of the same affidavit wherein Mr. Mathur makes a categorical
averment which is as follows :
" .... the deponent submits that in his capacity as the
District Magistrate he was fully competent to make the impugned order of detention.
The depcment further submits
that on the basis of the evidence and the material placed before him, to which he has referred above he was personally
and fully satisfied as to the existence of sufficient basis to make
the impugned order with a view to prevent the petitioner from
indulging in activities prejudicial to the mainte'ilance of essential services and supplies."
In this very affidavit Mr. Mathur goes •On to state that he had also framed draft of the grounds on November 8, 1974 and that Shri R.
C.
Arora who took over on November 12, 1974 served these grounds on
the petitioner which were drawn by the deponent Mr. S. K. D. Mathur.
In this comection the averment runs as follows :
"Sri R. C. Arora took over charge on November 12, 1974
and under his signature Sri Arora served these same grounds
which the deponent had earlier drawn upon the petitioner."
According to the clear and categorical averments made by Mr, S. K. D.
Mathur in his affidavit before the High Court the only role which was
24
SUPREME COURT REPORTS
[1976] 1 S.C.R.
assigned to Mr. R. C. Arora the permane'.1t District Magistrate was
that he signed the grounds and served them on the detenu.
In other
words, according to Mr. S. K. D. Mathur, Mr. R. C. Arora was merely
the se1ving officer and did not perform any other function in so far
as the order of detention passed against the petitie1.1er was concerned
and yet this officer is imprudent enough to allege in paragraph 25 of
the counter-affidavit filed in this Court that the order of detention was
passed not only by him but by the two detaining authorities, namely,
Mr. R. C. Arora and Mr. S. K. D. Mathur.
In this connectici.1 Mr.
Mathur averred as follows :
"That the order of detention was passed by the detaining
authorities after they had fully satisfied themselves about the
existence of the grounds."
It would thus appear from this averment that the order of detention
was not passed by one single person but by more than one persoa and
taking the facts mentioned by the deponent it would appear that the
order of detention appears to have been passed in two stages--in the
first instance by Mr. S. K. D. Mathur who was full-fledged District
Magistrate on November 8, I 974 whei.1 the order of detention was
passed, but who according to his own statement had first prepared a
draft of the grounds. The order of detention was then signed by Mr.
R. C. Arora on November 13, 1974 and served on the detenu. While
Mr. S. K. D. Mathur took the clearest possible stand before the High
Court that he alone had made the order of detention and he alone was
satisfied about the sufficie'.1cy of the grounds, but in his affidavit before
this Court he seems to suggest that there were two detaining authorities
both of whom were satisfied. This shows the casual and cavalier manner in which the order of detention against the petitioner appears to
have been passed in this case.
Even if the order had been made by
Mr. S. K. D. Mathur and signed by him, there could have been no
objection in Mr. R. C. Arora serving the grounds on the petitioner,
because the law does not require that the person who actually signs the
order or the grounds must also serve the same on the detenu. But
in this case it is not possible to determine as to who in fact made the
order of detention.
It is true that the Court ca!anot go behind the subjective satisfaction
of the detaining authority, but such satisfaction does not confer a
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blanket power which may authorise the detainin~ authoritv to ert in a
,
ruthless or arbitrary fashion and the judicial decisions have undoubtedly carved out an area, theugh limited, with;n which the subjective satisfaction of the detaining authority can be tested on the touchstcme of
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objectivity. It is obvious that the subjective satisfaction of the detaining authority is a sine qua non for the exercise of power nf netention
and it has got to ·be exercised properly and discreetly.
In Khudiram
Das v. The State of West Bengal and others(") this Court made the
following observations :
"The basic postulate on which the courts have proceeded
is that the subjective sutisfaction bei.1g a condition precedent
H
for the exercise of the power conferred on the executive, the
(l) A. I. R. 1975 S. C. 550.
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K. M. AGGARW.ALA v. UNION (Fazal Ali, J.)
.. 25
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court can always examine whether the requisite satisfaction
is arrived at by the authority; if it is not, the condition precedent to the exercise of the power would not be fulfilled and
the exercise of the power would be bad."
B
I .1 the instant case, in view of the contradictory stand taken by the
detaining authorities, we are satisfied that the exercise of jurisdiction to
detain the petitioner has not been made with due care and cauti()]1 or
in a proper and fair manner.
On this ground also the order of detention stands vitiated.
Section 3 (1 ) of the Act ru•,1s thus ;
"3. (1) The Central Government or the State GovernC
n1ent may,-
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( a) if satis!l.ed with respect to any person (including a foreigner) that with a view to preventing him from acting
in any manner prejudicial to-
(i) the defence of India, the relation of India with
foreign powers, or the security of India, or
(ii) the security of the State or the maintenance of
public order, or
(iii) the
maintenance
of
supplies and
services
essential to the community, or
( b) it satisfied with respect to any foreigner that with a
view to regulating his continued presence in India or
with a view to making arrangements for his
expulsion from India;
It is necessary so to do, make an order directing th•at such
person be detained."
This power can also be exercised by the officers mentioned in sub-s.
F
(2), and in the instant case we are concerned with the District Magistrate.
The words "make an order directing that such person be detained" clearly postulate three conditions-Ci) that the order must be
made by the authority mentioned in s. 3; (ii) the order must be duly
signed by the said authority; and (iii) that only one authority and one
authority alone can pass such order of detention. The statute does
not contemplate a sort of composite or a joi·at order passed by several
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authorities.
In the instant case the original order of detention passed
by Mr. S. K. D. Mathur bears his signature and even the grounds mentioned bear his signature.
In these circumstances we are unable to
accept the affidavit of Mr. S. K. D. Mathur that the grounds framed by
him were merely draft grou'ads prepared by him which were signed
by the permanent District Magistrate later. It is obvious that unless
the order made and the grounds prepared are signed by the authority
H
concerned, the order is not made as contemplated J;>y s. 3 of the Act.
Further more, since the order is based on grounds to be served on the
detenu, the order of detention could be passed only if the grounds are
i'll existence and are prepared contemporaneously, otherwise the order
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26
SUPREME COURT REPORTS
(1976] 1 S.C.R.
of detention becomes purely illusory.
In view, however, of the contradictory affidavits given by Mr. S. K. D. Mathur, it is difficult to
determine whether Mr. S. K. D. Mathur or Mr. R. C. Arora passed
the order of detention and as to who among them was satisfied regarding the grounds of detention. This is also a very serious infirmity
from which the order of detention suffers and as a result of which the
order has to be set aside.
There appears to us to be a clear violation
of the provisions of s. 3 of the Act in this case.
Lastly we may mention that although the petitioner has pleaded
the question of ma/a fides in the instant case, it is not necessary for
us to decide the same in the view we take in this case, and that is wby
·it was not seriously pressed by Mr. Asoke Sen i•a the course of his arguments before us.
For the reasons given above, we allow the petition and quash the
order of detention passed against the petitioner on November 8, 1974
and direct the petitioner to be released forthwith.
V.P.S.
Petition allowed.
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