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PETITIONER: DULAL CHANDRA MAJUMDAR

       Vs.

RESPONDENT: THE STATE OF WEST BENGAL

DATE OF JUDGMENT05/11/1974

BENCH: BHAGWATI, P.N. BENCH: BHAGWATI, P.N. CHANDRACHUD, Y.V.

CITATION:  1974 AIR 2361            1975 SCR  (2) 589  1975 SCC  (3) 404

ACT: Maintenance  of  Internal Security Act.  1971-S.  3(2)(1)-No nexus between the grounds of detention communicated and  the subjective satisfaction effect of.

HEADNOTE: The  order  of  detention passed under s. 3(2)  (1)  of  the Maintenance  of  Internal  Security Act,  1971  against  the petitioner  stated that with a view to preventing  him  from acting in a manner prejudicial to the maintenance of  public order,  it  was  necessary to detain him.   The  grounds  of detention  set out one incident of dacoity in a third  class compartment  of a running train where cash money was  stolen by him. in his affidavit the District Magistrate stated that he was also satisfied that the petitioner was likely to  act in  a manner prejudicial to the maintenance of supplies  and services  essential to the community.  In a  petition  under art. 32 of the Constitution it was contended that there  was no  nexus between the grounds of detention  communicated  to him  and  the  subjective  satisfaction  of  the   detaining authority. Allowing the petition. HELD  :  The order of detention must be held to  be  invalid since  the incident of dacoity in a third class  compartment of  a  running  train for committing theft  of  money  which constituted  the  solitary ground of  detention  was  wholly irrelevant  and the subjective satisfaction of the  District Magistrate  that the petitioner would be likely to act in  a manner  prejudicial to maintenance of supplies and  services essential to the community could not be founded upon it  and was therefore colourable and no satisfaction at all.  [592B- C] (2)  The  contention that the averment in the  affidavit  in reply  had crept in through a mistake cannot be accepted  as correct.   The  affidavit  in reply had  been  made  by  the District Magistrate himself and it must be presumed that  he made  the statements with the sense of responsibility  which his  high  office  necessarily  carried.   If  the  District Magistrate was also not subjectively satisfied in regard  to the  likelihood  of  the  petitioner  to  act  in  a  manner prejudicial  to  the maintenance of  supplies  and  services essential  to the community, he would not have made such  an

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averment in the affidavit in reply. [591E-F]

JUDGMENT: ORIGINAL APPELLATE JURISDICTION : Writ Petition No. 2371  of 1974. (Petition under Article 32 of the Constitution.) R.   K. Jain, for the petitioner. G.   S. Chatterjee, for the respondent. The Judgment of the Court was delivered by BHAGWATI,  J. This petition is directed against an order  of detention  dated  30th  March, 1973  made  by  the  District Magistrate,  Nadia under section 3(2)(1) of the  Maintenance of  Internal  Security Act, 1971.  The  order  of  detention recited  the  satisfaction of the District  Magistrate  that with a view to preventing the petitioner from acting in  any manner prejudicial to the maintenance of public order it was necessary to detain him and directed that the petitioner  be accordingly  detained.  Pursuant to the order of  detention, the  petitioner was arrested on 3rd April, 1973 and  at  the time of his arrest the grounds of detention dated 30th 590 March,  1973  were  served  upon  him  together  with  their translation in Bengalee language.  The grounds of  detention started  with  a  recital  that  the  petitioner  was  being detained  on the ground that he had been acting in a  manner prejudicial  to the maintenance of public order and set  out one  incident  of dacoity committed by him on the  basis  of which  the  District Magistrate had reached  his  subjective satisfaction  in  regard to the necessity of  detaining  the petitioner.   The  usual ritual prescribed by  the  Act  was thereafter followed and the order of detention was approved, by   the  State  Government,  the  representation   of   the petitioner  was  considered and rejected, the  case  of  the petitioner  was  placed  before the Advisory  Board  and  on receipt  of the opinion of the Advisory Board, the order  of detention  was  confirmed  by  the  State  Government.   The present  petition  was  filed by the  petitioner  from  jail challenging the validity of this detention. There were several grounds urged before us on behalf of  the petitioner  in  support  of  the petition,  but  it  is  not necessary to refer to all of them since there is one  ground which is, in our opinion, sufficient to invalidate the order of detention.  That ground rests on an averment made by  the District Magistrate in paragraph 4 of the affidavit filed by him  in  reply  to the petition.   The  District  Magistrate stated as follows in paragraph 4 of his affidavit-in-reply :               "I  say  that  I  passed  the  said  order  of               detention after being bonafide satisfied  from               the  materials  on  record as  stated  in  the               grounds   of  detention  and  so   surrounding               circumstances  that with a view to  preventing               the   detenu   from  acting  in   any   manner               prejudicial to the maintenance of Public Order               it  was  necessary  to detain  him  under  the               provisions  of  the  Maintenance  of  Internal               Security Act, 1971-I further state that having               regard to the nature of the act and the manner               in  which it was committed by the  detenu  (as               disclosed  in  the  rounds  furnished  to  the               detenu) and effect thereof on the public order               I was bonafide satisfied that the said act was               sufficient  for  making  the  said   detention               order.   I was also further satisfied that  if

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             the  detenu petitioner is not  detained  under               the  said Act he is likely to act in a  manner               prejudicial to the maintenance of supplies and               services essential to the community." It  will  be seen from this statement made by  the  District Magistrate that from the material on record he was not  only satisfied that-was necessary to detain the petitioner with a view to preventing him from acting in any manner prejudicial to  the maintenance of public order, but was also  satisfied that if the petitioner was not detained, he would be  likely to  act  in  a  manner prejudicial  to  the  maintenance  of supplies  and  services  essential to  the  community.   The argument  of the petitioner was that there was no  nexus  at all  between  the grounds of detention communicated  to  the petitioner  and the subjective satisfaction of the  District Magistrate  that it was necessary to detain  the  petitioner with  a  view to preventing him from acting  in  any  manner prejudicial  to  the maintenance of  supplies  and  services essential to the community and the order of detention  based inter  alia  on such subjective  satisfaction  was  invalid. Now,  there can be no doubt that if the order  of  detention was based on 591 the  subjective  satisfaction that the petitioner  would  be likely. to act in a manner prejudicial to the maintenance of supplies  and services essential to the community, it  would be  bad  because the incident of dacoity in  a  third  class compartment  of  a running train set out in the  grounds  of detention  would  be  wholly  irrelevant  to  support   such subjective  satisfaction.   It would be impossible  for  any rational human being to say that an incident of dacoity in a third class compartment of a running train where cash  money was  stolen is such an act that from it an inference can  be raised  that  the  person committing the  dacoity  would  be likely to act in a manner prejudicial to the maintenance  of supplies  and  services ,essential to  the  community.   The respondent  realising the seriousness of this difficulty  in its  way, contended that the averment in paragraph 4 of  the affidavit-in-reply   that   the  District   Magistrate   was satisfied that if the petitioner was not detained, he  would be likely to act in a manner prejudicial to the  maintenance of  supplies  and services essential to  the  community  had crept  in  through mistake and it should-not be  taken  into account by the Court in adjudging the validity of the  order of  detention.  The argument of the respondent was that  the only subjective satisfaction on which the order of detention was  founded  was  that  it  was,necessary  to  detain   the petitioner with a view to preventing him from acting in  any manner prejudicial to the maintenance of public order as re- cited’  in  the  order  of  detention  and  the  grounds  of detention and it was not correct to state that the  District Magistrate   was  also  subjectively  satisfied   that   the petitioner would be likely to act in a manner prejudicial to the  maintenance of supplies and services essential  to  the community  and  had  on  that  account  made  the  order  of detention.  We do not think we can accept this contention of the   respondent.    It   must  be   remembered   that   the affidavit-in-reply has been made by the District  Magistrate himself  and  we must presume that the  District  Magistrate must have made the statements contained in the affidavit-in- reply with the sense of responsibility which his high office necessarily  carries.  If the District Magistrate  was  also not  subjectively satisfied in regard to the  likelihood  of the  petitioner  to  act  in a  manner  prejudicial  to  the maintenance  of  supplies  and  services  essential  to  the

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community,  he  would  not have made  such  an  averment  in paragraph  of  his affidavit-in-reply.  Ordinarily  when  an averment  is  made by a high officer like the  District  Ma- gistrate in an affidavit which is made on oath, the Court is inclined  to accept the averment as correct and  the  burden lies  heavy  on the party who alleges to the  contrary.   We cannot,  therefore,  lightly accept the  submission  of  the respondent   that  the  District  Magistrate  has  made   an incorrect  statement  in paragraph 4  of  his  affidavit-in- reply.   The  position  might have  been  different  if  the District Magistrate himself had made a subsequent  affidavit stating  on oath that he had made a mistake in  the  earlier affidavit-in-reply  and  explained the  circumstances  under which  he came to make such mistake.  The Court  would  then have   examined  the  explanation  given  by  the   District Magistrate  and if satisfied, as regards the genuineness  of the  mistake, the Court would have accepted  the  subsequent statement of the District Magistrate and ignored the earlier averment made in the affidavit-reply.  But here there is  no affidavit  made  by the District Magistrate  confessing  his mistake in making the earlier averment in paragraph 4 of the affidavit-in-reply.  We must, therefore, accept the averment made by the District Magis- 7 L 319 Sup CIJ75 592 trate  in paragraph 4 of his affidavit-in-ireply as  correct and  proceed  on the basis that the order of  detention  was based  not  only  on his subjective  satisfaction  that  the petitioner would be likely to act in a manner prejudicial to the  maintenance  of public order but also  on  his  further subjective satisfaction that it was necessary to detain  the petitioner with a view to preventing him from acting in  any manner  prejudicial  to  the  maintenance  of  supplies  and services essential to the community.  And if that be so, the order  of  detention must be held to be  invalid  since  the incident  of  dacoity  in a third  class  compartment  of  a running   train   for  committing  theft  of   money   which constituted  the  solitary ground of  detention  was  wholly irrelevant  and the subjective satisfaction of the  District Magistrate  that the petitioner would be likely to act in  a manner  prejudicial  to  the  maintenance  of  supplies  and services  essential  to the community could not  be  founded upon it and was hence-colourable and no satisfaction at all. We, therefore, allow the petition and make the rule absolute and direct that the petitioner be set at liberty forthwith. P.B.R. Petition allowed. 593