http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 8  

PETITIONER: JAICHAND LALL SETHIA

       Vs.

RESPONDENT: STATE OF WEST BENGAL & ORS.

DATE OF JUDGMENT: 27/07/1966

BENCH: RAMASWAMI, V. BENCH: RAMASWAMI, V. WANCHOO, K.N. HIDAYATULLAH, M. SIKRI, S.M. SHELAT, J.M.

CITATION:  1967 AIR  483            1966 SCR  464  CITATOR INFO :  F          1967 SC1081  (8)  RF         1971 SC 530  (223)  RF         1976 SC1207  (116,192,367,477)  RF         1977 SC 183  (33)

ACT: Defence of India Rules, 1962. r. 30-Detention under-Plea  of mala fide whether can be raised-Detenue whether entitled  to inspect  file  containing order of detention-No  mala  fides alleged   against  Chief  Minister  who   passed   order-His affidavit not necessary.

HEADNOTE: The  appellant  was detained under r. 30 of the  Defence  of India Rules, 1962.  He challenged the order of detention  by a  petition  under ,Art. 226 of the Constitution  which  was dismissed.  In appeal before this Court by special leave  it was urged on behalf of the appellant that:- (i) the order of detention was mala fide; (ii) the High Court in not  calling for  the  file of the case and permitting the  appellant  to inspect  the  material on the basis of which  the  order  of detention  was  made, community an error of law;  (iii)  the High Court should have asked for an affidavit from the Chief Minister of the State who 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 fides   despite  the  Proclamation  of  Emergency  and   the President’s  Order which followed, the facts of the  present case did not justify the plea. [468 H] Makhan  Singh Tarsikka v. State of Punjab, [1964]  4  S.C.R. 932 and Durgadas Shirali v. Union of India. [1966] 2  S.C.R. 573 referred to. (ii)The satisfaction of the Government which justifies  the order of detention under r. 30 is a subjective satisfaction. A  court  can  not nor,ally  enquire  whether  created  that satisfaction  on  made, in the mind of  a  reasonable  acted order  of detention is on with the language of r.30.  it  is enter  into  an  investigation  about  which  the  order  of detention is  King Emperor v. Shibnath grounds existed which

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 8  

would have which alone the order could have been person.  If therefore  an authenticated face regular and  in  conformity not  ordinarily  open to a court to the sufficiency  of  the material on based. [469 C-D] King  Emperor v. Shibnath Banerjee, 72 I.A. 241,  Liversidge v. Sir John Anderson [1942] A.C. 206 and Greene v, Secretary of State for Home Affairs [1942] 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 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 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 inaccuracy, 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 concerned 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  of detention. [470 F-H] 465 Biren Dutta etc. v. Chief Commissioner of Tripura, [1964]  6 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 summoning  of  the file by the High Court was not necessary, and the High Court rightly  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 fides 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.  [471G- 472A] 1966.

JUDGMENT: CRIMINAL      APPELLATE JURISDICTION :- Criminal Appeal  No, 110 of 1966. Appeal  by special leave from the judgment and  order  dated February 8, 1966 of the Calcutta High Court in Criminal 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. Chatterjes 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 stated  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,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 8  

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 Kalyan 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 of that order the appellant was detained in the Presidency jail at Calcutta.  The order of 466 detention  being  No. 7422 H.S. of the  Government  of  West Bengal Home Department Special Section reads as follows:-               "Whereas the Governor is satisfied that with a               view  to preventing Sri Jaichand  Lal  Sethia,               son  of Sri Dipchand Sethia of 9 Decres  Lane,               Calcutta from acting in any manner prejudicial               to  the  maintenance of Public  Order,  it  is               necessary  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, 1962, 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 mala 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 mala 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 hold that the order of  detention  was lawfully  made by the Chief Minister of West Bengal and  the allegation  of  mala fide had not been  established  by  the appellant.    The  High  Court  accordingly  dismissed   the application  of the appellant for grant of a writ of  habeas 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 re. ports 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 8  

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 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  satisfaction 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(1) and  in  Durgadas Shirali  v.  The Union of India and Anr.(2) 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, 1962 issued in exercise of  the powers conferred by cl. (1) 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  contravenes  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 challenge 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 (]-) [1964] 4 S.C.R. 932. (2)[1966] 2 S.C.R. 573. 468 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 mala fide.  Similarly, it will be

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 8  

open  to the 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 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  mala  fide  exercise  of  power  does  not necessarily  imply any moral turpitude as a matter  of  law. It  only  means that the statutory power  is  exercised  for purposes  foreign to those for which it is in law  intended. In other words, the power confer-red by the statute has been utilised  for some indirect purpose not connected  with  the object of the statute or the mischief, it seeks to remedy. It  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  officers  falsely  made  against   the appellant.   It  is argued by Mr. N. C  Chatterji  that  the order  of detention is bad because the statutory  power  has been  exercised  mala  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 detention 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 prejudicial 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 illegally and clandestinely., The  allegation  of the appellant has also  been  denied  by Kalyan  Dutt in his affidavit.  Mr. Kalyan Dutt states  that he  never created fictitious records against  the  appellant and  never  prepared or forwarded any history-sheet  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 various affidavits filed in the case the High Court reached the conclusion that the allegation of mala fide made by the appellant 469 had  not been substantiated and the order of detention  made 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 file 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 8  

under  r. 30 is a subjective satisfaction.  A  court  cannot 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 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(1) as follows:-               "It is quite a different thing to question the               accuracy  of  a recital contained  in  a  duly                             authenticated  order,  particularly  w here  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  oh               recital in a duly authenticated order will, in               the   absence  of  any  evidence  as  to   its               inaccuracy,   be  accepted  by  a   court   as               establishing that the necessary condition  was               fulfilled.  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(2) and Greene v. Secretary of  State  for Home  Affairs (3).  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 (1)72 I.A. 241 at p. 261. (3) [1942] A.C. 284. (2) (1942) A.0. 206. 470 hostile  associations, or to believe that by reason of  such associations it was necessary to exercise control over them. In   Liversidge’s(4)  case  Viscount  Maugham  observed   as follows:-               "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(2) case Viscount Maughan again quoted with  ap- proval  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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 8  

             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 Government  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, 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  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 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  State Government  was  satisfied  will,  in  the  absence  of  any evidence  to  the  contrary, be accepted  by  the  court  as establishing that the 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 (1)[1942] A.C. 286. (2) [1942] A.C.284. 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 affidavit in this Court stating all the  material facts indicating whether the decision  arrived at was duly communicated to the detenus concerned.  But  the order for production of the file and for affidavit 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 communicated to him.  Reference was made by Mr. N. C. Chatterji to another case-Jagannath  Misra v.  The State of Orissa(1)-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 also 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(1) case, in  the Biren  Dutta(1)  case.  It follows therefore that  the  High Court was justified in not making an order for discovery  or

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 8  

production of the original departmental 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 himselfwas  acting mala fide. The allegation of the appellant was thatMr.Kalyan Dutt and the Customs Officers had acted malafide      against the appellant. The allegation of the appellant onthis point has been denied by Mr. Kalyan Dutt in his affidavit.As there is no allegation of mala fides or lack of bona fideswith regard  to  the  Chief Minister of West Bengal  who  is  the authority for deciding as to the necessity for detention  of the appellant it (1) [1964] 8 S.C.R. 295. (2) [1966] 3 S.C.R. 134. 472 was  not  necessary  for  the High  Court  to  call  for  an affidavit from 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 Court as sufficient  in  the circumstances of the case. For  these  reasons we hold that there is no merit  in  this appeal and that it should be dismissed. Appeal dismissed. 473