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PETITIONER: JAGANNATH MISRA

       Vs.

RESPONDENT: STATE OF ORISSA

DATE OF JUDGMENT: 17/12/1965

BENCH: WANCHOO, K.N. BENCH: WANCHOO, K.N. GAJENDRAGADKAR, P.B. (CJ) HIDAYATULLAH, M. RAMASWAMI, V. SATYANARAYANARAJU, P.

CITATION:  1966 AIR 1140            1966 SCR  (3) 134  CITATOR INFO :  D          1967 SC 483  (9)  R          1972 SC1256  (26)  RF         1972 SC1749  (9)  R          1975 SC 919  (9,15)

ACT: Defence  of India Act and rules, 1962, Rule  30(1)(b)--Order under-Grounds of detention-Application of mind by  detaining authority-Necessity of-.

HEADNOTE: The  petitioner  was detained by an order  issued  under  r. 30(1)(b)  of the DefEnce of India Rules.  He challenged  the detention  order  in  a  petition  under  Art.  32  of   the Constitution mainly on the ground that the order  enumerated six out of eight possible grounds of detention which  showed that the detaining authority had not really applied its mind to  the  matter.  The affidavit filed by the  Home  Minister stated  that  the detention order was made on  his  personal satisfaction that it was necessary to detain the  petitioner under the Rules "with a view to prevent him from acting in a manner prejudicial to the safety of India and maintenance of public order etc." HELD : (i) The order of detention under r. 30(1) (b) of  the Rules  deprives  a citizen of this country of  his  personal liberty  and  in  view  of the suspension  of  some  of  the fundamental  rights  by  the President  on  account  of  the emergency,  a  citizen  has  very  limited  opportunity   of challenging an order of detention properly passed under  the Rules. Section44 of the Defence of India Act says that there should   be  as  little  interference  with   the   ordinary avocations  of life and the enjoyment of property as may  be consonant  with  the  ensuring  of  the  public  safety  and interest and the Defence of India and Civil Defence.  If  in ’Any  case it appears that the detaining authority  did  not apply its mind properly before making the order of detention the order in question would not be an order under the  Rules and  the person detained would be entitled to release.  [137 F-138 C]

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(ii) Of the eight grounds of detention in s. 3(2)(15) of the Defence of India Act one refers to foreigners i.,e. of being of  hostile origin.  An Indian Citizen can thus be  detained on  seven  possible grounds and the detention order  in  the present  case  mentioned  six  of  them.   However  in   the affidavit  filed by the Minister only two of  these  grounds namely  safety of India and the maintenance of public  order were  mentioned.   In  these circumstances  there  could  be little doubt that the authority concerned did not apply  its mind properly before the order in question was passed in the present  case.   Such  a  discrepancy  between  the  grounds mentioned  in  the  order  and the  grounds  stated  in  the affidavit of the authority concerned can only show an amount of casualness in passing the order of detention against  the provisions of s. 44 of the Act. [138 D-H] Casualness was also apparent from the conjunctive ’or’ used in  the order showing that it was more or less a copy of  s. 3(2) (15).  The use of the word ’etc.’ in the affidavit  was another example of casualness.  This casualness showed  that the  mind of the authority concerned was really not  applied to  the question of detention of the petitioner.  The  order of 135 detention  passed without application of mind was  no  order under the Rules and the petitioners was entitled to release. [139 C] (iii)     The  fact  that  the order of  detention  was  not written by the Minister himself but by his subordinates  was irrelevant.  It is the duty of the Minister to see that  the order  issued  is in accordance with  his  satisfaction  and carries out his directions. [139 G]

JUDGMENT: ORIGINAL JURISDICTION : Writ Petition No. 97 of 1965. Petition under Art. 32 of the Constitution of India for  the enforcement of fundamental rights. R.   K. Garg for the petitioner. N.   S. Bindra and R. N. Sachthey for the respondent. The Judgment of the Court was delivered by Wanchoo, J. This petition for a writ of habeas corpus  under Art.  32 of the Constitution was heard by us on December  7, 1965.   We then directed the release of the  petitioner  and indicated that reasons will follow later.  We proceed to  do so now. The petitioner was detained by an order issued under r.  30- (1) (b) of the Defence of India Rules (hereinafter  referred to as the Rules) by the Government of Orissa on December 29, 1964.   He  raised  a  number  of  grounds  challenging  his detention.   It is unnecessary to refer to all  the  grounds raised  by the petitioner.  It is enough to say that one  of the  grounds raised by him was, that the order of  detention passed  by  the  State Government was  not  based  upon  the satisfaction  of  the Government.  The order  was  in  these terms :-               "Order  No.  8583/C,  Bhubaneswar,  the   29th               December, 1964.               "WHEREAS  the  State Government  is  satisfied               that with a view to preventing Shri  Jagannath               Misra,   son   of   Biswanath   Misra,   vill.               Bhandarisahi,  P.  S.  Parlakemedi,   District               Ganjam, from acting in any manner  prejudicial               to the defence of India and civil defence, the               public  safety,  the  maintenance  of   public

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             order, India’s relations with foreign  powers,               the maintenance of peaceful conditions in  any               part  of  India or the  efficient  conduct  of               military operations, it is necessary so to do,               the  Governor  of Orissa in  exercise  of  the               powers  conferred  by rule 30(1)  (b)  of  the               Defence  of India Rules, 1962, is  pleased  to               direct that the said               136               Shri  Jagannath Misra shall be detained  until               further orders.               By  order  of the Governor, Sd.  Secretary  to               Government." It  will be noticed that the order mentions six  grounds  on the  basis  of  which  the  petitioner  was  ordered  to  be detained,  namely, acting in any manner prejudicial to  (i) the  defence  of India and civil defence, (ii)  the  public safety, (iii) the maintenance of public order, (iv)  India’s relations  with  foreign  powers,  (v)  the  maintenance  of peaceful  conditions  in  any part of India,  and  (vi)  the efficient conduct of military operations.  As the petitioner had raised the contention that the order had not been passed on  the satisfaction of the State Government we ordered  the Minister concerned  to file an affidavit in  this  behalf. Consequently, the Home Minister of the Government of  Orissa who deals with matters of detention, has filed an affidavit to  show  that the order in question was  passed  after  the State Government was satisfied of the necessity thereof. It  is  stated  in this affidavit that  the  petitioner  was ordered to be detained on December 29, 1964, by the order in question  and  was actually detained on December  30,  1964. The affidavit then goes on to say that after the outbreak of hostilities  between China and India and the declaration  of emergency  by  the President a close watch was  set  on  the movements and activities of persons who either  individually or  as a part of an Organisation were acting or were  likely to  act in a manner prejudicial to the safety of  India  and maintenance   of  public  order,  and  in  this   connection particular  attention  was  paid to the  activities  of  the members of that section of the Communist Party which came to be  known  as  the pro-Peking faction  of  the  Party.   The petitioner  was a member of the pro-Peking faction  and  was under  close and constant watch.  From the reports  received regarding the activities of the petitioner the Home Minister stated  in  the affidavit that he was  personally  satisfied that  it  was necessary to detain the petitioner  under  the Rules  "with a view to prevent him from acting in  a  manner prejudicial to the safety of India and maintenance of public order, etc." The affidavit goes on to say that the  decision to   detain  the  petitioner  was  made  on   the   personal satisfaction  of the Minister and that the satisfaction  was based  on  several reports placed before the  Minister  with respect to the activities of the petitioner. 137 The  principal  contention on behalf of  the  petitioner  in relation  to and against the affidavit of the Home  Minister is that it is clear from a perusal of the affidavit that the Minister  did  not  apply  his mind in  the  matter  of  the detention of the petitioner.  It is urged that the order  in question  contains  six  grounds of  detention.   These  six grounds  practically cover all the grounds. specified in  s. 3(2) (15) of the Defence of India Act (hereinafter  referred to  as the Act) except two, namely-(i) the security  of  the State  and  (ii)  of  being of  a  hostile  origin.   It  is therefore  urged  that  the  order  was  made  copying   out

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practically  all the grounds specified in s. 3 (2)  (15)  of the Act without the application of the mind of the  Minister whether those grounds were made out in this case.   Reliance in  this connection is placed on the affidavit of  the  Home Minister  where  he  has  stated  that  he  was   personally satisfied that it was necessary to detain the petitioner  in order to prevent him from acting in a manner prejudicial  to the  safety of India and maintenance of public  order,  etc. It is: urged that the affidavit shows that the Minister  did not  really apply his mind to the question of the  detention of the petitioner and the grounds for doing so and acted  in a   casual  manner  in  approving  the  detention   of   the petitioner.  It is urged that while the grounds specified in the  order are six in number, the Minister when speaking  of his  satisfaction has mentioned only two, namely, safety  of India  (which  may be assumed to be the same as  the  public safety) and maintenance of public sector. There  is in our opinion force in this contention on  behalf of  the petitioner.  The order of detention under r. 30  (1) (b)  of the Rules deprives a citizen of this country of  his personal  liberty and in view of the suspension of  some  of the  fundamental rights by the President on account  of  the emergency,  a  citizen  has  very  limited  opportunity   of challenging an order of detention properly passed under  the Rules.   It seems to us therefore necessary where  detention is  made  under  the  Rules  that  the  authority   ordering detention  should  act with a full sense  of  responsibility keeping in mind on the one hand the interests of the country in  the  present  emergency  and  on  the  other  hand   the importance  of  the liberty of the citizen in  a  democratic society.  That this is so is also emphasised by s. 44 of the Act which lays down that "any authority or person acting  in pursuance  of  this Act shall interfere  with  the  ordinary avocations  of life and the enjoyment of property as  little as may be consonant with the purpose of ensuring the  public safety  and  interest  and the defence of  India  and  civil defence."  In view of this specific provision in the Act  it is incumbent upon. up. CI/66-10 138 the authority which is passing on order under r. 30(1)(b) of the  Rules  taking  away the liberty of a  citizen  of  this country that it should act with due care and caution and see that  the  person detained is so detained on  grounds  which justify  the  detention  in the  interest  of  the  country. Further  the proceedings in the matter of detention and  the order  of detention should show that it had acted  with  all due  care and caution and with the sense  of  responsibility necessary when a citizen is deprived of his liberty  without trial.  We have therefore to see whether in the present case the authority concerned has acted in this manner or not.  If it has not so acted and if it appears that it did not  apply its  mind properly before making the order of detention  the order in question would not be an order under the Rules  and the person detained would be entitled to release. Now we have pointed out that the order of detention in  this case refers to six out of eight possible grounds on which  a person can be detained under s. 3 (2) (15).  Of these  eight grounds  under s. 3 (2) (15) one refers to foreigners  i.e., of  being of hostile origin.  Therefore in the present  case the order really mentions six out of seven possible  grounds which  can  apply to an Indian whose  detention  is  ordered under s. 3 (2) (15).  We do not say that it is not  possible to  detain  a citizen on six out of seven  possible  grounds under  s.  3 (2) (15); but if that is done it  is  necessary

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that  the authority detaining a citizen should be  satisfied about  each  one  of  the  grounds  that  the  detention  is necessary thereon.  But if it appears that though the  order of  detention  mentions  a  large  number  of  grounds   the authority  concerned  did not apply its mind  to  all  those grounds  before passing the order, there can in our  opinion be no doubt in such a case that the order was passed without applying  the  mind of the authority concerned to  the  real necessity  of  detention.  In the present case  as  we  have already  pointed  out  six grounds  out  of  possible  seven grounds  on  which  a  citizen can  be  detained  have  been mentioned in tie order; but in the affidavit of the Minister we find mention of only two of those grounds, namely, safety of  India  (which may be assumed to be the  same  as  public safety)  and  the  maintenance  of  public  order.   In  dim circumstances  there can be little doubt that the  authority concerned  did not apply its mind properly before the  order in  question  was passed in the present case.  Such  a  dis- crepancy between the grounds mentioned in the order and  the grounds  stated in the affidavit of the authority  concerned can  only show an amount of casualness in passing the  order of  detention  against the provisions of s. 44 of  the  Act. This casualness 139 also  shows  that the mind of the  authority  concerned  was really  not  applied  to the question of  detention  of  the petitioner  in the present case. In this view of the  matter we are of opinion that the petitioner is entitled to release as the order by which he was detained is no order under  the Rules for it was passed without the application of the  mind of the authority concerned.  There  is  another aspect of the order which leads  to  the same  conclusion  and unmistakably shows casualness  in  the making  of  the order.  Where a number of  grounds  are  the basis  of  a detention order, we would  expect  the  various grounds to be joined by the conjunctive "and" and the use of the disjunctive "or" in such a case makes no sense.  In  the present order however we find that the disjunctive "or"  has been used, showing that the order is more or less a copy  of S.  3  (2) (15) without any application of the mind  of  the authority  concerned  to  the grounds  which  apply  in  the present case. Learned  counsel for the State however relies on the word  " etc." appearing in the affidavit.  His contention is that as the  order  of detention had already been  mentioned  in  an earlier part of the affidavit of the Home Minister, the word "etc."  used in the later part of the affidavit  means  that though  the  affidavit  was  only  mentioning  two  grounds, namely,  the safety of India and the maintenance  of  public order,  it really referred to all the grounds  mentioned  in the  order.   We  are  not  prepared  to  accept  this.   If anything,  the use of the words "etc." in the  affidavit  is another example of casualness. It  was also urged on behalf of the State that the order  in question  was not actually written out by the  Minister  and that after the satisfaction of the Minister such orders  are prepared  by  his subordinates in the Secretariat  and  that therefore   the  Minister  was  not  responsible   for   the discrepancy between the order and the affidavit.  We are not prepared  to accept this explanation, for it is the duty  of the  Minister to see that the order is issued in  accordance with  his  satisfaction  and  carries  out  his  directions. Though  the Minister may not write out the order himself  he is as much responsible for it as if he had done so  himself, for  no  order  of  detention  can  be  passed  without  the

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satisfaction  of the authority empowered under the  Act  and the Rules.  The authority cannot take refuge in saying  that it  was  really  satisfied about, say, one  ground  but  the person  who later on wrote out the order of detention  added many more grounds which the authority never had in mind.  It is the duty of the authority to see that the order 140 of  detention is in accordance with what the  authority  was satisfied about.    If  it  is  not  so,  the  inference  of casualness is strengthened and the Court would be  justified in coming to the conclusion that the    order   was   passed without  the  application  of  the  mind  of  the  authority concerned. Petition allowed. 141