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PETITIONER: KRISHNA MURARI AGGARWALA

       Vs.

RESPONDENT: THE UNION OF INDIA & ORS.

DATE OF JUDGMENT15/07/1975

BENCH: FAZALALI, SYED MURTAZA BENCH: FAZALALI, SYED MURTAZA UNTWALIA, N.L.

CITATION:  1975 AIR 1877            1976 SCR  (1)  16  1975 SCC  (4) 481

ACT:      Maintenance of  Internal Security  Act,  1971,  Section 3(1)(a)(iii)-Two grounds  of detention-One irrelevant-Effect of-Detenting Authority more than one-Propriety.

HEADNOTE:      The petitioner  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 two grounds that as had committed sets  prejudicial to  the maintenance  of supplies and services  essential to  the community. The allegation in the first ground was that he had stocked a large quantity of light diesel  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 been lodged  in the  Magistrate’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   tho petitioner, had not been given in the cash memos.      Allowing The petition, ^      HELD: (1)(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 the 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  is  absolutely  no  correlation between the  act of  the petitioner  and the  disruption  of distribution of essential supplies to the community. [20D-E, F-G]      (b) From  the violation  of the mandatory provisions of the  Petroleum   Act  and  the  Rules  made  thereunder,  no presumption can be drawn that there was disruption of supply of the essential commodity. [20G-H]

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    (c) The  commission of an offence at a private place or a violation  of a  provision or  a law  by itself  does  not attract the  Maintenance of Internal Security Act unless, by the Act  committed, the  supply or an essential commodity to the community  is disrupted  or the even flow of the life of the community is disrupted. [21B]      Manu Bhushan Roy Prodhan v. State of Bengal and others, A. I. R. 1973 S. C. 295, referred to.      (2) The  second Ground  does disclose 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  subjective satisfaction of  the detaining  authority was  influenced or affected by  the first  ground. When out of 2 grounds one is ague or irrelevant, then the entire order of detention falls to the ground. [22C, F-G]      (3)  The   Court  cannot   go  behind   the  subjective satisfaction the  detaining authority  but such satisfaction does not  confer a  blanket power  which may  authorise  the detaining authority  to  act  in  a  ruthless  or  arbitrary fashion. Judicial  decisions have  carved out an area though limited, within  which, the  subjective satisfaction  of the detaining authority,  which  is  a  sine  qua  non  for  the exercise of  the power,  can be  tested on the touchstone of objectivity. [24F-G] 17      (a) The words "make an order directing that such person be detained"  in Section  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 said authority;  and (iii)  that only  one authority and one authority alone  can pass the order of detention. Therefore, unless the order made and the grounds prepared are signed by the  authority   concerned,  the   order  is   not  made  as contemplated by the section. [25F-G]      (b) Further,  since the order is based on grounds to be served on  the detenu, he 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 Magistrate who filed the counter-affidavit  was acting  in place of the permanent District Magistrate.  In the  High (court which was moved in the first instance for a writ of habeas corpus, the District Magistrate 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  grounds  and  that  the permanent District Magistrate, who took over from him merely signed and  served those grounds on the detenu. But, in this Court he  stated that  the order  of detention was passed by the two  detaining authorities,  namely, both  the  District Magistrates, after they had fully satisfied themselves about the existence of the grounds. It is, therefore. not possible to determine  as to who in fact made the order of detention. and in view of the contradictory stand taken in the counter- affidavits filed  by the detaining authorities, 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-24F]      Khudiram Das  v. The state of West Bengal and Other, A. 1. R. 1975 S. C. 550, referred to.      The Court  also expressed  strong  disapproval  of  the careless and  irresponsible manner  in  which  the  counter- affidavit had  been filed by the District Magistrate because

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the date  on which  reference was made to the advisory Board was in  correctly  stated  in  the  counter-affidavit  which created unnecessary  confusion and controversy over a simple issue] [18F-G]

JUDGMENT:      ORIGINAL JURISDICTION: Writ Petition No. 84 of 1975.      Petition under Art. 32 of the Constitution of India.      A. k.  Sell, D.  N. Mukherjee,  Narayan Gupta and C. S. Chatterjee, for the petitioner.      Girish Chandra, for respondent no. 1.      D.P. Uniyal and O. P. Rana, for respondent nos. 2-5.      The Judgment of the Court was 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(1)(a)(iii) of  the Maintenance  of Internal Security Act, 1971- hereinafter referred to as ’the Act’-because  the   allegations  made   in  the  grounds  of detention disclosed  that he  had committed acts prejudicial 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 18 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 representation  was sent to  the Advisory  Board on December 18" 1974 which gave 13 its  report holding  that the grounds were sufficient for detention of the petitioner and after receipt of the opinion 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 of 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  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 violation of the mandatory provision of the statute, the order of detention fell on this ground alone. We gave an opportunity to the Government to produce before 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 the 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.  The file also contains a letter of the  Registrar  dated  January  7,  1975  forwarding  the opinion of  the Advisory Board wherein also it was mentioned

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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 hope the Government  will be  careful in future and see that such incorrect affidavit  are not  filed before this Court, which may create  unnecessary 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 19 Bareilly 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  liters 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   necessary  for  running, crushers and  pumps in  the rural  areas. The petitioner had undoubtedly secured  a licence  for storage  of li ht 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 no  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  intention in  this connection that  the stand  taken by the respondents is that although the  petitioner had a licence to stole light diesel oil to  the extent  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 in inspection of the godown  about 1.64  lakhs litres of light diesel oil was found stored  it 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 (1)(a) & (b) of the grounds of detention  served on  the petitioner. The sheet-anchor of the argument  of Mr.  Sen learned counsel for the petitioner was that  in so  far as  ground 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 (1)(a) & (b) of the detention order:

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         "(1) 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                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  Badaun and  Sri Fateh  Singh,                Dy. S.P. Badaun and it was found that 68,000)                litres of  Light Diesel  oil had  during  7th                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  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  the  petition  had refused to  sell light  diesel oil  to any body who required it. The High Court 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 arc  satisfied that  there  is absolutely no  correlation between the act of the petitioner and the disruption of distribution of the essential supplies 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

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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 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 Chief Judicial Magistrate against the petitioner  for the  storage. We  have already  held  in several cases that the commission of an offence at a private place or  a violation  of 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 (1)(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(1) 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 of 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 maintenance of public order. The ratio  of this  case fully tallies with the facts of the present case where also grounds (1) (a) & (b) taken at their face value  appear to  be irrelevant and do not disclose any causal connection  with  the  disruption  of  the  essential supplies to the community.      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  Display  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  receipt  showing,      inter alia,  the name  and address of the customer were      found to  have sold Light Diesel Oil repeatedly without      complying with the said requirement and with the object      make fictitious sale of the 22 Light Diesel Oil a scheduled commodity within the meaning of the said order, as is evident from the following:      (i)  Cash memo no. 62 dated 8-8-74  |                                          |      (ii) Cash memo no, 63 dated 14-8-74 |                                          |      (iii)Cash memo no 134 dated 7-10-74 |  Name and address

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                                        |  of the customer      (iv) Cash memo no, 135 dated 7-10-74|  not given"                                          |      (v)  Cash memo no. 145 dated 7-11-74|                                          |      (vi) Cash memo no. 146 dated 7-11-74| This ground   no  doubt discloses  a clear  overt act on the part of  the petitioner from which an inference can be drawn that the  petitioner had  made a number of fictitious sales. The 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  own 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 ,000 litres. We find it  impossible 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  ground 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 subjective satisfaction  of the detaining authority has also not been  established. To  begin with it is not clear at all as to  who  passed  the  order  of  detention  and  who  was satisfied regarding  the sufficiency  of the grounds. In 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 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  the first  point we find that Mr. S. K. D. Mathur has clearly  alleged in his counter affidavit 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. Arora rejoined his

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duty in November 12, 1974 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 counter affidavit submitted  by Mr.  S. K. D. Mathur before the High Court, which  is Annexure  at p.  66 of  the Paper  Book Mr. Mathur categorically  stated that  he himself had passed the detention order  after recording  his satisfaction.  In this connection paragraph  1 of  the counter affidavit before the High Court is as follows:           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  manner prejudicial to      the maintenance  of supplies  and services essential 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 deponent further      submits that  on the  basis of  the  evidence  and  the      material placed be 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 maintenance      of essential services and supplies." In this  very affidavit  Mr. Mathur goes on to state that he had also farmed 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 connection 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 assigned  to   Mr.  R.   C.  Arora  the  permanent  District Magistrate was  A 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 serving officer and did not perform any other function in so far as the order of detention passed  against the  petitioner 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 connection 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  person 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 he first instance by

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Mr. S. K. D. Mathur who was full fledged District Magistrate on November  8, 1974 when 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 sufficiency 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. F      It  is  true  that  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 authority  to act  in a ruthless or arbitrary  fashion   and   the   judicial   decisions   have undoubtedly carved out an area, though limited. within which the subjective  satisfaction of  the detaining authority can be tested  on the  touchstone of  objectivity. It is obvious that the  subjective satisfaction of the detaining authority is a sine qua non for the exercise of power of detention and it has  got to  be exercised  properly  and  discreetly.  In Khudiram Das  v. The State of West Bengal and others(1) this Court made the following observations:           "The basic  postulate on  which  the  courts  have      proceeded is  that the  subjective satisfaction being a      condition precedent  for  the  exercise  of  the  power      conferred on the executive, the 25      court  can   always  examine   whether  the   requisite      satisfaction is  arrived at  by the authority; if it is      not, the  condition precedent  dent to  the exercise of      the power  would not  be fulfilled  and the exercise of      the power would be bad." In 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 caution or in a proper and fair manner.  On this  ground also  the order  of  detention stands vitiated.   .           Section 3(1) of the Act runs.  thus:           "3.  (1)  The  Central  Government  or  the  State      Government may,      (a)  if satisfied 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)  if satisfied  with respect  to any  foreigner that                with  a  view  to  regulating  his  continued                presence in  India or  with a  view to making

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              arrangements for his expulsion from India;      It is  necessary so to do, make an order directing that      such person be detained." This power  can also  be exercised by the officers mentioned in sub-s. (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-(1) 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 joint order passed by several 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 grounds 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 concerned, the order is not made as contemplated  by 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 in existence  and are  prepared contemporaneously, otherwise the order 26 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 he question of mala 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 why it was not seriously pressed by Mr. Asoke Sen ill 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. 27