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PETITIONER: MERUGU SATYANARAYANA ETC. ETC.

       Vs.

RESPONDENT: STATE OF ANDHRA PRADESH AND OTHERS

DATE OF JUDGMENT18/10/1982

BENCH: DESAI, D.A. BENCH: DESAI, D.A. MISRA, R.B. (J)

CITATION:  1982 AIR 1543            1983 SCR  (1) 635  1982 SCC  (3) 301        1982 SCALE  (2)903  CITATOR INFO :  R          1982 SC1548  (5)  D          1986 SC2177  (28)  RF         1987 SC2098  (7)  R          1987 SC2332  (25)  F          1990 SC1272  (10)

ACT:      National Security  Act, 1980-Section  3(2),  scope  of- Passing a detention order under the Act, against persons who are under  judicial custody  and thereby lost their liberty, is  bad  in  law-Writ  of  Habeas  Corpus-The  affidavit  in opposition supporting the reply to show cause should be from the person who passed the detention order-The affidavit of a sub-inspector of  police at  whose instance  the arrest  was made cannot  satisfy the  constitutional mandate and will be treated  as   non-est-Detention  in  violation  of-Assurance before the  Supreme Court  in  an  earlier  case,  that  the preventive detention  would not  be taken  against political opponents,  whether   would  amount  to  flagrant  violation thereof.

HEADNOTE:      In both  the Writ  Petitions, when the petitioners were already in  judicial custody  and thus have been deprived of their liberty,  the District  Magistrate Adilabad passed the detention orders  in exercise  of the  power conferred under Section 3(2) read with Section 3(3) of the National Security Act, 1980.  The detenu  in each  of these  petitions filed a petition for  writ of  habeas corpus  in the  Andhra Pradesh High Court and both the petitions were rejected.      In the present petitions, it was contended as follows:      (i)  that in  both the  cases,  the  detenus  being  in           judicial  custody   were  already  prevented  from           pursuing any  activity which may prove prejudicial           to the maintenance of public order and, therefore,           no order of detention could be passed against each           of them;      (ii) that the  affidavit-in-opposition was  filed by  a           sub-inspector of  police and  not by the detaining           authority,  i.e.   the  District   Magistrate  had           completely abdicated his powers; and      (iii)that in flagrant violation of the assurances given

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         at the  hearing  of  A.K.  Roy’s  case,  that  the           drastic  and   draconian   power   of   preventive           detention will  not be exercised against political           opponents, the  affidavit in opposition would show           that  the   power  of   preventive  detention  was           exercised against  political opponents because the           detenu in  each case was a member and organizer of           C.P.I. (M.L.)  (Peoples War  Group),  a  political           party operating in this country.      Allowing the petition, the Court 636 ^      HELD: 1:1.  A  preventive  action  postulates  that  if preventive step  is  not  taken  the  person  sought  to  be prevented may  indulge into  an activity  prejudicial to the maintenance of  public order.  In other  words,  unless  the activity is  interdicted by a preventive detention order the activity which  is being  indulged  into  is  likely  to  be repeated.  That   this  is   the   postulate,   indisputably transpires from  the language employed in sub-section (2) of Section 3,  which says  that the detention order can be made with a  view to  preventing the person sought to be detained from acting  in any manner prejudicial to the maintenance of public order.  If it  is shown  that the  man sought  to  be prevented by  a  preventive  order  is  already  effectively prevented, the  power under sub-section (2) of Section 3, if exercised, would  imply that one who is already prevented is sought to  be further  prevented which is not the mandate of the section, and would appear tautologous. [640 F-H, 641-A]      1.2 The detaining authority before exercising the power of preventive  detention would  take into  consideration the past conduct  or antecedent  history of  the person and as a matter of  fact it  is largely from the prior events showing the tendencies  of a  man that  an inference  could be drawn whether he  is likely  even in the future to act in a manner prejudicial to  the maintenance  of  public  order.  If  the subjective satisfaction  of the detaining authority leads to this conclusion  it can put an end to the activity by making a preventive detention order. If the man is already detained a detaining  authority cannot  be said  to have subjectively satisfied himself  that a  preventive detention order can be made.                                                    [641 A-C]      Ujagar Singh  v. State  of Punjab, Jagir Singh v. State of Punjab  [1952] S.C.R.  756 and Rameshwar Shaw v. District Magistrate, Burdwan and Anr. [1964]4 S.C.R. 921 referred to.      1:3.  The  subjective  satisfaction  of  the  detaining authority must  comprehend the  very fact  that  the  person sought to  be detained  in jail is under detention and yet a preventive detention order is a compelling necessity. If the subjective satisfaction  is reached without the awareness of this very  relevant fact the detention order is likely to be vitiated. But, it will depend on the facts and circumstances of each case. [642 D-F]      Vijay Kumar v. State of J & K and Ors. A.I.R. 1982 S.C. 1023, applied.      2:1. The  awareness of  the detaining authority must be of the fact that the person against whom the detention order is being  made is  already under  detention. This would show that such  a person  is not  a free person to indulge into a prejudicial activity  which is  required to  be prevented by detention order.  And this  awareness must  find  its  place either in the detention order or in the affidavit justifying the detention  order when  challenged. The  absence of  this awareness would  permit  an  inference  that  the  detaining

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authority  was  not  even  aware  of  this  vital  fact  and mechanically proceeded to pass the order which would 637 unmistakably indicate that there was non-application of mind to the  most relevant  fact and  any order  of such  serious consequences  resulting   in  deprivation   of  liberty,  if mechanically passed  without  the  application  of  mind  is liable to be set aside as invalid. [643 D-G]      3:1. A  sub-inspector  of  police  cannot  arrogate  to himself the  knowledge about  the subjective satisfaction of the District  Magistrate on  whom the  power of detention is conferred by  the National  Security Act.  If the  power  of preventive detention is to be conferred on an officer of the level and  standing of  a sub-inspector  of police, we would not be far from a police state. [644 E-F]      3:2. Parliament  has conferred  power primarily  on the Central Government  and in specific cases, if the conditions set out  in sub-section  (3) of  section 3  of the  Act  are satisfied and  the  Notification  is  issued  by  the  State Government to  that effect,  this  extra-ordinary  power  of directing preventive  detention can  be  exercised  by  such highly   placed   officers   as   District   Magistrate   or Commissioner of Police. [644 F-G]      3:3. In  this case,  (a) the  District Magistrate,  the detaining authority  has not  chosen to  file his affidavit, (b) the  affidavit in  opposition filed by the sub-inspector would imply either he had access to the file of the District Magistrate  or   he  had  influenced  the  decision  of  the Magistrate for  making the  detention order  and in any case the District  Magistrate completely  abdicated his functions in favour  of the  sub-inspector of  Police because  (i) the sub-inspector does  not say  in the affidavit how he came to know about  the  subjective  satisfaction  of  the  District Magistrate or  that he  had access to the file, and (ii) the file was  not made  available to  the Court. If the District Magistrate is  to act in the manner he has done in this case by completely  abdicating his  functions  in  favour  of  an officer of the level of a sub-inspector of Police, the safe- guards noticed  by the  Supreme Court  are likely  to  prove wholly  illusory  and  the  fundamental  right  of  personal liberty will  be exposed  to  serious  jeopardy.  Hence  the affidavit in  opposition cannot  be taken  notice of,  here. [644 G-H, 646 A-C]      A.K. Roy  v. Union  of India  & Ors.  [1982] 1 SCC 271, referred to.      4. The  affidavit-in-opposition filed  in  the  present case would  show  that  the  power  conferred  for  ordering preventive  detention   was  exercised   on  extraneous  and irrelevant consideration  in respect of each detenu he being a member  of and  organiser of  C.P.I.  (M.L.)  (People  War Group), a  political party  operating in  this country which fact  motivated   the  order   and,  therefore,  a  flagrant violation of the assurances given on the floor of Parliament and  while   hearing  the  case  of  A.K.  Roy  wherein  the constitutional validity  of the  Act was challenged that the drastic and draconian power of preventive detention will not be  exercised   against  political   opponents.  But  it  is unnecessary to examine this aspect on merits, in view of the fact that the detention orders have been found to be invalid for more  than one reason. Non-examination of the contention need not  lead to  the  inference  that  the  contention  is rejected but  kept open  to be  examined in  an  appropriate case. [646 D-E, 647 A-B] 638

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JUDGMENT:      ORIGINAL JURISDICTION:  Writ  Petition  (Criminal)  No. 1166 of 1982.      (Under article 32 of the Constitution of India)                             AND      Writ Petition (Criminal) No. 1167 of 1982      (Under article 32 of the Constitution of India)      Gobinda Mukhoty,  N.R. Choudhury  and S.K. Bhattacharya for the Petitioners.      P. Ram Reddy and G.N. Rao for the Respondent.      The Judgment of the Court was delivered by      DESAI, J.  On October 8, 1982, we quashed and set aside the detention  order dated  December 26,  1981 in respect of detenu Merugu  Satyanarayana s/o  Ramchander, deferring  the giving of the reasons to a later date.      On the  same day  we quashed  the detention order dated February 13,  1982, in  respect of  detenu Bandela  Ramulu @ Lehidas @  Peddi Rajulu @ Ramesh, s/o Venkati, deferring the giving of the reasons to a later date.      Identical  contentions   were  raised   in  both  these petitions and, therefore, by this common order we proceed to give  our  reasons  on  the  basis  of  which  we  made  the aforementioned orders. WP. 1166/82.      Detenu M.  Satyanarayana was working in Belampalli Coal Mines. According to him he was arrested on October 22, 1981, but was kept in unlawful custody till October 31, 1981, when he was  produced before the Judicial Magistrate who took him in judicial  custody and sent him to Central Jail, Warangal. According to  the respondents detenu was arrested on October 30, 1981, and was produced before the Judicial Magistrate on October 31,  1981. When  he was  thus  confined  in  jail  a detention order  dated December  26, 1981  (in the  counter- affidavit the  date of  the detention  order is  shown to be December  28,   1981)  made   by  the  District  Magistrate, Adilabad, in  exercise of  the power conferred by sub-s. (2) read with  sub-s. (3)  of s. 3 of the National Security Act, 1980 (’Act’ for short) 639 was served  upon him  on December  29,  1981.  The  District Magistrate also  served upon the detenu grounds of detention on January  2, 1982. It is not clear from the record or from the counter  affidavit filed on behalf of respondents 1 to 3 whether any  representation was  made by the detenu and when the matter was disposed of by the Advisory Board. WP. 1167/82.      Detenu Bandela  Kamulu according to him was arrested on January 1,  1982, and  he was  produced before  the Judicial Magistrate on  January 11,  1982. The dates herein mentioned are controverted  by the  respondents and they assert in the counter affidavit that the detenu was arrested on January 8, 1982, and  was produced  before the  Judicial Magistrate  on January 9,  1982. During the period of his incarceration the District Magistrate,  Adilabad  in  exercise  of  the  power conferred by  sub-s. (2)  read with sub-s (3) of s. 3 of the Act made  an order  of detention  which was  served  on  the detenu in  District Jail,  Nizamabad, on  February 14, 1982. Even in  this case  it is  not clear from the record whether the detenu made any representation on how his case was dealt with by the Advisory Board.      The detenu  in each of these petitions filed a petition for writ  of habeas  corpus in the Andhra Pradesh High Court It appears  both the petitions were rejected. Thereafter the

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present petitions were filed.      It may  be stated  at the  outset that  there  is  some dispute about the date of arrest of detenu in each case. But in order  to focus  attention on  the substantial contention canvassed in  each case  we would  proceed on the assumption that  the   date  of  arrest  given  in  each  case  by  the respondents is  correct. We  do not mean to suggest that the averment of  the respondents  with regard  to  the  date  of arrest is correct but that would be merely a presumption for the purpose of disposal of these petitions.      Mr. Gobinda  Mukhoty, learned  counsel who appeared for the detenu  in each petition urged that on the date on which the detention  order came  to be made against each detenu he was already  deprived of  his  liberty  as  he  was  already arrested and  was confined  in jail  and, therefore,  he was already prevented from pursuing any activity which may prove prejudicial to  the maintenance  of public  order. Hence  no order of detention could be made against him. 640      The impugned  detention order in each case recites that the  detaining   authority,  the   District  Magistrate   of Adilabad, made  the impugned  detention order with a view to preventing the  detenu from continuing to act further in the manner prejudicial to the maintenance of public order.      The fact  situation in each case as transpires from the counter affidavit filed on behalf of the respondents is that detenu Merugu  Satyanarayan was  in jail  since October  31, 1981, and  the detention  order in  his  case  was  made  on December 28,  1981, meaning  thereby  that  the  detenu  was already confined  in jail  for a period of nearly two months prior to  the date of the detention order. Similarly, in the case of  detenu Bandela  Ramulu according  to  the  counter- affidavit he  was arrested  on  January  8,  1982,  and  was confined to  jail  under  the  orders  of  the  First  Class Magistrate from  January 9, 1982. The detention order in his case was made on February 13, 1982, meaning thereby that the detenu was  already confined  to jail  for a  period of  one month and  four days  prior to  the date  of  the  detention order. It  is in  the background  of this  fact situation in each case  that the  contention canvassed  on behalf  of the detenu by Mr. Mukhoty may be examined      Sub-section (2) of s. 3 of the Act confers power on the Central Government  or the State Government to make an order of detention  with a  view to  preventing  any  person  from acting in  any manner  prejudicial to  the security  of  the State or  from acting  in  any  manner  prejudicial  to  the maintenance of public order, etc. In this case the detaining authority has  made the  order on being satisfied that it is necessary to detain the detenu with a view to preventing him from acting  in any manner prejudicial to the maintenance of public  order.   A  preventive  action  postulates  that  if preventive step  is  not  taken  the  person  sought  to  be prevented may  indulge into  an activity pre-judicial to the maintenance of  public order.  In other  words,  unless  the activity is  interdicted by a preventive detention order the activity which  is being  indulged  into  is  likely  to  be repeated. This  is the  postulate of  the section.  And this indubitably transpires  from the language employed in sub-s. (2) which  says that  the detention order can be made with a view to  preventing the  person sought  to be  detained from acting in  any manner  prejudicial  to  the  maintenance  of public order.  Now, if it is shown that the man sought to be prevented by  a  preventive  order  is  already  effectively prevented, the power under sub-s. (2) of s. 3, if exercised, would imply  that one who is already is sought to be further

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prevented which is not the mandate 641 of the  section, and  would appear tautologous. An order for preventive detention  is made on the subjective satisfaction of the  detaining authority.  The detaining authority before exercising the power of preventive detention would take into consideration the  past conduct or antecedent history of the person and  as a matter of fact it is largely from the prior events showing  the tendencies or inclinations of a man that an inference could be drawn whether he is likely even in the future to  act in a manner prejudicial to the maintenance of public  order.   If  the   subjective  satisfaction  of  the detaining authority  leads to  this conclusion it can put an end to  the activity by making a preventive detention order. (see Ujagar  Singh v.  State of  Punjab, and  Jagir Singh v. State of  Punjab)(1). Now,  if the  man is already detained, can a  detaining authority be said to have been subjectively satisfied that  a preventive  detention order  be made  ? In Rameshwar Shaw  v. District  Magistrate, Burdwan  & Anr.(2), this Court  held that  as an abstract proposition of the law detention order  can be  made in  respect of a person who is already detained.  But having said this, the Court proceeded to observe as under:           "As an  abstract proposition of law, there may not      be any  doubt that  s. 3(1)(a)  does not  preclude  the      authority from  passing an order of detention against a      person whilst  he is  in detention  or in jail, but the      relevant facts  in connection  with the  making of  the      order may  differ and that may make a difference in the      application of the principle that a detention order can      be passed  against a person in jail. Take for instance,      a case  where a  person has  been sentenced to rigorous      imprisonment for  ten years.  It  cannot  be  seriously      suggested that  soon after the sentence of imprisonment      is pronounced  on the  person, the  detaining authority      can make  an order  directing the detention of the said      person after he is released from jail at the end of the      period of  the sentence imposed on him. In dealing with      this question,  again the consideration of proximity of      time will  not be  irrelevant. On  the other hand, if a      person who is undergoing imprisonment, for a very short      period, say  for a  month or two or so, and it is known      that he  would soon  be released  from jail,  it may be      possible for  the authority  to consider the antecedent      history of  the said person and decide whether after he      is released  from jail,  and if  the authority  is bona      fide satisfied that such detention is necessary, he can      make a 642      valid order  of detention  a few days before the person      is likely  to be  released. The  antecedent history and      the past  conduct on which the order of detention would      be based  would, in  such a case, be proximate in point      of time  and would  have a rational connection with the      conclusion drawn by the authority that the detention of      the person  after his  release is necessary. It may not      be easy  to discover  such rational  connection between      the antecedent  history of  the  person  who  has  been      sentenced to  ten years’  rigorous imprisonment and the      view that  his detention  should be ordered after he is      released after  running  the  whole  of  his  sentence.      Therefore, we  are satisfied  that the  question as  to      whether an  order of  detention can be passed against a      person who is in detention or in jail, will always have      to be determined in the circumstances of each case."

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    One can envisage a hypothetical case where a preventive order may  have to be made against a person already confined to jail or detained. But in such a situation as held by this Court it  must be  present to  the  mind  of  the  detaining authority that  keeping in  view the fact that the person is already detained  a  preventive  detention  order  is  still necessary. The  subjective  satisfaction  of  the  detaining authority must  comprehend the  very fact  that  the  person sought to  be detained is already in jail or under detention and  yet  a  preventive  detention  order  is  a  compelling necessity. If the subjective satisfaction is reached without the awareness of this very relevant fact the detention order is likely  to be  vitiated. But  as stated  by this Court it will depend on the facts and circumstances of each case.      The view  herein taken  finds further  support from the decision of  this Court in Vijay Kumar v. State of J & K and Ors (1), wherein this Court recently held as under:           "Preventive detention  is resorted  to, to  thwart      future action. If the detenu is already in jail charged      with a  serious offence,  he is  thereby prevented from      acting in  a manner  prejudicial to the security of the      State. Maybe, in a given case there yet may be the need      to order  preventive detention  of a  person already in      jail. But  in such  a situation the detaining authority      must disclose awareness of the fact that 643      the  person   against  whom   an  order  of  preventive      detention is  being made  is to  the knowledge  of  the      authority  already  in  jail  and  yet  for  compelling      reasons a  preventive detention order needs to be made.      There is  nothing to  indicate  the  awareness  of  the      detaining authority that detenu was already in jail and      yet the impugned order is required to be made. This, in      our opinion,  clearly exhibits  non-application of mind      and would result in invalidation of the order."      Mr. Mukhoty  next contended that even if a hypothetical case can  be envisaged  as contemplated  by the  decision of this Court  in Rameshwar  Shaw that  a preventive  detention order becomes  necessitous in  respect of  a person  already confined to  jail, the  detaining authority  must  show  its awareness of  the fact  that the  person in  respect of whom detention order  is being  made is already in jail and yet a detention order is a compelling necessity. It was urged that this awareness  must appear  on the  face of  the record  as being set  out in  the detention  order or  at least  in the affidavit in  opposition filed  in a  proceeding challenging the detention  order. Otherwise,  according to  Mr. Mukhoty, the detention  order would  suffer from  the  vice  of  non- application of  mind. The awareness must be of the fact that the person against whom the detention order is being made is already under  detention or  in  jail  in  respect  of  some offence or  for some  reason. This  would show  that such  a person is  not a  free person  to indulge into a prejudicial activity which  is required  to be  prevented  by  detention order. And  this awareness must find its place either in the detention order or in the affidavit justifying the detention order when  challenged. The  absence of this awareness would permit an  inference that  the detaining  authority was  not even aware  of this vital fact and mechanically proceeded to pass the  order which would unmistakably indicate that there was non-application  of mind  to the  most relevant fact and any  order   of  such   serious  consequence   resulting  in deprivation  of  liberty,  if  mechanically  passed  without application of  mind, is obviously liable to be set aside as invalid. And that is the case here.

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    Coming to  the facts  of each case, the detention order refers to  the name  of the  detenu and  the  place  of  his residence. There  is not  even a  remote indication that the person against  whom the  detention order  is being  made is already in  jail in  one case  for a  period of  roughly two months and  in another  case for  a period  of one month and four days.  The detenu  is referred to as one who is staying at a 644 certain place and appears to be a free person. Assuming that this inference  from the  mere description  of the detenu in the detention  order  is  impermissible,  the  affidavit  is conspicuously silent  on this point. Not a word is said that the detaining  authority was  aware of  the  fact  that  the detenu was  already in  jail and  yet it became a compelling necessity  to  pass  the  detention  order.  Therefore,  the subjective satisfaction  arrived at clearly discloses a non- application of  mind to  the relevant facts and the order is vitiated.      The next  contention urged  by Mr. Mukhoty was that the detaining authority has not filed an affidavit in opposition but the  same has  been filed by one Sub-Inspector of Police and it  speaks about  the  subjective  satisfaction  of  the detaining authority  viz., the  District Magistrate and this would show  that  the  District  Magistrate  had  completely abdicated his  functions in  favour of  the Sub-Inspector of Police. The affidavit in opposition on behalf of respondents 1 to  3 who  are the  State of  Andhra Pradesh, the District Magistrate,  Adilabad   and  the   Jailor,  Central  Prison, Hyderabad, has  been filed  by M.  Venkatanarasayya who  has described himself  as Sub-Inspector of Police. The same Sub- Inspector has  filed  affidavit-in-opposition  in  both  the cases. In para 1 of the affidavit in opposition it is stated that the  deponent as  a Sub-Inspector  of  police  is  well acquainted with  all the facts of the case. In para 7 of the affidavit in  opposition in  writ petition  1166/82  he  has stated   that:   ’Only   after   deriving   the   subjective satisfaction,  the   detaining  authority  passed  order  of detention against  the detenu,  as his  being at large, will prejudice the maintenance of public order. We are completely at a  loss to  under stand how a Sub Inspector of Police can arrogate to  himself  the  knowledge  about  the  subjective satisfaction of the District Magistrate on whom the power is conferred by  the Act.  If the power of preventive detention is to  be conferred  on an officer of the level and standing of a  Sub-Inspector of  Police, we  would not  be far from a Police State.  Parliament has  conferred power  primarily on the Central  Government and the State Government and in some specific cases,  if the  conditions set out in sub s. (3) of s. 3  are satisfied  and the  notification is  issued by the State Government  to that  effect, this extra-ordinary power of directing  preventive detention  can be exercised by such highly   placed   officers   as   District   Magistrate   or Commissioner  of   Police.  In   this  case   the   District Magistrate, the  detaining authority  has not chosen to file his affidavit.  The affidavit  in opposition  is filed  by a Sub-Inspector of Police. Would this imply that Sub-Inspector of Police  had access to the file of the District Magistrate or was the Sub-Inspector the person who influenced the 645 decision of the District Magistrate for making the detention order ?  From the  very fact  that the respondents sought to sustain the order by filing an affidavit of Sub-Inspector of Police, we  have serious  apprehension  as  to  whether  the District Magistrate  completely abdicated  his functions  in

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favour of the Sub-Inspector of Police. The file was not made available to  the Court  at  the  time  of  hearing  of  the petitions. But number of inferences are permissible from the fact that  the District  Magistrate though  a party  did not file his  affidavit justifying  the order and left it to the Sub-Inspector of  police to  fill in  the bill. And the Sub- Inspector of  Police does  not say how he came to know about the subjective  satisfaction of  the District Magistrate. He does not  say that he had access to the file or he is making the affidavit  on the  basis of the record maintained by the District   Magistrate.    Therefore,   the    inference   is irresistible that  at the  behest of  the  Sub-Inspector  of Police who  appears to  be the investigating officer in some criminal case in which each of the detenu is implicated, the District    Magistrate     completely     abdicating     his responsibilities, made  the detention  order. This  Court in A.K. Roy  v. Union  of India  & Ors.(1), while upholding the validity  of   the  National   Security  Act,  repelled  the contention that it is wholly unreasonable to confer upon the District Magistrate  or Commissioner  of Police the power to issue orders  of detention  for reasons  mentioned in sub-s. (2) of  s. 3,  observing that the District Magistrate or the Commissioner of  Police can take the action under sub-s. (2) of s.  3 during  the periods  specified in  the order of the State Government  only.  This  Court  also  noticed  another safeguard, namely,  that the  order of  the State Government under sub-s. (3) of s. 3 can remain in force for a period of three months  only and  it is  during this  period that  the District Magistrate  or the  Commissioner of  Police, as the case may  be, can  exercise power  under sub-s. (2) of s. 3. The further  safeguard noticed  by this  Court is  that both these officers  have  to  forthwith  intimate  the  fact  of detention to  the State  Government and  no  such  order  of detention can  remain in  force for  more than 12 days after the making  thereof unless,  in the  meantime, it  has  been approved by the State Government. The Court observed that in view of  these in  built safeguards  it can not be said that excessive  or  unreasonable  power  is  conferred  upon  the District Magistrate  or the  Commissioner of  Police to pass orders under sub-s. (2) (see para 72). 646      If the  District Magistrate  is to act in the manner he has done in this case by completely abdicating his functions in favour  of an  officer of the level of a Sub-Inspector of Police, the  safeguards noticed  by this Court are likely to prove wholly  illusory and the fundamental right of personal liberty will  be exposed  to serious  jeopardy. We only hope that in  future  the  District  Magistrate  would  act  with responsibility, circumspection and wisdom expected of him by this Court  as set  out earlier.  However, the conclusion is inescapable that  the errors  pointed out by the petitioners which have  appealed to  us  remain  uncontroverted  in  the absence of  an affidavit  of  the  detaining  authority.  We refuse to  take any  notice of  an affidavit  in  opposition filed  by  a  Sub-Inspector  of  Police  in  the  facts  and circumstances of this case.      The last  contention canvassed  by Mr.  Mukhoty is that even though assurances were given on the floor of Parliament as well  as while  hearing the  case  of  A.K.  Roy  wherein constitutional validity  of the  Act was challenged that the drastic and draconian power of preventive detention will not be  exercised   against  political  opponents,  in  flagrant violation thereof  the affidavit  in opposition  would  show that the  power of  preventive detention  was  exercised  on extraneous and  irrelevant consideration, the detenu in each

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case being  a member and organiser of CPI (ML) (People’s War Group), a  political party operating in this country. In the affidavit  in  opposition  in  writ  petition  1166/82,  the relevant averments on this point read as under :           "In  reply   to  para  7  of  the  petition  these      answering respondents  submit that it is not correct to      say that  the grounds  of detention  failed to disclose      any  proximity   with  the   order  of   detention  and      underlying purpose  and object  of the  Act inasmuch as      the detenu  is one of the active organisers of CPI (ML)      (People’s War  Group) believing  in violent  activities      with  the   main  object   to  overthrow  the  lawfully      established Government  by creating  chaotic conditions      in rural  and urban  areas by  annihilating  the  class      enemies, went  underground to preach the party ideology      and to  build up  the cadres by indoctrinating them for      armed struggle".      There  is  a  similar  averment  in  the  affidavit  in opposition in  the connected  petition also.  We would  have gone into this contention 647 but for  the fact  that having  found  the  detention  order invalid for  more than  one reason,  it  is  unnecessary  to examine this  contention on  merits. Non-examination  of the contention  need   not  lead   to  the  inference  that  the contention is rejected. We keep it open to be examined in an appropriate case.      These were  the reasons  for which  we quashed  and set aside the order of detention in each case. S.R.                                      Petitions allowed. 648