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Full Case Details
P.B. GAJENDRAGADKAR, C.J. – 2. The petitioner, G. Sadanandan, has been detained by
Respondent 1, the State of Kerala, under Rule 30(1)(b) of the Defence of India Rules, 1962
(“the Rules”) by an order passed by it on 20th October, 1965. The said order recites that from
the materials placed before Respondent 1, it was satisfied that with a view to prevent the
petitioner from acting in a manner prejudicial to the maintenance of supplies and services
essential to the life of the community it was necessary to detain him. The said order further
shows that under Rule 30(4) of the Rules, Respondent 1 had decided that the petitioner be
detained in the Central Prison, Trivandrum, under conditions as to maintenance, discipline
and punishment of offences and breaches of discipline as provided in the Travancore-Cochin
Security Prisoners Order, 1950. The petitioner challenges the validity of this order by his
present petition filed under Article 32 of the Constitution.
- The petitioner is a businessman who carries on wholesale business in kerosene oil as ESSO
dealer and in provisions in his places of business at Trivandrum. In connection with his
wholesale business of selling kerosene oil, the petitioner receives kerosene oil either in bulk
or in sealed tins from the ESSO company. When the kerosene oil is thus received by him, the
petitioner transfers the kerosene oil from barrels into empty tins purchased from the market
and sells them to his customers. Until the Kerala Kerosene Control Order, 1965 was
promulgated, and brought into force on 24th October, 1965, the petitioner was not required to
take a license for carrying on his business in kerosene oil. As from 24th October, 1965 the
said trade could not be carried on in Kerala without obtaining a license. It is common ground
that the petitioner has not been granted a license in that behalf. To his present petition, the
petitioner has joined Respondent 1 and N. Paramasivan Nair, Deputy Superintendent of
Police (Civil) Supplies Cell, Crime Branch, Trivandrum, as Respondent 2. - The petitioner alleges that Respondent 2 caused to be initiated criminal proceedings against
him in Criminal Case No. 70 of 1965 in the Court of the District Magistrate, Trivandrum.
These proceedings were commenced on 20th May, 1965. The charge against the petitioner set
out in the first information report was that the petitioner had exhibited a board showing stock
“nil” on 20th May, 1965, at about 7 .00 p.m. in his wholesale shop at Chalai, Trivandrum
when, in fact, there was stock available in his shop. The police searched the shop that day in
the presence of Respondent 2, though in the relevant papers prepared in regard to the said
search, no reference was made to his presence. According to the petitioner, the board
indicating “nil” stock had been exhibited in his shop, because 7 tins out of the available stock
had been sold to one D.N. Siktar in regard to which a sale memo was being prepared when
the raid took place, whereas the two remaining tins were in a damaged condition and could
not have been sold. Even so, the raid was carried out and FIR was lodged against the
petitioner alleging that he had committed an offence by violating Rule 125(2) and (3) of the
Rules read with clause 4 of the Kerosene (Price Control) Order, 1963. - The petitioner appeared before the District Magistrate before whom the FIR had been filed,
and was released by him on bail. In this case, all the witnesses for the prosecution had been
examined, except the officer who had submitted the charge-sheet. Except the Sub-Inspector of
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Police, and the Head Constable, no other witnesses supported the prosecution case, though in
all five witnesses were examined for the prosecution. - Pending the trial of this case, the Inspector of Police, Crime Branch (Food), Trivandrum,
who is a subordinate of Respondent 2, initiated another case at his instance, being case No.
332 of 1965 before the District Magistrate, Trivandrum, on 29th September, 1965. In this
case, it was alleged that the petitioner had violated Rule 125(A) of the Rules read with Rules 3
and 4 of the Kerosene (Price Control) Order, 1963, as well as had committed an offence under
Section 420 IPC. The FIR in regard to this case was made by Narayan Pillai Sivasankaran
Nair of Tampanoor, Trivandrum. This Nair is a salesman in his elder brother’s provision store
at Trivandrum, and both these brothers are close relatives of Respondent 2. This case was
initiated after the search of the petitioner’s shop at Chalai. The petitioner was then arrested
and brought before the District Magistrate on 30th September, 1965. On this occasion also,
when the petitioner’s shop was searched, Respondent 2 was present. During the course of the
search, the police seized one tin weighing 16.200 kgs. None of the other 899 tins which were
stored in the two rooms of the place of sale of the petitioner were seized. The police party also
searched the go down of the petitioner and took into custody 632 tins of kerosene oil. Six
barrels of oil were likewise seized. According to the petitioner, all this was done at the
instance of N. Sivasankaran Nair who is a close relative of Respondent 2 and who had
purchased two tins of kerosene oil from the petitioner which were produced before the police
officers for the purpose of showing that the tins were short of contents. - The petitioner was granted interim bail on 30th September, 1965 by the District Magistrate,
and finally released on bail on the execution of a bail bond on 21st October, 1965. When the
order of bail was made absolute by the District Magistrate, the Assistant Public Prosecutor did
not oppose the release of the petitioner on bail. The petitioner contends that though the case
was posted several times for the submission of the final report by the prosecution, Respondent
2 has so managed that the said final report has not been submitted till the date of the present
petition. - After the petitioner was released by the District Magistrate on 21st October, 1965, he
reached home at 4 o’clock in the evening. Immediately thereafter, Respondent 2 came in a
jeep to the petitioner’s residence and took him into custody. When the petitioner asked
Respondent 2 as to why he was being arrested, he refused to disclose the grounds. Respondent
2 took the petitioner into custody by force and carried him to jail. - The petitioner’s wife thereafter instructed her advocate to file a writ petition in the Kerala
High Court for the production of the petitioner. Accordingly, a writ petition was filed on 22nd
October, 1965. - Later, the advocate engaged by the petitioner’s wife was able to get in touch with the
petitioner with the permission of the Home Secretary in the Central Jail at Trivandrum. At
this interview, the advocate was given the detention order which had been served on the
petitioner, and instructed to take suitable action to challenge the said order. In view of the fact
that the petition filed by the advocate in the Kerala High Court under the vague instructions of
the petitioner’s wife contained a very limited prayer, the petitioner’s advocate withdrew the
said petition on 27th October, 1965. Ultimately, the present petition has been filed in this
Court on behalf of the petitioner on 20th November, 1965. That, in brief is the background of
the present writ petition.
137 - The petitioner challenges the validity of the impugned order of detention mainly on the
ground that it is mala fide, and has been passed as a result of the malicious and false reports
which have been prepared at the instance of Respondent 2. The whole object of Respondent 2,
according to the petitioner, in securing the preparation of these false reports is to eliminate the
petitioner from the field of wholesale business in kerosene oil in Trivandrum, so that his
relatives may benefit and obtain the dealership of the ESSO Company. The petitioner further
alleges that the order of detention has been passed solely with the purpose of denying him the
benefit of the order of bail which was passed in his favour by the District Magistrate on 21st
October, 1965. In support of the plea that his detention is malafide, the petitioner strongly
relies on the fact that on 24th October, 1965, the Kerala Kerosene Control Order, 1965 has
come into force and in consequence unless the petitioner gets a license, it would be
impossible for him to carry on his business of kerosene oil; and yet, the detention order
ostensibly passed against him as a result of his activities alleged to be prejudicial in respect of
his business in kerosene oil, continues to be enforced against him even after the Control Order
has been brought into operation. It is mainly on these grounds that the petitioner challenges
the validity of the impugned order of his detention. - The allegations made in the petition have been controverted by Mr Devassy who is the
Secretary in the Home Department of Respondent 1. In his counter-affidavit, the Home
Secretary has, in a general way, denied all the allegations made in the petition. The purport of
the counter-affidavit filed by the Home Secretary is that the impugned order of detention has
been passed by Respondent 1 bonafide and after full consideration of the merits of the case.
Respondent 1 was satisfied, says the counter-affidavit that the activity of the petitioner was
likely to prejudice supplies essential to the life of the community as a whole; and so, the
petitioner’s contention that the impugned order is malafide is controverted. - In dealing with writ petitions by which orders of detention passed by the appropriate
authorities under Rule 30(1)(b) of the Rules are challenged, this Court has consistently
recognised the limited scope of the enquiry which is judicially permissible. Whether or not
the detention of a detenu is justified on the merits, is not open to judicial scrutiny; that is a
matter left by the Rules to the subjective satisfaction of the appropriate authorities empowered
to pass orders under the relevant Rule. This Court, no doubt, realises in dealing with pleas for
habeas corpus in such proceedings that citizens are detained under the Rules without a trial,
and that clearly is inconsistent with the normal concept of the rule of law in a democratic
State. But having regard to the fact that an emergency has been proclaimed under Article 352
of the Constitution, certain consequences follow; and one of these consequences is that the
citizens detained under the Rules are precluded from challenging the validity of the Rules on
the ground that their detention contravenes their fundamental rights guaranteed by Articles
19, 20 and 21. The presence of the proclamation of emergency and the notification
subsequently issued by the President constitute a bar against judicial scrutiny in respect of the
alleged violation of the fundamental rights of the detenu. This position has always been
recognised by this Court in dealing with such writ petitions. - Nevertheless, this Court naturally examines the detention orders carefully and allows full
scope to the detenus to urge such statutory safeguards as are permissible under the Rules, and
it has been repeatedly observed by this Court that in cases where this Court is satisfied that
the impugned orders suffer from serious infirmities on grounds which it is permissible for the
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detenus to urge, the said orders would be set aside. Subject to this position, the merits of the
orders of detention are not open to judicial scrutiny. That is why pleas made by the detenus
that the impugned orders have been passed by the appropriate authorities without applying
their minds properly to the allegations on which the impugned orders purport to be based, or
that they have been passed malafide, do not usually succeed, because this Court finds that the
allegations made by the detenus are either not well founded, or have been made in a casual
and light-hearted manner. But cases do come before this Court, though not frequently, where
this Court comes to the conclusion that the impugned order of detention is passed without the
appropriate authority applying its mind to the problem, or that it can well be regarded as an
order passed malafide. Having heard Mr Ramamurthi for the petitioner and the learned
Additional Solicitor-General for Respondent 1, we have come to the conclusion that the
impugned order in the present case must be characterised as having been passed malafide. - The first consideration which has weighed in our minds in dealing with Mr Ramamurthi’s
contentions in the present proceedings is that Respondent 2 has not chosen to make a counteraffidavit denying the several specific allegations made against him by the petitioner. Broadly
stated, the petition alleges that Respondent 2 is responsible for the criminal complaints made
against the petitioner, that Respondent 2 was present when his premises were searched, and
that Respondent 2 actually went to the house of the petitioner when the petitioner was forcibly
taken into custody and removed to the jail. The petition further alleges that the second
criminal complaint filed against the petitioner was the direct result of the FIR by Narayan
Pillai Sivasankaran Nair who and his brothers are the trade rivals of the petitioner and are
closely related to Respondent 2. The petition likewise specifically alleges that the reports on
which the impugned order of detention has been passed, were the result of the instigation of
Respondent 2. Whether or not these allegations, if proved, would necessarily make the
impugned order malafide, is another matter; but, for the present, we are dealing with the point
that Respondent 2 who has been impleaded to the present proceedings and against whom
specific and clear allegations have been made in the petition, has not chosen to deny them on
oath. In our opinion, the failure of Respondent 2 to deny these serious allegations constitutes a
serious infirmity in the case of Respondent 1. - The significance of this infirmity is heightened when we look at the counter-affidavit filed
by the Home Secretary. This affidavit has not been made in a proper form. The deponent does
not say which of the statements made by him in his affidavit are based on his personal
knowledge and which is the result of the information received by him from documents or
otherwise. The form in which the affidavit has been made is so irregular that the learned
Additional Solicitor-General fairly conceded that the affidavit could be ignored on that
ground alone. That, however, is not the only infirmity in this affidavit. - It is surprising that the Home Secretary should have taken upon himself to deny the
allegations made by the petition against Respondent 2 when it is plain that his denial is based
on hearsay evidence at the best. It is not easy for us to appreciate why the Home Secretary
should have undertaken the task of refuting serious allegations made by the petition against
Respondent 2 instead of requiring Respondent 2 to make a specific denial on his own.
Whether or not Narayan Pillai Sivasankaran Nair and his brother are close relatives of
Respondent 2 and whether or not they are the trade rivals of the petitioner and expect to
receive benefit from his detention, are matters on which the Home Secretary should have
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wisely refrained from making any statement in his affidavit. He should have left it to
Respondent 2 to make the necessary averments. Besides, it is impossible to understand why
the specific allegations made by the petition against Respondent 2 in regard to the part played
by him either in searching the petitioner’s shop or in arresting him should not have been
definitely denied by Respondent 2 himself. The statements made by the Home Secretary in
his affidavit in that behalf are very vague and unsatisfactory. We have carefully considered
the affidavit made by the Home Secretary and we are satisfied that apart from the formal
defect from which it plainly suffers, even otherwise the statements made in the affidavit do
not appear to us to have been made by the deponent after due deliberation. - Take, for instance, the statements made by the Home Secretary in regard to the
petitioner’s contention that the continuance of his detention after the Kerala Kerosene Control
Order, 1965 came into operation on 24th October, 1965, is wholly unjustified. The
petitioner’s grievance is clear and unambiguous. He says that unless a license is granted to
him, he would no longer be able to trade in kerosene oil; and since admittedly, no license has
been granted to him, his continued detention on the ostensible ground that his dealings in
kerosene oil amount to a prejudicial activity, is entirely unjustified. Now, what does the Home
Secretary say in respect of this contention? On the date of the detention of the petitioner, says
the Home Secretary’s affidavit, the Control Order had not come into force, and that, no doubt,
is true. But the question is: is the continuance of the petitioner’s detention justified after the
said Order came into force? The affidavit says that the petitioner is not a licensee under the
Kerala Kerosene Control Order, 1965, and cannot legally carry on the business as a dealer in
kerosene at present; but there is nothing under the law preventing him from applying for such
license to carry on the same business. It is difficult to understand the logic or the
reasonableness of this averment. Indeed, we ought to add that the learned Additional
Solicitor-General fairly, and we think rightly and wisely, conceded that this part of the Home
Secretary’s affidavit could not be supported and that he saw no justification for the
continuance of the petitioner’s detention after the Kerala Kerosene Control Order came into
operation on 24th October, 1965. It is remarkable that in the whole of his affidavit, the Home
Secretary does not say how he came to know all the facts to which he has purported to depose
in his affidavit. We have, however, assumed that as Home Secretary, the file relating to the
detention of the petitioner must have been handled by him, though the Home Secretary should
have realised that he should himself have made a statement to that effect in his affidavit. We
have had occasion to criticise affidavits made by appropriate authorities in support of the
detention orders in writ proceedings, but we have not come across an affidavit which shows
such an amount of casualness as in the present case. We have carefully examined all the
material and relevant facts to which our attention has been drawn in the present proceedings
and we see no escape from the conclusion that the impugned order of detention passed against
the petitioner on 20th October, 1965, and more particularly, the petitioner’s continued
detention after 24th October, 1965, must be characterised as clearly and plainly mala fide.
This is a case in which the powers conferred on the appropriate authority have, in our opinion,
been abused. - We are conscious that even if a subordinate officer makes a malicious report against a
citizen suggesting that he should be detained, the malice inspiring the report may not
necessarily or always make the ultimate order of detention passed by the appropriate authority
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invalid. Even a malicious report may be true in the sense that the facts alleged may be true,
but the person making the report was determined to report those facts out of malice against
the party concerned. But a malicious report may also be false. In either case, the malice
attributable to the reporting authority cannot, in law, be attributed to the detaining authority;
but in such cases, it must appear that the detaining authority carefully examined the report and
considered all the relevant material available in the case before passing the order of detention.
Unfortunately, in the present case, the affidavit made by the Home Secretary is so defective
and in many places so vague and ambiguous that we do not know which authority acting for
Respondent 1 in fact examined the case against the petitioner and what was the nature of the
material placed before such authority; and the affidavit does not contain any averment that
after the material was examined by the appropriate authority, the appropriate authority
reached the conclusion that it was satisfied that the petitioner should be detained with a view
to prevent him from acting in a manner prejudicial to the maintenance of supplies and
services essential to the life of the community. - After all, the detention of a citizen in every case is the result of the subjective satisfaction
of the appropriate authority; and so, if a prima facie case is made by the petitioner that his
detention is either malafide, or is the result of the casual approach adopted by the appropriate
authority, the appropriate authority should place before the Court sufficient material in the
form of proper affidavit made by a duly authorised person to show that the allegations made
by the petitioner about the casual character of the decision or its mala fides, are not well
founded. The failure of Respondent 1 to place any such material before us in the present
proceedings leaves us no alternative but to accept the plea made by the petitioner that the
order of detention passed against him on 20th October, 1965, and more particularly, his
continued detention after 24th October, 1965, are totally invalid and unjustified. - In conclusion, we wish to add that when we come across orders of this kind by which
citizens are deprived of their fundamental right of liberty without a trial on the ground that the
emergency proclaimed by the President in 1962 still continues and the powers conferred on
the appropriate authorities by the Defence of India Rules justify the deprivation of such
liberty, we feel rudely disturbed by the thought that continuous exercise of the very wide
powers conferred by the Rules on the several authorities is likely to make the conscience of
the said authorities insensitive, if not blunt, to the paramount requirement of the Constitution
that even during emergency, the freedom of Indian citizens cannot be taken away without the
existence of the justifying necessity specified by the Rules themselves. The tendency to treat
these matters in a somewhat casual and cavalier manner which may conceivably result from
the continuous use of such unfettered powers, may ultimately pose a serious threat to the
basic values on which the democratic way of life in this country is founded. It is true that
cases of this kind are rare; but even the presence of such rare cases constitutes a warning to
which we think it is our duty to invite the attention of the appropriate authorities.
