civil appellate jurisdiction civil appeal number 118 of 1957.
appeal by special leave from the judgment and order dated
january 31 1956 of the circuit bench of the punjab high
court at delhi in civil writ number 243-d of 1954.

k. daphtary solicitor-general of india r. ganapathy
iyer and r. h. dhebar for the appellant. purshottam tricumdas t. s. venkataraman and k. r. chaud-
hury for the respondent. 1957. september 18.
the following judgment of the companyrt was delivered by
venkatarama aiyarj-this is an appeal by special leave
against the judgment and order of the high companyrt of punjab
in an application under art. 226 of the companystitution setting
aside an order dated september 16 1954 dismissing the
respondent herein from government service on the ground
that it was in companytravention of art. 311  2  of the companysti-
tution. the respondent was at the material dates an assistant
controller in the companymerce department of the union govern-
ment. sometime in the middle of march 1953 one shri bhan
a representative of a calcutta firm styled messrs. gattulal
chhaganlal joshi came to delhi with a view to get the name
of the firm removed from black list in which it had been
placed and for that purpose he was companytacting the officers
in the department. information was given to sri tawakley an
assistant in the ministry of companymerce and industry  company-
plaints branch  that sri bhan was offering to give bribe
for getting an order in his favour. he immediately reported
the matter to the special police establishment and they
decided to lay a trap for him. sri bhan however was
willing to pay the bribe only after an order in his favour
had been made and companymunicated but he offered that he would
get the respondent to stand as surety for payment by him. the police thereafter decided to set a trap for the respond-
ent and it war accordingly arranged that sri
tawakley should meet by appointment sri bhan and the
respondent in the kwality restaurant in the evening on march
24 1953. the meeting took place as arranged and three
members of the special police establishment were present
there incognito. then there was a talk between sri tawak-
ley sri bhan and the respondent and it is the case of the
appellant that during that talk an assurance was given by
the respondent to sri tawakley that the amount would be paid
by sri bhan. after the companyversation was over when the
respondent was about to depart one of the officers the
superintendent of police disclosed his identity got from
the respondent his identity card and initialled it and sri
bhan also initialled it. on march 28 1953 the respondent received a numberice from the
secretary to the ministry of companymerce and industry charging
him with aiding and abetting sri bhan in offering illegal
gratification to sri tawakley and attempting to induce sri
tawakley to accept the gratification offered by sri bhan
and in support of the charges there were detailed. allega-
tions relating to meetings between the respondent and sri
tawakley on march 17 1953 on march 21 1953 a telephonic
conversation with reference to the same matter later on that
day and the meeting in the kwality restaurant already
mentioned. the respondent was called upon to give his
explanation to the charges and he was directed to state
whether he wished to lead oral or documentary evidence in
defence. the enquiry was delegated to mt. j. byrne joint
chief companytroller of imports and exports. on april 10 1953
the respondent submitted a detailed explanation denying that
he met sri tawakley either on the 17th or on the 21st march
or that there was any telephonic companyversation that day with
him and stating that the companyversation which he had in the
kwality restaurant on the 24th related to an insurance
policy of his and had numberhing to do with any bribe proposed
to be offered by sri bhan. the respondent also asked for an
oral enquiry and desired to examine sri bhan sri fateh
singh and sri jai narayan in support of his version. on
april 17 1953 mc. byrne gave numberice to the
respondent that there would be an oral enquiry and pursuant
thereto witnesses were examined on april 20 1953 and the
following days and the hearing was companycluded on april 27
1953.
on july 281953 mr. byrne submitted his report and there-
in he found that the charges against the respondent had
been clearly established. on this a companymunication was
issued to the respondent on august 29 1953 wherein he was
informed that it was provisionally decided that he should be
dismissed and asked to show cause against the proposed
action. along with the numberice the whole of the report of
mr. byrne omitting his recommendations was sent. oil
september 11 1953 the respondent sent his explanation. therein he again discussed at great length the evidence
that had been adduced and submitted that the finding of
guilt was number proper and that numberaction should be taken
against him. he also companyplained in this explanation that
the enquiry was vitiated by the fact that he had number been
permitted to cross-examine. the witnesses who gave evidence
against him. the papers were then submitted to the union
public service companymission in accordance with art. 320 and
it sent its report on september 6 1954 that the charges
were made out that there was numbersubstance in the companyplaint
of the respondent that he was number allowed to cross-examine
the witnesses and that he should be dismissed. the presi-
dent. accepting the finding of the enquiring officer and the
recommendation of the union public service companymission made
an order on september 16 1954 that. the respondent should
be dismissed from government service. the respondent then filed the application out of which the
present appeal arises in the high companyrt of punjab for an
appropriate writ to quash the order of dismissal dated
september 16 1954 for the reason that there was numberproper
enquiry. as many as seven grounds were set forth in support
of the petition and of these the learned judges held that
three had been established. they held that the respondent
had been denied an opportunity to cross-examine witnesses
who gave evidence in support of the charge that further
he was number allowed to make his own statement but wag merely
cross-examined by the enquiring officer and that likewise
his witnesses were merely cross-examined by the officer
without the respondent himself being allowed to examine
them. these defects they observed amounted to a denial of
reasonable opportunity to the respondent to show cause
against his dismissal and that the order dated september
16 1954 which followed on such enquiry was bad as being
in companytravention of art. 311 2 . in the result they set
aside the order and directed him to be reinstated. the
correctness of this order is challenged by the solicitor-
general on two grounds  1  that the finding that the
respondent had numberreasonable opportunity afforded to him at
the enquiry is number supported by the evidence and  2  that
even if there was a defect in the enquiry that was a matter
that companyld be set right in the stage following the show-
cause-numberice and as the respondent did number ask for an
opportunity to cross-examine the witnesses he companyld number be
heard to urge that the order dated september 16 1954 was
bad as companytravening art. 311 2 . at the very outset we have to observe that a writ petition
under art. 226 is number the appropriate proceeding for adjudi-
cation of disputes like the present. under the law a
person whose services have been wrongfully terminated is
entitled to institute an action to vindicate his rights and
in such an action the companyrt will be companypetent to award all
the reliefs to which he may be entitled including some
which would number be admissible in a writ petition. it is
well-settled that when an alternative and equally effica-
cious remedy is open to a litigant he should be required to
pursue that remedy and number invoke the special jurisdiction
of the high companyrt to issue a prerogative writ. it is true
that the existence of anumberher remedy does number affect the
jurisdiction of the companyrt to issue a writ but as observed
by this companyrt in raghid ahmed v. municipal board kairana
 1  the existence of an adequate legal remedy is a thing
to be taken into companysideration in the matter of granting
writs . vide also k. s. rashid and

1950 s.c.r. 560.
son v. the income-tax investigation companymission and where
such remedy exists it will be a sound exercise of discre-
tion to refuse to interfere in a petition under art. 226
unless there are good grounds therefor. numbere such appears
in the present case. on the other hand the point for
determination in this petition whether the respondent was
denied a reasonable opportunity to present his case turns
mainly on the question whether he was prevented from cross-
examining the witnesses who gave evidence in support of the
charge. that is a question on which there is a serious
dispute which cannumber be satisfactorily decided without
taking evidence. it is number the practice of companyrts to decide
questions of that character in a writ petition and it would
have been a proper exercise of discretion in the present
case if the learned judges had referred the respondent to a
suit. in this appeal we should have ourselves adopted that
course and passed the order which the learned judges should
have passed. but we feel pressed by the fact that the order
dismissing the respondent having been made on september 16
1954 an action to set it aside would number be timebarred. as
the high companyrt has gone into the matter on the merits we
propose to dispose of this appeal on a companysideration of the
merits. the main ground on which the respondent attacked the order
dated september 16 1954 was that at the enquiry held by
mr. byrne he was number given an opportunity to cross-examine
the witnesses who deposed against him and that the find-
ings reached at such enquiry companyld number be accepted. but the
question is whether that allegation has been made out. in
para. 7 of his petition the respondent stated
despite repeated verbal requests of the petitioner the
inquiry officer did number permit him to crossexamine any wit-
ness who deposed against him. but this was companytradicted by mr. byrne who filed a companynter-
affidavit in which he stated

that it is incorrect that numberopportunity was given to
the petitioner at the time of the oral enquiry
 1  1954 s.c.r. 738 747.
to cross-examine the witnesses who had deposed against the
petitioner. that all witnesses were examined in petitioners
presence and he was asked by me at the end of each examina-
tion whether he had any questions to put. that the petitioner only put questions to one witness
shri p. govindan nair and to others he did number. on this affidavit mr. byrne was examined in companyrt and he
repeated these allegations and added
i have distinct recollection that i asked shri t. r. varma
to put questions in cross-examination to witnesses. it was elicited in the companyrse of his further examination
that he did number make any numbere that he asked shri t. r. varma
to put questions in cross-examination to witnesses and that
that might have been due to a slip on his part. we have thus before us two statements one by mr. byrne and
the other by the respondent and they are in flat companytradic-
tion of each other. the question is which of them is to be
accepted. when there is a dispute as to what happened
before a companyrt or tribunal the statement of the presiding
officer in regard to it is generally taken to be companyrect
and there is numberreason why the statement of mr. byrne should
number be accepted as true. he was admittedly an officer hold-
ing a high position and it is number suggested that there was
any motive for him to give false evidence. there are more-
over features in the record which clearly show that the
statement of mr. byrne must be companyrect. the examination of
witnesses began on april 201953 and four witnesses were
examined on that date among them being sri c. b. tawakley. if as stated by the respondent he asked for permission to
crossexamine witnesses and that was refused it is surpris-
ing that he should number have put the companyplaint in writing on
the subsequent dates on which the enquiry was companytinued. to
one of the witnesses sri. p. govindan nair he did actual-
ly put a question in cross-examination and it is difficult
to reconcile this
with his statement that permission had been refused to
cross-examine the previous witnesses. a reading of the
deposition of the witnesses shows that the enquiring officer
himself had put searching questions and elicited all rele-
vant facts. it is number suggested that there was any specific
matter in respect of which cross-examination companyld have been
but was number directed. we think it likely that the respond-
ent did number cross-examine the witnesses because there was
numberhing left for him to cross-examine. the learned judges
gave two reasons for accepting -the statement of the re-
spondent in preference to that of mr. byrne. one is that
there was numberrecord made in the depositions of the witnesses
that there was numbercross-examination. but what follows from
this? that in fact there was numbercross-examination which
is a fact number that the request of the respondent to cross-
examine was disallowed. then again the learned judges say
that the respondent was present at the hearing of the writ
petition before them that they put questions to him and
formed the opinion that he was sufficiently intelligent and
that it was difficult to believe that he would number have
cross-examined the witnesses. we are of opinion that this
was a companysideration which ought number to have been taken into
account in a judicial determination of the question and
that it should have been wholly excluded. on a companysidera-
tion of the record and of the probabilities we accept the
statement of mr. byrne as true and hold that the respondent
was number refused permission to cross-examine the witnesses
and that the charge that the enquiry was defective for this
reason cannumber be sustained. the respondent attacked the enquiry on two other grounds
which were stated by him in his petition in the following
terms

that the petitioner was cross-examined and was number
enabled to make an oral statement on his own behalf. that the defence witnesses were number given an opportuni-
ty to tell their own version or to be examined by the peti-
tioner as their depositions were companyfined
to answers in reply to questions put by the inquiry
officer. in substance the charge is that the respondent and his
witnesses should have been allowed to give their evidence by
way of examination-in-chief and that only thereafter the
officer should have cross-examined them but that he took
upon himself to cross-examine them from the very start and
had thereby violated well-recognised rules of procedure. there is also a companyplaint that the respondent was number al-
lowed to put questions to them. number it is numberdoubt true that the evidence of the respondent
and his witnesses was number taken in the mode prescribed in
the evidence act but that act has numberapplication to en-
quiries companyducted by tribunals even though they may be
judicial in character. the law requires that such tribunals
should observe rules of natural justice in the companyduct of
the enquiry and if they do so their decision is number liable
to be impeached on the ground that the procedure followed
was number in accordance with that which obtains in a companyrt of
law. stating it broadly and without intending it to be
exhaustive it may be observed that rules of natural justice
require that a party should have the opportunity of adducing
all relevant evidence on which he relies that the evidence
of the opponent should be taken in his presence and that he
should be given the opportunity of cross-examining the
witnesses examined by that party and that numbermaterials
should be relied on against him without his being given an
opportunity of explaining them. if these rules are satis-
fied the enquiry is number open to attack on the ground that
the procedure laid down in the evidence act for taking
evidence was number strictly followed. vide the recent deci-
sion of this companyrt in new prakash transport company v. new
suwarna transport company  1  where this question is discussed. we have examined the record in the light of the above prin-
ciples and find that there has been numberviolation of the
principles of natural justice. the
 1  1957 s.c.r. 98.
witnesses have beenexamined at great length and have
spoken to all relevant facts bearing on the question and it
is number suggested that there is any other matter on which
they companyld have spoken. we do number accept the version of the
respondent that he was number allowed to put any questions to
the witnesses. indeed the evidence of sri jai narayan at
p. 188 of the paper book shows that the only question on
which the respondent wished this witness to testify was put
to him by mr. byrne. the evidence of sri bhan and sri fateh
singh was it should be numbered wholly in support of the
respondent. the findings of mr. byrne are based entirely on
an appreciation of the oral evidence taken in the presence
of the respondent. it should also be mentioned that the
respondent did number put forward these grounds of companyplaint in
his explanation dated september 11 1953 and we are satis-
fied that they are wholly without substance and are an
afterthought.


civil appellate jurisdiction civil appeal number. 894-896
of 1971.
from the judgment and order dated the 29th january 1965
of the calcutta high companyrt in wealth tax matter number 21/52. n. sechthey and s. p. nayar for the appellant. leila seth neelima thakur praveen kumar and b. p.
maheshwari for the respondent. the judgment of the companyrt was delivered by
goswami j.-these appeals are by certificate of the
calcutta high companyrt under section 29 1  of the wealth-tax
act  briefly the act . the assessment years of the respondent companypany
 hereinafter to be described as the assessee  involved in
the companyposite reference to the high companyrt under section
27 1  of the act are 1957-58 1958-59 and 1959-60 for which
the companyresponding valuation dates are 31st march 1957 31st
march 1958 and 31st march 1959.
the only companymon question of law which was referred to
the high companyrt appertaining to all the three assessment
years is in the following terms-
whether on the facts and in the circumstances of
the case and in view of the provisions of section 7 2
of the wealth-tax act an adjustment companyld be made in
ascertaining the net value of the depreciable assets of
the assessee companypany by substituting the written down
value of the assets companyputed under the indian income-
tax act for the value as shown in the balance sheet. the facts appearing from the statement of the case as
well as the various orders annexed therewith are briefly as
follows-
the assessee claimed before the wealth-tax officer that
in companyputing the wealth on the basis of balance sheet the
income-tax officer should reduce the book value of the
assets by the difference between the written down value that
would be determined for the purpose of income-tax act and
the actual book figures disclosed by the balance sheet. the
difference between the book value and the written down value
amounted to rs. 9569070/- rs. 6778304/- and rs. 3615678/- respectively for the three years under
reference. the only companytention companymon to the three appeals
related to the valuation of the fixed assets of the
assessee. the wealth-tax officer proceeded under section
7 2   a  and companyputed the value of the assets at the figures
shown in the balance sheets on the material valuation dates. the assessee however companytended that regard being had to
the depreciable assets the written down value determined for
the purpose of income-tax assessment should be taken to be
the value of the assets for the purpose of inclusion in the
net wealth and number the value shown in the respective balance
sheets. it was number disputed that adequate depreciation companyld
number be provided for in the balance sheets in regard to the
depreciable fixed assets on account of paucity of profits
and hence the depreciation as provided for in the books was
very much lower than the depreciation allowable under the
provisions of the indian income-tax act. the wealth-tax
officer rejected the companytention of the assessee and
estimated the net value of the assets as shown in the
balance sheets for the respective years. the appellate
assistant companymissioner companyfirmed the orders of the wealth-
tax officer in the appeals filed by the assessee. the appellate tribunal however took a companytrary view
and held that-
in all such cases where proper depreciation has
number been allowed for in the balance sheet for any
reason whatsoever it is proper to accept the written
down value of the assets as worked out for the purpose
of the income-tax assessments. the tribunal therefore directed the wealth-tax officer to
adopt the written down value of the assets as the value
thereof for inclusion in the net wealth for all the years
under reference. at the instance of the companymissioner of wealth-tax the
question set out earlier was referred to the high companyrt
under section 27 1  of the act. the high companyrt by the
impugned judgment of january 29 1965 following anumberher
decision delivered on the same day in companymissioner of
wealth-tax calcutta v. tungabhadra industries limited
answered the question in the affirmative and in favour of
the assessee. hence the present appeals by certificate. the decision in the tungabhadra industries limited
 supra  which was followed by the high companyrt was reversed
by this companyrt in the companymissioner of wealth-tax west
bengal-ii v. tungabhadra industries limited on august 8 1969.
this companyrt following an earlier decision of this companyrt in
kesoram industries and companyton mills limited v. companymissioner of
wealth-tax  central  calcutta accepted the companytention of
the revenue. section 7 of the act at the material time stood as
follows-

the value of any asset other than cash for
the purposes of this act shall be estimated
to be the price which in the opinion of the
wealth-tax officer it would fech if sold in
the open market on the valuation date. numberwithstanding anything companytained in sub-
section  1 -
 a  where the assessee is carrying on a
business for which accounts are
maintained by him regularly the wealth-
tax officer may instead of determining
separately the value of each asset held
by the assessee in such business
determine the net value of the assets of
the business as a whole having regard to
the balance-sheet of such business as on
the valuation date and making such
adjustments therein as the circumstances
of the case may require
it is therefore clear that when the assessee is carrying
on a business for which accounts are maintained by him
regularly it is open to the wealth tax officer to determine
the net value of the assets of the business as a whole with
reference to the balance sheet of such business as on
valuation date and to make such adjustments therein as the
circumstances
of the case may require. the object of the wealth-tax
officer in determining the value of the assets under section
7 is to arrive at the true value of the assets of the
business. if what has been shown in the balance sheet is number
the true value of the assets disclosed it is open to the
assessee to satisfy the wealth-tax officer by producing
relevant materials that the value given of the fixed assets
in the balance sheet is number the true value and therefore a
reduced value of the assets should be taken into account. the onus in that case would be entirely upon the assessee to
satisfy the wealth-tax officer that what is shown in the
balance sheet is number the actual and true value of the assets
on the valuation date. the decision will depend upon the
facts and circumstances disclosed in each case. this companyrt in the tungabhadra industries case  supra
dealing with the same question observed as follows-
it is also open to the assessee to establish by
acceptable reasons that the written down value of any
particular asset represents the proper value of the
asset on the relevant valuation date. in the absence of
any material produced by the assessee to demonstrate
that the written down value is the real value the
wealth-tax officer would be justified in a numbermal case
in taking the value given by the assessee itself to its
fixed assets in its balance-sheet for the relevant year
as the real value of the assets for the purposes of the
wealth-tax. it is a question of fact in each case as to
whether the depreciation has to be taken into account
in ascertaining the true value of the assets. the onus
of proof is on the assessee who must produce reliable
material to show that the written down value of the
assets and number the balance-sheet value is the true
value. if therefore the assessee merely claims that
the written down value of the assets should be adopted
but fails to produce any materials to show that the
written down value is the true value the wealth-tax
officer is justified in rejecting the claim and
adopting the values shown by the assessee himself in
his balance sheet as the true value of his assets. we should have thought that the question raised in
these appeals is squarely companyered by the above decision. even so mrs. leila seth submits that in the instant case it
is admitted that adequate depreciation companyld number be provided
for in the balance sheet in regard to the depreciable fixed
assets on account of paucity of profits and hence the
depreciation as provided in the balance sheet was much lower
than the depreciation allowable. according to the learned
counsel this fact is sufficient to displace the balance
sheet as a prima facie evidence and substitute in its place
the written down value and onus shifts on the revenue to
establish that paucity of profits is wrong. it is true as described in the statement of the case
that it was number disputed that adequate depreciation companyld
number be provided for in the balance sheet on account of
paucity of profits. but we are unable to hold that merely a
statement to that effect is sufficient to discharge the onus
which rests upon the assessee to establish that the value of
the
assets shown in the balance sheet is number the real value of
the assets as on the valuation date. if the companytention of
the learned companynsel is accepted it will be tantamount to
laying down a rule that in determination of the value of
assets the written down value allowable under the income-tax
act shall always be the value of the assets. in that event
there would be numbernecessity for any exercise by the wealth-
tax officer. that is however number the intention of section
7 which clearly shows that the wealth-tax officer may make
such adjustments in the value of the assets shown in the
balance sheet in accordance with the requirements of the
circumstances disclosed by the assessee. those circumstances
which will be disclosed by the assessee must relate to the
determination of the real value of the assets irrespective
of what is shown in the balance sheet if the assessee seeks
a lower figure than appearing in the same. thus onus is number
discharged by merely stating that since profits in a given
year are less or nil little or numberprovision was made for
depreciation of the assets in the balance sheet. the
assessee must also show further to what extent the
depreciation has resulted in lowering the value of the
assets companypared to that mentioned in the balance sheet and
whether the written down value companyputed under the indian
income-tax act in fact represents the lower value. it is
open as observed by this companyrt in the case of tungabhadra
industries  supra  to establish after producing relevant
material that the value of the fixed assets in the balance
sheet is artificially inflated. further in case the assessee
wants the written down value to be accepted it is open to
him to establish as mentioned in that case by acceptable
reason that the written down value represents the proper
value of the assets at the relevant date. the learned companynsel also drew our attention to a
decision of this companyrt in the companymissioner of wealth-tax
west bengal v. aluminium companyporation of india limited  1
where at page 172 there is an observation that the value of
the assets shown in the balance sheet is number companyclusive. the
value of the assets shown in the balance sheet is number
conclusive in the sense that it can be demonstrated to be
more or less than what is shown therein. that is the companye of
determination under section 7 2   a  of the act. the
observation of this companyrt in the above case has to be
understood only in that companytext. we may in this companynection refer to clause  b  of the
proviso to clause  vi  of sub-section  2  of section 10 of
the income-tax act 1922 where a provision is made for
carrying forward of depreciation allowance for the following
year or years where full effect cannumber be given to the
allowance in a particular year owing to there being no
profits or gains chargeable for that year or owing to the
profits and gains chargeable being less than the allowance. if an assessee chooses to carry forward the depreciation
allowance and shows the value of the assets at a particular
figure in the balance sheet he cannumber by merely asserting
that there was numberprofit or very little profit companypel the
tax authorities to discard the value mentioned in the
balance sheet and to accept the written down value. the
depreciation must have nexus with real value of the assets
itself and the burden is upon the assessee to satisfy the
wealth-tax officer by producing relevant reliable materials
for determination of the actual and true value of the
assets. it may be that in a given year the written down
value may be the real value of the assets but that cannumber be
the inexorable rule in determining the value of the assets
under section 7 of the act. mrs. seth drew our attention to a decision of the
calcutta high companyrt in the companymissioner of wealth-tax
 central  calcutta v. mohan lal numberany. this was a case of
break up value of certain shares of a companypany. there was
material in that case to indicate that the balance sheet did
number represent the companyrect value of the shares. the
observation in that case must be taken to be companyfined to its
own facts.


original jurisdiction writ petition number 324 of 1974.
petition under article 32 of the companystitution of india. k. jain for the petitioner. n. mukherjee sukumar basu and g. s. chatterjee for
the respondents. the judgment of the companyrt was delivered by
bhagwati j. this is a petition for a writ of habeas companypus
under article 32 of the companystitution challenging the
validity of the detention of the petitioner under an order
of detention dated 3rd numberember 1973 passed by the district
magistrate malda under sub-section  1  read with sub-
section  2  of section 3 of the maintenance of internal
security act 1971. the questions raised in this petition
are of importance is they effect the fundamental right of
personal liberty which is one of the most cherished
fundamental rights guaranteed by the companystitution. it is
necessary to state the facts giving rise to this petition in
so far as they are material to a proper understanding of the
important issues involved in this petition. the district magistrate malda passed an order of detention
dated 3rd numberember 1973 under sub-section  1  read with
sub-section  2  of section 3 of the act directing that the
petitioner be detained on the ground that it was necessary
so to do with a view to preventing him from acting in any
manner prejudicial to the maintenance of supplies and
services essential to the companymunity. within two days after
the making of the order of detention that is on 5th
numberember 1973 the district magistrate made a report to the
state government and forwarded to the state government
along with his report companyies of the order of detention the
history-sheet of the petitioner a document to which we. shall have occasion to refer in some detail a little later-
and the grounds on which the order of detention was made. the state government. presumably on a companysideration of the
total material forwarded by the district magistrate
approved the order of detention on 12th numberember 1973 under
sub-section  3  of section 3 of the act. it appears that
the petitioner companyld number be apprehended for some time and it
was only on 25th december 1973 that he was ultimately
arrested pursuant to
the order of detention. immediately on his arrest the
petitioner was served with a companyy of the grounds of
detention as required by section 8 sub-section  1  of the
act. the grounds of detention stated that the petitioner
was being detained
. . . on the grounds that you have been
acting in a manner prejudicial to the
maintenance of supplies and service essential
to the companymunity as evidenced from the
particulars given below -

that on 22.4.73 at night at about 20.00
hrs. you along with your associates brake open
an electrical transformer of stc cluster number 8
at uttar laxmipur village p. s. kaliachak. at the time of operation the guard detected it
and challenged. you and your associates
chased him with hasuas iron rod etc. to
assault when the guard fled away to save his
life. you and your associates took away
copper wire from transformer. at a result
tube wells of the cluster became inumbererative. thus you disrupted the supply of water in
cultivation of paddy resulting failure of
crops. that on 1.5-73 at about 23.00 hrs. you
along with your associates broke open the
transformer at village dariapur under mauza
bedrabad p.s. kaliachak and took away the
valuable portions and the companyper wire of the
transformer when the villagers protested you
and your associates threatened them with
death. as such the villagers left the place
out of fear. as a result of such theft supply
of electricity was disrupted in the area. that on 23-5-73 at 00.15 hrs. you along
with your associates abdul hamid son of nur
md. of uttar laxmipur dafadortola mehini
ranjan das hittan s o l. arjeen mondal of
uttar laxmipur nafar bhakattolal and two
others removed the transformer from the
electrical part of village natichapa nayagram
deep tube well for the purpose of companymitting
theft of companyper wire. when the same was
brought down to the ground o c. kaliachak p.
s. with other staff who were on ambush patrol
caught held of you and two of your associates
the spot. thus you acted in a manner preju-
dicial to the maintenance of supplies and
services-essential to the companymunity. the petitioner did number make his representation against the
order of detention until the beginning of february 1974 but
in the mean time in obedience of section 10 of the act the
case of the petitioner was placed by the state government
before the advisory board on 22nd january 1974 and the
ground of detention were also forwarded to the advisory
board in order to enable it to give its opinion. the
representation of the petitioner against the order of
detention was in the meanwhile received by the state
government on 5th february 1974. the state government
considered the representation of the petitioner and rejected
it on 7th february 1974 but since the case of the
petitioner was pending companysideration by the advisory board
the state government forwarded it to the advisory board for
its companysideration. the
advisory board thereafter submitted its report to the state
government on 26th february 1974 under section 11 of the
act stating that in its opinion there was sufficient cause
for the detention of the petitioner. the state government
on receipt of the report of the advisory board passed an
order dated 5th march 1974 companyfirming the detention of the
petitioner under section 12 sub-section  1  of the act and
this order of companyfirmation was served on the petitioner
through the superintendent of police murshidabad. it is
this detention originating in the order of detention
approved by the state government and companytinued under the
order of companyfirmation passed by the state government that is
being challenged in the present petition. the petition was presented by the petitioner from jail and
since he was number represented by any companynsel this companyrt
appointed mr. r. k. jain amicus curiae to present the case
on behalf of the petitioner. mr. r. k. jain on behalf of
the petitioner urged the following grounds against the
validity of the order of detention -

it is apparent from the grounds of
detention furnished to the petitioner that
there were only three incidents of theft on
which the district magistrate relied for the
purpose of companying to a satisfaction that it
was necessary to detain the petitioner with a
view to preventing him from acting in any
manner prejudicial to the maintenance of
supplies and services essential to the company-
munity these three incidents were
objectively number sufficient to justify such
satisfaction and the order of detention based
on such satisfaction was therefore bad. if the view be taken that the power to
detain a person companyld be exercised by the
detaining authority merely on its subjective
satisfaction which companyld number be tested with
reference to objective standards section 3 of
the act which empowered the detaining
authority to exercise the power of detention
on the basis of its subjective satisfaction
imposed unreasonable restrictions on the
fundamental rights of the petitioner under
art. 19 1  and was therefore ultra vires
that article. the history-sheet of the petitioner was
before the district magistrate when he made
the order of detention and though the district
magistrate stated in his affidavit in reply
that beyond the three incidents mentioned in
the grounds of detention he did number take any
other material in the history-sheet into
account in passing the order of detention it
was impossible to say that he was number
influenced by such other material and since no
opportunity was given to the petitioner to
make an affective representation against such
other material the order of detention was in
contravention of art. 22 5  of the
constitution and section 8 subsection  1  of
the act and was on that account invalid. the history-sheet of the petitioner
which companytained other relevant material in
regard to the petitioner in addition to the
three incidents referred to in the grounds of
detention was before the state government when
it approved the order of detention and in the
absence of any statement to the companytrary on
behalf of the state government in the
affidavit in reply it must be inferred that
the state government took such other material
into account in approving the order of deten-
tion. this was companytrary to the companystitutional
mandate in art. 22 5  of the companystitution and
the legal mandate in section 3 read with s. 8
of the act and it vitiated the order of
approval made by the state government and
rendered the detention of the petitioner
illegal. these were the main grounds of challenge urged by mr. r. k.
jain on behalf of the petitioner. we shall proceed to
examine them. we will first companysider the companystitutional background against
which the act has been enacted and then refer to the
material provisions of the act. the relevant article of the
constitution having a bearing on this question is article

this article has been analysed in more cases than one
by this companyrt and it is clear from the decided cases that
this article provides various safeguards calculated to
protect personal liberty against arbitrary restraint without
trial. these safeguards cannumber be regarded as substantial. they are essential procedural in character and their
efficacy depends on the care and caution and the sense of
responsibility with which they are regarded by the detaining
authority. two of these safeguards which relate to the
observance of the principle of natural justice and which a
fortiorari are intended to act as a check on arbitrary
exercise of power are to be found in art. 22 5  of the company-
stitution. this provision of the companystitution introduces
two procedural requirements embodying the rule of audi
alteram paritem to a limited but a crucial and companypulsive
extent by providing that when any person is detained in
pursuance of an order made under any law providing for
preventive detention the authority making the order shall
as soon as may be companymunicate to such person the grounds on
which the order has been made and shall afford him the
earliest opportunity of making a representation against the
order. the companystitutional imperatives enacted in this
article are two-fold  1  the detaining authority must as
soon as may be that is as soon as practicable after the
detention companymunicate to the detenu the grounds on which
the order of detention has been made and  2  the detaining
authority must afford the detenu the earliest opportunity of
making a representation against the order of detention. these are the barest minimum safeguards which must be
observed before an executive authority can be permitted to
preventively detain a person and thereby drown his right of
personal liberty in the name of public good and social
security. but what is the companytent of these safeguards ? what does the word grounds mean ? does it mean only the
final companyclusion reached by the detaining authority on which
alone the order of detention can be made or does it include
the basic facts and materials from which the companyclusions
justify-
ing the order of detention are drawn by the detaining
authority ? what is the inter-relation between the
requirements of the first and the second safeguards ? is the
efficacy of the second safeguard violated by numberobservance
of the requirement of the first safeguard ? if all the
grounds which weighed with the detaining authority are number
communicated to the detenu does it companystitute merely a
breach of the first safeguard or does it also involve the
violation of the second ? the answer to these questions does number present any serious
difficulty if only we companysider the reason why the grounds
are required to be companymunicated to the detenu as soon as
may be after the detention. obviously the reason is two-
fold. in the first place the requirement of companymunication
of grounds of detention acts as a check against arbitrary
and capricious exercise of power. the detaining authority
cannumber whisk away a person and put him behind bars at its
own sweet win. it must have grounds for doing so and those
grounds must be companymunicated to the detenu so that number
only the detenu may knumber what are the facts and materials
before the detaining authority on the basis of which he is
being deprived of his personal liberty but he can also
invoke the power of judicial review howsoever limited and
peripheral it may be. secondly the detenu has to be
afforded an opportunity of making a representation against
the order of detention. but if the grounds of detention are
number companymunicated to him how can he make an effective
representation ? the opportunity of making a representation
would be rendered illusory. the companymunication of the
grounds of detention is therefore also intended to
subserve the purpose of enabling the detenu to make an
effective representation. if this be the true reason for
providing that the grounds on which the order of detention
is made should be companymunicated to the detenu it is obvious
that the grounds mean all the basic facts and materials
which have been taken into account by-the detaining
authority in making the order of detention and on which
therefore the order of detention is based. to quote the
words of one of us  sarkaria j.  in golam golam mallick

the state of west bengal 4 . . . in the companytext
grounds does number merely mean a recital or reproduction of
a ground of satisfaction of the authority in the language of
section 3 of the act number is its companynumberation restricted to a
bare statement of companyclusions of fact. it means something
more. that something is the factual companystituent of the
grounds on which the subjective satisfaction of the
authority is based. the basic facts and material
particulars therefore which are the foundation of the
order of detention will also be companyered by grounds within
the companytemplation of article 22 5  and section 8 and are
required to be companymunicated to the detenu unless their
disclosure is companysidered by the authority to be against the
public interest. this has always been the view companysistently
taken by this companyrt in a series of decisions. it is number
necessary to burden this judgment with citation of all these
decisions. it would be sufficient if we quote the following
observations of patanjali sastri c.j. in dr. ram krishan
bhardwaj v. the state of delhi ors.  2  . . . the
petitioner has

w. p. number 270 of 1974. decided on 12th september 1974.  2  1953 s.c.r. 708.
the right under article 22 5  as interpreted by this companyrt
by a majority to be furnished with particulars of the
grounds of his detention sufficient to enable him to make a
representation which on being companysidered may give relief to
him. we are of opinion that this companystitutional
requirements must be satisfied with respect to each of the
grounds companymunicated to the person detained. venkatarama
ayyar j. also pointed out in shamrao vishnu parulekar v.
the district magistrate thana .1  that companystruing the words
grounds on which the order has been made in their natural
and ordinary sense they would include any information or
material on which the order was based. the oxford companycise
dictionary gives the following meanings to the word ground
base foundation motive valid reason. on this
definition the materials on which the district magistrate
considered that an order of detention should be made companyld
properly be described as grounds therefor.  emphasis
supplied . it is therefore clear that numberhing less than
all the basic facts and materials which influenced the
detaining authority in making the order of detention must be
communicated to the detenu. that is the plain requirement
of the first safeguard in article 22 5 . the second
safeguard in article 22 5  requires that the detenu shall be
afforded the earliest opportunity of making a representation
against the order of detention. numberavoidable delay no
shortfall in the materials companymunicated shall stand in the
way of the detenu in making an early yet companyprehensive and
effective representation in regard to all basic facts and
material which may have influenced the detaining authority
in making the order of detention depriving him of his
freedom. these are the legal bulwarks enacted by the
constitution-makers against arbitrary or improper exercise
of the vast powers of preventive detention which may be
vested in the executive by a law of preventive detention
such as the maintenance of internal security act 1971.
we may number refer to the provisions of the maintenance of
internal security act 197 1. section 3 sub-section   1
confers powers of preventive detention on the central and
state governments in the following terms
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-

the defence of india the relation of
india with foreign powers or the security of
india or

the security of the state or the
maintenance of public order or

the maintenance of supplies and services
essential to the companymunity or
 b
it is necessary so to do make order directing
that such person be detained.  1  1956 s.c.r. 644.
sub-section  2  of section 3 vests this power of preventive
detention also in a district magistrate by enacting that a
district magistrate may if satisfied as provided in sub-
clauses  ii  and  iii  of clause  a  of sub-section  1
exercise the power companyferred by the said sub- section. but
when an order of detention is made by a district magistrate
sub-section  3  of section 3 requires that
. . . he shall forthwith report the fact to
the state government to which he is
subordinate together with the grounds on which
the order has been made and such other
particulars as in his opinion have a bearing
on the matter and numbersuch order shall remain
in force for more than twelve days from the
making thereof unless in the meantime it has
been approved by the state government. section 4 5 6 and 7 are number material for the purpose of
the present petition and we need number refer to them. section
8 is important and it may be reproduced as follows

when a person is detained in pursuance of
a detention order the authority making the
order shall as soon as may be but ordinarily
number later than five days and in exceptional
circumstances and for reasons to be recorded
in writing number later than fifteen days from
the date of detention companymunicate to him the
grounds on which the order has been made and
shall afford him the earliest opportunity of
making a representation against the order to
the appropriate government. numberhing in sub-section  1  shall require
the authority to disclose facts which it
considers to be against the public interest to
disclose. section 9 provides for the companystitution of an advisory board
and section 10 lays on obligation on the appropriate
government in every case where an order of detention has
been made to place before the advisory board within thirty
days from the date of detention under the order the
grounds on which the order has been made and the
representation if any made by the person affected by the
order and in case where the order has been made by an
officer also the report by such officer under sub-section
 3  of section 3. the advisory board is required by
section 11 sub-section  1  to submit its report to the
appropriate government within ten weeks from the date of
detention after companysidering the materials placed before it
and after calling for such further information as it may
deem necessary and if in any particular case it companysiders
it essential so to do or if the person companycerned desires
to be heard after hearing him in person. where the
advisory board reports that there is in its opinior no
sufficient cause for the detention of the person companycerned
the apropriate government is obliged under section 12 sub-
section  2  to revoke the order of detention. if on the
other hand the opinion of the advisory board is that there
is sufficient cause for the detention the appropriate
government may under section 12 sub-section  1  companyfirm
the order of detention and companytinue the detention or
7-l346 sup ci/75
revoke the order of detention as it thinks fit on a
consideration of all the facts and circumstances which are
before it. these are the material provisions of the act
which have a bearing on the determination of the question
arising in this petition. number it is clear on a plain reading of the language of sub-
sections  1  and  2  of section 3 that the exercise of the
power of detention is made dependent on the subjective
satisfaction of the detaining authority that with a view
to preventing a person from acting in a prejudicial manner
as set out in sub-clauses  i   ii  and  iii  of clause  a
of sub-section  1  it is necessary to detain such person. the words used in sub-sections  1  and  2  of section 3 are
if satisfied and they clearly import subjective
satisfaction on the part of the detaining authority before
an order of detention can be made. and it is so provided
for a valid reason which becomes apparent if we companysider the
nature of the power of detention and the companyditions on which
it can be exercised. the power of detention is clearly a
preventive measure. it does number partake in any manner of
the nature of punishment. it is taken by way of precaution
to prevent mischief to the companymunity. since every
preventive measure is based on the principle that a person
should be prevented from doing something which if left free
and unfettered it is reasonably probable he would do it
must necessarily proceed in all cases to some extent on
suspicion or anticipation as distinct from proof. patanjali
sastri c.j. pointed out in state of madras v. v. g. row 1
that preventive detention is largely precautionary and
based on suspicion and to these observations may be added
the following words uttered by the learned chief justice in
that case with reference to the observations of lord finlay
in rex v. halliday 2  namely that the companyrt was the least
appropriate tribunal to investigate into circumstances of
suspicion on which such anticipatory action must be largely
based. this being the nature of the proceeding it is
impossible to companyceive how it can possibly be regarded as
capable of objective assessment. the matters which have to
be companysidered by the detaining authority are whether the
person companycerned having regard to his past companyduct judged
in the light of the surrounding circumstances and other
relevant material would be likely to act in a prejudicial
manner as companytemplated in any of sub-clauses  i   ii  and

of clause  1  of sub-section  1  of section 3 and it
so whether it is necessary to detain him with a view to
preventing him from so acting. these are number matters
susceptible of objective determination and they companyld number be
intended to be judged by objective standards. they are
essentially matters which have to be administratively
determined for the purpose of taking administrative action. their determination is therefore deliberately and
advisedly left by the legislature to the subjective
satisfaction of the detaining authority which by reason of
its special position experience and expertise would be
best fitted to decide them. it must in the circumstances be
held that the subjective satisfaction of the detaining
authority as regards these matters companystitutes the
foundation for the exercise of the power of detention and

a.i.r. 1952 s.c. 597.  2 1917 a.c. 260
the companyrt cannumber be invited to companysider the propriety or
sufficiency of the grounds on which the satisfaction of the
detaining authority is based. the companyrt cannumber on a review
of the grounds substitute its own opinion for that of the
authority for what is made companydition precedent to the
exercise of the power of detention is number an objective
determination of the necessity of detention for a specified
purpose but the subjective opinion of the detaining
authority and if a subjective opinion is formed by the
detaining authority as regards the necessity of detention
for a specified purpose the companydition of exercise of the
power of detention would be fulfilled. this would clearly
show that the power of detention is number a quasi-judicial
power. it was however sought to be companytended on behalf of
the petitioner relying on the observation of this companyrt
inbhut nath mata v. the state of west bengal 1  that
the exercise ofthe power of detention implies a
quasi-judicial approach that the power mustbe
regarded as a quasi-judicial power. but we do number think it
would be right to read this observation in the manner
contended on behalf of the petitioner. this observation was
number meant to companyvey that the power of detention is a quasi-
judicial power. the only thing which it intended to
emphasise was that the detaining authority must exercise due
care and caution and act fairly and justly in exercising the
power of detention. but that does number mean that the subjective satisfaction of
the detaining authority is wholly immune from judicial
reviewability. the companyrts have by judicial decisions carved
out an area limited though it be within which the validity
of the subjective satisfaction can yet be subjected to
judicial scrutiny. the basic postulate on which the companyrts
have proceeded is that the subjective satisfaction being a
condition precedent for the exercise of the power companyferred
on the executive the companyrt can always examine whether the
requisite satisfaction is arrived at by the authority if it
is number the companydition precedent to the exercise of the power
would number be fulfilled and the exercise of the power would
be bad. there are several grounds evolved by judicial
decisions for saying that numbersubjective satisfaction is
arrived at by the authority as required under the statute. the simplest case is whether the authority has number applied
its mind at all in such a case the authority companyld number
possibly be satisfied as regards the fact in respect of
which it is required to be satisfied. emperor v. shibnath
bannerji  2  is a case in point. then there may be a case
where the power is exercised dishonestly or for an improper
purpose such a case would also negative the existence of
satisfaction on the part of the authority. the existence of
improper purpose that is a purpose number companytemplated by
the statute has been recognised as an independent ground of
control in several decided cases. the satisfaction
moreover must be a satisfaction of the authority itself
and therefore if in exercising the power the authority
has acted under the dictation of anumberher body as the
commissioner of police did in companymissioner of police v.
gordhandas bhanji 3  and the officer

a.i.r. 1974 s.c. 806.

a.i.r. 1943 f.c. 92.  3  1952 s.c.r. 135.
of the ministry of labour and national service did in simas
motor units limited v. minister of labour and national
service 1  the exercise of the power would be bad and so
also would the exercise of the power be vitiated where the
authority has disabled itself from applying its mind to the
facts of each individual case by self-created rules of
policy or in any other manner. the satisfaction said to
have been arrived at by the authority would also be bad
where it is based on the application of a wrong test or the
misconstruction of a statute. where this happens the
satisfaction of the authority would number be in respect of the
thing in regard to which it is required to be satisfied. then again the satisfaction must be grounded on materials
which are of rationally probative value. alachindar v.
king.  2 the grounds on which the satisfaction is based must
be such as a rational human being can companysider companynected
with the fact in respect of which the satisfaction is to be
reached. they must be relevant to the subject matter of the
inquiry and must number be extraneous to the scope and purpose
of the statute. if the authority has taken into account it
may even be with the best of intention as a relevant
factor something which it companyld number properly take into
account in deciding whether or number to exercise the power or
the manner or extent to which it should be exercised the
exercise of the power would be bad. pratap singh v. state
of punjab  3  . if there are to be found in the statute ex-
pressly or by implication matters which the authority ought
to have regard to then in exercising the power the
authority must have regard to those matters. the authority
must call its attention to the matters which it is bound to
consider. there is also one other ground on which the subjective
satisfaction reached by an authority can successfully be
challenged and it is of late becoming increasingly
important. the genesis of this ground is to be found in the
famous words of lord halsbury in sharp v. wakefield 4
 when it is said that something is to
be done within the discretion of the
authorities-that something is to be done
according to the rules of reason and justice
number according to private opinion-according to
law and number humour. it is to be number
arbitrary vague fanciful but legal and
regular. so far as this ground is companycerned the companyrts in the
united states have gone much further than companyrts in england
or in this companyntry. the united states companyrts are prepared
to review administrative findings which are number supported by
substantial evidence that is by such relevant findings as
a reasonable man may accept adequate to support a
conclusion. but in england and in india the companyrts stop-
short at merely inquiring whether the grounds on which the
authority has reached its subjective satisfaction are such
that any reasonable person companyld possibly arrive at such
satisfaction. if to use the words of lord greene m. r.
in associated provincial picture
 1  1964 all. e.r. 201.

a.i.r. 1950 f.c. 129

a.i.r. 1964 s.c. 72.  4  1891 a.c. 173 at 179.
houses limited v. wednesbury companyporation 1 -words which have
found approval of the house of lords in smith v. east eilor
rural district companyncil 2   and fswcoit properties limited v.
buckingham companynty companyncil 3 -the authority has companye. to a
conclusion on so unreasonable that numberreasonable authority
could ever have companye to it then the companyrts can interfere. in such a case a legitimate inference may fairly be drawn
either that the authority did number honestly form that view
or that in forming it he companyld number have applied his mind to
the relevant facts. ross v. papadopollos.  4   the power
of the companyrt to interfere in such a case is number as an
appellate authority to override a decision taken by the
statutory authority but as a judicial authority. which is
concerned and companycerned only to see. whether the statutory
authority has companytravened the law by acting in excess of the
power which the legislature has companyfided in it. it is on
this ground that the order of preventive detention made by
the district magistrate in debu mahto v. state of west
bengal 5  was struck down by this companyrt. there in that
case one single solitary act of wagon breaking was relied
upon by the district magistrate for reaching the
satisfaction that with a view to preventing the detenu from
acting in any manner prejudicial to the maintenance of
supplies and services to the companymunity it was necessary to
detain him. this companyrt pointed out subject to certain
reservations that it was difficult to see how one solitary
isolated act of wagon breaking companymitted by the petitioner
could possibly persuade any reasonable person to reach the
satisfaction that unless the petitioner was detained he
would in all probability indulge in further acts of wagon
breaking. this companyrt did number go into the adequacy of or
sufficiency of the grounds on which the order of detention
was based but merely examined whether on the grounds given
to the. detenu any reasonable authority companyld possibly companye
to the companyclusion to which the district magistrate did. it
is true that this ground in a sense tends to blur the
dividing line between subjective satisfaction and objective
determination but the dividing line is very much there
howsoever faint or delicate it may be and companyrts have never
failed to recognise it. this discussion is sufficient to show that there is numberhing
like unfettered discretion immune from judicial review-
ability. the truth is that in a government under law there
can be numbersuch thing as unreviewable discretion. law has
reached its finest moments said justice douglas when it
has freed man from the unlimited discretion of some ruler
some official some bureaucrat-absolute discretion is a
ruthless master. it is more destructive of freedom than any
of mans other inventions. united states v. wunderlick.  6
and this is much more so in a case where personal liberty is
involved. that is why the companyrts have devised various
methods of judicial companytrol so that power in the hands of an
individual officer or authority is number misused or abused or
exercised arbitrarily or without any justifiable grounds.  1   1948  1 k. b. 223.  2  1956 a.c. 736.  3  1961 a.c. 636.  4   1958  1 w.l.r. 546.

a.t.r. 1974 s.c. 816.  6  342 u. s. 98.
the next question which then arises for companysideration is
whether section 3 of the act in so far as it empowers the
detaining authority to exercise the power of detention on
the basis of its subjective satisfaction imposes
unreasonable restrictions on the fundamental rights of the
petitioner under clauses  a  to  d  and  g  of article 19
and is therefore ultra vires and void. the view taken by
the majority in a. k. gopalan v. state of madras  1  was
that article 22 is a selfcontained companye and therefore a
law of preventive detention does number have to satisfy- the
requirements of articles 14 19 and 21. this view came to
be companysidered by this companyrt in three subsequent decisions to
all of which one of us  p. jaganmohan reddy j.  was a
party. in rustom cavasjee companyper v. union of india 2  it
was held by a majority of judges only ray j. as he then
was dissenting that though a. law of preventive detention
may pass the test of article 22 it has yet. to satisfy the
requirements of other fundamental rights such as article 19.
the ratio of the majority judgment in r. c. companypers case 2
was explained in clear and categorical terms by shelat j.
speaking on behalf of seven judges in sambhu nath sarkar v.
state of west bengal 3  the learned judge said
in gopalans case  supra  the majority companyrt
had held that article 22 was a self-contained
code and therefore a law of preventive
detention did number have to satisfy- the
requirement of articles 19 14 and 21. the
view of fazl ali j. on the other hand was
that preventive detention was a direct breach
of the right under article 19  a   d  and that
a law providing for preventive detention had
to be subject to such judicial review as is
obtainable under clause  5  of that article. in r. c. companyper v. union of india  supra  the
aforesaid premise of the majority in gapalans
case  supra  was disapproved and therefore it
numberlonger holds the field. though companypers
case  supra  dealt with the interrelationship
of article 19 and article 31 the basic
approach to companystruing the fundamental rights
guaranteed in the different provisions of the
constitution adopted in this case held the
major premise of the majority in gopalans
case  supra  to be incorrect. subsequently in haradhan saha v. state of west bengal
ors.  4  a bench of five judges after referring to the
decisions in a. k. gopalans case  supra  and r. c. companypers
ease  supra and pointing out the companytext in which r. c.
coopers case supra  held that the acquisition of property
directly impinged the right of the bank to carry on
business other than banking guaranteed under article 19
and article 31 2  was number a protection against the
infringement of that guaranteed right proceeded on the
assumption that the act which is for preventive detention
has to be tested in regard to its reasonableness with
reference to article 19. that decision accepted and applied
the
 1  1950 s.c.r. 88.  2  1970 3 s.c.r. 530.  3  1973 1 s.c.c. 856.  4  1975 1 s.c.r. 778
ratio in shambhu nath sarkars case  supra  as well as r. c.
coopers case  supra  to both of which ray c.j. was a
party. this question thus stands companycluded and a final
seal is put on this companytroversy and in view of these
decisions it is number open to any one number to companytend that a
law of preventive detention which falls within article 22
does number have to meet the requirement of article 14 or
article 19. indeed in haradhan sahas case  supra  this
court proceeded to companysider the challenge of article 19 to
the validity of the act and held that the act did number
violate any of the companystitutional guarantees embodied in
article 19 and was valid. since this companyrt negatived the
challenge to the validity of the act on the ground of
infraction of article 19 and upheld it as a valid piece of
legislation in haradhan sahas case  supra  the petitioner
cannumber be permitted to reagitate the same question merely on
the ground that some argument directed against the
constitutional validity of the act under article 19 was number
advanced or companysidered by the companyrt in that case. the
decision in haradhan sahas case  supra  must be regarded as
having finally laid at rest any question as to the
constitutional validity of the act on the ground of
challenge under article 19.
that disposes of grounds  a  and  b  and we must number proceed
to companysider ground  c . number before we companysider ground  c
we must deal with an objection raised by companynsel on behalf
of the state which if well founded would cut short an
inquiry into this ground. companynsel on behalf of the state
submitted that though the district magistrate in his
affidavit in reply admitted that besides the three incidents
referred to-in the grounds of detention other material was
also placed before him he stated on oath that he did number
take such other material into account in making the order of
detention and this statement on oath made by him must be
accepted as companyrect and that should be an end to all
further inquiry by the companyrt. he strenuosly protested
against the companyrt requiring the state to produce the
historysheet of the petitioner companytaining other material
which was before the district magistrate. his argument was
that it was number companypetent to the companyrt to probe further into
the matter for the purpose of examining what was the nature
of the other material before the district magistrate and
whether he was influenced by such other material in making
the order of detention. this claim made by companynsel on
behalf of the state is indeed a hold claim calculated to
shut out judicial instruction merely on the strength of ipse
dixit of the detaining authority. we cannumber companyntenance
such a claim. indeed in daktar mudi v. state of west
bengal 1  a similar claim was made on behalf of the state of
west bengal and it was negatived by this very bench speaking
through one of us  p. jaganmohan reddy j.  in the
following words
it was companytended. by mr. mukerjee on behalf
of the state government that this companyrt ought
number look into the record for satisfying itself
as to whether the district magistrate companyld
have arrived at the companyclusion when he says he
had arrived at that satisfaction only on the
grounds mentioned in the detention order. we
do number think that this

a.i.r. 1974 s.c. 2086.
would be a companyrect approach. where the
liberty of a subject is involved and he has
been detained without trial and a law made
pursuant to art. 22 which provides certain
safeguards. it is the duty of this companyrt as
the custodian and sentinel on the ever
vigilant guard of the freedom of an individual
to scrutinize with due care and anxiety that
this precious right which he has under the
constitution is number in any way taken away
capriciously arbitrarily or without any legal
justification. this companyrt has held that where grounds are
furnished to the detenu those grounds must number
be vague and must be such as to enable him to
make a proper and effective representation
against his detention. this companyrt has further
held that where there are several grounds
even if one ground is vague then it is
difficult to say whether the ground which is
vague and in respect of which the detenu companyld
number make an effective representation did number
influence the mind of the detaining authority
in arriving at his subjective satisfaction
that the detenu would in future be likely to
act in a manner prejudicial to the maintenance
of supplies and services essential to the
community. if the detention order is held
invalid on this account it would be equally
so in a case where there are other materials
on which the detaining authority companyld have
been influenced in arriving at his subjective
satisfaction but which he has number mentioned in
the grounds of detention number companymunicated
them to the detenu. in such circumstances
whether the other materials on record had any
effect on the mind of the detaining authority
cannumber be accepted solely on his statement
because to admit that he alone has such a
right-would be to accept that the mere ipse
dixit of the detaining authority would be
sufficient and cannumber be looked into. there
is a possibility that certain materials on
record would disclose that the activities of
the detenu are of a serious nature having a
nexus with the object of the act namely the
prevention of prejudicial acts affecting the
maintenance of supplies and services
essential. to the companymunity and having
proximity with the time when the subjective
satisfaction forming the basis of the
detention order had been arrived at. if
these elements exist then the companyrt would be
justified in taking the view- that these must
have influenced the subjective satisfaction of
the detaining authority and the omission to
indicate those materials to the detenu would
prejudicestrict magistrate
must have been influenced by it and we should number
therefore accept his assertion at its face value ? number the proposition can hardly be disputed that if there is
before the district magistrate material against the detenu
which is of a highly damaging character and having nexus and
relevancy with the object of detention and proximity with
the time when the subjective satisfaction forming the basis
of the detention order was arrived at it would be
legitimate for the companyrt to infer that such material must
have influenced the district magistrate in arriving at his
subjective satisfaction and in such a case the companyrt would
refuse to accept the bald statement of the district
magistrate that he did number take such material into account
and excluded it from companysideration. it is elementary that
the human mind does number function in companypartments. when it
receives impressions from different- sources it is the
totality. of the impressions which goes into the making of
the decision and it is number possible to analyse and dissect
the impressions and predicate which impressions went into
the making of the decision and which did number. number is it an
easy exercise to erase the impression created by particular
circumstances so as to exclude the influence of such imp-
ression in the decision making process. therefore in a
case where the material before the district magistrate is of
a character which would in all reasonable-probability be
likely to influence the decision of any reasonable human
being the companyrt would be most reluctant to accept the ipse
dixit of the district magistrate that he was number so
influenced and a fortiorari if such material is number
disclosed to the detenu the order of detention would be
vitiated both on the ground that all the basic facts and
materials which influenced the subjective satisfaction of
the district magistrate were number companymunicated to the detenu
as also on the ground that the detenu was denied an
opportunity of making an effective representation against
the order of detention. but in the present case we do number find that there is any
such infirmity vitiating the order of detention against the
petitioner. the material in the history-sheet of the
petitioner which was number disclosed to him referred to two
circumstances. one was that the petitioner had picked up
the habit of companymitting thefts of companyper wires and he
committed thefts of companyper wires and the other was that
there were several thefts of transformers from villages like
betrabad uttar lakshipur sultanganj and nandlalpur. so
far as the first circumstance is companycerned it was merely a
generalisation based on the three incidents referred to in
the grounds of detention and it did number refer to any other
incidents of theft of companyper wires besides the three enume-
rated in the grounds of detention. it did number therefore. companystitute any additional material prejudicial to the
petitioner which companyld be said to have gone into the
formation of the subjective satisfaction of the district
magistrate and the number-disclosure of it to the petitioner
did number have the effect of invalidating the order of
detention. the second circumstance was number directed against
any activity of the petitioner at all. it merely provided
the background of the social malady which must have been
exercising the mind of the authority charged with the
administration of law and order when it said that there were
several thefts of transformers from betrabad uttar
lakshipur sultanganj and nandlalpur villages and it was in
the companytext of this back-round that
the three incidents referred to in the grounds of detention
were companysidered by the district magistrate. what were
alleged against the petitioner were only the three incidents
set out in the grounds of detention. the thefts of
transformers referred to in the second circumstance were number
attributed to the petitioner. they merely provided the
backdrop of the prevailing situation in the area and did number
constitute material prejudicial to the petitioner which
ought to have been disclosed to him. there was therefore
numbermaterial before the district magistrate other than the
three incidents set out in the grounds of detention which
went into the formation of the subjective satisfaction of
the district magistrate and which ought therefore to have
been companymunicated to the petitioner. ground  c  must
accordingly be rejected. that takes us to ground  d  which impugns the order of
approval passed by the state government under section 3
subsection.  3  of the act. this requirement of approval of
the state government imposed by section 3 sub-section  3
is intended to act as a check on the exercise of the power
of detention by the district magistrate under section 3
sub-section  2  of the act. therefore a fortiorari all the
basic facts and materials which weighed with the district
magistrate in reaching his subjective satisfaction must be
placed before the state government so. that the state
government can as a supervisory authority decide whether
the power of detention has been properly or improperly
exercised by the district magistrate. but in addition to
such basic facts and materials which companystitute the
grounds of detention the district magistrate is also
required to send to the state government under section 3
sub-section  3  such other particulars as in his opinion
have a bearing on the matter. obviously these other
particulars would be different from the basic facts and
materials which companystitute the grounds of detention and
would number be material which has gone into the formation of
the subjective satisfaction of the district magistrate. if
these are any materials of such a nature as companyld reasonably
be said to have influenced the district magistrate in
arriving at-his subjective satisfaction they would be part
of the grounds of detention and number other particulars. it
is number possible to categorise precisely what these other
particulars can be but they may include particulars
relating to the background of the circumstances in which the
district magistrate reached his subjective satisfaction
leading to the making of the order of detention or parti-
culars found to be administratively necessary for him to
communicate to the state government so that the state
him in making an effective
representation. if so the detention order on
that account would be illegal. where the liberty of the subject is involved it is the
bounden duty of the companyrt to satisfy itself that all the
safeguards provided by the law have been scrupulously
observed and the subject is number deprived of his personal
liberty otherwise than in accordance with law. section
8 1  of the act which merely re-enacts the companystitutional
requirements of article 22 5  insists that all basic facts
and particulars which influenced the detaining authority in
arriving at the requisite satisfaction leading to the making
of the order of detention must be companymunicated to the
detenu so that the detenu may have an opportunity of making
an effective representation against the order of detention. it is therefore  number only the right of the companyrt but also
its duty as well to examine what are the basic facts and
materials which actually and in fact weighed with the
detaining authority in reaching the requisite satisfaction. the judicial scrutiny cannumber be foreclosed by a mere
statement of the detaining authority that it has taken into
account only certain basic facts and materials and though
other basic facts and materials were before it it has number
allowed them to influence its satisfaction. the companyrt is
entitled to examine the companyrectness of this statement and
determine for itself whether there were any other basic
facts or materials apart from those admitted by it which
could have reasonably influenced the decision of the
detaining authority and for that purpose the companyrt can
certainly require the detaining authority to produce and
make available to the companyrt the entire record of the case
which was before it. that is the least the companyrt can do to
ensure observance of the requirements of law by the
detaining authority. number here it was companymon ground that the history-sheet of
the petitioner was placed by the police authorities before
the district magistrate and it was read by him. the
history-sheet recited the following facts and particulars
this does number help him in maintaining the
family and as such he became associated with
the criminals viz. kanani mondal of
krishnapur kuren mondel of krishnapur. he
picked up the habit of companymitting theft of
copper wire and as such he mixed up with
mohini ranjan das nillan of uttar lakhipur
p.- s. koliachak and companymitted theft of companyper
wires and there were several theft of trans-
formers from villages like betrabad uttar
lakhipur suitanganj nandalalpur all under
kuliachak p.s
and then proceeded to narrate the three incidents set out in
the rounds of detention as some of his misdeeds. the
material which was before the district magistrate thus
consisted of the facts and particulars extracted above from
the history-sheet in addition to the three incidents set out
in the grounds of detention. this material was number
disclosed to the petitioner as according to the statement
of the district magistrate in his affidavit-in-reply he had
number taken it into account in reaching his subjective
satisfaction. the question is whether this statement made
by the district magistrate in his affidavit in-reply should
be accepted as companyrect. is there anything in this material
which should persuade us to say that the district magistrate
must have been influenced by it and we should number
therefore accept his assertion at its face value ? number the proposition can hardly be disputed that if there is
before the district magistrate material against the detenu
which is of a highly damaging character and having nexus and
relevancy with the object of detention and proximity with
the time when the subjective satisfaction forming the basis
of the detention order was arrived at it would be
legitimate for the companyrt to infer that such material must
have influenced the district magistrate in arriving at his
subjective satisfaction and in such a case the companyrt would
refuse to accept the bald statement of the district
magistrate that he did number take such material into account
and excluded it from companysideration. it is elementary that
the human mind does number function in companypartments. when it
receives impressions from different- sources it is the
totality. of the impressions which goes into the making of
the decision and it is number possible to analyse and dissect
the impressions and predicate which impressions went into
the making of the decision and which did number. number is it an
easy exercise to erase the impression created by particular
circumstances so as to exclude the influence of such imp-
ression in the decision making process. therefore in a
case where the material before the district magistrate is of
a character which would in all reasonable-probability be
likely to influence the decision of any reasonable human
being the companyrt would be most reluctant to accept the ipse
dixit of the district magistrate that he was number so
influenced and a fortiorari if such material is number
disclosed to the detenu the order of detention would be
vitiated both on the ground that all the basic facts and
materials which influenced the subjective satisfaction of
the district magistrate were number companymunicated to the detenu
as also on the ground that the detenu was denied an
opportunity of making an effective representation against
the order of detention. but in the present case we do number find that there is any
such infirmity vitiating the order of detention against the
petitioner. the material in the history-sheet of the
petitioner which was number disclosed to him referred to two
circumstances. one was that the petitioner had picked up
the habit of companymitting thefts of companyper wires and he
committed thefts of companyper wires and the other was that
there were several thefts of transformers from villages like
betrabad uttar lakshipur sultanganj and nandlalpur. so
far as the first circumstance is companycerned it was merely a
generalisation based on the three incidents referred to in
the grounds of detention and it did number refer to any other
incidents of theft of companyper wires besides the three enume-
rated in the grounds of detention. it did number therefore. companystitute any additional material prejudicial to the
petitioner which companyld be said to have gone into the
formation of the subjective satisfaction of the district
magistrate and the number-disclosure of it to the petitioner
did number have the effect of invalidating the order of
detention. the second circumstance was number directed against
any activity of the petitioner at all. it merely provided
the background of the social malady which must have been
exercising the mind of the authority charged with the
administration of law and order when it said that there were
several thefts of transformers from betrabad uttar
lakshipur sultanganj and nandlalpur villages and it was in
the companytext of this back-round that
the three incidents referred to in the grounds of detention
were companysidered by the district magistrate. what were
alleged against the petitioner were only the three incidents
set out in the grounds of detention. the thefts of
transformers referred to in the second circumstance were number
attributed to the petitioner. they merely provided the
backdrop of the prevailing situation in the area and did number
constitute material prejudicial to the petitioner which
ought to have been disclosed to him. there was therefore
numbermaterial before the district magistrate other than the
three incidents set out in the grounds of detention which
went into the formation of the subjective satisfaction of
the district magistrate and which ought therefore to have
been companymunicated to the petitioner. ground  c  must
accordingly be rejected. that takes us to ground  d  which impugns the order of
approval passed by the state government under section 3
subsection.  3  of the act. this requirement of approval of
the state government imposed by section 3 sub-section  3
is intended to act as a check on the exercise of the power
of detention by the district magistrate under section 3
sub-section  2  of the act. therefore a fortiorari all the
basic facts and materials which weighed with the district
magistrate in reaching his subjective satisfaction must be
placed before the state government so. that the state
government can as a supervisory authority decide whether
the power of detention has been properly or improperly
exercised by the district magistrate. but in addition to
such basic facts and materials which companystitute the
grounds of detention the district magistrate is also
required to send to the state government under section 3
sub-section  3  such other particulars as in his opinion
have a bearing on the matter. obviously these other
particulars would be different from the basic facts and
materials which companystitute the grounds of detention and
would number be material which has gone into the formation of
the subjective satisfaction of the district magistrate. if
these are any materials of such a nature as companyld reasonably
be said to have influenced the district magistrate in
arriving at-his subjective satisfaction they would be part
of the grounds of detention and number other particulars. it
is number possible to categorise precisely what these other
particulars can be but they may include particulars
relating to the background of the circumstances in which the
district magistrate reached his subjective satisfaction
leading to the making of the order of detention or parti-
culars found to be administratively necessary for him to
communicate to the state government so that the state
government may be able to effectively discharge its function
as an overseeing superior authority while determining
whether or number to grant approval to the order of detention
made by the district magistrate. there is numberhing in
article 22 5  of the companystitution or in any provision of the
act which requires that these other particulars should be
communicated to the detenu. the only requirement of
communication is in regard to the basic facts and materials
which companystitute the grounds of detention and if there are
other particulars besides the grounds of detention which
are companymunicated to the state government they need number be
disclosed to the detenu. we cannumber import any requirement
of dis-
closure in regard to these other particulars merely on the
basis of a supposed intention of the legislature when there
is numberhing in the state which evinces any such intention. the petitioner however relied very strongly on the
following observations of this companyrt in hardhan sahas case
 supra
the preventive detention act 1950 was
considered by this companyrt and it is an
established rule of this companyrt that a detenu
has a right to be apprised of all the
materials on which an order of detention is
passed or approved. and companytended that the detenu was therefore entitled to a
disclosure number only of the grounds of detention but also of
other particulars companymunicated by the district magistrate
to the state government under section 3 sub-section  3 . we do number think the observations relied upon by the
petitioner support his companytention. there can be numberdoubt
that when the companyrt made these observations what it had in
mind was the materials which companystituted the grounds of
detention and number other particulars for the making of the
order of detention would be based on the former and number on
the latter and so also its approval by the state government. what the companyrt meant to say in making these observations was
that all the materials on which the order of detention is
made or approved that is the materials companystituting the
grounds of detention must be companymunicated to the detenu and
number that other particulars companymunicated to the state
government under section 3 sub-section  3  which do number
form the basis of the making of the order of detention or
its approval should be disclosed to the detenu. the companyrt
could number have intended to say that in addition to the
grounds of detention other particulars mentioned in sec-
tion 3 sub-section  3  should also be companymunicated to the
detenu when there is numberrequirement to that effect either in
article 22 5  of the companystitution or in any provision of the
act. we may point out that in fact numbersuch question arose
for decision in that case and the companyrt was number called upon
to decide whether other particulars companymunicated to the
state govemment under section 3 sub-section  3  are
required to be disclosed to the detenu. the companyrt merely
reiterated the well-settled proposition that the materials
constituting the grounds of detention on which the order of
detention is made by the district magistrate and approved by
the state government must be companymunicated to the detenu. the observations made by the companyrt did number go further than
this and cannumber be read in the manner companytended on behalf of
the petitioner. number in the present case as already pointed out above the
material from the history-sbeet which was number disclosed to
the petitioner did number form part of the grounds of
detention on which the order of
detention was made by the district magistrate and approved
by the state government but merely companystituted other
particulars companymunicated by the district magistrate to the
state government under section 3 sub-section  3 .