Holding

A preventive detention order is invalid if the detaining authority is unaware that the person is already in custody, and an affidavit filed by a Sub‑Inspector cannot substitute for the detaining authority’s own justification.

Summary

The Supreme Court examined two writ petitions under Article 32 filed by Merugu Satyanarayana and Bandela Ramulu, who were already in judicial custody when the District Magistrate of Adilabad issued preventive detention orders under the National Security Act, 1980. The petitioners argued that a person already detained cannot be further detained for preventive purposes and that the affidavit in opposition filed by a Sub‑Inspector of Police, rather than the detaining authority, was invalid. The Court held that a preventive detention order must be based on the detaining authority’s subjective satisfaction that the person, despite being in custody, still poses a threat, and that this awareness must be reflected in the order or supporting affidavit. Since the orders were passed without such awareness and the affidavit was filed by a Sub‑Inspector, the Court found a lack of application of mind and invalidated the orders. Consequently, both detention orders were quashed and set aside.

Issues considered

Can a preventive detention order under the National Security Act be validly made against a person already in judicial custody?
Is an affidavit in opposition filed by a Sub‑Inspector of Police sufficient to satisfy the requirement of recording the detaining authority’s subjective satisfaction?
Does the failure to disclose the detainee’s existing custody amount to non‑application of mind rendering the order invalid?

Legislation cited

Code of Criminal Procedure, 1973s. 211
National Security Act, 1980s. 3(2), s. 3(3)

Subjects

preventive detentionNational Security Acthabeas corpusjudicial custodyaffidavitdetaining authorityapplication of mindpolitical opposition

Judgment

635 A
•
MERUGU SATYANARAYANA ETC. ETC.
v.
STATE OF ANDHRA PRADESH AND OTHERS 8
Octo.ber 18, 1982

[D.A. DESAI AND R.B. MISRA, JJ,]

National Security Act, /~BO-Section 3(2), scope of-Pas1ing a detention
order under the Act, against persons who are under judicial custody and thereby c
lost their liberty, is bad in law-Writ of Habeas Corpus-The affidavit in opposition
supporting the reply 10 show cause should be from the person who passed the
detention order-The affidavit ·of a sub·inspector of police at whose instance the
arrest was made cannot satisfy the conititutlon'al mandate· and· will be treated 01
non-est-Detention in violation of-Assurance before the Supreme Court in tin earlier
case, that the preventive detention would not be taken against political opponents,
whether would amount to flagrant violation thereof.
D
In both the Writ Petitions, when tlie petitioners were already in judicial
custody and·. thus have been deprivCd of their liberty, the District Magistrate
Adilab•ad passed the detentio~ orders in exercise of the power conferred under
Section 3(2) read with Section 3(3) of the National Security Act, 1980. The
detenu in each of these petitions filed a petition for writ of habeas corpus in the
Andbia Pradesh High Court and both the petitions were rejected. E
In the present petitions, it was contended as follows :

(i) that in both the cases, the detenus being in judicial custody were
already prevented from pursuing any activity which may prove pre·
judicial to th~ maintenance of public order and, therefore, no order
of detention could be passed against each of them ; F
(ii) that the affidavit-in-opposition was filed by a sub-inspector of police
\
and not by the detaining authority, i.e. the District Magistrate had
completely abdiCated his powers ; and

(iii) that in flagrant violation of the assurances given at the hearing of G
A.K. Roy's case, that the drastic and draconian power of preventive
detention will not be exercised against political opponents, the
affidavit in opposition would show that the power of preventive
detention was exerc!sed against political opponents because the detenu
) in each case was a member 'and organizer of C.P.I. (M.L.) (Peoples
War Group), a political party operating in this country. H
Allowing the petitions, .the Court
636 SUPREME COURT REPORTS (1983J I s.c.R.

A HELD : 1:I. A preventive action postulates that if preventive step Js
not faken the person sought to be prevented may indulge into an activity pre-
judicial to the maintenance of public order. In other ·words, unless the activity
is interdicted by a preventive detention order the activity which is being indulged
into is likely to be repeated. That this is the postulate, indisputably transpires
from the language einployed in Sub~section (2) of Section 3, which says that the
detention order can be made with a view to preventing tho person sought to be
·B detained from acting in any manner prejudiciai to the maintenance of public
order. If it is shown that the man sought to be prevented by a preventive order
is already effectively prevented, the power under sub-section (2) of Section 3, if
exercised, would imply that one who is already preven1ed is sought to be further
prevented which is not the mandate of the section, and would appear tauto..
logous. [640 F-H, 641-A] '
c 1:2. The detaining authority 'before exerc1s1ng the power of preventive
detention would take into consideration the past conduct or antecedent history
of the person and as a matter of faCt it is largCJy from the prior events showing
the tendencies of a man that an inference could be dr8.wn whether he is likely
even in th~ future to act iii a manner prejudicial to the maintenance of public
order. If the subjective satisfaction of the df:taioing authority. leads to this
D conclusion it can put an end to the activity· by making a preventive detention
order., If the man is already detained a detaining authority cannot be said to have
subjectively satisfi::d himself that a preventive detention order can be made.
• [641 A-CJ

Ujagar Singh v. State of Punjab, Jagir Singh v. State of Punjab "[1952]
S.C.R. 756 and Rameshwar Shaw v. District Magistrate, Burdwan and Anr. [1964]4
E $.C.R. 921.referred to.

l :3. The subjective satisfaction of the detaining authority must
coinprchend the very fact tha(tbe person 'iOught to be detained in jail is under
detention and yet a preventive detention order is a compelling necessity. If the
subjective satisfaction is reached without the aW.fireness .of this ·very relevant
F fact the detention order is likely to be vitiated. But, it will depend on the facts
and circumstances ·Of each case. (642 D·FJ

Vijay Kumar v. State of J & Kand Ors. A.J.R. 1982 S.C. 1023, applied. ,-

G 2: t. Tbe awareness of the detaining authority must be of the fact that
the person against whom the detention order is being made iS already under
detention. Tbis would show that such a person is not a free person to indulge
a
into prejudicial activity which is required to be prevented by detention order.
And this awareness mUst find its place either in the detention order or in the
affidavit justifying the detention order when challenged. The absence of this ••
H awareness would permit an inference that the detaining authority was not even
aware of this vital fact and mechanically proceeded to pass the order which would
•
MERUGU V, ANDHRA PRADESH 637

unmistakably indicate that there was nori-application of mind to the most relCvant A
fact and any order of such serious consequences resulting in deprivation of liberty.
if mechanically passed without the application of minO is liable to be set aside as
invalid. [ 643 D-G] '

3:1. A sub-iospe•;tor of poliCe cannot arrogate to himself the knowledge
·about the subjective satisfaction of the District Magistrate on whom thC power of B
detention is conferred by the National Security Act. If the power of preventive
detention is to be conferred on an officer of the level and standing of a sub-
inspeCtor of po1ice, we would not be far from a police state. [644 E-F]

> 3: 2. Parliament has conferred p~wer primarily o.n the Central Govern-
ment and in. speCi~c cases,, if the conditions set out in sub-section (3) of sectiC1n 3 •
of the Act are satisfied and the Notification is issued by. the State Government to
that effect, this extra-ordinary powef of directing preventive detention can be
c
exercised by such highly placed officers as DiStfict Magistrate or CommissiOnef of
Police. [644 F·G]

3:3. In this case, (a) the District Magistrate, the detaining authority
bas not chosen to file bis affidavit, (b) the affidavit in opposition' filed by the sub-
inspector would imply either he had aCcess to the file of the· District Magistrate or D
be had influenced the decision of the Magistrate for making the detention order ·
\ &!id in any case the District Magistrate completely abdicated his functions in
favour of the sub-inspector of ·Police because (i) the su b-inspCctor does not say
in the affidavit how he ·came to know about the subjective satisfaction of tho
District Magistrate or that he had access to the file, <t:Dd (ii) the file was not
made available to the Court. If the District Magistrate is to act in the manner
be has done in this case by completely. ·abdicating bis fuiictions in favour of an E
officer of the level of a sub-inspector of Police, the safe-guards noticed by the
Supreme Court are likely to prove wholly illusory and the fun<lamerital right of
personal liberty· will be exposed to serious jeopardy. Hence the affidaVit in
opposition caOnot be t:iken notice of, hef6 f644 Q ..H, 646 A-C]

A.K. Roy v. Union of Indio & O~s. (1982] 1 SCC 271,referred to. F
~-, 4. The affidavit-in-opposition filed in the present case wou1d show that
"'-ihe power conferred for ordering preventive detention v.:as exercised on extra-
~ l neons and irrelevant consideration in respect of each detenu he being a member
of and organiser of C.P-I. (M.L.) (People War Group). a political party operating
in this country which fact motivated the order and, thefefore, a flagrant violation
of the assuraflces given on the floor of Parliament and while hearing the case of~· G
A.K. Roy wherCin the constitutional validity of. the Act was challenged that the
drastic and draconian power o.f preventive deteiltion·will not be exefcised against
political Opponents. But it is unnecessary to examine this aspect on merits, in
view of the fact that the detention orders have been found to be invalid for more
,) than one re~son. Non-examination of the contention need not Jead to the
inference ibat the contention is rejected .but kept open to be examined in an H
appropriate case. (646 D·E, 647 A-Bl
638 SUPREME COURT REPORTS [1983) J S.C.R.

A ORIGINAL JURISDICTION: Writ Petition (Criminal) No. 1166 of
1982.
(Under article 32 Qf the Constitution of India) ....
AND
Writ Petition (Criminal) No. 1167 of 1982
B
(Under article 32 of the Constitution of India)

Gobinda Mukhoty, N.R. Choudhury and S.K. Bhattacharya for
the Petitioners .
•
c P. Ram Reddy and G.N. Rao for the Respondent.

The Judgment of the Court was delivered by

DESAI, J. On October 8, 1982, we quashed and set aside the
detention order dated December 26, 1981 in respect of detenu·
D Merugu Satyanatayana s/o · Ramcbander, deferring the giving of the
reasons to a later date.

On the same day we quashed the detention order dated
February 13, 1982, in respect of detenu Bandela Ramulu@ Lehidas
@ Peddi Rajulu @ Ramesh, s/o Venkati, deferring the giving of the
E reasons to a later date. .

Identical contentfons were raised in both these petitions and,
therefore, by this common order we - proceed to give our reasons on
the basis of which we made the aforementioned orders.
0

F WP. 1166/82 . •
. Detenu M. Satyanarayana was working in Belampalli Coal < .

Mines. According to him he was arrested ~n October 22, 1981, but
was kept in unlawful custody till October 31, 1981, when he was ••
produced before the Judicial Magistrate who took him in judicial
G custody and sent him to Central Jail, Warangal. According to the
• respondents detenu was arrested on October 30, 1981, and was
produced before the Judicial Magistrate on October 31, 1981. When
he was thus confined in jail a detention - order dated December 26,
1981 (in the counter-affidavit the date o[ the detention order is shown
H to be December 28, 1981) made by the District Magistrate,
Adilabad, in exercise of the power conferred by sub-s. (2) read with
sub-s. (3) of s. 3 of the National Security Act, 1980 ('Act' for short)
MERUGU v. ANDHRA PRADESH (Desai, J.) 639

was served upon him on December .29, 1981. T]le District Magistrate A
also served upon the detenu grounds of detention on January 2, 1982.
It is not clear ftom the r~cord or from the counter affidavit filed on
behalf of respondents 1 to 3 whether any representation was made by
the detenu and when the· matter was disposed of by the Advisory
Board. ·
B
_,, WP. 1167/82.

Detenu Bandela kamulu according to him. was ·arrested on
January 1, 1982, and he was produced before the Judicial Magistrate
...~ .on January 11, 1982. The dates herein .mentioned are controverted
by the respondents and they assert in the counter affidavit that the
c
detenu was arrested on January 8, 1982, and was produce\i before the'
/ . Judicial Magistrate on January 9, 1982. During the period of 11is
incarceration cthe District Magistrate, Adilabad in e~ercise of the /
power conferred by sub-s. (2) read with sub-s. (3) of s. 3 of the Act
made an ·order of detention which w·as served on the detenu ill
D
District Jail, Nizamabad, on February 14, 1982. Even in this case
it is not clear from the record whether the detenu made any represen-
tation or how his case was dealt with by the Advisory Board.

The detenu in each of these petitions filed a petition for writ of
habeas corpus in the Andhra Pradesh High Court. ·It appears both
the petitions were rejected. Thereafter the present petitions were
E
filed.

It may be·stated at the outset that there is some dispute about •
the d~te of arrest of detenu in each case. But in 'order to focus
attention on the substantial contention canvassed in each case we
would proceed on the assumption that the date of arrest given in each F
case by the respondents is correct. We do not mean tc:> suggest that
tbe·averment of the respondents with regard to the date of arrest is
correct but that would be merely a presumption for the purpose of
disposal of these petitions. •

Mr. Gobinda Mukhoty, learned. counsel who appeared for.the G
deteim in each petition urged that on the date on which the detention
order came to be made against each detenu he was already deprived
of his liberty as be was already arrested a.nd was confined in jail and,
therefore, he was already prevented from pursuing any activity which H
may prove prejudicial to the maintenance of public order. Hence no
9rder 0f detenti9n could be made against him,
640 SUPREME COURT REPOltTS [1983 I I s.c.a.

A The impugned detention order in each case redtes that the
detaining authority, the District · Magistrate of Adilahad, made the
impugned detention order with a view to preventing the detenu from ..
continuing to act further in the manner prejudicial to ·the maintenance
of public order ..

B The fact situation in each case as transpires from the counter-·
affidavit filed on behalf of the respondents 'is that detenu Merugu
Satyanarayan was in jail since October 31, 1981, and the detention
order in his case was made on December 28, 1981, meaning thereby
that the detenu was already confined in jail for a period of nearly
two months prior to the date of the detention order. Similarly, in the
G case of detenu Bandela Ramulu according to the· counter-affidavit he •
was arrested on January 8, 1982, and was confined to jail under the
orders of the First Class Magistrate from January 9, 1982. The
, detention order in his case was made on February '13, 1982, meaning
thereby that the detenu was alr.eady confined to jail for a p~riod of
one month and four days prior to the date of the detention order.
D It is in the background of this fact situation in each case that the
contention canvassed on behalf of the detenu by Mr. Mukhoty may I
be examined. •

Sub-section (2) of s. 3 of the Act confers power on the Central
Government or the State Government to make an order of detention "
E with a view to preventing any person fro"! acting •in any manner
prejudicial to the security of the State or from acting in any manner
f
prejudicial to the maintenance of public order, etc. Jn this case the
, detaining authority has made th~ order on being s11tisfied that it is
necessary to detain the detenu with a view to preventing him from
acting in any manner prejudicial to the maintenance of public order.
F A preventive action postulates that if preventive step is not taken the
person sought to be prevented may indulge into an activity pre-
judicial•to the maintenance of public order. In other words, unless
the activity is interdicted by a preventive detention order 'the activity . " .
' which is being indulged into is likely to be repeated. This is !lie
postulate of the section. And this indubitably transpires from the
G
language employed in sub-s. (2) which say.s that the detention order
can be made with a view to preventing the person sought to be
detained from acting in any manner prejudicial to the maintenance of
public order. Now, if it is shown that the man sought to be prevent-
H ed by a preventive order is already effectively prevented, the power
under sub-s. (2) of s. 3, if exercised, would imply that one who is
already is sought to be further prevented which is not the mandate
- MEl\UGU v. ANDHRA PRADESH ·(Desai, J.) 641_
of the section, and would appear tautologous. An order for preven- A
tive detention is made on the subjective satisf~ction cf the detaining
authority. The detaining authority before exercising the power of
preventive detention would take into consideration the past conduct
or antecedent history of the person and as a mauer of fact it is
largely from the prior events showing the tendencies or inclinations
of a man that an inference could be drawn whether he is likely even
in the future to act in a manner prejudicial to the maintenance of
public order. If the subjective satisfaction ofthe detaining authority
leads to this conclusion it can put an end to the activity by making a
preventive detention order. (see Ujagar Singh v. Stale of Punjab, and
) Jagir Singh v. State of Punjab)('). Now, if the man is already detained,
can a detaining authority be said to have been subjectively satisfied c
that a preventive detention order be made ? In Rameshwar Shaw v.
District Magistrate, Burdwan & Anr.( 2 ), this Court held that as an
abstract proposition of \he ·law detention order can be made in
respect of a person who is already detained. But having said this,
the Court proceeded .to observe as under :
D
"As an abstract proposition of law, there may not be
any doubt thats. 3(l)(a) does not preclude the authority
from passing an order of detention against a. person whilst
he is in detention or in jail, but the relevant facts in connec-
tion with the making of the order may differ and that may
• make a difference in the application of the principle that a E
detention order can be passed against a person in jail. Take
for instance, a case where a person has been sentenced to
) rigor0us imprisonment for ten years. It cannot be seriously
suggested that soon after the sentence of imprisoninent is
pronounced on the person, the detaining authority can
make an order directing the detention of th_e said person F
after he is released from jail at the end of the period of the
sentence imposed on him. In dealing with this question,
again the consideration of proximity of time will noi be
irrelevant. On the other hand, if a person who is undergoing
imprisonment, for ·a very short period, say for a month· G
or two or so, and it is known that be would soon be releas- .
ed from jail,' it may be possible for the authority to consider
the antecedent history of the said person and decide whether
· after-he is released from jail, and if the authority is bona
fide satisfied that such detention is necessary, he can make a
;) H
(I! [ t 952) SCR 756.
(2) (1964) 4 SCR 921.
642 SUPRBMB COURT RBPORTS (1983] I S.C.R.

valid order of detention a few days before the person is
likely to be released. The antecedent history and the past
conduct on which the order of detention would be based
would, in.such a case, be pro•imatc in point of time and
would have a rational connection with the conclusion drawn
by the anthority that the detention of the person after his
B release is necessary. It may not be easy to discover such
rational connection between the antecedent history of the
person who bas been sentenced to ten years' rigorous
imprisonment and the view that his detention sbonld be
ordered after he is released after running the whole of his
'
c sentence. Therefore, we are satisfied that the question as to
whether an order of detention can be passed against a
..
person who is in det~ntion or in jail, will always have to be
determined.in the circumstances of el\Ch case."

One can envisage a hypothetical case where a preve:itive order
may have to be made against a person already confined to jail or
D detained. But in such a situation as held by this Court it must be
present to the mind of the detaining authority that keeping in view
the fact that the person is already detained a preventive detention
order is still necessary. The subjective satisfaction of the detaining
authority must compreh~nd the very fact that the person sought to
be detained is already in jail or under detention an.d yet a preventive
E
detention order.is a compelling necessity. If the s~bjective satisfaction
is. -reached without the awareness of this very relevant fact the (
deiention order is likely to be vitiated. But as stated by this Court it
will depend on the facts and circumstances of each case.

11 The view h_erein taken finds further support from the deoision
of this Court in Vij"y ·Kumar v. State of J & Kand Ors.('), wherein . ,_./".
this Court recently held as under :

"Preventive detention is resorted to, to thwart future
' .
action. If the dete11u is already in jail charged with a serious
G offence, he is thereby prevented from acting in a manner
'prejudicial to the security of the State. Maybe'. in a gi;en
case there yet may be the need to order preventive detentIOI)
of a person already in jail. But in such a situation the
detaining authority must disclose awareness of the fact that
H
(I) ,AIR 1982 SC 1023.
MERUGU v. ANDHRA PRADESH (De.sai, J) 643

the person against whom an order of ·preventive detention A
is being made is to the knowledge of the authori.ty already
in jail and yet for compelling reasons a preventive detention
order needs to be made. There is· nothing to indicate the
·awareness of the detaining authority that detenu was
already in jail and yet the impugned 'order is required to be
made. This, in our opinion, clearly exhibits non-application 8
of mind and would result in invalidation of the order."

Mr. Mukhoty next contended that even if a hypothetical case
can be envisaged as contemplated by the decision of this Court in
Rameshwar Shaw that a preventive detention. order becomes
c
~- necessitous in respect of a person already confined to jail, the detain-, ·
ing authority must show its awareness of the fact thanhe person in
/ respect of whom detention order is being made is already i.n jail and
yet a detention order is a compelling necessity. It was urged that
this awareness must appear on the face of the record· as being 8et out
in the detention order or at least in the affidavit in opposition filed D
in. a proceeding challenging the detention order. Otherwise,
according to Mr. Mukhoty, the detention order would suffer from
the vice of non-application of mind. '(he awareness must be of the
fact that the person against whom the detention order is being ._made
is already under detention or in jail in respect of some offence or for
some reason. This would show that such· a person is not a free E
person to i>1dulge into a prejudicial activity which is required to be
prevented by deteniion order. And this awareness inust find its place .
either in the detention order or in tbe affidavit justifying the detention
order when challenged. The absence of this awareness would permit
an inference that the detaining authority was not even aware of this
vital fact and mechanically proceeded to· pass the order which would F
u~mistakably indicate thai there was non-application of mind to the
........ most relevant fact and any order of such serious consequence r.esult-
. . . . . . ing in deprivation of liberty, if mechanically passed without applica-
. lion of mind, is obviously liable to be set aside as invalid. And that
is the case here.
G
Coming t0 the facts of each case, the detention order refers to
.the name of the detenu and the place.of his residence. There is not
even a remote indication that the person against whom the detention
order is being made is already in jail in one case for a period of
roughly two months and in another case for a period of one month
e:
!'nd four da~s. Tte detenµ is .r~ferred to as on~ wh9 is staying at a.
644 SUPREME COURT REPORTS [198311 s.c.R.

A certain place and appears to be a free person. Assuming that this
inference from the mere description of the detenu in the detention
order is impermissible, the affidavit is conspicuously silent on this
a
point. , Not word is said that the detaining authority was aware of
th'e fact that the deteou was already in jail and yet it became a
compelling necessiiy to pass the detention order. Therefore, the
B subjective satisfaction arrived at clearly discloses a non-application
of mind to the relevant facts and the order is vitiated.
'
The next contention urged. by Mr. Mukhoty was that the
detaining authority has not filed an affidavit in opposition but the
same has been filed by one Sub-Inspector of Police and it speaks about
c the subjective satisfaction of the detaining authority viz., the District
Magistrate and this would show that the District Magistrate had
completely abdicated his functions in favour of the Sub-Inspector of
Police. The affidavit in opposition on behalf of respondents I to 3
who are the State of Andbra Pradesh, the District Magistrate,
Adilabad and the Jailor, Central Prison, Hyderabad, has been filed
D by M. Venkatanarasayya who has described himself as Sub-Inspector
of Police. The same Sub-Inspector has filed affidavit-in-opposition
in both the cases. In para I of the affidavit in opposition it is 'stated
that the deponent as a Sub-Inspector of police is well acquainted
with all the facts of the case. In para 7 of the affidavit in opposition
in ·writ petition 1166/82 he has stated that : 'Only after deriving the
E subjective satisfaction, the detaining .authority passed order of
detention against the detenu, as bis being at large, will prejudice the
maintenance of public order. We· are completely at a loss to under-
stand how a Sub Inspector of Police can arrogate to. himself the
knowledge about the subjective satisfaction of the District Magistrate
on whom the power is conferred by the Act. If the power of
F
preventive detention is to be conferred on an officer of the level and
standing of a Su"· Inspector of Police, we would not be far from a ~
Police State. Parliament has conferred power primarily on th~
Central Government and the State Government and in some specific'\-
cases, if the conditions set out in sub s. (3) of s. 3 are satisfied and
G the notification is issued by the State Government to that effect, this
extra-ordinary power of directing preventive detentko can be
exercised by such highly placed officers as District Magistrate or
Commissioner of Police. Io this case the District Magistrate, the
detaining authority has not chosen to file his affidavit. The affidavit
I' in opposition is filed by a Sub-Inspector of Police. Would this imply •
that Sub-Inspector of Police had aecess to the file of the District
Magistrate or was the Sub-Inspector the person who influenced the
MBRUGU v. ANDHRA PRADEsR(Desai, J.) 645

decision of the District Magistrate for making the detention order ?
A
From the very fact that !Jie respondents sought to sustain the order
by filing an affidavit of Sub-Jaspector of Police, we have serious
apprehension as to whether the District Magistrate completely
abdicated his ftinctions in favour of the ·Sub-Inspector of Police.
The file was not made available to the Court at the time of hearing 8
of the petitions. But number of itiferences are permissible from the
fact that the District Magistrate though a party did not file his
-· affidavit justifying the order and left it to the Sub-Inspector of police
to fill in the bill. And the Sub-Inspector of Police does not say bow
he came to know about the subjective satisfaction of the District
Magistrate. He does not say th"at be had access to the file or be is
making the affidavit on the basis of the re9ord maintained by the
c
District Magistrate. Therefore, the inference iS irresistible that at
the behest of the Sub-Inspector of Police who appears to be the
investigating officer in some criminal case in which each of the detenu
is implicated, the District Magistrate completely abdicating his
responsibilities, made the detention order. This Court in A.K. Roy D
v. Union of India & Ors.('), while upholding the validity of the
National Security Act, repelled the contention that it is wholly un-
reasonable to confer upon the District Magistrate or Commissioner
of Police the power. to issue orders of detention for reasons
mentioned in sub-s. (2) of s. 3, observing that the District Magistrate
or the Commissioner of Police can _take the action under sub s. (2) E
of s. 3 during the periods specified in the order of the State Govern-
ment only. This Court also noticed another safeguard, namely, th~t
the order of the State Government under sub-s. (3) of s. 3 can
remain in force for a period of three months only and it is during
, this period that the District Magistrate or the Commissioner of
Police, as the case may be, can exercise power under sub-s. (2) of F
-· s. 3. The further safeguard noti9ed by this Court is that both these
officers have to forthwith intimate the fact of detention to the State
Government and no such order of detention can remain in force
for more than 12 days after the making thoreof unless,' in the
meantime it bas been approved by the State Government. The
Court ob;erved that in view of these inbuilt safeguards it can not be · G
·said that excessive or unreasonable power is conferred upon the
District Magistrate or the Commsisioner of Police to pass orders
under sub-s. (2) (see para 72).
ff
ui. [19s21 sec 211.
646 SUPREME COURT REPORTS [1983] I s.C.R.

A If the District Magistrate is to act in the . manner he has done
in this case by completely abdicating his f~nctions in favour of an
officer of the level of a Sub:Inspector of Police, the safeguards
notice.d by this Court are likely to prove wholly iJlusory and the
fundamental right of personal liberty will be exposed to serious
jeopardy. We only hope that in future the District Magistrate would
B act with responsibility, circumspection and wisdom expected of him
by this Court as set put earlier. However, the conclusion is inescap-
able that the errors pointed out by the petitioners which have
appealed to us remain uncontroverted in the absence of an affidavit
of the detaining authority. We refuse to take any notice of an
'
c affidavit in opposition filed by a Sub-Inspector of Police in the facts
and circumstances of this case.

The last contention canvassed by Mr.
Mukhoty is that even
though assurances were given on the floor of Parliament as well as
while hearing the case of A.K. Roy wherein constitutional validity
D
of the Act was challenged that the drastic and draconian power of
preventive detention will not be exercised again.st ,political opponents,
in flagrant violation thereof the affidavit in opposition would sho111
that the power of preventive detention was exercised on extraneous
and irrelevant consideration, the detenu in each case being a member
E and organiser of CPI {ML) (People's War Group), a political party "
operating in this country. ·In the affidavit in opposition in Writ
petition 1166/82; the relevant averments on this point read as under :
'·
"In reply to para 7 of the petition these :answering
respondents submit that it is not correct to say that the
F · 'grounds of detention failed to disclose any proximity with ,,
the order of detention and underlying purpose and object
.. of the Act .inasmuch as the detenu is one of the active
organisers of CPI {ML) {People's War Group) believing in
violent activities with the main object to overthrow the ' .
lawfully ·established Government by creating chaotic
G conditions in rural and urban areas by annihilating the class
enemies, went underground to preach the party ideology and
to build up the cadres by indoctrinating them for arme~.-
struggle".
11
There is a similar averment in the affidavit in opposition in the
connected petition also. We would have gone intocthis contention
MBRUGU v. ANDHRA PRADESH (Desai, J.) 647

but for the fact that having found the detention order invalid for
more than one reason, it is unnecessary to examine this contention
on merits. Nori~examination of the contention need not lead to the
inference that the contention is rejected. We keep it open to be
examined in an appropriate case.

These were the reasons for which we quashed and set aside the B
order of detention in each case.

S.R. Petitions allowed.
. .[

·.