BAJIRAO BALIRAM MALI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) IN this petition filed by the petitioner who is a detenu under the Maintenance of Internal Security Act, 1971 (hereinafter referred to as the 'MISA'), the main contention of the learned Counsel for the petitioner is that h spite of the decision of the Supreme Court in A.D.M., Jabalpur v. S. Shukla : 1976CriLJ945 (hereinafter referred to as 'Shukla's case'), there is still a small area of judicial review within which the High Court functioning under Article 226 of the Constitution of India is entitled to exercise its powers and make an order for release o the detenu.

(2.) THE facts leading to the filing of this petition are not in dispute. Originally the petitioner came to be detained in pursuance of an order made by the District Magistrate, Dhule, on June 29, 1975. This order (exh. C) recited that where as the District Magistrate, Dhule, was satisfied with respect to Shri Bajirao Baliram Mali of Dhule that it was necessary to make an order of detention with a view to preventing him from acting in any manner prejudicial to the security of the State and the maintenance of public order, he directs that the said Shri Bajirao Baliram. Mali should be detained and this order was made in the exercise of hi powers conferred by Section 3(1)(a)(ii) read with Section 3(2)(a) of the MISA. After the order was passed, the petitioner continued to be in detention and it is also no in dispute that the District Magistrate furnished on July 1, 1975 to the petitioner the grounds on which the detention order was made. Thereafter the District Magistrate passed an order on July 8, 1975 which road as follows: Whereas, the District Magistrate, Dhulia is satisfied that it is no longer necessary to continue under detention Shri Bajirao Baliram Mali of Dhulia who has been directed to b detained under order No. POL/DC/5/75, dated 29.6.1975. Now, therefore, in exercise of the powers conferred by Sub -section (2) of Section 3 of the Maintenance of Internal Security Act, 1971 (26 of 1971) read with Section 21 of the General Clauses Act, 1897 (10 of 1897) the District Magistrate, Dhulia hereby rescinds the said order No. POL/DC/5/75 and directs that Shr Bajirao Baliram Mali of Dhulia shall be released forthwith on receipt of this order by the officer in charge of the place where he has been detained. After this order was passed on July 9, 1975, the same District Magistrate passed another order on July 9, 1975 which read as follows: Whereas, the District Magistrate, Dhulia is satisfied with respect to Shri Bajirao Baliram Mali of Dhulia that, with a view to preventing him from acting in any manner prejudicial to the Security of the state and the maintenance of Public Order, it is necessary to make the following order: Now, therefore, in exercise of the powers conferred by Sub -clause (ii) of the Clause (a) of Sub -section (1) read with clause (a) of Sub -section (2) of Section 3 of the Maintenance of Internal Security Act, 1971 (26 of 1971), the District Magistrate, Dhulia hereby directs that the said Shri Bajirao Baliram Mali of Dhulia be detained.

(3.) THE substantial contention raised on behalf of the petitioner in this petition regarding the validity of the detention order dated July 9, 1975 is, to quote the words of the learned Counsel for the petitioner, 'Satisfaction in one nullifies the satisfaction in the other and, therefore, the impugned order is without the requisite satisfaction and ceases to be an order under Section 3 of the MISA. It is, therefore, contended that the order on the face of it does not comply with the statutory prescription, as ruled by Mr. Justice Chandrachud in para. 477 of his judgment, or the purpose of detention was not within the terms of law, as contemplated by the observations of Mr. Justice Chandrachud in para. 492 of the judgment in Shukla's case. The learned Counsel contends that it is not the ratio of the decision of the Supreme Court in Shukla's case that circumstances attendant on the making of an order of detention should be ignored. It is also contended that it was not the ratio of the decision in Shukla's case that in view of the Presidential Order dated June 27, 1975 made under Article 359(1) of the Constitution, every petition for habeas corpus or for any other writ, order or direction under Article 226 of the Constitution of India challenging an order of detention should be dismissed in limine without an enquiry of any nature whatsoever or that the petition is barred at the very threshold or that there is a blanket ban on every such petition asking for a relief of habeas corpus. The learned Counsel for the petitioner relying on certain observations in the judgments of Mr. Justice Beg, Mr. Justice Chandrachud and Mr. Justice Bhagwati contends that a preliminary objection with regard to the maintainability of such a petition can be sustained only in a case where: (a) the order is passed by an officer who has authority or jurisdiction to pass the same, (b) the order is duly authenticated, (c) the order records the purported satisfaction to detain a person under the relevant law of detention, (d) the order does not fall outside tho provisions of the relevant law of detention, and (e) the order is operative either before or after its confirmation by the appropriate Government. According to the learned Counsel, if an order does not fall within the above mentioned catagories, a petition for writ of habeas corpus cannot be dismissed on the ground that it is barred by the Presidential Order of June 27, 1975 but that the said petition must be hoard on merits and in such cases, a claim for an order for release from detention can be enforced even during the Emergency.