SOHRAB ALI MOLLA Vs. DISTRICT MAGISTRATE 24 PARGANAS

JUDGEMENT

(1.) IN this application for a writ in the nature of Habeas Corpus the detune has challenged an order of detention passed by the District Magistrate, 24-Parganas on 18th September, 1974, in exercise of the powers conferred under sub-section (1) read with sub-section (2) of section 3 of the Maintenance of Internal Security Act, 1971 (hereinafter referred to as the said Act ). The said order was passed with a view to preventing the detune from acting in any manner prejudicial to the maintenance of public order. The solitary incident referred to in the ground is set out herein below:

(2.) MR. Mookerjee, learned Advocate appearing for the petitioner raised various contentions. However for the purpose of disposal of this case we need refer to only one of them. It was alleged by Mr. Mookerjee, with reference to the averments to that effect in the petition that there is no such person named Bipra Patra in village Mayda and accordingly the ground must be held to be baseless. This is a very serious allegation and everything centers round the person known as Bipra Patra. In this case the Rule was issued as long back as in 8th of January, 1975. Notices of the Rule were issued on the 18th of January, 1975. The matter was mentioned before us on 24th of June, 1975 and it was directed that this matter would appear in the list of 4th of July, 1975. Since then it has been appearing in our list. In spite of that the District Magistrate concerned, whose headquarter is not far off from here, has not chosen to affirm any affidavit in this proceeding. Generally speaking the sufficiency or correctness of the ground of detention cannot be gone into. But it cannot be said that the ground is completely immune from judicial reviewability. If the ground is found to be baseless, the Court can set aside the order. Accordingly if there are allegations to that effect in the petition, it is incumbent upon the detaining authority to affirm an affidavit controverting such allegations. In the absence of any such affidavit the said allegations remain un controverted and unanswered and the court must accept the correctness of the same. Accordingly in the present case, we must accept the allegations made in the petition in the absence of such affidavit. For the reasons aforesaid we must hold the detention to be illegal. Accordingly we allow the application and make the Rule absolute. Let the detune be released forthwith.