DHARAMDAS SHAMLAL Vs. DISTRICT MAGISTRATE AHMEDABAD
HIGH COURT OF GUJARAT
DISTRICT MAGISTRATE AHMEDABAD
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(1.)The order of detention has been challenged by the petitioner principally on two grounds viz. that the grounds upon which the order is based and which were furnished to the detenue are vague and indefinite and therefore the detenue was not in a position to make an effective representation and secondly that several of the grounds were false and therefore the order passed by the District Magistrate was mala fide. it was submitted on these grounds that the order of detention should be declared illegal and the detenue should be set at liberty.
(2.)Section 3 of the Preventive Detention Act inter alia states that the State Government may if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the maintenance of public order it is necessary so to do make an order directing that such a person be detained. Section 3 thus gives wide powers to the executive to detain a person without any trial on the appropriate authority being satisfied that such detention is necessary. Thus the power to pass the order of detention depends on the subjective satisfaction of the appropriate authority. The satisfaction required under section 3 being a subjective one it is obvious that it is not subject to the subjective test of a judicial tribunal.
(3.)Under section 491 of the Code of Criminal Procedure the High Court however has the power to issue directions in the nature of a habeas corpus whenever it thinks fit directing inter alia a person detained either in public or private custody within the limits of its appellate criminal jurisdiction to be set at liberty. Though the power of the High Court Is expressed in this section in wide terms sub-clause (b) of clause (1) of the section restricts these powers by providing that such a person can be ordered to be set at liberty if he is illegally or improperly detained. The power given to the High Court under section 491 is to issue a direction to have the person detained brought before it for the purpose of investigating whether he is being detained under a proper authority or not. Upon such a detained person being brought before the High Court the authority who has detained him has to show that he has been detained under a valid authority or power. Once that is shown the onus shifts on to the detenue to show that his detention is either illegal or improper.
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