Full Judgment Text
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PETITIONER:
JOHN MARTIN
Vs.
RESPONDENT:
THE STATE OF WEST BENGAL
DATE OF JUDGMENT21/01/1975
BENCH:
BHAGWATI, P.N.
BENCH:
BHAGWATI, P.N.
MATHEW, KUTTYIL KURIEN
UNTWALIA, N.L.
CITATION:
1975 AIR 775 1975 SCR (3) 211
1975 SCC (3) 836
CITATOR INFO :
F 1976 SC 734 (3)
R 1988 SC2090 (12)
R 1989 SC1933 (28)
RF 1990 SC 231 (17)
RF 1990 SC 605 (14)
RF 1991 SC 574 (11)
RF 1991 SC1090 (5)
ACT:
Maintenance of Internal Security Act, 1971--S.8(1)--Scope
of--Whether a reasoned order should be passed by
Government--Whether power of detention conferred on District
Magistrate is violative of Art. 19--Detention after dropping
earlier criminal cases--Whether mala fide.
HEADNOTE:
Pursuant to an order of detention the petitioner was
arrested under section 3(1) & (2) of the Maintenance of
Internal Security Act, 1971 In a petition under article 32
of the Constitution it was contended (1) that consideration
of the petitioner’s representation by the State Government
instead of by an impartial tribunal was not sufficient
compliance with the requirement of art. 22(5) of the
Constitution; (2) that the order passed by the State Govern-
ment should have been a reasoned one; (3) that the power of
preventive detention conferred on the District Magistrate
under s.3 of the Act was violative of art. r. 19 of the
Constitution and (4) that the order of detention was made in
colorable exercise of power by the District Magistrate since
no charge sheets were filed against him in respect ’of the
two incidents set out in the detention order and in fact the
cases were dropped.
Dismissing the petition,
HELD (1) it is indisputable on a I am reading of s . 8(1)
that the representation that may be made by the detenu is to
the appropriate Government and it is the appropriate
Government which has to consider the representation. This,
however, does not mean that the appropriate Government can
reject the representation of the detenu in a casual and
mechanical manner. The appropriate Government must bring to
bear on the consideration of the representation an unbiased
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mind. Art, 22, clause (5) provides inter alia that the
authority making the order of detention shall afford the
detenu the earliest opportunity of making a representation
against the order of detention. It does not say as to which
is the authority to which the representation shall be made
or which authority shall consider it. But s.8(1) lays down
in the clearest terms that the opportunity which is to be
afforded to the detenu is to make a representation against
the order of detention to the appropriate. Government.
[214F; 215B; 214E-F]
JayanaraYan Sukul v. State of West Bengal, [1970] 3 S.C.R.
225 and Haradhan Saha v. State of West Bengal, W.P. 1999 of
1973, decided on August 21, 1974, followed.
(2) In Haradhan Saha’s case it was held that there need not
be a speaking order. ’Mere is also no failure of justice by
the order not being a speaking order. All that is necessary
is that there should be a real and proper consideration by
the Government. [215F]
Haradhan Saha v. State of West Bengal, W.P. 1999 of 1973,
decided on August 21, 1974. followed.
Bhut Nath Mate, v. State of West Bengal, A.I.R. 1974 SC.
806, referred to and explained.
(3) It is not possible to say that the District Magistrate
is not an officer of sufficiently high status or
responsibility to be entrusted with the exercise of the
power of preventive detention. The District Magistrate is
the head of the administration of the district and is
incharge of maintenance not only of law and order but also
of public order as also smooth flow of supplies and services
essential to the community within his district and no fault
can, therefore, be found with the legislature in entrusting
the exercise of the power of preventive detention to him in
cases where it is necessary to exercise such power for
212
the purpose of maintenance of security of the State or
public order or supplies and services essential to the
community. Moreover, exercise of such power by the District
Magistrate is made subject to the supervisory control and
check of the State Government by the provision that the
order of detention must be approved by the State Government
within a period of 12 days from the making of the order of
detention. The conferment of such power on the District
Magistrate cannot be regarded as an unreasonable restriction
on the right of personal liberty of a citizen under Art. 19.
[216D-G]
(4) The order of detention made by the District Magistrate
does not suffer from the vice of mala fides or colorable
exercise of power. It is now well settled by several
decisions of this Court that the mere fact that a criminal
case had to be dropped against the detenu because the
investigating agency could not procure evidence to
sustain his conviction would not be sufficient to hold that
the detention order made against him was mala fide. [218F-G]
B. C. Biswas v. State of West Bengal. [1972] S.C.C. 666,
followed.
JUDGMENT:
ORIGINAL JURISDICTION : Writ Petition No. 467 of 1974.
Petition under Art. 32 of the Constitution of India.
R. K. Jain, for the petitioner.
G. S. Chatteriee, for the respondent.
The Judgment of the Court was delivered by
BRAGWATI, J.-The petitioner in this petition seeks a writ of
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habeas corpus challenging the validity of his detention
under an order made by the District Magistrate, Burdwan
under sub-section (1) read with sub-section (2) of section 3
of the Maintenance of Internal Security Act, 1971. The
order of detention was made on 10th July, 1973 on the ground
that it was necessary to detain the petitioner with a view
to preventing him from acting in a manner prejudicial to the
maintenance Of supplies and services essential to the
community. Pursuant to the order of detention the
petitioner was arrested on 24th August, 1973 and immediately
on his arrest he was served with the grounds of detention.
There were two incidents referred to in the grounds of
detention as forming the basis for arriving at the
subjective satisfaction on the part of the District
Magistrate and they were as follows
"1. On 23.1.73 at about 03.00 hrs. you along
with your associates (i) Michael Antony, son
of M. Danial @ Ram Murti of Purniatetao, P. S.
Hirapur, District Burdwan (ii) Bhiren Antony,
son of Michael Pitter of Purniateloo, P. S.
Hirapur, Distt. Burdwan, and others committed
theft in respect of two spans of electric
line, 240 feet in length from pole No. 7 to 9
in Street No. 23 of Chittaranjan township, P.
S. Chittaranian, Dist. Burdwan and thereby
clamped down darkness over the entire area
causing inconvenience and hardship to the
people in general living in that area, which
is prejudicial to the maintenance of supplies
and services essential to the community.
2. On 22-2-73 at about 04.00 hrs. you along
with your associates (i) Michael Antony, son
of M. Danial @ Ram Murti of Pumlatalao, P. S.
Hirapur, Dist. Burdwan, (ii) Dhiran Antony,
son of Michael Pitter of Purniatalao, P.S.
Hirapur, Distt. Burdwan and others committed.
213
thefts in respect conductors, 200 feet long
from pole Nos. 1 and 2 at Cross Road No. 3,
Sunset avenue, Chittaranjan township, P. S.
Chittaranjan, Dist. Burdwan and thereby
clamped down darkness in the entire area
causing much inconvenience and hardship to the
people in general living in that area
, which
is prejudicial to, the maintenance of supplies
and services essential to the community."
Meanwhile the District Magistrate reported the fact of the
making of the order of detention to the State Government and
the order of detention was then approved by the State
Government by an order dated 21st July, 1973. The State
Government also reported the fact of approval of the order
of detention to the Central Government within seven days
from the date of the order of approval. The, State Govern-
ment thereafter placed the case of the petitioner before the
Advisory Board on 20th September, 1973. On 25th September,
1973 the representation of the petitioner against the order
of detention was received by the State Government and after
due and proper consideration the State Government rejected
it by an order dated 29th September, 1973. The
representation was then forwarded by the State Government to
the Advisory Board and the Advisory Board, after considering
the D case of the petitioner and taking into account the
representation received from him, made a report to the State
Government on 23rd October, 1973 stating that in its opinion
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there was sufficient cause for the detention of the
petitioner. The State Government thereafter confirmed the
order of detention by an order dated 1st November, 1973.
There were several contentions urged by Mr. R. K. Jain,
learned Advocate appearing on behalf of the petitioner
amicus curiaes against the validity of the order of
detention and we shall deal with them in the order in which
they were urged. But before we do so, we may point out that
there was one contention sought to be raised by Mr. R. K.
Jain on behalf of the petitioner which we did not allow to
be urged. That was that the power conferred by section 13
of the Act to detain a person for a period of twelve months
or until the cessation of the emergency whichever is longer
was violative of article 19 of the Constitution and, in any
event, the continuance of the emergency was mala fide and
the period of twelve months having elapsed from the date of
detention, the petitioner was entitled to be set free. We
did not permit Mr. R. K. Jain to raise this contention on
behalf of the petitioner inasmuch as it involved a question
as to the validity of a provision of the Act and the-
legality of the continuance of the emergency and this
question could not be properly determined unless there was
an adequate plea to that effect and the Central Government
had an opportunity of meeting such plea by filing an
affidavit and notice was also given to the Attorney General
to enable him to make his submission on this question. We
would, therefore. confine ourselves only to the other
contentions raised by Mr. R. K. Jain on behalf of the peti-
tioner.
The first contention urged by Mr. R. K. Jain on behalf of
the petitioner was that the representation of the petitioner
ought to leave been considered by an impartial tribunal
constituted by the State Government and it was not
sufficient compliance with the requirement of
214
art. 22, clause (5) that it should have been considered only
by the State Government. This contention was sought to be
supported by reference to certain observations of Fazl Ali,
J., and Mahajan, J., in A. K. Gopalan v. State of Madras.(1)
Now it is true that Fazal Ali, J. observed in this case that
"the right to make a representation which has been granted
under the Constitution must carry with it the right to the
representation being properly considered by an impartial
person or persons-the constitution of an Advisory Board for
the purpose of reporting whether a person should be detained
for more than three months or not is a very different thing
from constituting a board for the purpose of reporting
whether a man should be detained for a single day", and
Mahajan, J., also said : "the right has been conferred to
enable a detained person to prove his innocence and to
secure justice, and no justice can be said to be secured
unless the representation is considered by some impartial
person-it follows that no iustice can be held secured to him
unless an unbiased person considers the merits of his
representation and gives his opinion on the guilt or
innocence of the person detained. In my opinion the right
cannot be defeated or made elusive by, presuming that the
detaining authority itself will consider the representation
with an unbiased mind and will render justice. That would
in a way make the prosecutor a judge in D the case and such
a procedure is repugnant to all notions of justice". But we
do not think that these observations made by two out of six
learned Judges can be regarded as laying down the law on the
point. Since A. K. Gopalan’s case(1) there has been a long
cotena of decisions of ,,his Court where the view has
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consistently been taken that the representation of the
detenu must be considered by file State Government. Article
22, clause (5) provides inter alia that the authority making
the order of detention shall afford the detenu the earliest
opportunity of making a representation against the order of
detention. It does not say as to which is the authority to
which the representation shall be made or which authority
shall consider it. But section 8, sub-section (1) of the
Act lays down in the clearest. terms which admit of no doubt
that the opportunity which is to be afforded to the detenu
is to make a representation against the order of detention
to the appropriate Government. Therefore, it is
indisputable on a plain reading- of section 8, sub-section
(1) that the representation that may be read by the detenu
is to the appropriate Government and it is the appropriate
Government which has to consider the representation. This
Court, sneaking through Ray, J., (as he then was), affirmed
this position in pavanarayain Sukul v. State of West
Bengal(2) and pointed out inter alia that "the appropriate
Government is to exercise its opinion Ind judgment on the
representation before sending the case along with the
detenu’s representation to the Advisory Board". So also in
Haradhan Saha v. State of West Bengal(3) this Court,
speaking through Ray, C.J., observed that "there is an
obligation on the State to consider the representation-
section 8 of the Act which casts an obligation on the State
to consider the representation affords the
(1) [1950] S.C.R. 88.
(2) [1970] 3 S.C.R. 225.
(3) W.P. 1999 of 1973. dec. on Aug. 21, 1974.
215
detenu all the rights which are guaranteed by Article 22(5).
The Government considers the representation to ascertain
essentially whether the order is in conformity with the
power under the law the order of the Government rejecting
the representation of the detenu must be after proper
consideration". It may be pointed out that both the
decisions in Jayanarayan Sukul’s case and Haraclhan Saha’s
case (supra) were decisions rendered by a Bench of five
Judges. We must, therefore, hold that under section 8(1) of
the Act, it is the appropriate Government that is required
to consider the representation of the detenu. This,
however, does not mean that the appropriate Government can
reject the representation of the detenu in a casual or
mechanical manner. The appropriate Government must bring to
bear on the consideration of the representation an unbiased
mind. There should be, as pointed out by this Court in
Haradhan Sah’s case, (supra) "a real and proper
consideration" of the representation by the appropriate
Government. We cannot over-emphasise the need for the clo-
sest and most zealous scrutiny of the representation for the
purpose of deciding whether the detention of the petitioner
is justified.
It was then contended on behalf of the petitioner that the
order passed by the State Government rejecting the
representation of the detenu should be a reasoned order and
since in the present case the order of the State Government
did not disclose any reasons for rejecting the
representation of the petitioner, the detention of the
petitioner was invalid, The argument of the petitioner was
that unless reasons were given by the State Government, how
could it be ensured that there was real and proper
consideration of the representation of the detenu. This
contention, attractive though it may seem, -s, in our
opinion, not well founded. It stands concluded by the
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decision in Haradhan Saha’s case (supra) to which we have
just referred. It was pointed out in that case by Ray,
C.J., speaking on behalf of the Court : "There need not be a
speaking order. There is also no failure of justice by the
order not being a speaking order, All that is necessary is
that there should be a real and proper consideration by the
Government". These observations must give a quietus to the
contention that the order of the State Government must be a
reasoned order. It is true that in Bhut Nath Mate v. State
of West Renpal(1) Krishna Iyer. J., speaking on behalf of a
Division Bench of this Court observed that : "It must be
self-evident from the order that the substance of the charge
and the essential answers in the representation have been
impartially considered", but if we read the judgment as a
whole there can be no doubt that these observations were not
meant to lay down a legal, requirement that the order of the
State Government must be a speaking order but they were
intended to convey an admonition to the State Government
that it would be eminently desirable if the order disclosed
that "the substance of the charge Ind the essential answers
in the representation" had been impartially considered. The
learned Judge in fact started the discussion of this point
by stating : "We are not persuaded that a speaking order
should be passed by the Government or by the Advisory Board
while approving or advising contain of Detention". In any
event, the decision in Haradlian Saha’s case (supra)
(1) A.T.R. 1974 S.C. 806.
216
being a decision rendered by a Bench of five Judges must
prevail with us. We, therefore, reject the present
contention of the petitioner.
The next contention urged on behalf of the petitioner was
that it was obvious from the order of detention that the
District Magistrate had made the order of detention in a
mechanical fashion without applying his mind to the facts of
the case relating to the petitioner. We do not think there
is any substance in this contention. The order of detention
is in proper form and it does not betray any lack of
application of mind on the part of the District Magistrate.
Then Mr. R. K. Jain on behalf of the petitioner contended
that the power of preventive detention conferred on the
District Magistrate under section 3 of the Act was violative
of Art. 19 of the Constitution inasmuch as the District
Magistrate was hardly an officer of such high and
responsible status as could be entrusted with the exercise
of such drastic power subversive of personal liberty. This
contention is also futile aid must"be rejected. It is not
possible to say that the District Magistrate is not an
officer of sufficiently high status or responsibility to be
untrusted with the exercise of the power of preventive
detention. The District Magistrate is the head of the
administration of the District and is in charge of
maintenance not only of law and order but also of public
order as also smooth flow of supplies and services essential
to the community within his district and no fault can,
therefore, be found with the legislature for entrusting the
exercise of the power of preventive detention to him in
cases where it is necessary to exercise such power for the
purpose of maintenance of the security of the State or
public order or supplies and services essential to the
community. Moreover, the exercise of such power by the
District Magistrate is made subject to the supervisory
control and check of the State Government by the provision
that the order of detention must be approved by the State
Government within a period of twelve days from the making,
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of the order of detention. The conferment of such power on
the District Magistrate cannot in the circumstances be
regarded as an unreasonable restriction on the right of
personal liberty of a citizen under Art. 19.
The next contention urged on behalf of the petitioner was
that the order of detention was invalid since the District
Magistrate had not stated in the order that the petitioner
would be likely to indulge in prejudicial acts in future and
hence it was necessary to detain him. A mere reading of the
order of detention is sufficient to repel this contention.
The order of detention starts with the rectal that the Dis-
trict Magistrate was satisfied with respect to the
petitioner that "with a view to preventing him from acting
in any manner prejudicial to the maintenance of supplies and
services essential to the community" it was necessary to
detain him. This recital clearly shows that the District
Magistrate was satisfied that the petitioner would be likely
to act in a manner prejudicial to the maintenance of
supplies and services essential to the community and that
was the reason why the District Magistrate thought it
necessary to detain the petitioner with a view to preventing
him from acting in such manner. The satisfaction of the
(4) A. 1. R. 1974 S. C. 806.
217
District Magistrate as regards the necessity for detention
of the petitioner was grounded on a reasonable prognosis of
the future behavior of the petitioner based on his past
conduct, namely, participation in the two incidents set out
in, the grounds of detention, judged in the light of the
surrounding circumstances. The District Magistrate in fact
stated in paragraph 4 of the affidavit in reply filed by him
that he was satisfied that "if the detenu-petitioner was not
detained under the said Act he was likely to act further in
a manner prejudicial to the maintenance of supplies and
services essential to the community. The acts committed by
detenu showed a course, of conduct which satisfied me that
it was necessary to make the said order of detention". This
contention must also, therefore, fail.
Mr. R. K. Jain on behalf of the petitioner thenurged that
there was nothing, to show that the Central ’Government had
applied its mind to the case of the petitioner on receipt of
thepapers from the State Government. But this contention
is also futile.It is clear from the affidavit in reply
filed by the, District Magistratethat the fact of the
approval of the order of detention by the State Government
was communicated to the Central Government along with the
grounds of detention and such other particulars as in the
opinion of the State Government had a bearing on the
necessity or an order of detention. Plainly, this was in
compliance with the requirement of section 3, sub-section
(4). Section 14, sub-section (1) undoubtedly conferred
power on the Central Government to revoke or modify an order
of detention but merely because the Central Government did
not do so, it does not mean that the Central Government did
not apply its mind to the case of the petitioner forwarded
to it by the State Government. There is nothing to show
that the Central Government did not consider the case of the
petitioner or apply its mind to the grounds of detention and
other particulars received by it from the State Government.
The Central Government not being a party to the petition, it
could not have an opportunity of stating whether it applied
its mind to. the case of the petitioner for the purpose of
deciding whether or not to intervene by revoking or
modifying the order of detention.
It was also urged by Mr. R. K. Jain on behalf of the
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petitioner that there was some other material before the
District Magistrate besides the two incidents referred to in
the grounds of detention and since this material was not
disclosed to the petitioner, he was deprived of an
opportunity of making effective representation and that
vitiated the order of detention. Now, Mr. G. S. Chatterjee,
learned counsel appearing on behalf of the State, produced
before us the history sheet of the petitioner which was
placed before the District Magistrate and which, we can
legimately assume, must have weighed with the District
Magistrate in inducing the requisite subjective
satisfaction. This history-sheet showed that besides the
two incidents set out in the ,grounds of detention, there
was no other material which could have possibly weighed with
the District Magistrate in reaching his subjective
satisfaction. Of course there was material of a general
nature about the antecedents of the petitioner but that
could not possibly have had any impact in the process of
reaching subjective satisfaction
218
and we would therefore, be justified in accepting the
statement of the District Magistrate in his affidavit in
reply that the two incidents set out in the grounds of
detention were the only material on which he based his
subjective satisfaction for the purpose of making the order
of detention. We accordingly reject this contention.
The last contention urged by Mr. R. K. Jain on behalf of the
petitioner was that the order of detention was made by the
District Magistrate in colorable exercise of power, since no
charge-sheets were filed against the petitioner in the court
of the magistrate in respect of the two incidents set out in
the grounds of detention and the criminal cases registered
with Chitaranjan Police Station were dropped by filing final
Report as true, briefly described as F.R.T. To understand
this contention it is necessary to state a few facts which
may be gathered from the affidavit in reply filed by the
District Magistrate. The first incident took place on 23rd
January, 1973 and in respect of it, a criminal case was
registered with Chittaranjan Police Station on 12th
February, 1973. Similarly, in respect of the second
incident, which took place on 22nd February, 1973, a
criminal case was registered with Chittaranjan Police
Station on 2nd March, 1973. Both these criminal cases were
filed in the court of Sub-Divisional Judicial Magistrate,
Asansole. The name of the petitioner was not mentioned in
the First Information Report in either of these two cases
but his participation in the two incidents was revealed in
the course, of investigation. The petitioner was arrested
on 1st March, 1973 in connection with some other case and he
was shown as arrested in connection with these two cases
since they were pending against him. The petitioner was
thereafter released on bail though we do not know the
precise date on which such release was effected. It appears
that no charge-sheet was filed in both these cases and these
cases were dropped by filing F.R.T. The affidavit in reply
does not state as to what was the reason for which F.R.T.
was filed and these cases were dropped but taking the case
of the State at its worst, we may presume that this was done
as the police could not procure evidence to sustain the
conviction of the petitioner. The petitioner was discharged
from these cases on 6th June, 1973 and from the other case
also he was discharged on 14th June, 1973. The order of
detention was thereafter made on 10th July, 1973 but the
petitioner was absconding and he could not, therefore, be
arrested until 24th August, 1973. On these facts it is
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difficult to see how it can be contended that the order of
detention was passed by the District Magistrate mala fide or
in colorable exercise of his power. It is now well settled
by several decisions of this Court that the mere fact that a
criminal case had to be dropped against a detenu because the
investigation could not procure evidence to sustain his
conviction would not be sufficient to bold that the
detention order made against him is mala fide. We may refer
only to one of these decisions, namely, B. C. Biswas v.
State of West Bengal.(1) There, the grounds on which the
order of detention was based referred to two incidents in
which the detenu and his associates were alleged to have
participated. Reports were lodged with the police against
the detenu in respect of the two incidents mentioned in the
grounds of detention. The investigating
(1)[1972] S. C. C. 666.
219
officer, after investigating the cases relating to those
incidents submitted a report that "nothing could be had
against the petitioner". detenu was, therefore, discharged
in those cases. the argument urged on behalf of the detenu
was that in the circumstances the order of detention should
be held to be mala fide. This argument was rejected by a
Division Bench in the following words :
"In our opinion. even if it may be assumed
that cases were registered against the
petitioner by the police in respect of the two
incidents mentioned in the grounds of
detention and the, police as a result of the
investigation could not procure evidence to
sustain the conviction of the petitioner, that
fact would not be sufficient to hold that the
detention order made against the petitioner
was mala fide. The matter is indeed concluded
by a decision of this Court in the case of
Sahib Singh Dugal v. Union of India.(1) The
petitioner in that case was arrested on
December 6, 1964, for offence under the
Official Secrets Act. On March 11, 1965, the
Investigating Officer made a report to the
Court to the effect that the petitioner and
others involved in that criminal case might be
discharged as sufficient evidence for their
conviction could not be discovered during the
investigation. The Magistrate consequently
discharged the petitioner and others.
Immediately after the petitioner came out of
the Jail, he was served with an order for his
’detention under Rule 30(1)(b) of the Defence
of India Rules. One of the contentions which
was advanced on behalf of the petitioner in
Petition under Article 32 of the Constitution
was that the detention order was mala fide
inasmuch as it had been made after the
authorities had decided to drop criminal
proceedings because of inability to get
sufficient evidence to secure conviction.
This contention was repelted by this Court and
it was held that the above circumstance was
not sufficient to lead to the inference that.
the action of the detaining authority was mala
fide. This Court observed :
"We cannot infer merely from the fact that the
authorities decided to drop the case under the
Official Secrets Act and thereafter to order
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the detention of the petitioners under the
Rules that the order of detention was mala
fide."’
In view of the above, we hold that the order
for the detention of the petitioner
has not
been shown to be mala fide."
We must for the same reasons hold that the order of
detention made by the District Magistrate in the present
case does not suffer from the vice of mala fide or
colourable exercise of power.
These were the only contentions urged on behalf of the
petitioner and since there is no substance in them, the
petition fails and the rule is discharged.
P.B.R.
Petition dismissed..
(1) [1966] 1 S. C. R. 313.
220