Judgment

KHANNA, J.:- This is a petition under Article 32 of the Constitution by Asgar Ali for a writ of habeas corpus. The respondents impleaded in the petition are the District Magistrate Burdwan, the Superintendent Burdwan Jail and the State of West bengal.

2. The District Magistrate Burdwan passed an order on February 7, 1972, under Section 3 of the Maintenance of Internal Security Act, 1971 (Act 26 of 1971) for the detention of the petitioner with a view to prevent him from acting in any manner prejudicial to the maintenance of supplies and services essential to the community. The petitioner in pursuance of the detention order was taken into custody on February 11, 1972. Report about the passing of the detention order was sent by the District Magistrate of the State Government and the said Government approved the detention order on February 18, 1972. On March 8, 1972, the State Government placed the case of the petitioner before the Advisory Board. The State Government received a representation from the petitioner against his detention on March 16, 1972. The said representation after being considered was rejected by the Government on March 29, 1972. The representation was thereafter forwarded to the Advisory Board. The Advisory Board after considering the material placed before it sent a report on April 19, 1972, to the State Government. Opinion was expressed by the Board that there was sufficient cause for the detention of the petitioner. The State Government thereafter on May 10, 1972, confirmed the order for the detention of the petitioner.

3. The affidavit of Shri Sukumar Sen, Deputy Secretary, Home (Special) Department, Government of West Bengal has been filed in opposition to the petition.

4. The petitioner in the course of his petition has stated that he was arrested on February 5, 1972 and that the grounds of detention were not explained to him at the time of his arrest. These allegations have been denied on behalf of the respondents and it would appear from the affidavit filed on their behalf that the petitioner was arrested not on February 5, 1972, but on February 11, 1972. It is further stated that the grounds of detention were clearly explained by the police officer in Bengali and Hindi to the petitioner who understood the contents thereof. He also signed the grounds and took a copy thereof. Mr. Chibber who has argued the case amicus curiae in view of the above averments in the affidavit filed on behalf of the respondents has not agitated this aspect of the matter. He has, however, raised two contentions and we shall now deal with them.

5. It has been argued by Mr. Chibber that Shri A. K. Chatterjee, District Magistrate of Burdwan who passed the detention order has not filed his affidavit. Such an affidavit, according to the learned Counsel, was essential for sustaining the validity of the detention order. We find ourselves unable to accede to this contention. Although normally the affidavit of the person actually making the defention order should be filed in a petition for a writ of habeas corpus, the absence of such an affidavit would not necessarily, be fatal for the case of the respondents. It would indeed depend upon the nature of allegations made by the detenu in the petition for determining whether the absence of affidavit of the person making the detention order introduced a fatal infirmity. In case an allegation is made that the officer making the detention order was actuated by some personal bias against the detenu in making the detention order, the affidavit of the person making the detention order would be essential for repelling that allegation. Likewise, such an affidavit would have to be filed in case serious allegations are made in the petition showing that the order was mala fide or based upon some extraneous considerations. In the absence of any such allegation in the petition, the fact that the affidavit filed on behalf of the respondents is not that of the District Magistrate but that of the Dep