Preventive detention and executive authentication: substantial compliance with Article 166 and proof by knowledgeable affidavit may suffice.

A preventive detention order was treated as valid where it stated that the Government was satisfied and concluded that it was made by order of the Governor, because Article 166 was held to require substantial compliance rather than any rigid verbal formula. On proof of the detention order, the Court held that there is no rule of law requiring an affidavit only from the Minister in charge in every case; an affidavit by the Home Secretary or another person with sufficient knowledge may be adequate if accepted on the facts. The order of release was set aside, and the respondent was protected against rearrest on the matters covered by the appeal.

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Issues: (i) Whether a preventive detention order was invalid for not being expressed in the name of the Governor as required by Article 166 of the Constitution of India. (ii) Whether the State had to prove the making of the detention order only through an affidavit of the Minister in charge, and whether the affidavits filed by the Home Secretary were sufficient.

Issue (i): Whether a preventive detention order was invalid for not being expressed in the name of the Governor as required by Article 166 of the Constitution of India.

Analysis: The detention order stated that the Government of Bombay was satisfied and concluded with the words that it was made by order of the Governor of Bombay. The constitutional requirement was treated as one of substance, not of rigid formula. The expression used was held sufficient to show that the executive action was taken in the name of the Governor, and the Constitution was held not to require any magic incantation or exact verbal formula.

Conclusion: The detention order was validly expressed in the name of the Governor and was not invalid on that ground.

Issue (ii): Whether the State had to prove the making of the detention order only through an affidavit of the Minister in charge, and whether the affidavits filed by the Home Secretary were sufficient.

Analysis: Once the order was not treated as self-proving, the question of proof by other evidence was held to depend on the facts of each case. It was held that there is no rule of law requiring the Minister in charge to file the affidavit in every case. An affidavit by the Secretary or another person with sufficient means of knowledge may be adequate if believed, though the verification in the present case was criticised as defective in form. The contention based on ministerial privilege was left open, as the respondent was not to be rearrested.

Conclusion: An affidavit from the Minister in charge was not indispensable, and the affidavits of the Home Secretary could in law be sufficient.

Final Conclusion: The High Court's order of release was set aside, and the appeal succeeded, while the respondent was protected against rearrest in relation to the matters covered by the appeal.

Ratio Decidendi: Article 166 requires substantial compliance with the constitutional form of executive action, and proof of a detention order or the Government's satisfaction need not in every case come from the Minister personally if competent evidence from a person with sufficient knowledge is available.

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