# MOHD. ALAM v. STATE OF WEST BENGAL

- **Citation:** [1974] 3 S.C.R. 379
- **Court:** Supreme Court of India
- **Decided:** 1974-02-14
- **Case number:** Writ Petitions Nos. 1678 and 1855 of 1973
- **Bench:** V. R. Krishna Iyer, R. s. SARKARIA
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/mohd-alam-v-state-of-west-bengal-6067
- **Pages:** 9

## Headnote

379
Prevention detention-' Services and Supplies' in
s.
3 ( 1) (a) (Ui)
of the
Maintenance of Internal Security Act, 1971, Scope of-Detention until the
expiry of the Defence of India Act. if ralid-Counter-af]idavit on behalf of
State-Who should file-Duty to com1nu11icate material particulars to the detenu.
The petitioner was detained by an order passed under s. 3 (2) of the Maintenance of Internal Security Act, 1971, with a view to prevent him from acting
in a manner prejudicial to the maintenance of supplies and services essential to
the community. The detention order was confirmed by the Government and
the Government directed that the detention should continue till the expiration
of 12 months from the date of detention or until the expiry of Defence of India
Act. 1971, whichever is later. Twp instances of thefts of copper wire were given
in the grounds of detention communicated to the detenu.
He alleged that he
haclbeen wrongfully arrested and detained for 22 days in the Police Station and
that thereafter the detention order was foisted on him with false and concocted
charges. The counter-affidavit was filed, not by the District Magistrate who
passed the order of detention; but by a Deputy Secretary in the Secretariat who
bad not personally dealt with the case of the detenu, and it stated that from
records it appeared that the petitioner was a "veteran copper wire criminal". In
a petition for the issue of a writ of habeas corpus it was contended that: (1)
theft of te[e.communication wires or cables, may disrupt 'services' essential to
the community but had no connection with the maintenance of 'supplies', and
since no particulars whatever in relation to supplies were communicated to the
petitioner the ground with regard to 'supplies' is irrelevant and vague and hence
the detention order was violative of Art. 22(5) of the Constitution;
(2)
the
period of detention under the impugned order was indefinite and uncertain and
infringed Art. 22(7)(b); (3) the counter-affidavit filed was not by the officer
who was satisfied about the necessity of detention and was insufficient to rebut
the allegations of the petitioner that his detention was on false grounds . with
ulterior motives; and ( 4) the grounds of detention conveyed to the petitioner
were false, vague and deficient in material particulars in that the 'reliable infor ..
mation' sho.wing that he was a "veteran copper wire criminal" was not commu ..
nicated to him.
HELD: (1) The expres!ion 'supplies and services' ins. 3(1)(a)(iii) of the
Act is to be construed pragmatically in the context of each case with due stress
on the phrase 'essential to the life of the community'. In a few cases these expressions may carry a meaning distinct from each other. But in mast cases the
same activity may equally affect supplies and services and the connotations of
'supplies' and 'services' may coincide or telescope into each other. Such will -be
the case where there is large scale theft of copper wire by cutting and removing
the same from the power mains or tele·communication installations or underground cables.
[382 E-GJ
...
Jagdish Prasad v. State of Bi'har Writ Petition No. 1972 of 1973, followed
Strouds' Judicial Dictionary 3rd Edn.· p. 2939 and
Bfackpool Corporation v.
Locker [1948] 1, K.B. 349; referred to.
(2) The Period of detention fixed under the irripugned orders does not infringe the mandate of Art. 22(7)(b) of the Constitution.
[383 G]
Fagu Shah etc. etc. v. State of West Bengal Writ Petitions Nos. 41, 106, f 13,
214, 44\'and 621 of 1973 decided on 20·!2-1973, followed.
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(3) The proper person to file the.counter-affidavit is the District Magistrate
who had passed the order of detention under s. 3 of the Act, and, if for some
good reason he is not available the affidavit of a senior officer who
personally
dealt with the case of the detenu in the Secretariat or had put it to the minister
380
SUPREME COURT REPORTS
[ 19(4 J 3 s.C.lt,
for orders should have been filed.
These obligati

## Text

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MOHD. ALAM
v.
STATE OF WEST BENGAL
February 14, 1974
[V. R. KRISHNA IYER AND R. s. SARKARIA, JJ.]
379
Prevention detention-' Services and Supplies' in
s.
3 ( 1) (a) (Ui)
of the
Maintenance of Internal Security Act, 1971, Scope of-Detention until the
expiry of the Defence of India Act. if ralid-Counter-af]idavit on behalf of
State-Who should file-Duty to com1nu11icate material particulars to the detenu.
The petitioner was detained by an order passed under s. 3 (2) of the Maintenance of Internal Security Act, 1971, with a view to prevent him from acting
in a manner prejudicial to the maintenance of supplies and services essential to
the community. The detention order was confirmed by the Government and
the Government directed that the detention should continue till the expiration
of 12 months from the date of detention or until the expiry of Defence of India
Act. 1971, whichever is later. Twp instances of thefts of copper wire were given
in the grounds of detention communicated to the detenu.
He alleged that he
haclbeen wrongfully arrested and detained for 22 days in the Police Station and
that thereafter the detention order was foisted on him with false and concocted
charges. The counter-affidavit was filed, not by the District Magistrate who
passed the order of detention; but by a Deputy Secretary in the Secretariat who
bad not personally dealt with the case of the detenu, and it stated that from
records it appeared that the petitioner was a "veteran copper wire criminal". In
a petition for the issue of a writ of habeas corpus it was contended that: (1)
theft of te[e.communication wires or cables, may disrupt 'services' essential to
the community but had no connection with the maintenance of 'supplies', and
since no particulars whatever in relation to supplies were communicated to the
petitioner the ground with regard to 'supplies' is irrelevant and vague and hence
the detention order was violative of Art. 22(5) of the Constitution;
(2)
the
period of detention under the impugned order was indefinite and uncertain and
infringed Art. 22(7)(b); (3) the counter-affidavit filed was not by the officer
who was satisfied about the necessity of detention and was insufficient to rebut
the allegations of the petitioner that his detention was on false grounds . with
ulterior motives; and ( 4) the grounds of detention conveyed to the petitioner
were false, vague and deficient in material particulars in that the 'reliable infor ..
mation' sho.wing that he was a "veteran copper wire criminal" was not commu ..
nicated to him.
HELD: (1) The expres!ion 'supplies and services' ins. 3(1)(a)(iii) of the
Act is to be construed pragmatically in the context of each case with due stress
on the phrase 'essential to the life of the community'. In a few cases these expressions may carry a meaning distinct from each other. But in mast cases the
same activity may equally affect supplies and services and the connotations of
'supplies' and 'services' may coincide or telescope into each other. Such will -be
the case where there is large scale theft of copper wire by cutting and removing
the same from the power mains or tele·communication installations or underground cables.
[382 E-GJ
...
Jagdish Prasad v. State of Bi'har Writ Petition No. 1972 of 1973, followed
Strouds' Judicial Dictionary 3rd Edn.· p. 2939 and
Bfackpool Corporation v.
Locker [1948] 1, K.B. 349; referred to.
(2) The Period of detention fixed under the irripugned orders does not infringe the mandate of Art. 22(7)(b) of the Constitution.
[383 G]
Fagu Shah etc. etc. v. State of West Bengal Writ Petitions Nos. 41, 106, f 13,
214, 44\'and 621 of 1973 decided on 20·!2-1973, followed.
H
(3) The proper person to file the.counter-affidavit is the District Magistrate
who had passed the order of detention under s. 3 of the Act, and, if for some
good reason he is not available the affidavit of a senior officer who
personally
dealt with the case of the detenu in the Secretariat or had put it to the minister
380
SUPREME COURT REPORTS
[ 19(4 J 3 s.C.lt,
for orders should have been filed.
These obligations stem from the well-settled
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principle that once a Rule Nisi is issued on a habeas corpus motion by the Court
the onus is on the State to show that the liberty of the detenu has been lakeo
away in accordance with the procedure established by law and that· the
safeguards provided in Art. 22 and in the Act have not been transgressed or
bypassed.
But for the fact that the allegations of mala {ides in the affidavit of the
petitioner are imprecise and deficient in particulars the omission to furnish the
affid"Uvit of the District Magistrate might have been fatal to the. impugned order.
~·haik Hanif v. State of West Bengal Writ Petition No.
1679 of
1973
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followed.
[384 G-385 C; 386 A-BJ
(4) All the information received by the District Magistrate and the Government about repeated criminal activities- of the detenu had contributed
towards
the subjective satisfaction of the detaining authority.
But for the detenu being,
in the opinion of the detainina authonty a 'veteran or habitual copper wire
criminal' the District Magistrate 1night not have taken the impugned action.
But, admittedly the whole of this m1atcrial or reliable information about the antiC
social and prejudicial activitie«: of the detenu on which the detention order was
based, was not communicated to him.
The non·communication of that material
was violative of Art. 22(5) of the Constitution and the Act, inasmuch as it did
not intimate to the detenu the full i::rounds or material to enable him to make an
effective representation.
Omission to communicate this material to the detenu
must have seriously prejudiced hirn·fn exercisine his constitutional right of making
an· effective representation and therefore the detention was illegal.
[386 C-F;
3870]
ORIGINAL JURISDICTION : Writ Petitions Nos. 1678 and
1855
of 1973.
Under Art. 32 of the Constitution for issue of a writ in the nature
of habeas corpus.
0. P. Malviya, for the petitioners (amicus curiae)
G.: S. Chatterjee, for the respondent.
The Judgment of the Court was delivered by
SARKARIA, J. As similar questions of fact and law arise in these
two petitions under Article 32 of the Construction, they will be disposed of by this common judgment.
Petitioner in Writ Petition No. 1678 of 1973 is in detention since
January 15, 1972 in pursuance of an order dated January 14, 1972,
passed under s. 3 (2) of the Maintenance of Internal Security Act, 1971
(for short, the Act) by the District Magistrate, Burdwan. The detention order as confirmed by the Government on April 12, 1972 under
s. 12 (I) of the Act, directs that the detention "will continue till the
expiration of 12 months from the date of his detention or until the
expiry of Defence of India Act, 1971 whichever is later."
In response to the Rule Nisi issued by this Court, Shri Sukumar
Sen Deputy Secretary, Home (Special) Department,
Governmen!
of West Bengal filed a counter-affidavit in para 4 of wliich it is.J1Verred:
"It appears from the records that after receiving reliable
information relating to the illegal anti-social and prejudicial actMties of the above-named detenu-petitioner relating
ID the maintenance of Supplies and Services essential to the
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MOHD. ALAM v. WEST BENGAL (Sarkaria, /.)
381
community, the said District Magistrate of Burdwan Jl6SSCd
order of detention against him under the provisions of the
said Act."
In para 7 of the counter, it is said that "it appears from the records,
tbat the detenu-petitioner is a veteran copper wire crimin~I." Two
instances of thefts of copper wire or cable used for tele-communication
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services, which took pl.lee on December 19, 1971 and December 22,
1971, are also mentioned.
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The grounds of detention that had been communicated to
the
detenu, read as under :
"
"(I) That on 19-12--1971 at about 00-30 hrs.
You
alongwith your associates including (1) Md. Kasim son of
Md. Manda! of Kashi Mohalla, P. S. · Asansol, Dist. Burdwan
(2) Hyder Ali son of Bachchu Md. of Talpukuria, P. S.
Asansol, Dist.
Burdwan, took away 40 kgs. underground
copper wire cable used for the purpose of tele-communication service from St. Patric School compound, P. S. Asansol,
Dist. Burdwan.
As a result of this theft important telecommunication service between Panagarh Army Base Camp
and Patna \\'lS totally disrupted for long 6 hours causing
much inconvenience to the people.
(2) That between 28.30 hrs. on 22-12-71 and 00.30 hrs.
on 23-12-71 you alongwith your associates including
(I )
Md. Kasim son of Md. Manda! of Kasimohalla P. S. Asansol, Dist. Burdwan (2) Hyder Ali, son of Bachcha Md. of
Talpukuria, P. S. Asansol, Dist. Burdwan took away 80 kgs.
underground copper wire cable used for the purpose of telecommunication service fron1 St. Patric
School compound,
P. S. Asansol, Dist. Burd wan. By your act important telecommunication service Panagarh between Army Base Camp
and Fratna was totally disrupted for long 8 hours to the
sufferings of the people."
Mr. Malviya, who assisted the Court as amicus curiae has canvas·
sed these contentions :
(i) The impugned order says that the petitioner has been
detained "with a view to preventing him from acting
in a manner prejudicial to the maintenance of Supplies and Services essential to the
community".
Theft of tele-communication wire or cables, may disrupt •services' essential to the comn1unity, but it has
no connection with the maintenance of 'supplies'.
Ins. 3(1) (a) (iii) the conjunction "and" is to be
read as "or", and "supplies" and "services" disjunc·
tively, being two different and distinct matters. The
ground with regard to "supplies" is thus irrelevant
and vague and since no particulars whatever u'l thh:
ground were communicated to the detenu, the detention order was violative of cl. (5) of Article 22 of
the Constitution;
12-L954Sup a/74
382.
(ii)
(iii)
(iv)
SUPREME COURT REPORTS
[ 1974 I 3 S.C.R.
The period of detention fixed under the impugned
order is indefinite and uncertain inasmuch as it has
been made co-extensive with another indefinite and
.uncertain period viz., the life of the Defence of India
Act., 1971. In this way, the impugned order indirectly infringes the mandate of Article 22 (7) (b) of
the Constitution;
The District Magistrate who had passed the detention order, has not furnished his affidavit, nor has
any satisfactory explall\ltion been given as to why
he has not done so. The stereotyped affidavit of the
Deputy Seceretary who did not personally deal with
the case of the detenu, at any level, is not sufficient to rebut the allegations of the petitioner that
his detention has been effected on
"totally false"
grounds, with "ulterior motives;"
The grounds of detention conveyed to the petitioner
were false,
vague and deficient in material particulars.
All the material or the "reliable information" relating to the "anti-social and
prejudicial
activities of the petitioner", referred fo in the Deputy Secretary's affidavit, showing how the petitioner was a "veteran copper wire criminal", on
the
basis of which the District Magistrate/the Government was satisfied about the necessity of the impugned detention, was not
communicated to the
detenu who, in con:iequence, was
deprived of his
right to make an effective representation.
We will deal with the contentions
ad seriatum. Contention (I)
does not appear to be tenable. The expression "Supplies" and "Services" in s. 3 (1) (a) (iii) of the Act are to be construed pragmati•
cally in the context of each ca~'• with due stress on the phrase
"essenfral to the life of the community". In a few cases, these expressions may carry a meaning distinct and different from each other.
For example, a sweepers' strike may seriously disrupt the "services"
essential to the community, but no question of disrupting "supplies"
aris·es, in such a case.
In most cases, where, the same activity inay
equally affect "supplies" and "services", the connotations of "'sup ...
plies" and "services" may coincide or telescope into
each
other~.
Such will be the case where there is large scale theft of copper wire
by cutting and removing· the same from the power mains or telecommunica#on installations or underground cables.
According to Strouds' Judicial Dictionary 3rd Edn. p. 2939, "to
supply" means to "pass anything from one who has it to those who
want it".
Construed in this sense, "tele-communication" is both a
"supply" and a "service". · So a:re. the copper wires or mains ~hrough
which the supply is made and service conducted.
The same is true
about electricity, water, light, fuel or other commodity essential for the
life of the community and the medium or the mains es.<ential for their
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MOHD. ALAM v. WEST llENGAL (Sarkaria, /.)
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maintenance.
In the context of the acute shortage of essential commodities, many other things such as 'food', 'copper', 'coal' etc. may partake ·the ·chatacter of "supplies" as Well as "services''.
Thus in Blackpool Corporation v. Locker(''), it was held ·that the provisions of housing accommodation was within the ambit of "supplies and services" in
Regulation 51(1) of the Defence (Gene11al) Regulation 1939.
In Jagdish Prasad v. State of Bihar('), this. Court had the occasion
to consider the meaning of "Supplies" and "Services" in· this statutory
provision in ·the context of hoarding and black-marketing in foodgrains.
It is, therefore, not. necessary to dilate on this subject any further. It will be sufficient to extract here what the Bench, constituted
by both of us, said on the point :
" .... all supplies are not services and all services are not
supplies but the complex needs and amenities of modern life
and the multifarious obligations of a weHare state mingle
s11pplies and services so much that the concentric circle
geometry becomes a misleading stroke of gullibility in :his
jural area. For example, an essential commodity is at once
a •upply and a service.
Section 36(3) of the Defence of
India Rules, 1971 defines it to mean:
'essential commodity' means food,
water, fuel,
light,
power or ~ny other thing essential for the existence of the
community which is notified in this behalf by Government.
'Light and power' thus are commodities; so also f<!Od and water.
Yet who will deny .that light is a service or drinking water, for that
matter 1 The touchstone of s~ial control is that it mnst be a thing
essential for the existence of the community; when crystallised it is
·supplies, when sublimated it is services .... Food is supplles, so is shipping and wagons, kerosene. and gasoline.
And yet they are services."
All that we may now do is to add copper wire and cables used for
tele-commuuications or power transmission to the above list of commodities, essential to the life of the community, which are at once
"supplies" and "seniices" within the contemplation of s. 3 (1) (a) (iii)
of the Act. The first contention of Mr. Malviya thus stands negatived.
We are unable to accept contention (ii) because this matter stands
concluded by this Court's judgment in Fagu Shah etc. etc. v. State of
West Bengal('). The argument therein was that the expression "maximum period" in Article 22(7) (b) connotes a definite period reckoned
in terms of years, .iitonths or days and that no period can be said to be
maximum period unless it is possible to predicate its beginning and end
in terms of years, months or days and that since the determination of
the period of detention, namely, expiry of Defence of India Act, 1971,
is dependent upon revocation of Proclamation of Emergency, the.period
(I) (1948! 1, K. B. 349.
(2) Writ Petition No. i972 of 1973.
{3) Writ Petitions Nos. 41, 106, 113, 214; 441 and 621 of 1973. decided on
20-12-1973.
38-1
SUPREME COURT REPORTS
l1914 J 3 s.C.R.
fixed under s. 13 of the Act is not the maximum period as visualised by
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Art. 22(7)(b). Mathew J., who spoke for the majority, negatived
this contention in these terms :
" ...• ; . as the object of preventive detention is to prevent
persons from acting in a manner pre-judicial to the mainte-·
nance of internal security, public order or supplies or services
essential to the community or other objects specified in entry
9 of List I the power to detain must be adequate in point of
duration to achieve the object.
And, how can the power be
adequate in point of duration, if it is insufficient to cope with
an emergency created by war or public disorder or shortage
of supplies essential to the community, the duration of which
might be incapable of being predicated in terms of. years,
months or days even by those gifted with great prophetic
vision ? If 'the maximum period' can be fixed only in terms
of years, months or days certainly it would have been open
to Parliament to fix a long period in s. 13 and justify it
as 'the maximum period'. It would be straining the gnat
and swallowing the camel if anybody is shocked by the fucation of the maximum period of detention with reference to the
duration of an emergency but could stomach with complacency the fixation of maximum period, may, at fifteen or
twenty years ...
We do Rot think that the Parliament in fixing the duration of the maximum period of detention with reference to an
event like the cessation of the period of emergency has, in
any way, abdicated its power or function. to fix the maximum
period or delegated it to the President. There ca~ be uo
doubt that it is Parliament that has fixed the maximum period
ia s. 13 of the Act. The only question is whether, because
the duration- of the period is dependent upon the volition of
the President, it ceases to be 'the maximum period'.
We
. cannot presume that the· President will umeasonably continue the Proclamation of Emergency even after the emergency has ceased to exist."
This takes us to contention' (iii);-··
.-~··· - This objectio~-h~s been repeatedly raised in habeas corpus petitions
that have come up before this Bench in the last two months.
In
Shaik Hanif v. State of West Bengal(') this Court had pointed out that
in return to a Rule Nisi issued by this Court in a habeas corpus petition, the p:oper person to file. the counter-affidavit is the District Magistrale who had passed the order of detention under s. 3 of the Act, and,
if for some good reason the Magistrate is not available, the next best
thing would \le to furnish the affidavit of a Senior Officer who personally
dealt with the case of the detenu in the Government Secrclanat, or had
pur it to the Minister for orders.
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Our ciemocratic CoffStitution inhibits blanket and arbitrary deprivaH
tion of a person's liberty by authority. It guarantees. that no one shall
(I) Writ Petition No. 1679 of 1973.
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1"e dc.11ri.ved (lf his personal liberty ~:;cept !,n !lcco;danc.e wilh procedure
establ~b~d ,by Ja.w: It iurd\lof,pc:rin1ts t~e State, ijl l!ie h\rger inierests
of. soc~ty, to ,51~ restrict th~t J\l.tldament~l ti&l1t th~t a reasona!>le, but
del~te hal;mce is maintiiil)~d on a le)lal fulpri1111 between individual
liberty nnd social security. · The .sligl1!est deviation from or displllccmcnt or infraction or violation of tile legal ptocedure symbolised in that
fulcrum, upsets the balance, intr()d11ces ~rror and aberration and vitiates
its working.
This symbolic balailce th°'rriore has to bl! worked with
utmost care and aitention. Viewed in that perspective, the requirement as to the filing of the counter-affidavit by the proper person cannot be treated as an empty formality.
This obligation stems from the
well-settled principle that once a Rule Nisi is issued on habeas corpus
motion, by the Court, the onus is on the State to show that the liberty
of the detenu has been taken away in accordance with prci::edure established by law, and that the safeguards provided in Article 22 and in
· the Act, have not been transgressed or bypassed.
.
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Jn JagdiJh Prasad v. State of Bihur (supra), also where the coun-.
!er-affidavit !1ad been sworn by an Assistant of the Home Department,
not wit;1 per£onal knowledge, but paper wisdom, the court, both of us,
constituting the Bencl1, expressed itself in the same strain, with added
emphasis, thus :
"It is difficult to appreciate why in return to a rule nisi
in a habeas corpus motion, it is not thought serious enough
even "here liberty of a citizen is choked off, to ~et the District Magistrate to explain his subjective satisfaction and the
grounds therefor.
Not even why he is not available, nor the
ne~t best, the oath of a Senior Officer in the Secretariat who
had been associated with the handling of the case at Government level. Mechanical affid.avits ...... by some one handy
in the Secretariat cannot be regarded . . . . . This is not a
mere punctilio of procedure but a probative requirement of
substance."
In the instant oase, the Deputy Secretary who has sworn the affidavit does not aver that he had personally dealt with the case of the
detenu. He has sworn the affidavit merely on the basis of paper
information gathered from the official records. A stereotyped explanalion, the same which was offered in similar petitions decided by this
Bench, earlier has been given for not furnishing the affidavit of the District Magistr.ate. It is stated that the Magistrate is "preoccupied in the
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matter of maintenance of law and order and procurement of rice". Such
an explanation is hardly satisfactory.
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It was all the more important in this case to get the affidavit of the
District Magistrate, becaus~ in this case the detenu has alleged that he
had been wrongfully arrested and detained for 22 days in the police
station and thereafter the detention order under the Act was foisted on
him on the basis of charges which were 'totally false' and had· been
concocted by the police and the detaining authority from ulterior
motives to cover up his initial wrongful detention. These allegations
of mala fidcs may be wrong. But the best informed person to rebut
the same on oath was the District Magistrate against whom they were
386
SUPREME COURT REPORTS
[ 19741 3 S.C.R.
levelled.
But for the fact that these ~llegations of ma/a fides are
imprecise and deficient in particulars, the omission to fμrnish the . affi~
davit of the District Magistrate itself might well have been fatal to the.
impugned order. Nevertheless, it is .a circumstance to be taken into
account in appreciating the next contention.
The Deputy Secretary in his affidavit has disclosed that there was
· "reliable information" and. other mraterial,-in addition. to what was
comnlunicated to the det~nu-l~fore the detaining authorities,
in
regard to lhe "anfi.·social and J)rejudicial . activities" of the petitioner
showing how he was· a· "veteran coPper wire criminal".
No bodv is born a criminal, much less a habitual or "veteran"
criminoL It takes time for one to become 50.
The adjective "veoteran" which is synonymous with "habitual" implies a long course
of recurring or persistent criminal behaviour or repeated commission
of crime. Surely, all the informatioo receivAf by the District Magistrate/ the Government, about the repeateli criminal activities of the
detenu had contributed towards the subjective safi.sfaction of
the
detaining authority. It will not be extravagant to say that but for the
detenu being in the opinion of the detaining authority a "veteran"
or habitual copper wire criminal, the District Magistrate might not
have taken the impugned action.
Admittedly, the whole of this
material or "reliable information" ~about the
"anti~social'' and uprejudicial activities" of the detenu that led to his detention. was not
communioated to him. This illformation which was withheld was
not claimed to be privileged under clause· (6) of Article 22. The
non-communication of that material was violative of Article 22(5l
of the Constitution and the Act inasmuch as it did not intimate to the
delcnu the full grounds or material to enable him to make an effective representation. The detention is thus illegal.· We, therefore,
allow this petition, set aside the detention order and direct that the
petitioner be set at liberty forthwith.
In Writ Petition No. 1855 of 1973, Mr. O. P. Sharma, who assisted the Court as amicus curiae, has canvassed the same points which
were urged by Mr. Malviya in Mohd. Alam's case (supra).
The
same Deputy Secretary has filed· the counter-affidavit in this case also.
The same explanation of the omission of the District Magistrate who
passed the detention orde~. to file the counter has been given.
Jp
the affidavit of· the Deputy Secmtary, it is said thut the petitionet
is a "person of desperate and dangerous character" and "veteran copper wire stealer". Only two instances spread over a period of about
2J months of the theft of one -valuable underground post and telegraph tele-communication cables were communicated to the detenu.
But other material on the basis of which the Dis.trict Magistrate/the
Government rw.ched the conclusion that the petitioner was a "desperate and dangerous character'' and "veteran copper wire stealer"
was not communicated to the detenu.
The non-communication ofi
this material is not sought to be justified on the ground of its being
. privileged under Article 22(6).
Indeed, learned Counsel for the
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MOHD. ALAM v. WEST BENGAL (Sarkaria, J.)
387
State has been fair enough to place a copy of the material on record.
It reads :
"Jiten Ninia ...... originally hails from Dumka..
He
works temporarily .... as loading cooly in the colliery. He
bas got no education ...... got no landed property. He is
addicted to wine and indulges in gambling in the area.
The
place where he is staying being infested b;: criminals and
due to his close a.ssociation with them. he devclopctl criininal propensity.
His mode of living is beyond his means
and as such he started committing
petty thofts
against
property. He came in contact with copper wire· criminals
o,f the locality and started committing theft in respect of
P.T. tele-comrnunication cables and D.V.C. cables in the
area .... He is dangerous and desperate in character ...... "
What has been quoted. above shows that the detaining authority
must have been greatly influenced in ordering the detention by this
undisclosed material. not the whole of which was germane to the
grounds on which preventive detention can be. ordered under the
Act.
Jn any case, omission to communicate this material to the
detenu must have seriously prejudiced him in exercising his right
of making an effective rep_resentation.
We, therefore, allow Jiten Ninia's
petition llso, set aside his
detention and direct that he be set at liberty forthwith.
V. P. S.
Petition allowed.