# SHAIK HANIF, GUDMA MAJHI & KAMAL SAHA v. STATE OF WEST BENGAL February 1. 1974

- **Citation:** [1974] 3 S.C.R. 258
- **Court:** Supreme Court of India
- **Decided:** 1973-02-23
- **Case number:** Writ Petition Nos. 1679, 1662 and 1681 of 1973
- **Bench:** V. R. Krishna Iyer, R. S. $<Rkar!A
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/shaik-hanif-gudma-majhi-kamal-saha-v-state-of-west-bengal-february-1-1974-6263
- **Pages:** 9

## Headnote

Maintenpnce of lnterna/ Security Act-If counter-affidavit to be sworn
by the District Magislrate himself and under what circumstances-"Veterati
copper wire stealer"-meaning of.
Since the matters are similar, the facts of W.P. No. 1679 of 1973 are as
follows:-
A
The petitioner was arrested u/s. 3, sub section (1) and (2) of the MainC
tenu-nce of Internal Security Act, 197 l. The grounds of detention were that
the petitioner, on 3-7-72, alongwith _his associates kept concealed 20 bundles
of Telegraph copper wire in.his court-yard under ground with a view to dispose
the san1e at an opportune moment. The said telegraph wire were recovered
::in 3-7-72 on the basis of -t,he confession made by his associates. Tho petitioner was, therefore, arrested because he was acting in a manner prejudicial
to the nlaintenance of supplies and services essential to the community,
The detcnti_on. order was challenged on various grounds :-Ci) That the
D
counter-affidavit on behalf of the State of West Bengal was sworn by the
Depuly Secretary and not by the District Magistrate, on the basis of whose
subjective satisfaction the detention order was made and therefore, it waa
illegal.
(ii) From the .counter-affidavit, it was clear that there were "reliable
ink:·rmmions'' and· material other than the solitary ground of detention comn1unic:1ted to the detenn and so, the detenu was unable to make an effective
representation. Therefore, the detention order was violative of clause (5) of
E
Art. 2.2 of the Constitution of India etc.
Allowing the petition:>,
HELD ; ( 1) When a Rule Nisi is issued in a habeas corpus petition, it is
incu1nbent i;pon the State to satisfy the court that the detention of the petit:on~r was legal and in conformity not only with the mandatory provisions
cf Lhe Act, but is also in accord with the requirements of Cl. (5) of Art. 22
of the Constitution. 1262 E]
F
N1rm1ja11 Singh v. State of Madhya Pradesh A.I.R. 1972 S.C. 2215, referred to.
f2) Since the Court is precluded from testing the sub;ective satisfaction of the
dct<iining authority by objective standards. it is all the more desirable that in
response to the Rule Nisi, the counter·affidavit on behalf of the State should
be sworn to by the District Magistrate or the authority on whose subjecJive
s:.tisfacrion the detention order was made.
If for sufficient reason shown to
the satisfaction of the Court that the 3.ffidavit of the person .who passed the
1etcn!ion order could not be furnished, the counter-affidavit should be sworn
by so'11e responsible officer who personally dealt with the case in the Govt.
Secretariat elc.
[262 E-F]
In the present case, the deponent did not swear that he had at any
rele\·a1n tin1e personally dealt with the case of the detenu and secondly,
1hc
explanation given for not furnishing the affidavit of the District Magistrate
due to his transfer from that District, was far from satisfactory.
Ran;it Dain v. State of West Bengal A.I.R, 1972 S.C. 1753 and J. N. Ro}'
v. Sta:e of West Bengal A,I.R, 1972 S.C. 2143 referred to.
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HANtF ETC. v. WEST BENGAL (Sarkaria, I.)
259
(3) The failure to _furnish the counter-affidavit of the Magistrate who
passed the. order of detention is an impropriety. However, in most cases,
it may not be of much consequence; but in a few cases, for instance. where
mala {ides or extraneous considerations are attributed to .the detaining authority,
it may, ta.ken in conjunction with other circumstances, assume the shape of a
serious infifi'-.iity.
[263 CJ
(4) In the counter-affidavit, it was
mentioned
that
the
detenu
was
a
"veteran copper wire stealer'' and there were "reliable informations'' before
the District Magistrate. Those reliable informatioris were withheld. The words
"veteran copper wire stealer'' also implied a long course of repetitive thievery
of copper-wir~. it is manifest that but fo~ those ''reliable information'' showing that lhe detenu was repeatedly and habitually stealing copper wire,
the
District
~fagistrate

## Text

258
SHAIK HANIF, GUDMA MAJHI & KAMAL SAHA
v.
STATE OF WEST BENGAL
February 1. 1974
[V. R. KRISHNA IYER AND R. S. $<RKAR!A, JJ.]
Maintenpnce of lnterna/ Security Act-If counter-affidavit to be sworn
by the District Magislrate himself and under what circumstances-"Veterati
copper wire stealer"-meaning of.
Since the matters are similar, the facts of W.P. No. 1679 of 1973 are as
follows:-
A
The petitioner was arrested u/s. 3, sub section (1) and (2) of the MainC
tenu-nce of Internal Security Act, 197 l. The grounds of detention were that
the petitioner, on 3-7-72, alongwith _his associates kept concealed 20 bundles
of Telegraph copper wire in.his court-yard under ground with a view to dispose
the san1e at an opportune moment. The said telegraph wire were recovered
::in 3-7-72 on the basis of -t,he confession made by his associates. Tho petitioner was, therefore, arrested because he was acting in a manner prejudicial
to the nlaintenance of supplies and services essential to the community,
The detcnti_on. order was challenged on various grounds :-Ci) That the
D
counter-affidavit on behalf of the State of West Bengal was sworn by the
Depuly Secretary and not by the District Magistrate, on the basis of whose
subjective satisfaction the detention order was made and therefore, it waa
illegal.
(ii) From the .counter-affidavit, it was clear that there were "reliable
ink:·rmmions'' and· material other than the solitary ground of detention comn1unic:1ted to the detenn and so, the detenu was unable to make an effective
representation. Therefore, the detention order was violative of clause (5) of
E
Art. 2.2 of the Constitution of India etc.
Allowing the petition:>,
HELD ; ( 1) When a Rule Nisi is issued in a habeas corpus petition, it is
incu1nbent i;pon the State to satisfy the court that the detention of the petit:on~r was legal and in conformity not only with the mandatory provisions
cf Lhe Act, but is also in accord with the requirements of Cl. (5) of Art. 22
of the Constitution. 1262 E]
F
N1rm1ja11 Singh v. State of Madhya Pradesh A.I.R. 1972 S.C. 2215, referred to.
f2) Since the Court is precluded from testing the sub;ective satisfaction of the
dct<iining authority by objective standards. it is all the more desirable that in
response to the Rule Nisi, the counter·affidavit on behalf of the State should
be sworn to by the District Magistrate or the authority on whose subjecJive
s:.tisfacrion the detention order was made.
If for sufficient reason shown to
the satisfaction of the Court that the 3.ffidavit of the person .who passed the
1etcn!ion order could not be furnished, the counter-affidavit should be sworn
by so'11e responsible officer who personally dealt with the case in the Govt.
Secretariat elc.
[262 E-F]
In the present case, the deponent did not swear that he had at any
rele\·a1n tin1e personally dealt with the case of the detenu and secondly,
1hc
explanation given for not furnishing the affidavit of the District Magistrate
due to his transfer from that District, was far from satisfactory.
Ran;it Dain v. State of West Bengal A.I.R, 1972 S.C. 1753 and J. N. Ro}'
v. Sta:e of West Bengal A,I.R, 1972 S.C. 2143 referred to.
G
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HANtF ETC. v. WEST BENGAL (Sarkaria, I.)
259
(3) The failure to _furnish the counter-affidavit of the Magistrate who
passed the. order of detention is an impropriety. However, in most cases,
it may not be of much consequence; but in a few cases, for instance. where
mala {ides or extraneous considerations are attributed to .the detaining authority,
it may, ta.ken in conjunction with other circumstances, assume the shape of a
serious infifi'-.iity.
[263 CJ
(4) In the counter-affidavit, it was
mentioned
that
the
detenu
was
a
"veteran copper wire stealer'' and there were "reliable informations'' before
the District Magistrate. Those reliable informatioris were withheld. The words
"veteran copper wire stealer'' also implied a long course of repetitive thievery
of copper-wir~. it is manifest that but fo~ those ''reliable information'' showing that lhe detenu was repeatedly and habitually stealing copper wire,
the
District
~fagistrate might not have passed the detention order in question.
Further, from the 'Criminal Biography' supp tied by the State, it was clear
that all material
p~rticulars of the ground of detention necessary to enable
the detenu to make an effective representation were not communicated to the
detenu.
Hence, the impugned order of d~tention is violative of Art. 22(5)
of the Constitution and therefore, liable to be quashed.
Similarly, the other
two petitions were also allowed on the ground that material particulars were
not communicated to the detenues and therefore,
the ,detentions were illegal. [263 G- 264 CJ
ORIGINAL JURISDICTION: Writ Petition Nos. 1679, 1662 and
1681 of 1973.
(Under Article 32 of the Constitution for issue of a writ in the
nature of Habeas Corpus.)
R. K. Jain, amicus curiae for the Petitioner.
M. M. Kshatriya and G. S. Chatteriee for the Respondent.
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The Judgment of the Court w,as delivered by
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SARKARtA J.-This judgment will dispose of all the three petitions
above-mentioned under Article 32 of the Constitution of India. It will
be convenient to first take up Writ Petition No. 1679 of 1973.
The petitioner Shaik Hanif, aged 40 years, was arrested on February
23, 1973 in pursuance of a detention order, dated February 19, 1973,
passed by the District Magistrate, West Dinajpur in West Bengal under
sub-s. (I) read with sub-s. (2) of s.3 of the Maintenance of Internal
Security Act, 1971 (for short, 'the Act'). On February 19, 1973, the
District Magistrate reported about his detention to the State Government whic~ approv~d it on March 1, 1973. The detenu made a representation which was rejected by the State Government on April 5,
1973 and forwarded to the Advisory Board for consideration. The
Board reported to the State Government on April 24, 1973 that there
was sufficient cause for the detention.
Thereupon the Government
confirmed the order of detention under s.12(1) of the Act and directed
that the detention of the petitioner would continue "till the expiration
of 12 months from the date of his detenlion or until the expiry of Defence
of India Act of 1971 whichever is later."
The grounds of detention as conveyed to the detenu under H. 8(1),
read as under :
260
SUPREME COURT REPORTS
[19741 3 S.C.ll.
"You are being ileiained in pursuance of a detention
order ........... on the ground that you have been acting
in a manner prejudicial to the maintenance of supplies and
services essential to the .community, as evidenced by tbo
particulars given below :
On 3·7-72 at dead of night you along with your asse>-
ciates kept concealed 20 bundles ol Telegraph copper wire
weighing 2 qutls. 60 kgs. in your court-yard under earth
with a view to dispose of the same in opportune moment.
The said Telegraph copper .·wire were recovered on 3-7-72
on the basis of the confeilsion of your associates. The
ponce seized those copper wire and arrested your
asa<>-
ciate but you evaded arrest. This activity of yours serioUSly
affected one of the essential services to the community by
disrupting Telegraph facilities to the public and !bus you
acted in a manner
prejudicial
to the maintenance of
supplies and services essential to the community.
You are hereby ·informed that you may make a
representation to the State Government against the detention
order ....... your case shalt be placed before the Advisory
Board within thirty days from the date of your detention
under the order.
You are also informed that under Section
11 ...... .
(Act 26 of 1971) the Advisory Board, shall if you desi{j: to
be heard, hear you in person . .. "
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19-2-73.
District Magistrate, West Dinajpur, Balurghat".
In answer to the Rule Nisi issued by this Court, Shri Sukumar Sen,
Deputy Secretary, Home (Special) Department, Government of West
Bengal filed the counter-affidavit, explaining that the district Magistrate
who passed the order of detention ••is. at present not available Joc
affrming the affidavit as he has been transferred from the said Di•
F
trict".
Jn para 4 of the affidavit, it is stated :
"It appears from the records that after receiving reliable
information relating to the illegal anti-<1ocial and prejudicial
activities of the
above-nanJ_~d detenu-petitioner relating to
the maintenance of supplies and services essential to the
community, the said District Magistrate of West Dinajpur
G
passed order of detention against him under the provisions
of the sairl Act."
In para 7, it is averred :
'.'I further state that it appears from the record that the
petitioner is a veteran copper wire stealer. It was. found on
3-7-72 that the petitioner and his associates kept concealed
H
about 20 b.]l!ldles of telegraph cable wire undergrl>und in
the court-yard of his house with a view to dispose the same
at opportune moment. The said removal of copper wire from .
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HANIF ETC. v. WEST BENGAL (Sarkaria, J.)
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the telegraph lines resulted in disruption of telegraph service
and he was detained under the said Act".
In paragraph 9 of the affidavit it is inter alia stated that the "statements made in paragraphs 3, 4, 5, 6 and 7 are based on information
derived from the records kept in the office of the State Government
in its Home Department (Special Section), which .I verily believe to
be true."
Mr. R. K. Jain, who assisted the Court as amicus curiae advanced
these contetions in support of the petition : ( 1) After the issue of
Rule Nisi by this Court, it was incumbent upon the Respondent-State
to satisfy the Court about the legality of the detention by producing
the affidavit of the District Magistrate who had passed the detention
order.
The counter-affidavit of the Deputy Secretary who did not
personally deal with the case at any stage, is no substitute !or the
affidavit of the District Magistrate on the basis of whose subjective
satisfaction, the detention has been effected. The omission to file the
counter-affidavit of the District Magistrate coupled with the oth,:r
circumstances of the case, shows that the detention order was po;;ed
in an utterly casual way, without application of mind and it was therefore, illegal; (2) From the counter-affidavit of the Deputy Secretary,
it appears that there were "reliable informations" and material (other
than the solitary ground of detention communicated to the detenu)
before the detaining authority on the basis of which it was satisfied that
.the petitioner was a "veteran copper wire stealer" and had been indulging in "illegal anti-social activities prejudicial to the maintenance
of supplies and services essential to the community". Since the nondisclosure of that information or material to the detenu is not sought
to be justified under clause ( 6) of Article 22, on the ground of 'ts
being facts which the detaining authortiy considers to be against the
public interest to disclose, it was incumbent upon the authority to
communicate the detenu that information and material in full. Since
this was not done, the detenu was unable to make an effective re"
presentation. Tl]e detention order was thus violative of the mandate
of clause (5) of Article 22, and liable to be struck down on that score;
(3) The Act is violative of Articles 19 and 21 of the Constitution
because its :-
(a) .Section 3 makes no provision for an objective determination of the truth of the allegations that form the basis
of action under that section;
(b) Section 8 does not provide for consideration of the representation of the detenu by .an
impartial
body
in
accordance with the principles of natural justice;
( c) Section II enables the Advisory Board to base its report
on the matetrial received by the Board from the Officer
passing the order of detention without the said
report
being disclosed to tlle detenu and without affording him
an opportunity to controvert the contents of the said
report;
;
262
SUPREME COURT REPORTS
[ 19741 3 S.C.R.
( d) Sections II and 12 empower the Advisory Board and the
A
State Government, as the case may be, to take into consideration materials and information without
giving
the
detenu an
opportunity
to
make his submissions with
regard to those materials or to adduce evidence to disprove the allegations levelled against him.
(4) (a) The continuance of Emergency in as much as it
suspend;
Fundamental Rights, indefinitely under an executive fiat is unconstitutional. What the Parliament cannot destroy in exercise of its amendatory powers under Article 368, ll fortiori, th~ President cannot bury
by embalming and encasing the same in a Proclamaiion of Emergency.
Fundamental Rights guaranteed under Article 19 arc essential features
of the Constitution ana their indefinite suspension under the cloak of
Emergency, amounts to their destruction; (b) Jn forming an opm1un
as to the necessity of proclaiming Emergency under Article 352 of
the Constitution, the President has to act on certain objective facts
open to judicial scr'!tiny. The war having ended more than two years
ago, there is no justification for continuing the Proclamation of
Emergency.
We will take up contentions (I) and (2) together.
As "as pointed out by this Court in Naranjan Singh v. State of
M~.dhya Pradesli,(1) where in a habeas, corpus petition a Ruic Nisi
is issued. it is incumbent upon the State to satisfy the Court that the
detention of the petitioner was legal and in conformity not only with
the mandatory provisions of the Act, but is also in accord with the
requirements implicit in clause (5) of Article 22 of the Constitution.
Since the Court is precluded from testing the subjective satisfaction of
the detaining authority by objective standards. it is all the more desirable that in response to the Rule Nisi the counter-affidavit on behalf
of the State should be sworn to by the District Magistrate or the
authority on whose subjective satisfaction the detention order under
s.3 was passed. If for sufficient reason shown to the satisfaction of the
Court, the affidavit of the person who passed the order of detention
under s.3 cannot be furnished, the counter-affidavit should be sworn by
some responsible officer who personally dealt with or processed the
case in the Government Secretariat or submitted it to the Minister or
other Officer dulv authorised under the rules of business framed by the
Governor under Article 166 of the
Constitution to pass orders on
behalf of the Government in such matters.
Jn the instant case, the counter-affidavit of Shri
Sukumar Sen
Deputy Secretarv. Home. suffers from two infirmities.
Firstly, the
deponent does not swear that he had at any relevant time personallv
dealt with the case of the detenu.
He has verified the correctnets of
the avcrn1cnts in his affidavit on the basis of facts gathered from the
official records. Secondlv. the explanation given for not furnishing the
affidavit of the District Magistrate who had passed the detention order,
is that the Magistrate has been transferred from that District. The
explanation is far from being satisfactory.
---rn:A:.1~~1912-s~. ms.
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HANIF ETC. v. WEST BENGAL (Sarkaria, !.)
263
In Ranjit Dam v,.State of West Bengal,( 1) the reason given for not
making the counter-affidavit by the Magistrate himself, who had passed
the detention order, was that he had since then been appointed as
Secretary of the State Electricity Board. It was held that the reason
given was not satisfactory. "Shri Sukumar Sen is incharge of a specially
created cell in the Government Secretariat of West Bengal, which
maintains the records of all persons detained under the Act. It is
true that a similar reason given for not furnishing the affidavit of the·
Magistrate who passed the impugned order, was accepted by this Court
in J. N. Roy v. State of West Bengal,(') and instead, the counteraffidavit of the Secretariat official specially entrusted with detention
cases was deemed sufficient. But that was so be<ltllse nothing turned.
on it. Nevertheless, the failure to furnish the counter-affidavit of the·
Magll;trate. who passed the order of detention, is an impropriety. In
most cases, it may not be of much consequence but in a few ca.ses, for
instance. where mala {ides or extraneous consideratfuns are attributed
to the Magistrate or the detaining authority, it may, taken in
conjunction \Vith other circumstances, assume the shape of a serious.
infirmity, leading the Court to declare the detention illegal.
In the
present case, too, the mere omission to file the affidavit of the District.
Magistrate does not vitiate the detention orders.
But it is a circumstance, among others, in the light of which contention (2) is to be
appreciated.
The Act restricts citizens' personal liberty \vhich is a fundamental;
right under the Constitution. It has therefore to be construed strictly,
as far as possible, in Javour of the citizen and in a manner that does not
restrict that right to an extent greater than is necessary to cffec.:tuate
that object.
The provisions of the Act have, therefore, to be applied
with watchful care and circumspection. lt is the duty of the court to 1
see that the efficacy of the limited yet crucial. safeguards provided in
the law of preventive detention is not lost in n1echanical routine, dun·
casualness and chill indifference on the part of the authorities entrusted
with their application. Let us therefore see whether there has been such
a careful and strict compliance with the legal procedure in the instant
case.
Jn the counter-affidavit, the Deputy Secretary has inter alia stated·
that the petitioner is a "veteran copper wire stealer" and there were
"reliatle informations" before the District Magistrate about his antisociaJ activities prejudicial to the maintenance of supplies and l:iCrvices
essential to the community.
"Veteran copper wire stealer'' irnplies
a long course of repetitive thievery of copper-wire.
No-one is born a
knave; it takes time for one to become so.
It is manifest that but for
those "reliable informations" showing that the detenu was repeatedly
and habitually stealing copper wire, the District Magistrate might not
have passed the detention order in question. Those "reliable informations" were withheld.
No privilege under clause (6) of Article 22·
has been claimed in respect of them.
Even the main ground viz. that
the petitioner is a "veteran copper wire stealer" was · not,
as
such,.
(I) A. I. R. 1972 S. C. 1753.
(2) A.LR. 1972 S.C. 2143.
264
SUPREME COURT REPORTS
[ 19741 3 S.C.R.
.communicated to the detenu. The ground intimated was that "you have
been acting in a manner prejudicial to the Maintenance of Supplies and
Services essential to the community". Only one solitary instance of the
recovery of stolen copper-wire from the petitioner's house on 3-7-1972
was conveyed to the detenu.
Learned Counsel for the State has been fair enough to collect and
place before us what the Deputy Secretary in his
counter-affidavit
called "reliable informations" on the basis of which
the District
Magistrate ordered the detention. In this, under the caption "Criminal
Biography", is mentioned inter a/ia, how
the petitioner with his
associates organised a gang to steal telegraph copper wire systemati-
.cally.
From what has been said above, it is clear as day light that all
material particulars of the ground .of detention which were necessary
to enable .. the detenu to make an effective representation, were not
communicated to him.
The impugned order of detention i; thus
violative of Article 22(5) of the Constitution, and is liable to be
.quashed on that score alone.
In view of the above finding, it is not necessary to decide the
.remaining contentions canvassed by Mr. Jain.
Now we take up Writ Petition No. 1662 of 1973.' In this case
also, Shri Sukumar Sen,
Deputy Secretary in his
counter-affidavit
.averred that the detenu was a "veteran copper wire stealer" and that
the District Magistrate, Burdwan, had passed. the
order of the
petitioner's detention on receipt of reliable information
about the
illegal, anti-social and prejudicial activities of the petitioner.
Here
also, al! the 'material information' showing or even alleging how the
-petitioner was a "veteran copper wire stealer" was not communicated to
him.
Only two instances .of theft of electric copper wire which took
place on November 6, 1971 and November 25, 1971 were intimated
to him.
Learned Counsel for the State has placed for our perusal a copy of
History Sheet of the detenu OJI receiving which, the District Magistrate
had passed the impugned order of detention.
Among other facts, it
is mentioned therein that on November 3, 1973, also, the petitioner
alongwith his two associates had committed theft of electric copper
wire measuring 125 ft. from the electric poles near Hatgarui and a
case under section 379. Penal Code was registered in
Polic~ Station
Asansol on the same date, relating to this theft. It is further stoled
that "from his boyhood the petitioner started mixing up with anti-social
elements, wagon-breakers and in course of time, he along with
his
.associates, indulged in. thefts of iron materials, copper-wire and other
·forms of crime".
All this matter including that concerning the theft dated November
3, 1973, was admittedly not communicated to the detenu.
Its no111disclosure to the dctenu is not being justified as
privileged
under
Article 22(6}. Thus in this case also, all the material or adequate
particulars relatable to the ground intimated, were not conveyed to the
detenu.
ft is not possible to predicate how far the mind of
the
detaining authority was influenced in passing the order of detention
!by the uncommunlcated material.
By this omission, the petitioner's
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HANIF ETC. v. WEST BENGAL (St1rkaria, J.)
265.
constitutional right of making an effective representation was seriously.
jeopardised.
In the result the detention of the petitioner (Gudma Majhi) must
be held to be illegal.
In Writ Petition No. 1681 of 1973, the ground of detention
as.
comn1unicated to the petitioner, Kamal Saha, ran as under :
'That on 10-12-1972 at about 19-30 hrs. you and your
a'8ociates being armed with daggers put all the passengers
to tear of death of a !Ind Class Compartment of 162 Dn.
train at New Barrackpore R.S. and committed robbery in
respect of one bundle of woollen Shawl containing 90 pieces
valued at Rs. 9500/- from Galam Kadar Kashmiri of 96
Ripon Street Calcutta-16, you were subsequently arrested.
44 pieces of shawl valued a Rs. 4500/- were recovered later
on. Your action caused panic, confusion and disturbed pub--
lie order then and there, you have thus acted in. a manner
preJudicial to the maintenance of public order".
In Pora 7 of counter-affidavit, Shri Sukumar Sen, Deputy Secretary·
stated :
" .... that it appears from the records that tho petitioner
1s a veteran Railway Criminal. and was indulging in cnmmitt~
ing robbery in running sub-urban
trains. It appcors
that on 10-12-1972 at about 19-30 hours the petitioner and his associates armed with daggers, committed robbery in a III class Railway Compartment ...... "
The history-sheet communicated by the Superintendent of Police to
the detaining authority states that "he formed and organised a gang and
started <;Pmmitting robbery in Sealdah Bongaon Railway
Section.
This gang is so desperate that no body of the locality resists
them,
even if they commit robbery and. other offences even in their very
presence. They always move with deadly weapons such as pype-guns,
daggers. bombs etc. by which they intimidate the local people."
Thereafter, instances of two robberies committed by him
along
with his associates. on January 30, 1972 and August 1, 1972, are
mentioned.
The particulars of any past crime committed by
him,
which were necessary for showing how he was a veteran railway criminal, were not communicated to the detenu.
In respect of the uncommunicated material, ncr privilege under Art. 22(6) was claimed.
266
SUPRE.'\·IE COURT REPORTS
[ 1974] 3 S.C.R.
fn the absence of those material particulars, the detenu could not
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.exercise his constitutional. right of making an effective representation.
Jn ot~er words, the grounds communicated to the petitioner suffered
from vagueness.
For the reasons aforesaid, all the three petitions are allowed ond the
petitioner in each of them is directed to be set at liberty forthwith.
B
Nothing in this judgment, however, shall preclude the State Gov,rnment/District Magistrate. if so advised, from passing fresh orders of
the detention of the petitioners or any of them, after full and meticulous
compliance with the procedure prescribed by Jaw.
s.c.
Petitions allowed.
c