MOHD. ALAM versus STATE OF WEST BENGAL

MOHD. ALAM

STATE OF WEST BENGAL February 14, 1974

[V. R. KRISHNA IYER AND R. s. SARKARIA, JJ.]

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 Main-tenance of Internal Security Act, 1971, with view to prevent him from acting in 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 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 "veteran copper wire criminal". In petition for the issue of 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 "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 few cases these ex-pressions may carry 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 under-ground 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 in-fringe 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, 13, 214, 44\'and 621 of 1973 decided on 20·!2-1973, followed.

(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 senior officer who personally dealt with the case of the detenu in the Secretariat or had put it to the minister

for orders should have been filed. These obligations stem from the well-settled principle that once 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 lakeo away in accordance with the procedure established by law and that· the safe-guards provided in Art. 22 and in the Act have not been transgressed or by-passed. 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. followed. [384 G-385 C; 386 A-BJ

1679 of 1973

(4) All the information received by the District Magistrate and the Govern-ment 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 '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 anti-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 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 dis-posed 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 deten-tion 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 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 prejudi-cial actMties of the above-named detenu-petitioner relating ID the maintenance of Supplies and Services essential to the

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 veteran copper wire crimin~I." Two instances of thefts of copper wire or cable used for tele-communication services, which took pl.lee on December 19, 1971 and December 22, 1971, are also mentioned. . 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-communica-tion service from St. Patric School compound, P. S. Asansol, Dist. Burdwan. As result of this theft important tele-communication 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. Asan-sol, 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 tele-communication service fron1 St. Patric School compound, P. S. Asansol, Dist. Burd wan. By your act important tele-communication 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 view to preventing him from acting in manner prejudicial to the maintenance of Sup-plies and Services essential to the community". Theft of tele-communication wire or cables, may dis-rupt •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 deten-tion order was violative of cl. (5) of Article 22 of the Constitution;

12-L954Sup a/74

(ii) 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 indirect-ly infringes the mandate of Article 22 (7) (b) of the Constitution;

(iii) The District Magistrate who had passed the deten-tion 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 suffi-cient to rebut the allegations of the petitioner that his detention has been effected on "totally false" grounds, with "ulterior motives;"

(iv) The grounds of detention conveyed to the petitioner were false, vague and deficient in material parti-culars. All the material or the "reliable informa-tion" relating to the "anti-social and prejudicial activities of the petitioner", referred fo in the De-D puty Secretary's affidavit, showing how the petitio-ner was "veteran copper wire criminal", on the basis of which the District Magistrate/the Govern-ment was satisfied about the necessity of the im-pugned 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 "Ser-vices" 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 few cases, these expres-sions may carry meaning distinct and different from each other. For example, sweepers' strike may seriously disrupt the "services" essential to the community, but no question of disrupting "supplies" aris·es, in such 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 tele-communica#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 "supply" and "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

maintenance. In the context of the acute shortage of essential commo-dities, many other things such as 'food', 'copper', 'coal' etc. may par-take ·the ·chatacter of "supplies" as Well as "services''. Thus in Black-pool Corporation v. Locker(''), it was held ·that the provisions of hous-ing 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 food-grains. It is, therefore, not. necessary to dilate on this subject any fur-ther. 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 weHare state mingle s11pplies and services so much that the concentric circle geometry becomes misleading stroke of gullibility in :his jural area. For example, an essential commodity is at once •upply and 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 service or drinking water, for that matter 1 The touchstone of s~ial control is that it mnst be thing essential for the existence of the community; when crystallised it is ·supplies, when sublimated it is services .... Food is supplles, so is ship-ping 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 com-modities, 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 "maxi-mum period" in Article 22(7) (b) connotes 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.

This takes us to contention' (iii);-··

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 reasona!>le, but del~te hal;mce is maintiiil)~d on le)lal fulpri1111 between individual liberty nnd social security. · The .sligl1!est deviation from or displllcc-mcnt 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 require-ment as to the filing of the counter-affidavit by the proper person can-not be treated as an empty formality. This obligation stems from the well-settled principle that once 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 esta-c blished by law, and that the safeguards provided in Article 22 and in · the Act, have not been transgressed or bypassed.

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 rule nisi in habeas corpus motion, it is not thought serious enough even "here liberty of citizen is choked off, to ~et the Dis-trict 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 Senior Officer in the Secretariat who had been associated with the handling of the case at Govern-ment level. Mechanical affid.avits ...... by some one handy in the Secretariat cannot be regarded . . . . . This is not mere punctilio of procedure but probative requirement of substance."

In the instant oase, the Deputy Secretary who has sworn the affi-F davit 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. stereotyped explana-lion, the same which was offered in similar petitions decided by this Bench, earlier has been given for not furnishing the affidavit of the Dis-trict Magistr.ate. It is stated that the Magistrate is "preoccupied in the matter of maintenance of law and order and procurement of rice". Such an explanation is hardly satisfactory.

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

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 criminal, much less habitual or "veteran" criminoL It takes time for one to become 50. The adjective "veo-c teran" which is synonymous with "habitual" implies long course of recurring or persistent criminal behaviour or repeated commission of crime. Surely, all the informatioo receivAf by the District Magis-trate/ 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 "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 upre-judicial 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 effec-tive 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 assis-ted 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 "person of desperate and dangerous character" and "veteran cop-per wire stealer". Only two instances spread over period of about 2J months of the theft of one -valuable underground post and tele-graph 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 "des-perate 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

State has been fair enough to place 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 criini-nal 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.