n 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 section Chatterjee for the Respondent
The Judgment of the Court was delivered by SARKARIA 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 section
1 read with sub section
2 of s3 of the for short the Act 
On February 19 1973 the District Magistrate reported about his detention to the State Govern ment which approved 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 s121 of the Act and directed that the detention of the petitioner would continue till the expiration of 12 months from the date of his detention or until the expiry of Defence of India Act of 1971 whichever is later
 The grounds of detention as conveyed to the detenu under P 81 read as under  260 You are being detained 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 the particulars given below  On 3 7 72 at dead of night you along with your associates kept concealed 20 bundles of 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 confession of your associates
The police seized those copper wire and arrested your associate 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 thus 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 shall 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 desire to be heard hear you in person
Sd K L Gupta 19 2 73
District Magistrate West Dinajpur Balurghat
In answer to the Rule Nisi issued by this Court Shri Sukuniar 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 for affirming the affidavit as he has been transferred from the said District
In para 4 of the affidavit it is stated  It appears from the records that after receiving reliable information relating to the illegal anti social and prejudicial activities of the above named detenu petitioner relating to the maintenance of supplies and services essential to the community the said District Magistrate of West Dinajpur passed order of detention against him under the provisions of the said 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 about 20 bundles of telegraph cable wire underground in the court yard of his house with a view to dispose the same at opportune moment
The said removal of copper wire from 261 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 contentions 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 for 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 other circumstances of the case shows that the detention order was passed 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 information 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 lo the detenu is not sought to be justified under clause 6 of Article 22 on the ground of its being facts which the detaining authority 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 representation
The 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 It enables the Advisory Board to base its report on the material received by the Board from the Officer passing the order of detention without the said report being disclosed to the detenu and without affording him an opportunity to controvert the contents of the said report 262 d Sections 11 and 12 empower the Advisory Board and the 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 suspends Fundamental Rights indefinitely under an executive fiat is unconstitutional
What the Parliament cannot destroy in exercise of its amendatory powers under Article 368 a fortiori the President cannot bury by embalming and encasing the same in a Proclamation of Emergency
Fundamental Rights guaranteed under Article 19 are essential features of the Constitution and their indefinite suspension under the cloak of Emergency amounts to their destruction b In forming in opinion 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 scrutiny
The war having ended more than two years ago there is no justification for continuing the Proclamation of Emergency
We will take up contentions 1 and 2 together
As was pointed out by this Court in Natarajan Singh vs State of Madhya Pradesh1 where in a habeas corpus petition a Rule 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 s3 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 s3 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 duly 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
In the instant case the counter affidavit of Shri Sukumar Sen Deputy Secretary Home suffers from two infirmities
Firstly the deponent does not swear that he had at any relevant time personally dealt with the case of the detenu
He has verified the correctness of the averments in his affidavit on the basis of facts gathered from tile official records
Secondly 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
1 A I R 263 In Ranjit Dam vs State of West Bengal1 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 vs State of West Bengal2 and instead the counter affidavit of the Secretariat official specially entrusted with detention cases was deemed sufficient
But that was so because nothing turnedon it
Nevertheless the failure to furnish the counter affidavit of theMagistrate who passed the order of detention is an impropriety
In most cases it may not be of much consequence but in a few cases for instance where mala fides or extraneous considerations are attributed to the Magistrate or the detaining authority it may taken in conjunction with 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 which is a fundamental  right under the Constitution
It has therefore to be construed strictly as far as possible in favour of the citizen and in a manner that does not restrict that right to an extent greater than is necessary to effectuate that object
The provisions of the Act have therefore to be applied with watchful care and circumspection
It is the duty of the
court tosee that the efficacy of the limited yet crucial safeguards provided in the law of preventive detention is not lost in mechanical routine dull casualness and chill indifference on the part of the authorities entrusted with their application
Let us therefore see whether there has been sucha careful and strict compliance with the legal procedure in the instant case
In the counter affidavit the Deputy Secretary has inter alia stated that the petitioner is a veteran copper wire stealer and there were reliable informations before the District Magistrate about his antisocial activities prejudicial to the maintenance of supplies and services essential to the community
Veteran copper wire stealer implies 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 forthose reliable informations showing that the detenu was repeatedly and habitually stealing copper wire the District Magistrate night not have passed the detention order in question
Those reliable information 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 1 A 1
R 2 AIR 1972 SC 2143 264 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 information on the basis of which the District Magistrate ordered the detention
In this under the caption Criminal Biography is mentioned inter alia how the petitioner with his associates organised a gang to steal telegraph copper wire systematically
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 is thus violative of Article 225 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 all 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 on 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 Police Station Asansol on the same date relating to this theft
It is further stated 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 non to the detenu is not being justified as privileged under Article 226
Thus in this case also all the material or adequate particulars relatable to the ground intimated were not conveyed to the detenu
It is not possible to predicate how far the mind of the detaining authority was influenced in passing the order of detention by the uncommunicative material
By this omission the petitioner s 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 communicated to the petitioner Kamal Saha ran as under  That on 10 12 1972 at about 19 30 hrs
you and your associates being armed with daggers put all the passengers to fear of death of a IInd Class Compartment of 162 Dn train at New Barrackpore RS and committed robbery in respect of one bundle of woollen Shawl containing 90 pieces valued at Rs 9500 from Golam 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 public order then and there you have thus acted in a manner prejudicial to the maintenance of public order
In Para 7 of counter affidavit Shri Sukumar Sen Deputy Secretary stated that it appears from the records that the petitioner is a veteran Railway Criminal and was indulging in committing robbery in running sub urban trains
It appears 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 committing robbery in Sealdah Bongaon Railway Section
 This gang is so desperate that nor 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 197Z 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 uncommunicative material nor privilege under article 226 was claimed 
266 In the absence of those material particulars the detenu could not exercise his constitutional right of making an effective representation
In other words the grounds communicated to the petitioner suffered from vagueness
For the reasons aforesaid all the three petitions are allowed and the petitioner in each of them is directed to be set at liberty forthwith
Nothing in this judgment however shall preclude the State Government 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 law
SC Petitions allowed


Summary:
Since the matters are similar the facts of WP No 1679 of 1973 are as follows The petitioner was arrested section 3 sub section 1 and 2 of the 
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 same at an opportune moment
The said telegraph wire were recovered on 3 7 72 on the basis of the confession made by his associates
The petitioner was therefore arrested because he was acting in a manner prejudicial to the maintenance of supplies and services essential to the community
The detention order was challenged on various grounds  i That the counter affidavit on behalf of the State of West Bengal was sworn by the Deputy Secretary and not by the District Magistrate on the basis of whose subjective satisfaction the detention order was made and therefore it was illegal
iiFrom the counter affidavit it was clear that there were reliable informations and material other than the solitary ground of detention communicated to the detenu and so the detenu was unable to make an
effective representation
Therefore the detention order was violative of clause 5 of article I of the Constitution of India etc
Allowing the petitions HELD  1 When a Rule Nisi is issued in a habeas corpus petition 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 he Act but is also in accord with the requirements of Cl
5 of article 22 of the Constitution
262 EJ Niranjan Singh vs State of Madhya Pradesh AIR 1972 SC 2215 referred to
2Since 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 was made
If for sufficient reason shown to the satisfaction of the Court that the affidavit of the person who passed the detention order could not be furnished the counter affidavit should be sworn by some responsible officer who personally dealt with the case in the Govt
Secretariat etc
262 E F In the present case the deponent did not swear that he had at any relevant time personally dealt with the case of the detenu and secondly the explanation given for not furnishing the affidavit of the District Magistrate due to his transfer from that District was far from satisfactory
Ranjit Dam vs State of West Bengal AIR 1972 SC 1753 and J N Roy vs State of West Bengal AIR 1972 SC 2143 referred to
259 3The failure to furnish the counter affidavit of the Magistrate who passedthe order of detention is an impropriety
However in most cases it mayDot be of much consequence but in a few cases for instance
where mala fides or extraneous considerations are attributed to the detaining authority it may taken in conjunction with other circumstances assume the shape of a serious infirmity
263 C 4In the counter affidavit it was mentioned that the detenu was a veteran copper wire stealer and there were reliable information before the District Magistrate
Those reliable information were withheld
The words  veteran copper wire stealer also implied a long course of repetitive thievery of copper wire it is manifest that but for those reliable information showing that the detenu was repeatedly and habitually stealing copper wire the District Magistrate might not have passed the detention order in question
Further from the Criminal Biography supplied by the State it was clear that all material particulars 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 detention is violative of article 225 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 C