it Petition No 319 of 1974
Petition under Article 32 of the Constitution
Anil Kumar Gupta for the petitioner
P Chatteriee and G section Chatterjee for the respondents
The Judgment of the Court was delivered by BHAGWATI J
The petitioner challenges his detention under an order dated 10th September 1973 made by the District Magistrate 594 Burdwan under section 32i of the 
There were several grounds urged before us for challenging the validity of the order of detention but it is not necessary to refer to them since we find that there is one ground which is sufficient to dispose of the petition
To appreciate this ground it is necessary to notice a few facts
The order of detention was made on 10th September 1973 and it was based on the subjective satisfaction of the District Magistrate that it was necessary to detain the petitioner with a view to preventing him from acting in a manner prejudicial to the maintenance of supplies and services essential to the community
This subjective satisfaction according to the grounds of detention furnished to the petitioner was founded on a solitary incident of theft of aluminums wire alleged to have been committed by the petitioner on 14th April 1973
It appears that in respect of this incident a criminal case was filed inter alia against the petitioner in the Court of Sub Divisional Judicial Magistrate Asansol but as the affidavit in reply filed by the District Magistrate shows the witnesses were unwilling to depose against the petitioner in open Court on account of fear of danger to their life and the prosecution was  therefore constrained to drop th criminal case and the petitioner was discharged
However the date when the petitioner was discharged was not set out in the affidavit in reply
The petitioner was thereafter detained on 23rd November 1973 pursuant to the order of detention
There was thus a time lag of about two and a half months between the date of the order of detention and the date when the petitioner was actually detained
The petitioner contended that since the District Magistrate did not state in his affidavit in reply as to when the petitioner was discharged it must be presumed that the petitioner was discharged on or about 10th September 1973 and was available for being detained under the order of detention and yet he was not arrested for a period of two and a half months until 23rd November 1973 and that shows that there was no real necessity to detain the petitioner with a view to preventing him from acting in a prejudicial manner and the subjective satisfaction of the District Magistrate founding the order of detention was not genuine
There is great force in this contention of the petitioner and it must result in invalidation of the order of detention
It is obvious from the facts set out in the affidavit in reply that the petitioner was arrested in connection with the criminal case arising out of the incident dated 14th April 1973 set out in the grounds of detention
The criminal case was ultimately dropped as the witnesses were not willing to come forward to give evidence for fear of danger to their life and the petitioner was discharged
The date of discharge of the petitioner was however not set out in the affidavit in reply
We asked the learned counsel appearing on behalf of the respondent as to whetherthere was any record with him from whick he could tell us as to  What was the date on which the petitioner was discharged but he stated that the only record which he had was that 595 relating to the order of detention and the record relating to the criminal case had not been sent to him
We were told that even the history sheet of the petitioner which was before the District Magistrate when he made the order of detention did not give the date when the criminal prosecution was dropped that the petitioner was discharged
It did not even make any reference to the criminal case
This is rather unfortunate
He should have thought that the fact that a criminal case is pending against the person who is sought to be proceeded against by way of preventive detention is a very material circumstance which ought to be placed before the District Magistrate
That circumstance might quite possibly have an impact on his decision whether or not to make an order of detention
It is not altogether unlikely that the District Magistrate may in a given case take the view that since a criminal case is pending against the person sought to be detained no order of detention should be made for the present but the criminal case should be allowed to run its full course and only if it fails to result in conviction then preventive detention should be resorted to
It would be most unfair to the person sought to be detained not to disclose the pendency of a criminal case against him to the District Magistrate
But that is a different question altogether and it need not detain us
The fact remains that there was no record with the learned counsel appearing on behalf of the respondent from which he could give us the date when the petitioner was discharged
In view of this failure on the part of the respondent to supply information to the Court as to then the petitioner was discharged we must proceed on the assumption that he must have been discharged on or about 10th September 1973
The order of detention must have been made by the District Magistrate in anticipation of the discharge of the petitioner and the discharge of the petitioner can therefore be presumed to have taken place at or about the time when the order of detention was made that is 10th September 1973
But if that be so the conclusion is inescap able that though the petitioner was available for detention since about 10th September 1973 he was not detained for a period of about two and a half months upto 23rd November 1973
There was delay of about two and a half months in detaining the petitioner pursuant to the order of detention and this delay unless satisfactorily ex plained would throw considerable doubt on the genuineness of the subjective satisfaction of the District Magistrate recited in the order of detention
It would be reasonable to assume that if the District Magistrate was really and genuinely satisfied after proper application of mind to the materials before him that it was necessary to detain the petitioner with a view to preventing him from acting in a prejudicial manner he would have acted with greater promptitude in securing the arrest of the petitioner immediately after the invoking of the order of detention and the petitioner would not have been allowed to remain at large for such a long period of time to carry on his nefarious activities
of course when we say this we must not be understood to mean that whenever there is delay in arresting the subjective satisfaction of the detaining authority must be held to be not genuine or colourable
Each case must depend on its own peculiar acts and circumstances
The detaining authority may have a reason able explanation for the delay and that might be sufficient to dispel 596 the inference that its satisfaction was not genuine
But here we find that though an affidavit in reply was filed by the District Magistrate himself no explanation was forthcoming in this affidavit as to why the petitioner was not arrested until 23rd November 1973 though the order of detention was made as far back as 10th September 1973
The learned counsel appearing on behalf of the respondent contended that the State was not expected to render any explanation in regard to the delay in arresting the petitioner pursuant to the order of detention because no such complaint was made in the petition
But this is hardly an argument which can avail the State when it is called upon to answer a rule issued on a petition for a writ of habeas corpus
It is the obligation of the State or the detaining authority in making its return to the rule in such a case to place all the relevant facts before the Court and if there is any delay in arresting the detenu pursuant to the order of detention which is prima facie unreasonable the State must give reasons explaining the delay
Vide Sk
Serajul vs State of West Bengal1 Since in the present case no explanation for the delay has been given in the affidavit in reply filed by the District Magistrate we are not at all satisfied that the District Magistrate applied his mind and arrived at a real and genuine subjective satisfaction that it was necessary to detain the petitioner with a view to preventing him from acting in a prejudicial manner
The condition precedent for the making of the order of detention was therefore not satisfied and consequently the order of detention must be quashed and set aside
We accordingly quash and set aside the order of detention and direct that the petitioner be set at liberty forthwith
VPS Petitioned allowed


Summary:
On 14th April 1973 the petitioner was alleged to have committed theft of aluminium wire and a criminal case was filed but it was ultimately dropped and the petitioner was discharged because the witnesses were not willing to give evidence for fear of danger to their life
On 10th September 1973 the District Magistrate passed an order under section 32i of the  detaining the petitioner with a view to prevent ing him from acting in a manner prejudicial to the maintenance of supplies and services essential to the community on his subjective satisfaction based upon the solitary incident of the theft of aluminum wire
The petitioner was actually detained on 23rd November 1973
Allowing the petition challenging the order of detention HELD  The condition precedent for the making of the order of detention namely the existence of a real and genuine subjective
satisfaction of the District Magistrate was not satisfied in the case
and consequently the order of detention must be quashed and set aside
596D E a It must be assumed that the petitioner was discharged on or about 10th September 1973 because the District Magistrate must have made the order of detention in anticipation of the order of discharge
If that was so though the petitioner was available for detention there was a delay of about two and half months in detaining the petitioner pursuant to the order of detention
This delay unless satisfactorily explained would throw considerable doubt on the genuineness of the subjective satisfaction of the District Magistrate recited in the order of detention
If the District Magistrate was really and genuinely satisfied he would have acted with greater promptitude
But he has not offered any explanation as to why the petitioner was not detained until 23rd November 1973 more than two months after he made the order of detention
595D H b It is the obligation of the State or the detaining authority in making its return to the rule nisi in cases of habeas corpus to place all the relevant facts before the court and if there is any delay in arresting the detenu pursuant to the order of detention which is prima facie unreasonable the State must explain the delay
The State cannot contend that the petitioner has not raised the contention in his petition
596B C Sk
Serajul vs State of West Bengal WP 2000 of 1973 decided on September 9 1974 followed