Case: Rashid Vs. State of West Bengal

1. Rashid Sk., petitioner has approached this Court through jail for a writ of habeas corpus under Art. 32 of the Constitution2. Pursuant to the detention order dated January 3, 1972 made by the District Magistrate, Burdwan under S. 3 (1) and (2) of the Maintenance of Internal Security Act, 26 of 1971 (hereinafter called the Act), the petitioner was arrested on January 5, 1972 and detained with a view to "preventing him from acting in any manner prejudicial to the maintenance of supplies and services essential to the community". The grounds of detention were duly served on him at the time of his arrest. The report regarding the detention order had also been duly sent on January 3, 1972 to the State Government, which approved the order of detention on January 6, 1972. The same day the State Government reported that fact to the Central Government in compliance with S. 3 (4) of the Act. The petitioners case was placed before the Advisory Board on February 1, 1972, and the Board submitted its report on March 4, 1972. The representation made by the petitioner was received by the Government on February 3, 1972 but the same was considered by it on March 1, 1972. The State Government confirmed the order of detention on March 15, 1972 : this confirmation was communicated to the petitioner on March 16, 19723. According to the petitioner he had been arrested on December 11, 1971 and kept in police station Hirapur for 12 days whereafter he was transferred to Koiunapur police station where he was kept for 13 days. On January 5, 1972 the detention order under the Act was served on him and he was thereafter detained in Burdwan District Jail.

Reasoning: We do not attach any importance to the petitioners averment that he had been arrested in December, 1971 in connection with some other cases for the simple reason that he was admittedly detained under the impugned detention order with effect from January 5, 1972. His earlier arrest in connection with some other cases cannot render his detention under the order dated January 3, 1972 illegal, if otherwise it does not suffer from any infirmity.5. In the present case the gap between February 3, 1972 and March 1, 1972 prima facie requires some explanation justifying the delay as the matter involves encroachment on the petitioners right to personal liberty as guaranteed by the Constitution. This Court is expected to fully protect that right subject to the restrictions placed thereon by the Constitution and the law in the larger interests of the security of the State and maintenance of public order and of supplies and services essential to the community which go to the root of the very sustenance of the State and the people. The explanation merely states in a general way that during that time there was a spate ofl activities in the State of West Bengal giving rise to sudden and abrupt increase in the volume of detention cases which led to greater pressure of work and this very much delayed the movement of the files. The records in the office were accordingly not regularly available. This explanation is much too vague and does not require any serious notice. No precise details are given and no figures about the abrupt increase of detention cases have been supplied. The State Government, in our view, should, in any event have made arrangements for dealing with the cases of detention with due promptitude as required by the Constitution. No cogent and convincing material has been placed before us to satisfactorily explain the inability of the State Government in considering the petitioners representation within reasonable time. We are not satisfied that anything of great magnitude had suddenly happened in that State which was so unexpected and extraordinary in its nature that the State Government had been taken by surprise and was thus rendered so helpless as to be unable to comply with the requirements of the Constitution for expeditiously considering the petitioners representation. The State Government, in our view, failed to realise the vital importance of the constitutional check placed on the subjective exercise of the extraordinary power of preventively detaining citizens without trial. This check, it may be pointed out, serves as a safeguard against misuse or improper exercise of this power and is inextricably linked with the legality of preventive detention. We are not unmindful of the interest of the society but those interests have been harmonised by the Constitution with the interest of the individual6. In the view that we have taken on this challenge it is unnecessary to consider any other point in this case.