Shaik Hanif, Gudma Majhi & Kamal
Saha Vs. State of West Bengal  INSC 19 (1 February 1974)
SARKARIA, RANJIT SINGH SARKARIA, RANJIT SINGH
CITATION: 1974 AIR 679 1974 SCR (3) 258 1974
SCC (1) 637
R 1974 SC 806 (21) R 1974 SC 816 (3) D 1974
SC 832 (3,6,8) F 1974 SC 889 (3) F 1974 SC 895 (3) R 1974 SC 917 (14) F 1974
SC1739 (4) D 1974 SC1814 (6) R 1974 SC2120 (6) RF 1974 SC2240 (1) D 1974 SC2337
(15) F 1975 SC 255 (1) R 1975 SC1508 (7) RF 1976 SC1207 (560) RF 1980 SC1983
(4) R 1984 SC 444 (26) R 1990 SC1361 (12) R 1990 SC1455 (12) F 1992 SC 687 (11)
Maintenance of Internal Security Act--If
counter-affidavit to be sworn by the District Magistrate himself and under what
circumstances--"Veteran copper wire stealer"--meaning of.
Since the matters are similar, the facts of
W.P. No. 1679 of 1973 are as follows:
The petitioner was arrested u/s. 3, sub
section (1) and (2) of the Maintenance of Internal Security Act, 1971. The
grounds of detention were that the petitioner, on 3-7-72, along with his
associates kept concealed 20 bundles of Telegraph copper wire in his court-yard
underground with a view to dispose the same at an opportune moment. The said
telegraph wire was 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.
(ii)From 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 Art. "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 Art. 22 of the Constitution. [262 EJ Niranjan Singh
v. State of Madhya Pradesh A.I.R. 1972 S.C.
2215, referred to.
(2)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 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 v. State of West Bengal A.I.R.
1972 S.C. 1753 and J. N. Roy v. State of West Bengal A.I.R. 1972 S.C. 2143
259 (3)The 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] (4)In the
counter-affidavit, it was mentioned that the detenu was a "veteran copper
wire stealer" and there were "reliable information" before the
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 Art. 22(5) of the Constitution and therefore, liable to be
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]
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
M. M. Kshatriya and G. S. Chatterjee for the
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-s. (1) 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 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 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 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.
8(1), 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
Sd/- K. L. Gupta 19-2-73.
District Magistrate, West Dinajpur,
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
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
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)
As was pointed out by this Court in Natarajan
Singh v. State of Madhya Pradesh,(1) 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 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
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
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
(1) A. I. R. 1972 S. C. 2215.
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,(2) 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
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. 1972 S. C, 1753.
(2) A.I.R. 1972 S.C. 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
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 22(5) of the Constitution, and is liable to be quashed on that score
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 22(6).
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 R.S.
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 Art. 22(6) 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.