TMI Blog1974 (2) TMI 83X X X X Extracts X X X X X X X X Extracts X X X X ..... Department, Government of West Bengal filed a counter-affidavit in para 4 of which it is averred: 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 Burdwan passed 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, that the detenu-petitioner is a veteran copper wire criminal. Two instances of thefts of copper wire or cable used for telecommunication services, which took place 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 (1) That on 19-12--1971 at about 00-30 hrs. You alongwith your associates including (1) Md. Kasim son of Md. Mandal 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-communication service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 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 particulars. All the material or the reliable information relating to the anti-social and prejudicial activities of the petitioner , referred to in the Deputy Secretary's affidavit, showing how the petitioner was a veteran copper wire criminal , on the basis of which the District Magistrate/the Government was satisfied about the necessity of the impugned detention, was not communicated to the detenu who, in consequence, was deprived of his right to make an effective representation. We will deal with the contentions ad seriatum. Contention (1) does not appear to be tenable. The expression Supplies and Services in s. 3 (1) (a) (iii) of the Act are to be construed pragmatically in the context of each case, with due stress on the phrase essential to the life of the community . In a few cases, these expressions may carry a meaning distinct and different from each other. For example, a sweepers' strike may seriously disrupt the services essential to the community, but no question of disru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so also food and water. Yet who will deny that light is a service or drinking water, for that matter ? The touchstone of social control is that it must be a thing essential for the existence of the community; when crystallised it is supplies, when sublimated it is services .... Food is supplies, so is shipping and wagons, kerosene and gasoline. And yet they are services. Ail that we may now do is to add copper wire and cables used for tele-communications or power transmission to the above list of commodities, essential to the life of the community, which are at once supplies and services 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 (Writ Petitions Nos. 41, 106, 113, 214, 441 and 621 of 1973. decided on 20-12-1973). The argument therein was that the expression maximum period in Article 22(7) (b) connotes a definite period reckoned in terms of years, months or days and that no period can be said to be maximum period unless it is possible to predicate it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ast two months. In Shaik Hanif v. State of West Bengal(1) this Court had pointed out that in return to a Rule Nisi issued by this Court in a habeas corpus petition, 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 the Magistrate is not available, the next best thing would be to furnish the affidavit of a Senior Officer who personally dealt with the case of the detenu in the Government Secretariat, or had put it to the Minister for orders. Our democratic Constitution inhibits blanket and arbitrary deprivation of a person's liberty by authority. It guarantees that no one shall be deprived of his personal liberty except in accordance with procedure established by law. It further permits the State., in the larger interests of society, to so restrict that fundamental right that a reasonable, but delicate balance is maintained on a legal fulcrum between individual liberty and social security. The slightest deviation from or displacement or infraction or violation of the legal procedure symbolised in that fulcrum, upsets the balance, introduces error and aberration an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 fides 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 allegations of mala fides are imprecise and deficient in particulars, the omission to furnish the affidavit 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 therewas reliable information and other material,-in addition to whatwas communicated to the detenu before the detaining authorities,in regard to the anti social and prejudicial activities of the petitioner showing how he was a veteran copper wire criminal . No body is born a criminal, much less a habitual or veteran criminal- It takes time for one, to become so. The adjective veteran which is synonymous with habitual implies a long course of rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : Jiten Niniaoriginally hails from Dumka. He works temporarilyas loading cooly in the colliery. He has got no educationgot no landed property. He is addicted to wine and indulges in gambling in the area. The place where he is staying being infested by criminals and due 'lo his close association with them. he developed criminal propensity. His mode of living is beyond his means and as such he started committing petty thefts against property. He came in contact with copper wire criminals of the locality and started committing theft in respect of P.T. 'telecommunication 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. In any case, omission to communicate this material to the detenu must have seriously prejudiced him in exercising his right of making an effective representation. We, therefore, allow Jiten Ninia's petition also, set aside his detention and direct that he be set ..... X X X X Extracts X X X X X X X X Extracts X X X X
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