TMI Blog1974 (2) TMI 84X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 : 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 evade ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or continuing the Proclamation of Emergency. We will take up contentions (1) and (2) together.. As was pointed out by this Court in Natarajan Singh v. State of Madhya Pradesh, A. I. R. 1972 S. C. 2215 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 wa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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