TMI Blog1975 (1) TMI 99X X X X Extracts X X X X X X X X Extracts X X X X ..... of supplies and services essential to the community. The grounds of detention communicated to the detenue run under : 1. On 21.7.72 at 1 a.m. you with your associates Kartick Karmaker and others' committed theft of Electric wire from Tower Nos. 23 and 24 situated near Dhangachha village and 'by such act you cause stoppage of electric supply which is essential for maintenance of supplies and services to the community, in Memari area and its vicinity. 2. On 29-7-72 at 2 a.m. you with your associates committed theft of Tower Members from Tower Nos. 246, 247, 248 situated on the field near Dewandighi, P. S. Burdwan and by commission of such theft the towers were likely to fall resulting in stoppage of supply electricity wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority in taking ,the impugned action, Counsel has pointed out that the counter- affidavit has not been filed by the District Magistrate who had made the impugned order. In support of these contentions, learned Counsel has relied upon Rameshwar Shaw v. District Magistrate Burdwan ([1964] 4, S.C.R. 921) Noor Chand Sheikh v. State of West Bengal(A.I.R. 1974 S.C. 2120) and the recent judgment of 'this Court in Sri Lal Shaw v. State of West Bengal.( Writ Petition No. 453/74 decided on 4-12-1974) Mr. Chatterjee, learned Counsel for the Respondent-State submits that the mere fact that the petitioner was on the date of the detention order in judicial custody did not stand in the way of the detaining authority being satisfied about his prop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... likely to indulge in similar prejudicial activities after his release in the distant or indefinite future. There must be a proximate nexus between the preventive action and the past activity of the detenu on which it is founded. This Court has time and again emphasised that where? in a habeas corpus petition a Rule Nisi is issued, it is incumbent upon the State to satisfy the Court that the liberty of the detenue has been taken away strictly in accordance with law and due compliance with the constitutional requirements of Article 22(5) of the Constitution. The best informed person, therefore, to file the counter-affidavit in response to Rule' Nisi is the authority who made the detention order under s. 3 of the Act. In Sheik Hanif v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... action despite the detenu being already in jail custody and having no freedom of action on, the date of the detention order. In the present case this has not been done. No counter affidavit has been filed by the person who had made the impugned' order. Even the Deputy Secretary who has filed the counter after gathering some information from the record, does not disclose all the material facts from which it could be rationally possible for the detaining authority to predicate that if the impugned order was not made against the petitioner, though in judicial custody, he could be able to indulge in the prejudicial activities indicated in the impugned order. There is no averment whatever that the charges against the petitioner were true ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hether this report had reference to deficiency or sufficiency of eviden- ce or groundlessness of the charge against the petitioner. Mr. Chatterjee submits that since the petitioner was about 13 days after the impugned order, in fact, discharged by the Judicial Magistrate, it should be presumed that his discharge was due to paucity of ,evidence and not on account of the charge being baseless. We are afraid no such conjecture can be drawn when the liberty ,of a citizen is at stake. The counter-affidavit apart, we asked Mr. Chatterjee if he could show us any official record to support his contention. Counsel was unable to do so. He however, submitted that if a sufficiently long adjournment was granted, he would be able to 'furnish a bet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upta J. speaking for that Bench said We do not think it can be said that the fact that the petitioner was discharged from the criminal cases is entirely irrelevant and of no significance; it is a circumstance which the detaining authority cannot altogether disregard. In the case of Bhut Nath Mate v. State of West Bengal(A.I.R. 1974 S.C. 806) this Court observed : . . . detention power cannot be quietly used to subvert, supplant or to substitute the punitive law of the Penal Code. The immune expedient of throwing into a prison cell one whom the ordinary law would take care of, merely because it is irksome to undertake the inconvenience of proving guilt in court is unfair abuse. If, as the petitioner has asserted, lie was discharged bec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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