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PETITIONER: MOHD.  ALAM

       Vs.

RESPONDENT: STATE OF WEST BENGAL

DATE OF JUDGMENT14/02/1974

BENCH: SARKARIA, RANJIT SINGH BENCH: SARKARIA, RANJIT SINGH KRISHNAIYER, V.R.

CITATION:  1974 AIR  917            1974 SCR  (3) 379  1974 SCC  (4) 463  CITATOR INFO :  RF         1976 SC1207  (560)  RF         1980 SC1983  (4)  RF         1987 SC1977  (4)  R          1990 SC1597  (19)

ACT: Prevention   detention--’Services   and  Supplies’   in   s. 3(1)(a)(iii)  of the Maintenance of Internal  Security  Act, 1971, Scope of--Detention until the expiry of the Defence of India   Act.  if  valid--Counter-affidavit  on   behalf   of State--Who   should  file--Duty  to   communicate   material particulars to the detenu.

HEADNOTE: The petitioner was detained by an order passed under s. 3(2) of  the Maintenance of Internal Security Act, 1971,  with  a view  to prevent him from acting in a manner prejudicial  to the  maintenance of supplies and services essential  to  the community.   The  detention  order  was  confirmed  by   the Government  and the Government directed that  the  detention should  continue till the expiration of 12 months  from  the date  of detention or until the expiry of Defence  of  India Act,  1971, whichever is later.  Two instances of thefts  of copper   wire  were  given  in  the  grounds  of   detention communicated  to  the detenu.  He alleged that he  had  been wrongfully  arrested and detained for 22 days in the  Police Station and that thereafter the detention order was  foisted on  him  with  false and concocted  charges.   The  counter- affidavit  was  filed, not by the  District  Magistrate  who passed the order of detention; but by a Deputy Secretary  in the  Secretariat who had not personally dealt with the  case of  the detenu, and it stated that from records it  appeared that  the petitioner was a "veteran copper  wire  criminal". In  a petition for the issue of a writ of habeas  corpus  it was  contended that : (1 ) theft of telecommunication  wires or cables, may disrupt ’services’ essential to the community but  had no connection with the maintenance  of  ’supplies’, and  since no particulars whatever in relation  to  supplies were  communicated to the petitioner the ground with  regard to  ’supplies’  is  irrelevant  and  vague  and  hence   the detention   order  was  violative  of  Art.  22(5)  of   the Constitution; (2) the period of detention under the impugned

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order was indefinite and uncertain and infringed Art.  22(7) (b); (3) the counter-affidavit filed was not by the  officer who  was satisfied about the necessity of detention and  was insufficient to rebut the allegations of the petitioner that his  detention was on false grounds with  ulterior  motives; and (4) the grounds of detention conveyed to the  petitioner were  false, vague and deficient in material particulars  in that  the  ’reliable  information’ showing  that  he  was  a "veteran copper wire criminal" was not communicated to him. HELD  : (1 ) The expression ’supplies and services’ in s.  3 (1) (a) (iii) of the Act is 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  from  each other.   But  in most cases the same  activity  may  equally affect  supplies  and  services and the  connotations  of  I supplies’ and ’services’ may coincide or telescope into each other.   Such  will be the case where there is  large  scale theft  of copper wire by cutting and removing the same  from the power mains or telecommunication installations or under- ground cables. [382 E-G] Jagdish  Prasad v. State of Bihar Writ Petition No. 1972  of 1973, followed Strouds’ Judicial Dictionary 3rd Edn. p. 2939 and  Blackpool  Corporation v. Locker [1948]  1,  K.B.  349; referred to. (2)  The period of detention fixed under the impugned orders does  not  infringe  the mandate of Art. 22(7)  (b)  of  the Constitution. [383 G] 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, followed. (3)  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  he  is not  available  the  affidavit  of  a  senior  officer   who personally  dealt  with  the  case  of  the  detenu  in  the Secretariat or had put it to the minister 380 for  orders should have been filed.  These obligations  stem from  the  well-settled principle that once a Rule  Nisi  is issued on a habeas corpus motion by the Court the onus is on the  State to show that the liberty of the detenu  has  been taken  away in accordance with the procedure established  by law  and that the safeguards provided in Art. 22 and in  the Act  have  not been transgressed or bypassed.  But  for  the fact that the allegations of mala fides in the affidavit  of the  petitioner are imprecise and deficient  in  particulars the  omission  to  furnish the  affidavit  of  the  District Magistrate might have been fatal to the impugned order. Shaik  Hanif v. State of West Bengal Writ Petition No.  1679 of 1973 followed. [384 G-385 C; 386 A-B] (4)  All the information received by the District Magistrate and the Government about repeated criminal activities-of the detenu  had contributed towards the subjective  satisfaction of  the detaining authority.  But for the detenu  being,  in the  opinion  of  the  detaining  authority  a  ’veteran  or habitual copper wire criminal’ the District Magistrate might not  have  taken the impugned action.  But,  admittedly  the whole  of  this material or reliable information  about  the antisocial and prejudicial activities of the detenu on which the detention order was based, was not communicated to  him. The non-communication of that material was violative of Art. 22(5)  of the Constitution and the Act, inasmuch as  it  did not  intimate to the detenu the full grounds or material  to enable him to make-an effective representation.  Omission to

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communicate this material to the detenu must have  seriously prejudiced  him  in exercising his constitutional  right  of making   an  effective  representation  and  therefore   the detention was illegal. [386 C-F; 387D]

JUDGMENT: ORIGINAL JURISDICTION : Writ Petitions Nos. 1678 and 1855 of 1973. Under Art. 32 of the Constitution for issue of a writ in the nature of habeas corpus. O.   P. Malviya, for the petitioners (amicus curiae) G.   S. Chatterjee, for the respondent. The Judgment of the Court was delivered by SARKARIA,  J. As similar questions of fact and law arise  in these  two petitions under Article 32 of  the  Construction, they will be disposed of by this common judgment. Petitioner in Writ Petition No. 1678 of 1973 is in detention since  January  15,  1972 in pursuance  of  an  order  dated January  14, 1972, passed under s. 3 (2) of the  Maintenance of  Internal Security Act, 1971 (for short, the Act) by  the District  Magistrate,  Burdwan.   The  detention  order   as confirmed  by the Government on April 12, 1972 under  S.  12 (1)  of the Act, directs that the detention  "will  continue tin  the  expiration  of  12 months from  the  date  of  his detention or until the expiry of Defence of India Act,  1971 whichever is later." In  response  to the Rule Nisi issued by  this  Court,  Shri Sukumar  Sen, Deputy Secretary, Home  (Special)  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 prejudi- cial   activities  of  the   above-named   detenu-petitioner relating  to  the  maintenance  of  Supplies  and   Services essential to the 381 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 from  St. Patric School compound, P. S. Asansol, Dist.  Burdwan.  As a result  of  this theft important  telecommunication  service between  Panagarh  Army  Base Camp  and  Patna  was  totally disrupted for long 6 hours causing much inconvenience to the people. (2)  That  between 28.30 hrs. on 22-12-71 and 00.30 hrs.  on 23-12-71  you along with your associates including  (1)  Md. Kasim son of Md.  Mandal of Kasimohalla P. S. Asansol, Dist. Burdwan (2) Hyder All, son of Bachcha Md. of Talpukuria,  P. S.  Asansol,  Dist.  Burdwan took away 80  kgs.  underground

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copper wire cable used for the purpose of  telecommunication service  from  St. Patric School compound,  P.  S.  Asansol, Dist.   Burdwan.   By your act  important  telecommunication service  Panagarh  between  Army Base  Camp  and  Patna  was totally disrupted for long 8 hours to the sufferings of  the people."  Mr.  Malviya,  who assisted the  Court  as  amicus curiae has canvassed these contentions : (i)  The  impugned order says that the petitioner  has  been detained  "with  a view to preventing him from acting  in  a manner  prejudicial  to  the  maintenance  of  Supplies  and Services   essential   to   the   community".    Theft    of telecommunication  wire  or cables, may  disrupt  ’services’ essential  to the community, but it has no  connection  with the  maintenance  of ’supplies’.  In s. 3(1) (a)  (iii)  the conjunction "and" is to be read as "or", and "supplies"  and "services"  disjunctively, being two different and  distinct matters.   The  ground  with regard to  "supplies"  is  thus irrelevant  and vague and since no particulars  whatever  of this  ground were communicated to the detenu, the  detention order  was  violative  of  cl. (5)  of  Article  22  of  the Constitution; 54Sup CI/74 382 (ii) The period of detention fixed under the impugned  order is indefinite and uncertain inasmuch as it has been made co- extensive with another indefinite and uncertain period viz., the  life of the Defence of India Act, 1971.  In  this  way, the  impugned  order  indirectly infringes  the  mandate  of Article 22 (7) (b) of the Constitution; (iii)     The District Magistrate who had passed the  deten- tion  order,  has not furnished his affidavit, nor  has  any satisfactory  explanation  been given as to why he  has  not done so.  The stereotyped affidavit of the Deputy  Secretary who did not personally deal with the case of the detenu,  at any level, is not sufficient to rebut the allegations of the petitioner   that  his  detention  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 disrupting  "supplies"  arises,  in such a  case.   In  most cases,   where,  the  same  activity  may   equally   affect "supplies"  and "services", the connotations  of  "Supplies" and  "services"  may coincide or telescope into  each  other Such  will be the case where there is large scale  theft  of copper wire by cutting and removing the same from the  power mains  or  telecommunication  installations  or  underground cables.

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According to Strouds’ Judicial Dictionary 3rd Edn. p.  2939, "to supply" means to "pass anything from one who has it  to, those   who   want   it".    Construed   in   this    sense, "telecommunication" is both a "supply" and a "service".   So are  the copper wires or mains through which the  supply  is made  and  service  conducted.   The  same  is  true   about electricity, water, light, fuel or other commodity essential for  the life of the community and the medium or  the  mains essential for their 383 maintenance.   In  the  context of  the  acute  shortage  of essential  commodities,  many other things such  as  ’food’, ’copper’,   ’coal’  etc.  may  partake  the   character   of "supplies"  as  well  as  "services".   Thus  in   Blackpool Corporation v. Locker(1), it was held that the provisions of housing accommodation was within the ambit of "supplies  and services"  in  Regulation  51(1) of  the  Defence  (General) Regulation 1939. In  Jagdish Prasad v. State of Bihar(2), this Court had  the occasion   to  consider  the  meaning  of   "Supplies"   and "Services"  in  this statutory provision in the  context  of hoarding and black-marketing in foodgrains It is, therefore, not  necessary  to dilate on this subject any  further.   It will   be  sufficient  to  extract  here  what  the   Bench, constituted by both of us, said on the point : ".  . . all supplies are not services and all  services  are not  supplies but the complex needs and amenities of  modern life  and  the multifarious obligations of a  welfare  state mingle  supplies  and services so much that  the  concentric circle  geometry becomes a misleading stroke of  gullibility in ’his jural area.  For example, an essential commodity  is at  once  a  supply and a service.   Section  36(3)  of  the Defence of India Rules, 1971 defines it to mean : ’essential commodity’ means food, water, fuel, light,  power or  any  other  thing essential for  the  existence  of  the community which is notified in this behalf by Government. Light  and  power’ thus are commodities; 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(3).  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 its beginning  and end  in  terms of years, months or days and that  since  the determination of the period of detention, namely, expiry  of Defence of India Act, 1971, is dependent upon revocation  of Proclamation of Emergency, the period (1)  [1948]  1, K. B. 349.  (2) Writ Petition  No.  1972  of 1973. (3)  Writ  Petitions Nos. 41, 106, 113, 214, 441 and 621  of 1973. decided on 20-12-1973.

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384 fixed  under s. 13 of the Act is not the maximum  period  as visualised  by Art. 22 (7) (b) Mathew J., who spoke for  the majority, negatived this contention in these terms : "........  as  the  object of  preventive  detention  is  to prevent persons from acting in a manner pre-judicial to  the maintenance  of internal security, public order or  supplies or  services  essential to the community  or  other  objects specified  in entry 9 of List I the power to detain must  be adequate  in point of duration to achieve the object.   And, how can the power be adequate in point of duration, if it is insufficient  to  cope with an emergency created by  war  or public  disorder  or shortage of supplies essential  to  the community,  the  duration  of which might  be  incapable  of being, predicated in terms of years, months or days even  by those  gifted with great prophetic vision ? If ’the  maximum period’ can be fixed only in terms of years, months or  days certainly  it  would have been open to Parliament to  fix  a long period in s. 13 and justify it as ’the maximum period’. It  would be straining the gnat and swallowing the camel  if anybody is shocked by the fixation of the maximum period  of detention with reference to the duration of an emergency but could  stomach  with  complacency the  fixation  of  maximum period, may, at fifteen or twenty years ... We  do not think that the Parliament in fixing the  duration of  the  maximum period of detention with  reference  to  an event like the cessation of the period of emergency has,  in any way, abdicated its power or function, to fix the maximum period  or delegated it to the President.  There can  be  no doubt  that  it  is Parliament that has  fixed  the  maximum period  in s. 13 of the Act.  The only question is  whether, because  the  duration of the period is dependent  upon  the volition  of  the President, it ceases to  be  ’the  maximum period’.    We  cannot  presume  that  the  President   will unreasonably  continue  the Proclamation of  Emergency  even after the emergency has ceased to exist." This takes us to contention (iii). This  objection has been repeatedly raised in habeas  corpus petitions  that have come up before this Bench in  the  last 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 (1)  Writ Petition No. 1679 of 1973. 385 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 and vitiates  its  working. This symbolic balance therefore has to be worked with utmost care  and  attention.   Viewed  in  that  perspective,   the

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requirement as to the filing of the counter-affidavit by the proper person cannot be treated as an empty formality.  This obligation stems from the well-settled principle that once a Rule  Nisi is issued on habeas corpus motion, by the  Court, the  onus  is on the State to show that the liberty  of  the detenu  has  been taken away in  accordance  with  procedure established  by  law, and that the  safeguards  provided  in Article  22  and in the Act, have not been  transgressed  or bypassed. In Jagdish Prasad v. State of Bihar (supra), also where  the counter-affidavit had been sworn by an Assistant of the Home Department,  not with personal knowledge, but paper  wisdom, the  court,  both of us, constituting the  Bench,  expressed itself in the same strain, with added emphasis, thus : "It is difficult to appreciate why in return to rule nisi in a  habeas  corpus motion, it is not thought  serious  enough even  where liberty of a citizen is choked off, to  get  the District  Magistrate to explain his subjective  satisfaction and the grounds therefor.  Not even why he is not available, nor  the  next  best, the oath of a Senior  Officer  in  the Secretariat who had been associated with the handling of the case  at Government level.  Mechanical  affidavits......  by some  one handy in the Secretariat cannot  be  regarded..... This  is not a mere punctilio of procedure but  a  probative requirement of substance." In the instant case, the Deputy Secretary who has sworn  the affidavit  does not aver that he had personally  dealt  with the  case of the detenu.  He has sworn the affidavit  merely on the basis of paper information gathered from the official records.   A  stereotyped explanation, the  same  which  was offered in similar petitions decided by this Bench,  earlier has been given for not furnishing the affidavit of the  Dis- trict  Magistrate.   It  is stated that  the  Magistrate  is "preoccupied  in the matter of maintenance of law and  order and  procurement  of rice".  Such an explanation  is  hardly satisfactory. It  was  all  the more important in this  case  to  get  the affidavit  of the District Magistrate, because in this  case the detenu has alleged that lie had been wrongfully arrested and  detained  for  22  days  in  the  police  station   and thereafter the detention order under the Act was foisted  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 386 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 recurring or  persistent  criminal behaviour or repeated commission of crime.  Surely, all  the

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information   received   by  the   District   Magistrate/the Government,  about the repeated criminal activities  of  the detenu  had contributed towards the subjective  satisfaction of  the detaining authority.  It will not be extravagant  to say  that  but for the detenu being in the  opinion  of  the detaining  authority  a "veteran" or  habitual  copper  wire criminal,  the District Magistrate might not have taken  the impugned action.  Admittedly, the whole of ibis material  or "reliable  information"  about the "anti-social"  and  "pre- judicial   activities"  of  the  detenu  that  led  to   his detention,  was not communicated to him.   This  information which  was withheld was not claimed to be  privileged  under clause  (6) of Article 22.  The non-communication  of  that- material was violative of Article 22(5) of the  Constitution and  the Act inasmuch as it did not intimate to  the  detenu the full grounds or material to enable him to make an effec- tive  representation.  The detention is thus  illegal.   We, therefore,  allow  this Petition, set  aside  the  detention order  and  direct  that the Petitioner be  set  at  liberty forthwith. In  Writ  Petition No. 1855 of 1973, Mr. O. P.  Sharma,  who assisted the Court as amicus curiae, has canvassed the  same points which were urged by Mr. Malviya in Mohd.  Alam’s case (supra).   The same Deputy Secretary has filed the  counter- affidavit  in this case also.  The same explanation  of  the omission of the District Magistrate who passed the detention order, to file the counter has been given.  In the affidavit of the Deputy Secretary, it is said that the petitioner is a "person of desperate- and dangerous character" and  "veteran copper  wire  stealer".  Only two instances  spread  over  a period  of about 2-1/2 months of the theft of  one  valuable underground post and telegraph telecommunication cables were communicated to the detenu.  But other material on the basis of which the District Magistrate/the Government reached  the conclusion   that  the  petitioner  was  a  "desperate   and dangerous  character" and "veteran copper wire stealer"  was not  communicated to the detenu.  The  non-communication  of this material is not sought to be justified on the ground of its, being privileged under Article 22(6).  Indeed,  learned Counsel for the 387 State  has been fair enough to place a copy of the  material on record.  It reads :      "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  at   liberty

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forthwith. V. P. S.     Petition allowed. 388