Mohd. Alam v. State of West Bengal

SARKARIA, J. As similar questions of fact and law arise in these two petitions under Article 32 of the Construction, they will be dis-posed 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 deten-tion order as confirmed by the Government on April 12, 1972 under s. 12 (I) of the Act, directs that the detention "will continue till 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, Governmen! of West Bengal filed a counter-affidavit in para 4 of wliich it is.J1Verred:

"It appears from the records that after receiving reliable information relating to the illegal anti-social and prejudi-cial actMties of the above-named detenu-petitioner relating ID the maintenance of Supplies and Services essential to the

community, the said District Magistrate of Burdwan Jl6SSCd 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, tbat the detenu-petitioner is a veteran copper wire crimin~I." Two instances of thefts of copper wire or cable used for tele-communication services, which took pl.lee 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 :

"

"(I) That on 19-12--1971 at about 00-30 hrs. You alongwith your associates including (1) Md. Kasim son of Md. Manda! 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-communica-tion service from St. Patric School compound, P. S. Asansol, Dist. Burdwan. As a result of this theft important tele-communication service between Panagarh Army Base Camp and Patna \\'lS 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 alongwith your associates including (I ) Md. Kasim son of Md. Manda! of Kasimohalla P. S. Asan-sol, Dist. Burdwan (2) Hyder Ali, son of Bachcha Md. of Talpukuria, P. S. Asansol, Dist. Burdwan took away 80 kgs. underground copper wire cable used for the purpose of tele-communication service fron1 St. Patric School compound, P. S. Asansol, Dist. Burd wan. By your act important tele-communication service Panagarh between Army Base Camp and Fratna was totally disrupted for long 8 hours to the sufferings of the people."

Mr. Malviya, who assisted the Court as amicus curiae has canvas· sed 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 Sup-plies and Services essential to the community". Theft of tele-communication wire or cables, may dis-rupt •services' essential to the comn1unity, but it has no connection with the maintenance of 'supplies'. Ins. 3(1) (a) (iii) the conjunction "and" is to be read as "or", and "supplies" and "services" disjunc· tively, being two different and distinct matters. The ground with regard to "supplies" is thus irrelevant and vague and since no particulars whatever u'l thh: ground were communicated to the detenu, the deten-tion order was violative of cl. (5) of Article 22 of the Constitution;

12-L954Sup a/74

(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 indirect-ly 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 explall\ltion been given as to why he has not done so. The stereotyped affidavit of the Deputy Seceretary who did not personally deal with the case of the detenu, at any level, is not suffi-cient 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 parti-culars. All the material or the "reliable informa-tion" relating to the "anti-social and prejudicial activities of the petitioner", referred fo in the De-puty Secretary's affidavit, showing how the petitio-ner was a "veteran copper wire criminal", on the basis of which the District Magistrate/the Govern-ment was satisfied about the necessity of the im-pugned detention, was not communicated to the detenu who, in con:iequence, was deprived of his right to make an effective representation.

We will deal with the contentions ad seriatum. Contention (I) does not appear to be tenable. The expression "Supplies" and "Ser-vices" in s. 3 (1) (a) (iii) of the Act are to be construed pragmati• cally in the context of each ca~'• with due stress on the phrase "essenfral to the life of the community". In a few cases, these expres-sions 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" aris·es, in such a case. In most cases, where, the same activity inay equally affect "supplies" and "services", the connotations of "'sup ... plies" 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 tele-communica#on installations or underground cables.

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, "tele-communication" is both a "supply" and a "service". · So a:re. the copper wires or mains ~hrough 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 es.<ential for their

MOHD. ALAM v. WEST llENGAL (Sarkaria, /.) 383 maintenance. In the context of the acute shortage of essential commo-dities, many other things such as 'food', 'copper', 'coal' etc. may par-take ·the ·chatacter of "supplies" as Well as "services''. Thus in Black-pool Corporation v. Locker(''), it was held ·that the provisions of hous-ing accommodation was within the ambit of "supplies and services" in Regulation 51(1) of the Defence (Gene11al) Regulation 1939.

In Jagdish Prasad v. State of Bihar('), 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 food-grains. It is, therefore, not. necessary to dilate on this subject any fur-ther. 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 weHare state mingle s11pplies 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 •upply 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 ~ny 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 f<!Od and water. Yet who will deny .that light is a service or drinking water, for that matter 1 The touchstone of s~ial control is that it mnst be a thing essential for the existence of the community; when crystallised it is ·supplies, when sublimated it is services .... Food is supplles, so is ship-ping and wagons, kerosene. and gasoline. And yet they are services."

All that we may now do is to add copper wire and cables used for r tele-commuuications or power transmission to the above list of com-

modities, essential to the life of the community, which are at once "supplies" and "seniices" 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('). The argument therein was that the expression "maxi-mum period" in Article 22(7) (b) connotes a definite period reckoned in terms of years, .iitonths 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

(I) (1948! 1, K. B. 349. (2) Writ Petition No. i972 of 1973. {3) Writ Petitions Nos. 41, 106, 113, 214; 441 and 621 of 1973. decided on

20-12-1973.

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 mainte-· nance 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 r 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 fuca-tion of the maximum period of detention with reference to the duration of an emergency but could stomach with compla-cency the fixation of maximum period, may, at fifteen or twenty years ...

We do Rot think that the Parliament in fixing the dura-tion 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 ca~ be uo doubt that it is Parliament that has fixed the maximum period ia 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 umeasonably con-tinue the Proclamation of Emergency even after the emer-gency has ceased to exist."

This takes us to contention' (iii);-·· .-~··· - This objectio~-h~s 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(') this Court had pointed out that in return to a Rule Nisi issued by this Court in a habeas corpus peti-tion, the p:oper person to file. the counter-affidavit is the District Magis-trale 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 \le to furnish the affidavit of a Senior Officer who personally dealt with the case of the detenu in the Government Secrclanat, or had pur it to the Minister for orders.

Our ciemocratic CoffStitution inhibits blanket and arbitrary depriva-tion of a person's liberty by authority. It guarantees. that no one shall

(I) Writ Petition No. 1679 of 1973.

~!). ALAM .v. Wf..Sr JlJ;llG,\L ($ark11ria, /,) 38 5 1"e dc.11ri.ved (lf his personal liberty ~:;cept !,n !lcco;danc.e wilh procedure establ~b~d ,by Ja.w: It iurd\lof,pc:rin1ts t~e State, ijl l!ie h\rger inierests of. soc~ty, to ,51~ restrict th~t J\l.tldament~l ti&l1t th~t a reasona!>le, but del~te hal;mce is maintiiil)~d on a le)lal fulpri1111 between individual liberty nnd social security. · The .sligl1!est deviation from or displllcc-mcnt or infraction or violation of tile legal ptocedure symbolised in that fulcrum, upsets the balance, intr()d11ces ~rror and aberration and vitiates its working. This symbolic balailce th°'rriore has to bl! worked with utmost care and aitention. Viewed in that perspective, the require-ment as to the filing of the counter-affidavit by the proper person can-not 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 prci::edure esta-blished by law, and that the safeguards provided in Article 22 and in · the Act, have not been transgressed or bypassed. .

.

Jn JagdiJh Prasad v. State of Bihur (supra), also where the coun-. !er-affidavit !1ad been sworn by an Assistant of the Home Department, not wit;1 per£onal knowledge, but paper wisdom, the court, both of us, constituting the Bencl1, expressed itself in the same strain, with added emphasis, thus :

"It is difficult to appreciate why in return to a rule nisi in a habeas corpus motion, it is not thought serious enough even "here liberty of a citizen is choked off, to ~et the Dis-trict Magistrate to explain his subjective satisfaction and the grounds therefor. Not even why he is not available, nor the ne~t best, the oath of a Senior Officer in the Secretariat who had been associated with the handling of the case at Govern-ment level. Mechanical affid.avits ...... 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 oase, the Deputy Secretary who has sworn the affi-davit 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 explana-lion, 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 Magistr.ate. 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, becaus~ in this case the detenu has alleged that he 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 fidcs 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 ~llegations of ma/a fides are imprecise and deficient in particulars, the omission to fµrnish the . affi~ davit 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 there was · "reliable information" and. other mraterial,-in addition. to what was

comnlunicated to the det~nu-l~fore the detaining authorities, in regard to lhe "anfi.·social and J)rejudicial . activities" of the petitioner showing how he was· a· "veteran coPper wire criminal".

No bodv is born a criminal, much less a habitual or "veteran" criminoL It takes time for one to become 50. The adjective "veo-teran" which is synonymous with "habitual" implies a long course of recurring or persistent criminal behaviour or repeated commission of crime. Surely, all the informatioo receivAf by the District Magis-trate/ the Government, about the repeateli criminal activities of the detenu had contributed towards the subjective safi.sfaction 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 this material or "reliable information" ~about the "anti~social'' and upre-judicial activities" of the detenu that led to his detention. was not communioated to him. This illformation 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(5l of the Constitution and the Act inasmuch as it did not intimate to the delcnu 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 assis-ted 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 orde~. to file the counter has been given. Jp the affidavit of· the Deputy Secmtary, it is said thut the petitionet is a "person of desperate and dangerous character" and "veteran cop-per wire stealer". Only two instances spread over a period of about 2J months of the theft of one -valuable underground post and tele-graph tele-communication cables were communicated to the detenu. But other material on the basis of which the Dis.trict Magistrate/the Government rw.ched the conclusion that the petitioner was a "des-perate and dangerous character'' and "veteran copper wire stealer" was not communicated to the detenu. The non-communication ofi this material is not sought to be justified on the ground of its being privileged under Article 22(6). Indeed, learned Counsel for the State has been fair enough to place a copy of the material on record. It reads :

"Jiten Ninia ...... originally hails from Dumka.. He works temporarily .... as loading cooly in the colliery. He bas got no education ...... got no landed property. He is addicted to wine and indulges in gambling in the area. The place where he is staying being infested b;: criminals and due to his close a.ssociation with them. he devclopctl criini-nal propensity. His mode of living is beyond his means and as such he started committing petty thofts against property. He came in contact with copper wire· criminals o,f the locality and started committing theft in respect of P.T. tele-comrnunication 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. Jn any case, omission to communicate this material to the detenu must have seriously prejudiced him in exercising his right of making an effective rep_resentation.

We, therefore, allow Jiten Ninia's petition llso, set aside his detention and direct that he be set at liberty forthwith.

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.

0. P. Malviya, for the petitioners (amicus curiae) G.: S. Chatterjee, for the respondent.