Bhagwati, I - (1.) -This is a petition for a writ of habeas corpus under Art. 32 of the Constitution challenging the validity of the detention of the petitioner under an order of detention dated 3rd November, 1973 passed by the District Magistrate, Malda under sub-section 11) read with sub-section (2) of S. 3 of the Maintenance of Internal Security Act, 1971. The questions raised in this petition are of importance as they affect the fundamental right of personal liberty which is one of-the most cherished fundamental rights guaranteed by the Constitution. It is necessary to state the facts giving rise to this petition in so far as they are material to a proper understanding of the important issues involved this petition.
(2.) The District Magistrate, Malda passed an order of detention dated 3rd November, 1973 under sub - section (1) read with sub-section (2) of S. 3 of the Act directing that the petitioner be detained on the ground that it was necessary so to do "with a view to preventing him from acting in any manner prejudicial to the maintenance of supplies and services essential to the community." Within two days after the making of the order of detention, that is on 5th November, 1973, the District Magistrate made a report to the State Government and forwarded to the State Government, along with his report, copies of the order of detention, the history-sheet of the petitioner - a document to which we shall have occasion to refer in some detail a little later - and the grounds on which the order of detention was made. The State Government, presumably on a consideration of the total material forwarded by the District Magistrate, approved the order of detention on 12th November, 1973 under sub-section (3) of S. 3 of the Act. It appears that the petitioner could not be apprehended for some time and it was only on 25th December, 1973 that he was ultimately arrested pursuant to the order of detention. Immediately on his arrest, the petitioner was served with a copy of the grounds of detention as required by Section 8, sub-section (1) of the Act. The grounds of detention stated that the petitioner was being detained: " .....on the grounds that you have been acting in a manner prejudicial to the maintenance of supplies and services essential to the community as evidenced from the particulars given below:- 1. That on 22-4-1973 at night at about 20.00 hrs. you along with your associates broke open an electrical transformer of STC cluster No. 8 at Uttar Laxmipur village, P. S. Kaliachak. At the time of operation the guard detected it and challenged. You and your associates chased him with hasuas, iron rod etc. to assault, when the guard fled away to save his life. You and your associates took away copper wire from transformer. As a result tube wells of the cluster became inoperative. Thus you disrupted the supply of water in cultivation of paddy resulting failure of crops. 2. That on 1-5-1973 at about 23.00 hrs. you along with your associates broke open the transformer at village Dariapur under Mauza Bedrabad, P. S. Kaliachak and took away the valuable portions and the copper wire of the transformer. When the villagers protested, you and your associates threatened them with death. As such the villagers left the place out of fear. As a result of such theft supply of electricity was disrupted in the area. 3. That on 23-5-73 at 00.15 hrs. you along with your associates Abdul Hamid son of Nur Md. of Uttar Laxmipur Dafadortola, Mehini Ranjan Das alias Hittan s/o L Arjeen Monda1 of Uttar Laxmipur, Nafar Bhakattolal and two others removed the transformer from the electrical part of village Natichapa Nayagram Deep tube well for the purpose of committing theft of copper wire. When the same was brought down to the ground, O. C. Kaliachak P. S. with other staff who were on ambush patrol caught hold of you and two of your associates on the spot. Thus you acted in a manner prejudicial to the maintenance of supplies and services essential to the community." The petitioner did not make his representation against the order of detention until the beginning of February 1974, but in the meantime, in obedience of Section 10 of the Act. The case of the petitioner was placed by the State Government before the Advisory Board on 22nd January, 1974 and the grounds of detention were also forwarded to the Advisory Board in order to enable it to give its opinion. The representation of the petitioner against the order of detention was in the meanwhile received by the State Government on 5th February, 1974. The State Government considered the representation of the petitioner and rejected it on 7th February, 1974, but since the case of the petitioner was pending consideration by the Advisory Board the State Government forwarded it to the Advisory Board for its consideration. The Advisory Board thereafter submitted its report to the State Government on 26th February, 1974 under Section 11 of the Act stating that in its opinion there was sufficient cause for the detention of the petitioner. The State Government, on receipt of the report of the Advisory Board, passed an order dated 5th March, 1974 confirming the detention of the petitioner under Section 12, sub-section (1) of the Act, and this order of confirmation was served on the petitioner through the Superintendent of Police, Murshidabad. It is this detention, originating in the order of detention, approved by the State Government and continued under the order of confirmation passed by the State Government that is being challenged in the present petition.
(3.) The petition was presented by the petitioner from jail and since he was not represented by any counsel, this Court appointed Mr. R. K. Jain, amicus curiae to present the case on behalf of the petitioner. Mr. R. K. Jain on behalf of the petitioner urged the following grounds against the validity of the order of detention: (a) It is apparent from the grounds of detention furnished to the petitioner that there were only three incidents of theft on which the District Magistrate relied for the purpose of coming to a satisfaction that it was necessary to detain the petitioner with a view to preventing him from acting in any manner prejudicial to the maintenance of supplies and services essential to the community. These three incidents were objectively not sufficient to justify such satisfaction and the order of detention based on such satisfaction was, therefore, bad. (b) If the view be taken that the power to detain a person could be exercised by the detaining authority merely on its subjective satisfaction which could not be tested with reference to objective standards, Section ~ of the Act, which empowered the detaining authority to exercise the power of detention on the basis of its subjective satisfaction, imposed unreasonable restrictions on the fundamental rights of the petitioner under Art. 19 (1) and was, therefore, ultra vires that article. (c) The history-sheet of the petitioner was before the District Magistrate when he made the order of detention and though the District Magistrate stated in his affidavit in reply that beyond the three incidents mentioned in the grounds of detention he did not take any other material in the history-sheet into account in passing the order of detention, it was impossible to say that he was not influenced by such other material and since no opportunity was given to the petitioner to make an effective representation against such other material. The order of detention was in contravention of Article 22 (5) of the Constitution and Section 8, sub-section (1) of the Act and was on that account invalid. (d) The history-sheet of the petitioner which contained other relevant material in regard to the petitioner in addition to the three incidents referred to in the grounds of detention was before the State Government when it approved the order of detention and in the absence of any statement to the contrary on behalf of the State Government in the affidavit in reply, it must be inferred that the State Government took such other material into account in approving the order of detention. This was contrary to the constitutional mandate in Art. 22 (5) of the Constitution and the legal mandate in Section 3 read with Section 8 of the Act and it vitiated the order of approval made by the State Government and rendered the detention of the petitioner illegal.;