LexSHAIK HANIF, GUDMA MAJHI & KAMAL SAHA versus STATE OF WEST BENGAL
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258
SHAIK HANIF, GUDMA MAJHI & KAMAL SAHA
v.
STATE OF WEST BENGAL
February 1. 1974
[V. R. KRISHNA IYER AND R. S. $<RKAR!A, JJ.]
Maintenpnce of lnterna/ Security Act-If counter-affidavit to be sworn
by the District Magislrate himself and under what circumstances-"Veterati
copper wire stealer"-meaning of.
Since the matters are similar, the facts of W.P. No. 1679 of 1973 are as
follows:-
A
The petitioner was arrested u/s. 3, sub section (1) and (2) of the Main-
C
tenu-nce of Internal Security Act, 197 l. The grounds of detention were that
the petitioner, on 3-7-72, alongwith _his associates kept concealed 20 bundles
of Telegraph copper wire in.his court-yard under ground with a view to dispose
the san1e at an opportune moment. The said telegraph wire were recovered
::in 3-7-72 on the basis of -t,he confession made by his associates. Tho peti-
tioner was, therefore, arrested because he was acting in a manner prejudicial
to the nlaintenance of supplies and services essential to the community,
The detcnti_on. order was challenged on various grounds :-Ci) That the
D
counter-affidavit on behalf of the State of West Bengal was sworn by the
Depuly Secretary and not by the District Magistrate, on the basis of whose
subjective satisfaction the detention order was made and therefore, it waa
illegal.
(ii) From the .counter-affidavit, it was clear that there were "reliable
ink:·rmmions'' and· material other than the solitary ground of detention com-
n1unic:1ted to the detenn and so, the detenu was unable to make an effective
representation. Therefore, the detention order was violative of clause (5) of
E
Art. 2.2 of the Constitution of India etc.
Allowing the petition:>,
HELD ; ( 1) When a Rule Nisi is issued in a habeas corpus petition, it is
incu1nbent i;pon the State to satisfy the court that the detention of the peti-
t:on~r was legal and in conformity not only with the mandatory provisions
cf Lhe Act, but is also in accord with the requirements of Cl. (5) of Art. 22
of the Constitution. 1262 E]
F
N1rm1ja11 Singh v. State of Madhya Pradesh A.I.R. 1972 S.C. 2215, refer-
red to.
f2) Since the Court is precluded from testing the sub;ective satisfaction of the
dct<iining 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 subjecJive
s:.tisfacrion the detention order was made.
If for sufficient reason shown to
the satisfaction of the Court that the 3.ffidavit of the person .who passed the
1etcn!ion order could not be furnished, the counter-affidavit should be sworn
by so'11e responsible officer who personally dealt with the case in the Govt.
Secretariat elc.
[262 E-F]
In the present case, the deponent did not swear that he had at any
rele\·a1n tin1e personally dealt with the case of the detenu and secondly,
1hc
explanation given for not furnishing the affidavit of the District Magistrate
due to his transfer from that District, was far from satisfactory.
Ran;it Dain v. State of West Bengal A.I.R, 1972 S.C. 1753 and J. N. Ro}'
v. Sta:e of West Bengal A,I.R, 1972 S.C. 2143 referred to.
G
H
A
B
c
D
HANtF ETC. v. WEST BENGAL (Sarkaria, I.)
259
(3) The failure to _furnish the counter-affidavit of the Magistrate who
passed the. order of detention is an impropriety. However, in most cases,
it may not be of much consequence; but in a few cases, for instance. where
mala {ides or extraneous considerations are attributed to .the detaining authority,
it may, ta.ken in conjunction with other circumstances, assume the shape of a
serious infifi'-.iity.
[263 CJ
(4) In the counter-affidavit, it was
mentioned
that
the
detenu
was
a
"veteran copper wire stealer'' and there were "reliable informations'' before
the District Magistrate. Those reliable informatioris were withheld. The words
"veteran copper wire stealer'' also implied a long course of repetitive thievery
of copper-wir~. it is manifest that but fo~ those ''reliable information'' show-
ing that lhe detenu was repeatedly and habitually stealing copper wire,
the
District
~fagistrate might not have passed the detention order in question.
Further, from the 'Criminal Biography' supp tied by the State, it was clear
that all material
p~rticulars of the ground of detention necessary to enable
the detenu to make an effective representation were not communicatExcerpt shown. Read the full judgment & AI analysis in Lexace.