Judgment

KHANNA, J.:- This is a petition through jail under Article 32 of the Constitution for the issuance of a writ of habeas corpus by Sasti alias Satish Chowdhary, who has been ordered by the District Magistrate Howrah to be detained under Section 3 of the Maintenance of Internal Security Act, 1971 (hereinafter referred to as the Act). The order recited that it was made with a view to preventing the petitioner from acting in any manner prejudicial to the maintenance of supplies and services essential to the community.

2. The order of detention was passed by the District Magistrate on September 8, 1971. The petitioner, it is stated, was found to be absconding soon after the passing of the order. He was arrested on November 23, 1971 and was served with the order of detention and the grounds of detention together with vernacular translation thereof on the same day. In the meanwhile, on September 8, 1971 the District Magistrate sent report to the State Government about his having made the order of the detention along with the grounds of detention and other necessary particulars. The matter was then considered by the State Government. It approved the detention order on September 10, 1971. The same day the State Government sent report to the Central Government along with necessary particulars regarding the necessity of the order. On December 10, 1971 the State Government received a representation of the petitioner. The said representation, after being considered, was rejected by the State Government on December 21, 1971. On December 22, 1971 the State Government placed the case of the petitioner before the Advisory Board. The representation of the petitioner was also sent to the Advisory Board. The said Board, after considering the material placed before it, including the representation of the petitioner, and after hearing him in person, sent its report to the State Government on January 28, 1972. Opinion was expressed by the Advisory Board that there was sufficient cause for the petitioner s detention. On February 11, 1972 the State Government confirmed the order of detention of the petitioner. Communication of the said confirmation was thereafter sent to the petitioner.

3. In opposition to the petition Shri Dipak Kumar Budra, District Magistrate who made the impugned order, has filed his affidavit. Mr. Arora has argued the case amicus curiae on behalf of the petitioner, while the State has been represented by Mr. Majumdar.

4. Before dealing with the contention advanced by Mr. Arora, it would be pertinent to reproduce the portion of the grounds of detention which contains the necessary particulars:

"You are being detained in pursuance of detention order made in exercise of the powers conferred by sub-section (1) read with sub-section (2) of Section 3 of the Maintenance of Internal Security Act, 1971 (Act No. 26 of 1971), 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 by the particulars given below :-

(1) On 9-7-71 at about 23.30 hrs. you and your associates Sk. Hasan, Kesta Adhikary, Hable Das, Kechi Chakravarty and 3/4 others were found to commit theft in respect of overhead electric wires between two posts near Zanana Latrine of Lawrence & Co. at Chakkashi by the darwans on duty. You and your associate Sk. Hasan were seen on the top of the post cutting one end of the electric wire, while your associates were rolling the cut end of the wire from other posts. The darwans raised alarm and surrounded you with the help of local people. Your associate Sk. Hasan with others escaped and you and two other of your associates could be arrested at the spot with stolen copper wire. This created complete dislocation of electric supplies of the area."

It is argued by Mr. Arora that as the act attributed to the petitioner in the grounds of detention constituted an offence under the Indian Penal Code the petitioner could only be tried in a Court of