Judgment

DUA, J. :- The petitioner in these proceedings for a writ in the nature of habeas corpus under Art. 32 of the Constitution is one Mohd. Subrati alias Mohd. Karim detained in the Burdwan Jail pursuant to the impugned order of detention dated February 9, 1972 made by the District Magistrate, Burdwan in exercise of the powers conferred on him by sub-s. (1) read with sub-s. (2) of S. 3 of the Maintenance of Internal Security Act No. 26 of 1971 (hereinafter called the Act). The said District Magistrate, as is clear from the impugned order, was satisfied that with a view to preventing the petitioner from acting in any manner prejudicial to the maintenance of supplies and services essential to the community it was necessary to make the order directing that he be detained. The grounds of detention were duly served on him at the time of his arrest on February 11, 1972. Those grounds are :

"1. That on 6-1-72 at about 03.30 hrs. you along with your associates including (1) Teka Bahadur son of Shri Harak Bir Bahadur of Hutton Road, P. S. Asansol, Dist. Burdwan, (2) Shri Ganesh Das, son of Shri Ghote Das of Gour Mondal Road, P. S. Asansol, Dist. Burdwan committed theft in respect of electric copper wire (about 1500 ft. in length) at Hatgarui near Sen-Raleigh Water Pump, P. S. Asansol, Dist. Burdwan. As a result of this theft, water supply as well as electric supply in Sen-Raleigh Housing Colony, P. S. Asansol, Dist Burdwan was totally disrupted for about 8 hours to the sufferings of the people of the locality.

2. That on 12-1-72 at about 04.00 hrs. you along with your associates including (1) Teka Bahadur son of Shri Harak Bir Bahadur of Hutton Road, P. S. Asansol Dist. Burdwan (2) Ganesh Das, son of Shri Chote Das of Gour Mondal Road, P. S. Asansol, Dist. Burdwan committed theft in respect of electric copper wire (about 3000 ft. in length) from the electric poles at C Block, Sen Raleigh Housing Colony, P. S. Asansol Dist. Burdwan. When challenged by the inhabitants of the area, you and your associates hurled bombs towards them. By your act, electric supply was totallyd disrupted in C Block area, Sen Releigh Housing Estate and its adjoining areas for more than 12 hours causing much inconvenience to the people of the locality."

2. The fact of making the order of detention was duly reported to the State Government on Feburary 9, 1972, the date of the order. The State Government approved that order on February 21, 1972 and the necessary report submitted to the Central Government the same day. The petitioner, as stated by him in the petition for habeas corpus, was produced before and heard in person, by the Advisory Board on April 10, 1972. The Board, according to the respondent, gave its decision the same day. The representation made by the petitioner was received by the State Government on March 16, 1972 and considered by the said Government on March 22, 1972. The State Government confirmed the order of detention on May 5, 1972 and communicated its order to the detenu the same day.

3. The only submission pressed by Shri Jaganmohan, the learned counsel appearing as amicus curiae in support of the writ petition, in assailing the order of detention is that, according to the return itself, two cases for theft of copper wires under S. 379, I.P.C. were registered against the petitioner and others at the Asansol Police Station (Case no. 16 dated 6th January, 1972 and case no. 20 dated 12th January, 1972), but as the witnesses examined under S. 161, Cr. P. C. were reluctant to depose against the petitioner and his associates for fear of danger to their lives, the Investigating Officer submitted as true, his final report suspecting the petitioner and his associates. The order of detention was for this reason described by Shri Khanna as mala fide and, therefore, liable to be quashed. According to the learned counsel in such cases criminal trial is the only course open to the State and no order of detention is legally competent. The counsel add