Judgment

KRISHNA IYER, J.:- A few issues of some moment, in the context of civil liberties, have been argued in this application for habeas corpus by Shri Mukherjee as amicus curiae. The facts are disquieting, at least for the reason that the petitioner, an aged ailing man around 74, has been under detention since 1973 and, previous to it, had been facing a criminal prosecution which ended in a discharge on the date the detention order was clamped down on him; and counsel pressed the poignant circumstance that the ultimate order of Government dated September 28, 1973, merely confirm the detention, being unlimited in duration and unspeaking on the terminus ad quam for the incarceration.

2. The relevant facts may be stated before discussing the highlights of the arguments. The Commissioner of Police, Calcutta, passed the initial order of detention dated July 19 1973 on the petitioner, Golam Hussain alias Gama, under Section 3 (1) (a) (ii) read with sub-section (2) of the Maintenance of Internal Security Act, 1971 (Act 26 of 1971) (hereinafter referred to as the Act ). The grounds which induced the detaining authority to pass the order were communicated the same day. They have been set out by the State as annexure to the affidavit filed in opposition to the petition and read thus:

"1. On 8-10-72 at about 22.25 hrs., you along with your associates Achche Lal Show of 1, Manickotolla Bazar Lane, Satya Narayan Jaiswal of 123/2, Acharya Prafulla Chandra Road, and others, all being armed with bombs, soda-water bottles created a great disturbance of public order on Gouri Shankar Lane in front of premises No. 8 by hurling bombs indiscriminately with a view to attack one Jiban Paul of 8, Gouri Shankar Lane and his group in retaliation to an earlier quarrel that took place with the said Jiban Paul at 8, Gouri Shankar Lane with your associates Satya Narayan Jaiswal and others. The incident terrorised the locality and threw out of gear the normal life stream of the residents of the said locality amounting to police order.

2. On 9-11-72 sometimes between 04.45 hrs. you along with your associates Ratish Pradhan alias Laltu of 23/1A, Abinash Kaviraj St., Benode Kr. Jaiswal of 348, Gulu Gategar Lane and other all being armed with brickbats, soda-water bottles, bombs poles, created a great disturbance of public order on Gouri Shankar Lane and Abinash Kaviraj Street by hurling soda-water bottles, brickbats indiscriminately with a view to overawe the organisers of the Kalipuja that took place in front of 8 Gouri Shankar Lane and thereby to terrorise the locality. As a result the lights of the above puja pandal were damaged. This was in sequel to an incident that took place earlier at about 04.30 hrs. when your associates Bendone Kumar and others threw beer bottles at the Kalipuja pandal at 8, Gouri Shankar Lane where some females were then dancing, which was then protested by the local people and the organisers of the said puja.

And if left free and unfettered you are likely to continue to disturb maintenance of public order by acting in a similar manner as aforesaid."

3. As required by the statute, the fact of detention was communicated to the State Government which in turn reported to the Central Government. The case was placed before the Advisory Board on August 13, 1973 and when the representation of the detenu was received it was duly considered and negatived by the State Government which thereafter made it over to the Advisory Board. After adverting to the facts, the Board advised continuance of the detention on September 21, 1973. The consequential order confirming the detention was made by the State Government on September 28, 1973 and communicated to the detenu by the middle of October, 1973. We see no statutory shortcoming in the time sequence set out above. But other grounds of attack have been levelled against the order which deserve a closer look.

4. Shri Mukherjee urged that although two criminal cases were started in connection with the tw