Judgment

BHAGWATI, J:- The petitioner challenges his detention under an order dated 10th September, 1973 made by the District Magistrate, Burdwan under Section 3 (2) (i) of the Maintenance of Internal Security Act, 1971. There were several grounds urged before us for challenging the validity of the order of detention but it is not necessary to refer to them since we find that there is one ground which is sufficient to dispose of the petition. To appreciate this ground it is necessary to notice a few facts.

2. The order of detention was made on 10th September, 1973 and it was based on the subjective satisfaction of the District Magistrate that it was necessary to detain the petitioner with a view to preventing him from acting in a manner prejudicial to the maintenance of supplies and services essential to the community. This subjective satisfaction according to the grounds of detention furnished to the petitioner, was founded on a solitary incident of theft of aluminium wire alleged to have been committed by the petitioner on 14th April, 1973. It appears that in respect of this incident a criminal case was filed inter alia against the petitioner in the Court of Sub-Divisional Judicial Magistrate Asansole, but, as the affidavit-in-reply filed by the District Magistrate shows, the witnesses were unwilling to depose against the petitioner in open Court on account of fear of danger to their life and the prosecution was, therefore, constrained to drop the criminal case and the petitioner was discharged. However, the date when the petitioner was discharged was not set out in the affidavit-in-reply. The petitioner was there-after detained on 23rd November, 1973 pursuant to the order of detention. There was thus a time lag of about two and half months between the date of the order of detention and the date when the petitioner was actually detained. The petitioner contended that since the District Magistrate did not state in his affidavit-in-reply as to when the petitioner was discharged, it must be presumed that the petitioner was discharged on or about 10th September, 1973 and was available for being detained under the order of detention and yet he was not arrested for a period of two and a half months until 23rd November, 1973 and that shows that there was no real necessity to detain the petitioner with a view to preventing him from acting in a prejudicial manner and the subjective satisfaction of the District Magistrate founding the order of detention was not genuine. There is great force in this contention of the petitioner and it must result in invalidation of the order of detention.

3. It is obvious from the facts set out in the affidavit-in-reply that the petitioner was arrested in connection with the criminal case arising out of the incident dated 14th April, 1973 set out in the grounds of detention. The criminal case was ultimately dropped as the witnesses were not willing to come forward to give evidence for fear of danger to their life and the petitioner was discharged. The date of discharge of the petitioner was, however, not set out in the affidavit-in-reply. We asked the learned counsel appearing on behalf of the respondent as to whether there was any record with him from which he could tell us as to what was the date on which the petitioner was discharged but he stated that the only record which he had was that relating to the order of detention and the record relating to the criminal case had not been sent to him. We were told that even the history-sheet of the petitioner, which was before the District Magistrate when he made the order of detention, did not give the date when the criminal prosecution was dropped and the petitioner was discharged. It did not even make any reference to the criminal case. This is rather unfortunate. We should have thought that the fact that a criminal case is pending against the person who is sought to be proceeded against by way of preventive detention is a very material circumstance which o