Judgment

KRISHNA IYER, J.:- Shri S. P. Singh, appearing as amicus curiae has urged a few points in support of his submission that the Petitioner detenu, very poor and not fallen into criminal company, is entitled to be set free, the order being illegal.

2. The obnoxious acts, with futuristic import, relating to the detention, have been set out in the grounds annexed to the order and are repeated in the affidavit of the Deputy Secretary, Home (Special) Department, Government of West Bengal, based on the records available in the Secretariat. The District Magistrate of Purulia, nearly three long years ago, passed the order of detention against the petitioner on February 2, 1972 on receipt of materials regarding the prejudicial activities of the detenu and on being subjectively satisfied of the need for the detention under Section 3 of the Maintenance of Internal Security Act, 1971 (Act XXVI of 1971) (hereinafter called the MISA, for short.)

3. The two criminal adventures of the petitioner which persuaded the District Magistrate to prognosticate about his prejudicial activities were allegedly indulged in on September 3, 1971. The grounds of detention are that on that date, in two separate dramatic sallies, the detenu and his associates went armed with hacksaws, lathis etc., and what not, committed theft of overhead copper catenary wires and certain other items from a place between Anaka and Bagalia railway stations. On the first occasion, which was during broad daylight, the miscreants were challenged by the R. S. Members but were scared away by stone throw. On the second occasion, which was at about mid-night, the petitioner and his gang repealed the theft of traction wire etc., at about the same spot when resisted by the duty RPF Rakshaks with the help of villagers ballasts were pelted at them by the violent intruders who made good their escape with the gains of robbery. Based on these two frightful episodes, the detaining authority came to the requisite conclusion about danger to the community, which is recited in the order.

4. The question is whether, in the facts and circumstances of the case, the order can be impugned as colourable or callous exercise of power based on illusory or extraneous circumstances and therefore void. An examination of the surrounding set of facts, serving as backdrop or basis, becomes necessary to appreciate the argument that the subjective satisfaction of the authority did not stem from any real application of his mind but as a ritualistic recital in a routine manner. It is admitted in paragraph 6 of the counter-affidavit that the two incidents were investigated as GRPS Case No 1 and No. 2. The petitioner was arrested in connection with the said cases on September 9, 1971 and the police submitted a final report in both the cases on January 6, 1972 and February 9, 1972 respectively, not because there was no evidence against the petitioner but because the detenu-petitioner being a dangerous person, witnesses were afraid to depose against him in open Court . It may be mentioned here that the petitioner s name was not in the FIR but is alleged to have been gathered in the course of the investigation. However, he was discharged from the two cases on February 9, 1972 out was taken into custody the same day pursuant to the detention order. Thereafter the prescribed formalities were followed and there is no quarrel about non-compliance in this statutory sequence.

5. The crucial submission that deserves close study turns on the colourable nature or mindless manner of the impugned order. What are the facts germane to this issue? It is seen that the petitioner s name is not in the first information statements. Had a court occasion to adjudge the guilt of an accused person charged with serious crime committed in the presence of quasi-police officers and his name is not seen in the earliest report to the police, that would have received adverse notice unless explained. Likewise, the circumstance that the final poli