Judgment

BHAGWATI, J.:- The petitioner, who has filed this petition for a writ of habeas corpus from jail, was detained pursuant to an order dated 23rd May, 1972 passed by the District Magistrate, 24 Parganas under sub-section (1) read with sub-section (2) of S. 3 of the Maintenance of Internal Security Act, 1971 on the ground that it was necessary to detain the petitioner with a view to preventing him from acting in any manner prejudicial to maintenance of supplies and services essential to the community. The communication dated 23rd May, 1972, which was served on the petitioner at the time of his arrest, intimated to him the following ground on which the order of detention was made by the District Magistrate:

"That on 18-12-1971 at about 20.00 hours you along with your associates with a view to commit theft of copper return feeder wire of Railway Traction cut the end of the wire of traction at Post No. 28/23 m between Shyamnagar and Ichhapur. During the operation your associates Shri Lakshman Ch. Das died of electrocution at the post. You and other associates then left the place without picking up the wires which rolled up in a running goods train passing on the line and caused serious damage to Post No. 28/23 resulting disruption of train services.

You have thus been acting in a manner prejudicial to the maintenance of supply and services essential to the community."

Though only one single incident was referred to in the communication dated 23rd May, 1972 as forming the basis of the making of the order of detention, the District Magistrate in paragraph 7 of the affidavit fled by him in reply to the petition stated what according to the petitioner was something much more than this single incident:

"I further state that the detenu-petitioner is one of the notorious anti-social elements of Shyamnagar, P. S. He was indulging in committing theft of copper feeder wires from Railway tractions. It appears that on 18-12-1971, the petitioner along with his associates cut the end of feeder traction wires from the post No. 28/23 between Shyamnagar and Ichhapur railway stations with a view to commit theft of the said copper feeder wire and during the said operation one of the associates Lakshman Chandra Das died as a result of electrocution. It further appears that on 12-2-1972 the petitioner and his associates also committed theft of 48.5 metres of overhead copper traction wires between the said railway stations. Due to the aforesaid acts running of trains in the Sealdah Division was dislocated and disrupted for a considerable period causing hardship to travelling public and delay in movement of supply and services. The activities of the petitioner were prejudicial to the maintenance of supply and services essential to the community and so he was detained under the said Act."

The argument of the petitioner was that in arriving at his subjective satisfaction that it was necessary to detain the petitioner with a view to preventing him from carrying on prejudicial activities, the District Magistrate took into account not only the solitary incident intimated to the petitioner in the communication dated 23rd May, 1972, but also the fact that the petitioner was "one of the notorious anti-social element of Shyamnagar P.S.", and that he was indulging in committing theft of copper feeder wires from railway tractions". This, additional circumstance, which went into the formation of the satisfaction of the District Magistrate, was not communicated to the petitioner and the petitioner had. therefore, no opportunity of making his representation against it. This contended the petitioner, constituted violation of the constitutional safeguard in Article 22, clause (5) which has been translated into statutory enactment in Section 8 of the Act. Now, there can be no doubt and that has been repeatedly laid down by this Court in a series of recent decisions commencing from Sheik Hanif v. State of West Bengal, W. P. Nos. 1679 of 1973 etc., D/-1-2-1974 1974 Cri LJ