Judgment

SARKARIA, J.:- Abdul Gaffer, petitioner challenges the order dated 18-5-1972, of his detention made under S. 3 of the Maintenance of Internal Security Act, 1971. The detention order states that the detention was necessary to prevent the petitioner from acting in any manner prejudicial to the maintenance of supplies and services essential to the community. The impugned order was passed on these grounds:

"1. On 18-7-71 at 02/15 hrs. you along with your associates being armed with deadly weapons like daggers etc. committed theft in respect of D. O. Plates from the Rly. Yard near Tikiapara Fly Over Bridge. Being challenged by the (person) on duty R.P.F. party you and your associates attacked them by pelting stones causing injury to the R.P.F, party. The R.P.F, had to open fire when you and your associates fled away leaving behind 3 (three) pieces of D.O. plates. In consequence of theft of Rly. property running of the train services were disrupted.

2. On 25-11-71 at 14/15 hrs. in between Chandmari Bridge and Tikiapara Foot over bridge you along with your associates being armed with deadly weapons committed theft in respect of batteries from empty rakes standing on the Rly. track. Being challenged by the R.P.F. party you and your associates attacked them by pelting stones in order to take away the stolen batteries by terrorising them. The RPF Party in exercise of right of private defence fired two rounds and one of your associates being injured was arrested at the spot; while you along with your other associates fled away leaving behind six pieces of batteries one implement of battery opener and iron rod etc. which were recovered by the RPF Party. As a result of this act train services in Howrah Burdwan Line was seriously disrupted."

3. On 20-2-1972 at 09/25 hrs. at Howrah Goods-Yard near Oriapara Quarters you along with your associates being armed with deadly weapons viz, bombs, iron rods etc, committed theft of wheat bags from a wagon No. ER-86018 standing on line No.28. Being challenged by the RPF party you and your associates attacked them by pelting stones and hurling bombs. As a result one RPF Sub Inspector was injured. The RPF Party in exercise of right private defence fired one round and you and your associates fled away leaving behind 2 bags of wheat, one iron rod which were recovered by the RPF party. One of your associates as a result of firing sustained injury who was subsequently arrested at Howrah General Hospital. As a result of this act train services on Howrah Burdwan Line was suspended for a considerable period."

2. In respect of, these incidents, three cases were registered with the police in regard to offences under Sections 147, 148, 337, 307 and 379. Penal Code. The petitioner was arrested in respect of those offences on March 10, 1972 and forwarded to the Judicial Magistrate who released him on bail on the same day. It was on 18-5-72 that the impugned order was made and the petitioner preventively detailed.

3. The District Magistrate who had passed the impugned order has not filed any affidavit. Instead, his successor-in-office has, in response to the Rule Nisi, filed the counter.

4. Mr. Inder Sen Sawhney, learned Counsel appearing as amicus curiae for the petitioner contends that in the circumstances of the case, the detaining authority could not be possibly satisfied with regard to the tendency of the petitioner to act prejudicially in the manner referred to in the detention order. The order, proceeds the argument has been passed mechanically without applying the mind. It is added that the power has been misused and exercised in a colourable manner. Stress has been laid on the fact that the detaining authority has not filed the counter-affidavit and the return filed in his place by another officer does not satisfactorily explain why the prosecution of the petitioner for the substantive offence in respect of which he was arrested and named in the F:I.R. was not proceeded with. According to Counsel the s