Judgment

SARKARIA, J - The petitioner challenges that the validity of the order of his detention made on 23-11-1972 by the District Magistrate, Malda under Section 3 of the Maintenance of Internal Security Act, 1971.

2. The order states that the detention has been made with a view to preventing him from acting in a manner prejudicial to the maintenance of supplies and services essential to the community. The impugned order is founded on the following ground : "On 2-7-1972 at about 20.45 hrs. you and your 50/60 associates twisted the signal wire of Jamirghata Rly. Station up outer signal by pushing wooden stick and tying the same by iron wire. As a result goods train No. DC. 132 up detained beyond outer signal of Jamirghata Rly. Station. You and your associates then broke open the door of the Wagon No. SEC, 47865, and Wagon No. NRC 12872. You and your associates looted raw coals from the above noted wagons and opened KC wagon NRKC. 80027, ERKC. 82923 and WRKC. 50160. RPF Personals stationed at Jamirghats Rly. Station hastened to the spot and chased you and your associates. Then you along with your associates attacked the RPF personals with deadly weapons and pelted stone chips aiming at the RAF personals. On self defence SRK/A. S. Bhagwan Singh was compelled to fire 2 rounds from his rifle. Due to firing one of your associates name Jajal SK of Jatgrachi received bullet injury and died instantaneously and you sustained bullet injury and admitted in Sadar Hospital, Malda with the help of some of your associates and was cured there. The other associates managed to flee from the place of occurrence leaving behind about 40 mds. of raw coal at the place of occurrence. You have, therefore acted in a manner prejudicial to the maintenance of supplies and services essential to the community".

3. The first contention of Mr. R. K. Jain, learned Counsel appearing as amiss curiae for the Petitioner is that the detention order has been passed mechanically without due application of mind. It has also been pointed out that the counter affidavit has not been filed by the authority which had made the detention order under S. 3 (1).

4. We do not find any force in these contentions. The affidavit in opposition has been filed by Shri Sukumar Sen, the Deputy Secretary, Home (special) Department, Government of West Bengal. The detention order was originally made by Shri R. K. Midha, the District Magistrate of Malda. In the counter it has been explained that Shri Midha was for the time being not available for affirming the affidavit as he had been transferred to Shillong and had joined the Ministry of Home Affairs, Government of India. In the circumstances, the explanation for not filing the counter-affidavit by Mr. Midha who had passed the impugned order is satisfactory. In the counter, it is sworn:

"I have been informed by the L O. of the case that in connection with the incident mentioned in the ground of detention a criminal case was filed in the court of S.D. J. M. Malda being G. R. P. S. Case No. 2 dated 3-7-72 under Sections 147/161/ 379 I. P. C. Although the petitioner was not named in FIR of the said case, his complicity transpired during investigation of the above case and he was arrested in connection with the said case on 4-7-72. After some investigations the prosecution submitted final report and the petitioner was discharged from the said case, not because there was no evidence against him but because, the detenu was a dangerous person and witnesses were all afraid to depose against him openly in court. The detenu was freed from the custody on 24-11-72 and was arrested and taken into custody on the same day pursuant to the said order of detention dated 23-11-72".

5. There is no reason to doubt this averment which in turn is based on the information derived from the Police officer who had investigated the case No. 2 D/- 3-7-72.

6. Although the detention order was based on a single incident but the nature and the circumstances in which that crimi