TaxTMI 
TaxTMI 
1974 (2) TMI 83
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....tary, Home (Special) Department, Government of West Bengal filed a counter-affidavit in para 4 of which it is averred: "It appears from the records that after receiving reliable information relating to the illegal anti-social and prejudicial activities of the above-named detenu-petitioner relating to the maintenance of Supplies and Services essential to the community, the said District Magistrate of Burdwan passed order of detention against him under the provisions of the said Act." In para 7 of the counter, it is said that "it appears from the records, that the detenu-petitioner is a veteran copper wire criminal." Two instances of thefts of copper wire or cable used for telecommunication services, which took place on December 19, 1971 and December 22, 1971, are also mentioned. The grounds of detention that had been communicated to the detenu, read as under "(1) That on 19-12--1971 at about 00-30 hrs. You alongwith your associates including (1) Md. Kasim son of Md. Mandal of Kashi Mohalla, P. S. Asansol, Dist. Burdwan (2) Hyder Ali son of Bachchu Md. of Talpukuria, P. S. Asansol, Dist. Burdwan, took away 40 kgs. underground copper wire cable used for th....
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....detenu, at any level, is not sufficient to rebut the allegations of the petitioner that his detention has been effected on "totally false" grounds, with "ulterior motives;" (iv) The grounds of detention conveyed to the petitioner were false, vague and deficient in material particulars. All the material or the "reliable information" relating to the "anti-social and prejudicial activities of the petitioner", referred to in the Deputy Secretary's affidavit, showing how the petitioner was a "veteran copper wire criminal", on the basis of which the District Magistrate/the Government was satisfied about the necessity of the impugned detention, was not communicated to the detenu who, in consequence, was deprived of his right to make an effective representation. We will deal with the contentions ad seriatum. Contention (1) does not appear to be tenable. The expression "Supplies" and "Services" in s. 3 (1) (a) (iii) of the Act are to be construed pragmatically in the context of each case, with due stress on the phrase " essential to the life of the community". In a few cases, these expressions may carry a ....
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....dity is at once a supply and a service. Section 36(3) of the Defence of India Rules, 1971 defines it to mean : 'essential commodity' means food, water, fuel, light, power or any other thing essential for the existence of the community which is notified in this behalf by Government. Light and power' thus are commodities; so also food and water. Yet who will deny that light is a service or drinking water, for that matter ? The touchstone of social control is that it must be a thing essential for the existence of the community; when crystallised it is supplies, when sublimated it is services .... Food is supplies, so is shipping and wagons, kerosene and gasoline. And yet they are services." Ail that we may now do is to add copper wire and cables used for tele-communications or power transmission to the above list of commodities, essential to the life of the community, which are at once supplies" and "services" within the contemplation of s. 3 (1) (a) (iii) of the Act. The first contention of Mr. Malviya thus stands negatived. We are unable to accept contention (ii) because this matter stands concluded by this Court's judgment in Fagu Shah etc. etc.....
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....olition of the President, it ceases to be 'the maximum period'. We cannot presume that the President will unreasonably continue the Proclamation of Emergency even after the emergency has ceased to exist." This takes us to contention (iii). This objection has been repeatedly raised in habeas corpus petitions that have come up before this Bench in the last two months. In Shaik Hanif v. State of West Bengal(1) this Court had pointed out that in return to a Rule Nisi issued by this Court in a habeas corpus petition, the proper person to file the counter-affidavit is the District Magistrate who had passed the order of detention under s. 3 of the Act, and, if for some good reason the Magistrate is not available, the next best thing would be to furnish the affidavit of a Senior Officer who personally dealt with the case of the detenu in the Government Secretariat, or had put it to the Minister for orders. Our democratic Constitution inhibits blanket and arbitrary deprivation of a person's liberty by authority. It guarantees that no one shall be deprived of his personal liberty except in accordance with procedure established by law. It further permits the State., in the....
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....tenance of law and order and procurement of rice". Such an explanation is hardly satisfactory. It was all the more important in this case to get the affidavit of the District Magistrate, because in this case the detenu has alleged that lie had been wrongfully arrested and detained for 22 days in the police station and thereafter the detention order under the Act was foisted on him on the basis of charges which were 'totally false' and had been concocted by the police and the detaining authority from ulterior motives to cover up his initial wrongful detention. These allegations of mala fides may be wrong. But the best informed person to rebut the same on oath was the District Magistrate against whom they were levelled. But for the fact that these allegations of mala fides are imprecise and deficient in particulars, the omission to furnish the affidavit of the District Magistrate itself might well have been fatal to the impugned order. Nevertheless, it is a circumstance to be taken into account in appreciating the next contention. The Deputy Secretary in his affidavit has disclosed that therewas "reliable information" and other material,-in addition to whatwa....