1974 (2) TMI 84 - SC - Indian Laws

Summary

Issues Involved:
1. Legality of the detention order without the affidavit of the District Magistrate.
2. Non-communication of material information to the detenu.
3. Constitutionality of the Maintenance of Internal Security Act, 1971.
4. Unconstitutionality of the continuance of Emergency.

Detailed Analysis:

1. Legality of the Detention Order Without the Affidavit of the District Magistrate:
The petitioner contended that the detention order was illegal as the counter-affidavit was not filed by the District Magistrate who passed the detention order but by the Deputy Secretary, Home (Special) Department. The Court noted that in habeas corpus petitions, it is incumbent upon the State to satisfy the Court about the legality of the detention by producing the affidavit of the District Magistrate who passed the order. The explanation that the Magistrate had been transferred was deemed unsatisfactory. The Court emphasized that while the failure to furnish the Magistrate's affidavit alone does not vitiate the detention order, it is a significant factor when considered with other circumstances.

2. Non-communication of Material Information to the Detenu:
The Court found that the detention orders were based on material information that was not communicated to the detenus. For instance, the petitioner was labeled as a "veteran copper wire stealer" based on "reliable information" which was not disclosed to him. The Court held that the non-disclosure of such material information violated Article 22(5) of the Constitution, which mandates that the detenu must be informed of the grounds of detention to make an effective representation. The failure to communicate all material particulars rendered the detention orders illegal.

3. Constitutionality of the Maintenance of Internal Security Act, 1971:
The petitioner challenged the Act on several grounds:
- Section 3: Lack of provision for objective determination of allegations.
- Section 8: Absence of impartial consideration of the detenu's representation.
- Section 11: Advisory Board's report based on undisclosed material.
- Sections 11 and 12: Consideration of materials without giving the detenu an opportunity to contest them.

The Court did not find it necessary to decide on these contentions as the detention orders were already found to be illegal due to non-communication of material information.

4. Unconstitutionality of the Continuance of Emergency:
The petitioner argued that the indefinite suspension of Fundamental Rights under the Emergency was unconstitutional. The Court did not address this issue directly in the judgment, as the detention orders were quashed on other grounds.

Conclusion:
The Supreme Court allowed all three petitions, directing that the petitioners be set at liberty forthwith. The Court emphasized that nothing in the judgment precluded the State Government or District Magistrate from passing fresh detention orders after full compliance with the legal procedures. The judgment underscored the importance of strict adherence to procedural safeguards in preventive detention cases to protect the fundamental rights of citizens.