9911796707
TMI Blog1975 (1) TMI 99X X X X Extracts X X X X X X X X Extracts X X X X ..... , in Memari area and its vicinity. 2. On 29-7-72 at 2 a.m. you with your associates committed theft of Tower Members from Tower Nos. 246, 247, 248 situated on the field near Dewandighi, P. S. Burdwan and by commission of such theft the towers were likely to fall resulting in stoppage of supply electricity which is essential for maintenance of supplies and services to the community, in Calcutta area and its suburbs." In connection with the above thefts, two cases, one on 21-7- 72 ,-and the other on 1-8-1972, under s. 379, Penal Code were registered with the police. The petitioner was not named in the F.I.R. His complicity was detected in the course of investigation. He was consequently arrested on 3- 8-72 and sent up before the Judicial Magistrate. After further investigation, the police submitted a final report and the petitioner was discharged in both the cases on 3-9-72. On the same day, he was taken into custody pursuant to the impugned order of detention. Mr. A. K. Gupta appearing as amicus curiae for the petitioner contends that the impugned order has been passed to subvert the process of the ordinary penal law, as a colourable exercise of jurisdiction. It is stress ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cheme of the section presupposes that on the date of the order of detention or in the near future, the person sought to be detained has or will have freedom of action. If a person therefore is serving a long term of imprisonment or is in jail custody as an undertrial and there is no immediate or early prospect of his being released on bail or otherwise, the authority cannot legitimately be satisfied on the basis of his past history or antecedents that he is likely to indulge in similar prejudicial activities after his release in the distant or indefinite future. There must be a proximate nexus between the preventive action and the past activity of the detenu on which it is founded. This Court has time and again emphasised that where? in a habeas corpus petition a Rule Nisi is issued, it is incumbent upon the State to satisfy the Court that the liberty of the detenue has been taken away strictly in accordance with law and due compliance with the constitutional requirements of Article 22(5) of the Constitution. The best informed person, therefore, to file the counter-affidavit in response to Rule' Nisi is the authority who made the detention order under s. 3 of the Act. In Sheik ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the petitioner for substantive offences was foredoomed to failure. The circumstances in which the petitioner was discharged by the Judicial Magistrate have not been set out. A bare statement that a "final report" was submitted by the Police is neither here nor there. Such a report could have been made by the Police in any ,of the situations referred to in Sections 169, 170, and 173 of the Code of Criminal Procedure, 1898. Section 169 envisages two different situations in which an accused person can be released. One is ,when there is not sufficient evidence against him. The other is when no reasonable ground or suspicion is revealed by the investigation in regard to his being concerned in the commission of the offence. Such a release can be made by the investigating officer himself without sending the accused before a Magistrate. Section 170 contemplates a situation where there is sufficient evidence or reasonable ground to justify the forwarding of the accused under custody for trial to a 'Magistrate. It is s.173 that provides for , final report, popularly 'known as Police Challan or charge-sheet, which is submitted in the presc ribed form after completion o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pra) wherein A. C. Gupta J. speaking for that Bench said "We do not think it can be said that the fact that the petitioner was discharged from the criminal cases is entirely irrelevant and of no significance; it is a circumstance which the detaining authority cannot altogether disregard. In the case of Bhut Nath Mate v. State of West Bengal(A.I.R. 1974 S.C. 806) this Court observed : ". . . detention power cannot be quietly used to subvert, supplant or to substitute the punitive law of the Penal Code. The immune expedient of throwing into a prison cell one whom the ordinary law would take care of, merely because it is irksome to undertake the inconvenience of proving guilt in court is unfair abuse." If, as the petitioner has asserted, lie was discharged because there was no material against him and not because witnesses were afraid to give evidence against him, there would be apparently no rational basis for the subjective satisfaction of the detaining authority. It is for the detaining authority to say that in spite of the discharge he was satisfied, on some valid material, about the petitioner's complicity in the criminal acts which constitute the basis of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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