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ORIGINAL JURISDICTION : Writ Petition No. 324 of 1974. Petition under Article 32 of the Constitution of India. R. K. Jain, for the petitioner.

D. N. Mukherjee, Sukumar Basu and G. S. Chatterjee, for the respondents.

The Judgment of the Court was delivered by BHAGWATI, J. This is a petition for a writ of habeas corpus under article 32 of the Constitution challenging the validity of the detention of the petitioner under an order of detention dated 3rd November, 1973 passed by the District Magistrate, Malda under sub-section (1) read with sub- section (2) of section 3 of the Maintenance of Internal Security Act, 1971. The questions raised in this petition are of importance is they effect the fundamental right of personal liberty which is one of the most cherished fundamental rights guaranteed by the Constitution. It is necessary to state the facts giving rise to this petition in so far as they are material to a proper understanding of the important issues involved in this petition. The District Magistrate, Malda passed an order of detention dated 3rd November, 1973 under sub-section (1) read with sub-section (2) of section 3 of the Act directing that the petitioner be detained on the ground that it was necessary so to do "with a view to preventing him from acting in any manner prejudicial to the maintenance of supplies and services essential to the community". Within two days after the making of the order of detention, that is on 5th November, 1973, the District Magistrate made a report to the State Government and forwarded to the State Government, along with his report, copies of the order of detention, the history-sheet of the petitioner a document to which we. shall have occasion to refer in some detail a little later- and the grounds on which the order of detention was made. The State Government,. presumably on a consideration of the total material forwarded by the District Magistrate, approved the order of detention on 12th November, 1973 under sub-section (3) of section 3 of the Act. It appears that the petitioner could not be apprehended for some time and it was only on 25th December, 1973 that he was ultimately arrested pursuant to, the order of detention. Immediately on his arrest, the petitioner was served with a copy of the grounds of detention as required by section 8, sub-section (1) of the Act. The grounds of detention stated that the petitioner was being detained :

(c) The history-sheet of the petitioner was before the District Magistrate when he made the order of detention and though the District Magistrate stated in his affidavit in reply that beyond the three incidents mentioned in the grounds of detention he did not take any other material in the history-sheet into account in passing the order of detention, it was impossible to say that he was not influenced by such other material and since no opportunity was given to the petitioner to make an affective representation against such other material, the order of detention was in contravention of Art. 22(5) of the Constitution and section 8, subsection (1) of the Act and was on that account invalid.
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(d) The history-sheet of the petitioner which contained other relevant material in regard to the petitioner in addition to the three incidents referred to in the grounds of detention was before the State Government when it approved the order of detention and in the absence of any statement to the contrary on behalf of the State Government in the affidavit in reply, it must be inferred that the State Government took such other material into account in approving the order of deten-

Now, here, it was common ground that the history-sheet of the petitioner was placed by the police authorities before the District Magistrate and it was read by him. The history-sheet recited the following facts and particulars :

"This does not help him in maintaining the family and as such he became associated with the criminals viz. Kanani Mondal of Krishnapur, Kuren Mondel of Krishnapur. He picked up the habit of committing theft of copper wire and as such he mixed up with Mohini Ranjan Das Nillan of Uttar Lakhipur, P.- S. Koliachak and committed theft of copper wires and there were several theft of trans- formers from villages like Betrabad, Uttar Lakhipur, Suitanganj, Nandalalpur all under Kuliachak P.S.".