# Ramesh war Shaw v. District Magistrate, Burdwan & Anr

- **Citation:** [1964] 4 S.C.R. 921
- **Court:** Supreme Court of India
- **Decided:** 1963-09-11
- **Bench:** P. B. Gajendragadkar, K. SuBBA RAo, K. N. WANCHoo, N. Rajagopala Ayyangar, J. R. MunHOLKAR
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ramesh-war-shaw-v-district-magistrate-burdwan-anr-3191
- **Pages:** 12

## Headnote

Preventive Detention-Person in jail custody-Detention order,
£f can be served-Validity-"Satisfaction" of the
authority-Pre~
venJive Detention Act, 1950 (Act 4 of 1950), s. 3(1).
The petitioner \Vas detained by the order of the District Magistrate under the provisions of the Prev~ntive Detention
Act,
1950.
'fhe order recited that the District Magistrate was satisfied that it \Vas necessary to detain the petitioner with a view to
prevent him from acting in a manner prejudicial to the maintenance of Public order. This order was served on the petitioner on
the 15th February 1963, while he was in jail custody as an under-trial prisoner 1n connection with a criminal case pending
against him.
It was urged on behalf of the pet1ttoner that the detention of
the petitioner was not justified by the provisions of s. 3(1) of the
Act and was as such invalid.
HELD (i) The reasonbleness of the satisfaction of the detaining authority cannot be questioned in a court of law for the
reason that the satisfaction of the detaining authority to
which
s. 3(1 )(a) refers is his subjective satisfaction; the adequacy of
the material
on which the said satisfaction purports to rest also
cannot be examined in a court of law. That is
the true
legal position in regard to the satisfaction contemplated by
s.
3(1)(a) of the Act.
The State of Bombay v. Atma Ram Sridhar Vaidya, (1951]
S.C.R. 167, relied on.
(ii) The past conduct or antecedent history of a person can
be taken into account in making a detention order, but the past
conduct or antecedent history of the person, on which the au·
thority purports to act, should ordinarily be proximate in point of
time and should have a rational connection with the conclusion
that the detention of the person is necessary.
Ujagar Singh v. The State of Punjab and fagajit Singh
v.
The State of Punjab, [1952] S.C.R. 756, relied on.
(iii) As an abstract proposition of law, there n1ay not be any
doubt tha~ s. 3(l)(a) of the Aa does ?ot preclude the authority
~rom pass~ng an ~rd~r. of detention against a person whilst he i.5
1n detention or in 1a1l.
But the
relevant facts in connection
w_ith the i;iaking of _the_ order may ~li~er and that may make a
difference m the apphcation of the pnnc1ple that a detention order
59-2 S C lndia/64
1963
September, 11
1963
Ramesh war
Shaw
v.
District
Magistrate,
Burdwan &
Anr.
Gajendragadkar ].
922
SUPREME COURT REPORTS
[1964]
can be passed against a person in jail.
In dealing with this
question, the considerations of proximity of time will be a relevant factor. The question as to whether an order of detention can
be passed against a person who is in detention or in jail,
will always have to be determined in the circumstances of each
case.
Basanta Chandra GhoS< v. Emporer, A.LR. 1945 F.C. 18, explained.
(iv) An order of detention cannot be validly served on a person ,vho is already in jail custQ.,dy and in respect of whom it is
rationally not possible to predicate that if the said order is not
served on hi1n, he would be able to indulge in any prejudicial
activity.
Section 3( 1) of the Act necessarily postulates that a
person sought to be detained would be free to act in a .prejudicial manner if he is not detained.
In other words, the free--
dom of action to the person sought to be detained at the relevant time n1ust be sho¥.'n before an order of detention can be
validly served on him under the said section.
If a person
is
already in jail custody it cannot be rationally postulated that
if he is not detained he '\Vould act in a prejudicial manner.
Labaram Deka Barua v. State,
A.LR.
1951
Assam 43,
and
Haridas Deka v. State, A.LR. 1952 Assam 175, relied on.
Sahadat Ali v. State of Assam, A.LR. 1953 Assam 97, referred to.
( v) The satisfaction that it is necessary to detain a person
for the purpose of preventing him from acting in a prejudicial
manner is thus the basis of the order under s. 3(1)(a), and this
basis is clearly absent in the case of the petitioner.
The detention of the petitioner in th

## Text

-
4 S.C.R.
SUPREME COURT REPORTS
RAMESHWAR SHAW
ti.
921
DISTRICT MAGISTRATE, BURDWAN & ANR.
(P. B. GAJENDRAGADKAR, K. SuBBA RAo, K. N. WANCHoo,
N. RAJAGOPALA AYYANGAR AND J. R. MunHOLKAR JJ.)
Preventive Detention-Person in jail custody-Detention order,
£f can be served-Validity-"Satisfaction" of the
authority-Pre~
venJive Detention Act, 1950 (Act 4 of 1950), s. 3(1).
The petitioner \Vas detained by the order of the District Magistrate under the provisions of the Prev~ntive Detention
Act,
1950.
'fhe order recited that the District Magistrate was satisfied that it \Vas necessary to detain the petitioner with a view to
prevent him from acting in a manner prejudicial to the maintenance of Public order. This order was served on the petitioner on
the 15th February 1963, while he was in jail custody as an under-trial prisoner 1n connection with a criminal case pending
against him.
It was urged on behalf of the pet1ttoner that the detention of
the petitioner was not justified by the provisions of s. 3(1) of the
Act and was as such invalid.
HELD (i) The reasonbleness of the satisfaction of the detaining authority cannot be questioned in a court of law for the
reason that the satisfaction of the detaining authority to
which
s. 3(1 )(a) refers is his subjective satisfaction; the adequacy of
the material
on which the said satisfaction purports to rest also
cannot be examined in a court of law. That is
the true
legal position in regard to the satisfaction contemplated by
s.
3(1)(a) of the Act.
The State of Bombay v. Atma Ram Sridhar Vaidya, (1951]
S.C.R. 167, relied on.
(ii) The past conduct or antecedent history of a person can
be taken into account in making a detention order, but the past
conduct or antecedent history of the person, on which the au·
thority purports to act, should ordinarily be proximate in point of
time and should have a rational connection with the conclusion
that the detention of the person is necessary.
Ujagar Singh v. The State of Punjab and fagajit Singh
v.
The State of Punjab, [1952] S.C.R. 756, relied on.
(iii) As an abstract proposition of law, there n1ay not be any
doubt tha~ s. 3(l)(a) of the Aa does ?ot preclude the authority
~rom pass~ng an ~rd~r. of detention against a person whilst he i.5
1n detention or in 1a1l.
But the
relevant facts in connection
w_ith the i;iaking of _the_ order may ~li~er and that may make a
difference m the apphcation of the pnnc1ple that a detention order
59-2 S C lndia/64
1963
September, 11
1963
Ramesh war
Shaw
v.
District
Magistrate,
Burdwan &
Anr.
Gajendragadkar ].
922
SUPREME COURT REPORTS
[1964]
can be passed against a person in jail.
In dealing with this
question, the considerations of proximity of time will be a relevant factor. The question as to whether an order of detention can
be passed against a person who is in detention or in jail,
will always have to be determined in the circumstances of each
case.
Basanta Chandra GhoS< v. Emporer, A.LR. 1945 F.C. 18, explained.
(iv) An order of detention cannot be validly served on a person ,vho is already in jail custQ.,dy and in respect of whom it is
rationally not possible to predicate that if the said order is not
served on hi1n, he would be able to indulge in any prejudicial
activity.
Section 3( 1) of the Act necessarily postulates that a
person sought to be detained would be free to act in a .prejudicial manner if he is not detained.
In other words, the free--
dom of action to the person sought to be detained at the relevant time n1ust be sho¥.'n before an order of detention can be
validly served on him under the said section.
If a person
is
already in jail custody it cannot be rationally postulated that
if he is not detained he '\Vould act in a prejudicial manner.
Labaram Deka Barua v. State,
A.LR.
1951
Assam 43,
and
Haridas Deka v. State, A.LR. 1952 Assam 175, relied on.
Sahadat Ali v. State of Assam, A.LR. 1953 Assam 97, referred to.
( v) The satisfaction that it is necessary to detain a person
for the purpose of preventing him from acting in a prejudicial
manner is thus the basis of the order under s. 3(1)(a), and this
basis is clearly absent in the case of the petitioner.
The detention of the petitioner in the circumstances of this case,
is not justified by s. 3(l)(a). In the present case the petitioner
\Vas ordered to be released on the ground that he was served
with the order of detention '\vhilst he was in jail custody.
ORIGINAL JuRISDICTION: Petition No. 145 of 1963.
Petition under Art. 32 of the Constitution of India,
for the enforcement of fundamental rights.
R. K. Garg, S. C. Agarwal, D. P. Singh and M. K.
Ramamurthi, for the Petitioner.
B. Sen and P. K. Bose, for the respondents.
September 11, 1963. The Judgment of the Court was
delivered by
GAJENDRAGADKAR J.-The short question which this
petition for Habeas Corpus raises for our decision is
whether the order of detention passed against, and served
on the petitioner Rameshwar .Shaw while he was in jail
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-
--
-
4 S.C.R.
SUPREME COURT REPORTS
923
custody is justified by section 3(1) of tbe Preventive Detention Act, 1950 (No. 4 of 1950)
(hereinafter called 'the
Act'). The answer to this question would naturally
depend upon a fair and reasonable construction of tbe relevant clause of the said section.
The District Magistrate, Burdwan, passed an Order on
tbe 9th February, 1963, whereby he directed tbat tbe petitioner should be detained. The Order recites that the District Magistrate was satisfied that it was necessary to
detain the petitioner with a view to prevent him from acting in a manner prejudicial to the maintenance of public order.
This order was served on tbe petitioner on
tbe 15th February, 1963, in Burdwan Jail where he had
been kept as a result of a remand order passed by a court
of competent jurisdiction which had taken cognizance of
a criminal complaint against him.
As required by s.
7(1) of the Act, the grounds on which the petitioner's
detention had been ordered by the detaining authority were
communicated to him on the same
day. In due
course, the State Government approved of the said Order
on the 16th February, 1%3. The case of the detenu was
then placed before the Advisory Board which recommended the continuance of the petitioner's detention. Thereafter, tbe State Government by its Order passed on the
23rd April, 1963 confirmed the detention of the petitioner
under s. 11 of the Act. This Order of the State Government was ultimately served on the petitioner in the Burdwan Jail on the 29th April, 1963.
The grounds for the petitioner's detention which have
been served on him indicate that material had been
placed before the detaining authority which showed that
the petitioner was indulging in anti-social activities and
that in pursuance of the said activities, he had threatened
many people with assault and in fact had assaulted them.
These grounds further show that the petitioner had disturbed public order in areas within Faridpur, Anda!, Raniganj and Assansol police stations within the district
of Burdwan, and five instances were cited in support of
this ground. The notice conveying the said grounds to
the petitioner further alleged that as a result of the criminal activities of the petitioner set out in the notice, confusion had been created in the lives of the peaceful
1963
Ramesh war
Shaw
v.
District
Magistrate,
Burdwan &
Anr.
Gajendragadkar /.
1963
Ramesh war
Shaw
v.
District
Magi.itrate,
Burdwan l!r
Anr.
Gaiendra·
:•dkar /.
924
SUPREME COURT REPORTS
[1964)
c1t1zem of the areas, and so, the detaining authority was
satisfied that it was necessary to detain the petitioner to
prevent him from indulging in prejudicial activities. The
notice further informed the petitioner that if he wanted to make a representation against the order of detention
passed by the detaining authority, he should take steps
to forward his representation as indicated in the notice.
He wa 1 also told that in case his representation was received, his case would be forwarded to the Advisory Board,
and if he desired to address the Advisory Board personally, he might make a request in that behalf and the
same would be considered.
Mr. Garg for the petitioner has challenged validity of
the petitioner's detention on several grounds. He contends
that the detention of the petitioner is not justified by
the provisions of s. 3(1) of the Act and as such is invalid.
He also argues that the order of detention has been passed
against the petitioner by the District Magistrate, Burdwan, mala fide.
According to him, the material facts
stated in the notice served on the petitioner setting forth
the grounds for his detention, are imaginary and nonexistent and some of the grounds are vague and irrelevant ; and he also contends that the affidavits filed on behalf of the respondents clearly indicate that some of the
grounds on which the detaining authority relies and which
must therefore, have weighed in his mind at the time
when the detention order was passed, were not disclosed
to the petitioner when notice of grounds was served on
him, and that makes the communication of the grounds
materially defective ; it also affected the petitioner's right
to make an effective representation.
These infirmities
in the notice, says Mr. Garg, make the order of detention :nvalid.
It has also been suggested that the petitioner was in fact denied an opportunity to make his representation to the Advisory Board and that also introduces an infirmity in the order. Since we have come to
the conclusion that the first contention raised by Mr.
Garg is well-founded, we do not propose to consider the
merits of the other arguments urged by him in support
of his petition.
,
Let us then read section 3(1) to determine ·the true
scope and effect of_ the relevant clause on which Mr. Garg's
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\. -
-
'I S.C.R.
SUPREME COURT REPORTS
925
argument is founded.
Section 3(1) provides inter alia,
that the Central Government or the State Government
may-( a) if satisfied with respect of any person that with
a view to preventing him from acting in any manner prejudicial to ........ (ii) the security of the State or the maintenance of public order, it is necessary so to do, make an
order directing that such person be detained. It will
be notice.cl that before an order of detention can be validly made by the detaining authorities specified by s.
3(2), the authority must be satisfied that the detention of
the person is necessary in order to prevent him from
acting in any prejudicial manner as indicated in clauses
(i) to (iii) of s. 3(1)(a). It is hardly necessary to emphasise that since the Act authorises the preventive detention of citizens without a trial, the material provisions
of the Act must be strictly construed and all safeguards
which the Act has deliberately provided for the protection of citizens must be liberally interpreted. The argument which Mr. Garg has urged before us is that if a
person is already under detention, it would not be reasonably possible for the appropriate authority to satisfy
himself that the detention of such a person is necessary
in order to prevent him from acting in any prejudicial
manner. The basis of the order of detention which the
authority is empowered to pass against a person under
s. 3 (!) (a) is that if the said order is not passed against
him, he may act in a prejudicial manner. In other words
the authority considers the material brought before it
in respect of a person, examines the said material and first
reaches a conclusion that the material shows that the
said person may indulge in prejudicial activities if he is not
prevented from doing so by an order of detention. How
can the authority come to the conclusion that a person
who is in jail costody may act in a prejudicial manner
unless he is detained? The scheme of the section postulates that if an order of detention is not passed against
a person, he would be free and able to act in a prejudicial manner. In other words, at the time when the order
of detention is brought into force, the person sought to
be detained must have freedom of action. That alone can
justify the requirement of the section that the order of
detention is passed in order to prevent a prejudicial acti1'63
Rttmuh1111W
Sha"
Y.
Dis tries
M agistrot<,
B11rdwan •
A.or.
Gajendr11t•dkor f.
1963
Ramesh war
Shaw
v.
District
Magistrate,
Burdwan &
Anr.
Gajendra·
gadkar f.
926
SUPREME COURT REPORTS
[1964)
vity of the person proposed to be detained. That, in substance, is the contention on which the validity of the petitioner's detention is challenged before us.
It is true that the satisfaction of the detaining authority to which s. 3(1)(a) refers is his subjective satisfaction, and so is not justiciable.
Therefore, it would not
be open to the detenu to ask the Court to consider the
question as to whether the said satisfaction of the detaining authority can be justified by the application of objective tests. It would not be open, for instance, to
the
detenu to contend that the grounds supplied to him do
not necessarily or reasonably lead to the conclusion that if
he is not detained, he wonld indulge in prejudicial activities. The reasonableness of the satisfaction of the detaining authority cannot be questioned in a Court of law;
the adequacy of the material on which the said satisfaction purports to rest also cannot be examined in
a Court of law. That is the effect of the true legal position in regard to the satisfaction contemplated by section
3(1)(a), vide The State of Bombay v. Atma Ram Sridhar
Vtiidya(').
There is also no doubt that if any of the grounds
furnished to the detenu are found to be irrelevant while
considering the application of clauses (i) to (iii) of s.
3( 1) (a) and in that sense are foreign to the Act, the satisfaction of the detaining authority on which the order
of detention is based is open to challenge and the detention order liable to be quashed. Similarly, if some
of the grounds supplied to the detenu are so vague that
they would virtually deprive the detenu of his statutory
right of making a representation, that again may introduce a serious infirmity in the order of his detention. If,
however, the grounds on which the order of detention proceeds are relevant and germane to the matters which
fall to be considered under s. 3(1)(a), it would not
be open to the detenu to challenge the order of detention
by arguing that the satisfaction of the detaining authority
is not reasonably based on any of the said grounds.
It is, however, necessary to emphasise in this connection that though the satisfaction of the detaining authority
( 1) [1951] S.C.R. 167, 176.
-
-
•
4 S.C.R.
SUPREME COURT REPORTS
927
contemplated by s. 3(l)(a) is the subjective satisfaction of the said authority, cases may arise where the
detenu may challenge the validity of his detention on
the ground of mala fides and in support of the said
plea J.!rge that along with other facts which show mala
fides, the Court may also consider his grievance that the
grounds served on him cannot possibly or rationally support the conclusion drawn against him by the detaining authority.
It is only in this incidental manner
and in support of the plea of mala fides that this question can become justiciable; otherwise the reasonableness
or propriety of the said satisfaction contemplated by
s. 3 ( 1) (a) cannot be questioned before the Courts .
It is also true that in deciding the question as to whether it is necessary to detain a person, the authority has
to be satisfied that if the said person is not detained, he
may act in a prejudicial manner, and this conclusion can
be reasonably reached by the authority generally in the
light of the evidence about the past prejudicial activities
of the said person.
When evidence is placed before
the authority in respect of such past conduct of the person, the authority has to examine the said evidence and
decide whether it is necessary to detain the said person
in order to prevent him from acting in a prejudicial manner. That is why this Court has held in Ujagar Singh v.
The State of Punjab and /agjit Singh v. The State of
Punjab(') that the past conduct or antecedent history of
a person can be taken into account in making a detention order, and as a matter of fact, it is largely from
prior events showing tendencies or inclinations of a man
that an inference could be drawn whether he is likely even
in the future to act in a manner prejudicial to the maintenance of public order.
In this connection, it is, however, necessary to bear in
mind that the past conduct or antecedent history of the
person on which the authority purports to act, should
ordinarily be proximate in point of time and should
have a rational connection with the conclusion that the
detention of the person is necessary.
It would, for instance, be irrational to take into account the conduct of
(1) [ 1952 J S.C.R. 756.
1963
Ramesh war
Shaw
T.
District
Magistrate,
Burdwan &
Anr.
Gajendragadkar f.
1963
Ramesh war
Shaw
V-;.
District
Magistrate,
Burdwan &
Anr.
Gajendrazadka1· /.
928
SUPREME COURT REPORTS
[1964]
the person which took place ten years before the date of
his detention and say that even though after the said incident took place nothing is known against the person
indicating his tendency to act in a prejudicial manner,
even so on the strength of the said incident which is ten
years old, the authority is satisfied that his detention is
necessary. In other words, where an authority is acting
bona fide and considering the question as to whether a
person should be detained, he would
naturally
expect
that evidence on which the said conclusion is ultimately
going to rest must be evidence of his past conduct or
antecedent history which reasonably and rationally justifies the conclusion that if the saicf person is not detained,
he may indulge in prejudicial activities.
We ought to
add that it is both inexpedient and undesirable to lay
down any inflexible test. The question about 'the validity
of the satisfaction of the authority will bave to be considered on the facts of each case. The detention of a person without a trial is a very serious encroachment on his
personal freedom, and so, at every stage, all questions in
relation to the said detention must be carefully and solemnly considered.
Mr. Sen for the respondent has contended that it is
open to the authority to pass an order of detention against
a person who may be at that time in detention, and
in support of this argument, he has relied on the decision of the Federal Court in Basanta Chandra Ghose v.
Emperor('). In that case the main question which arose
for the decision of the Court was, however, of a different character. It was urged on behalf of the detenu
before the Court that where an earlier order of detention
passed against him was held to be defective, though on
formal grounds, it was not open to the authority to
pass a subsequent order of detention against him on the
same grounds as had been set out in support of the earlier order.
This plea was rejected by the Court. Spens
C.J. observed that "where the earlier order of detention is
held defective merely on formal grounc:ls, there is nothing
to preclude a proper order of detention being based on the
pre-existing grounds themselves, especially in cases in
( 1) A.LR. 1945 F.C. 18.
•
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'·-·
·--
/
4 S.c.R.
SUPREME OOURT REPORTS I
929
which the mllicicncy of the irounds is not cx•mioablc
by the Courts." It is in that connection that the learned
C.J. added that there is equally no force in the contention
_,,.
th.at no order of detention·can be passed against a person
who is already under detention.
As an abstract proposition of law, there may not be
any doubt thats. 3(1)(a) docs.not preclude the authority
from passing an order of detention against a person whilst
he is in detention or in · jail; but the relevant facts in
connection with the making of the order may differ and
that may make a difference in the application of the principls: that a detention order can be passed against. a
... 1963
...
D;;trin
Magistrate,
Burdtvan &-·
Anr.
Gajendra.-
gadk_ar f.
•
person in jail. Take for instance, a c;ise where a person .
,.
has been sentenced to rigorous imprisonment for ten years.
•
It cannot •be · seriously suggested that soon after the
sentence of imprisonment is pronounced on the person, ....•
the detaining authority. can make an order directing the
detention of the said person after he is released from jail ·
at the end of the period of μie sentence imposed on him. In
dealing with this question, ·again the considerations of
· ~ proximity of. time will not be irrelevant. · on· the other
hand, if a person who is undergoing imprisonment,· for ·
a very shon period, say for a month or two or so, and it
is. known that he would soon be released from jail, it
may. be possible for the authority to consider the antecedent history of the said person and decide whether the de-
. tention of the said person would be necessary after he isreIcased "from jail, and if the authority. is bona fide saris-
. fied that such detention is necessary, he can make a valid·
• order of detention a few days before· the person is likely
,
~ be released. The antecedent history and the past conduct on which the order of detention would be based
would, in such i. case, be proximate in point of time .and
would . have a rational connection with the conclusion
drawn by the authority that the detention of the person
after his release is necessary. It may ,not be easy to disCX>Ycr such rational connection between the antecedent
,- ~ory of the person who has been sentenced to ten years'
rigorous imprisonment and the view•. ~t his detention should . be ordered after he is refeased after run-,
ning thfi who!~ "of his sentence. . Therefore, WC arc satiSfied th.at the question as to whether an order of detention
·.
•
_..,_ . -- .....
( 930
SUPREME COURT-REPORTS
[1964]
--, \:,·
·,\
1963 · \
cin be pas:!ed ag~t a person who :_iSin detention or in
jail, will always have to be. detennined in the circumstan-
-- .
RlzmesA~in-·.
SAw.
v.
·vimict .·
M agi~tr,ate>
BurJw1111 &
Anr ..
GajmJr ...
gaJ'1.11r f.
ces of each case.
·
\· · "
The question which still remaiils to be considered is :
·1.
· can a person in · jail custody, like the petitioner,
be
served with an order of detention whilst he is in such
custody? Iti dealing with this point, . it is necessary to
state the relevant facts which are not in dispute. The
petitioner was arrested on the 25th January, 1963. He
has been . in .. custody ever since. On the 15th February,
1963 ·when the order of detention was served on him, he
was . in jail custody.
On these fac:tS, what we have
to decide is : was it open to the detaining authority to
•
come to the conclusion that it was necessary to detain the
-f
petitioner with a view to prevent him from acting
in a prejudicial manner when the petitioner was lcicked
up in jail? We have already seen the logical process which
must · be followed· by the authority in taking action
under s. 3(l)(a); The first stage in the process is to
examine the material adduced against a person to show
either from his conduct or his antecedent history that
..+
he has been acting in a prejudicial manner. If the 54.id
material appears satisfactory to the authority, then the
authority has to consider- whether it is likely that the said·
person would . ·act in a prejudicial manner · in future
if he is not prevented I from doing so by an order of detention. If this question is answered against the petition·
er, then the detention· order can be properly made.
It is obvious that before an authority can legitimately come ·
. · to the conclusion that the detention of the person is
'
necessary . to prevent him from acting in a
prejudicial
•
manner, the authority has to be satisfied that if the per·
son is not detained, he would act in a prejudicial manner·
and that inevitably postulates freedom of action to the
' said person at the relevant time. If a person is already in
jail custody, how can it rationally be postulated that if.
he is not detained, he would act in a prejudicial manner?
. At the point of time when an order. of detention is '11
, ·going to be served on a person, it must be patent tll2t
· the said person would act prejudicially if he is not detained and that is a consideration which· would be absent .
when the authority is dealing with a person already in
...
4 S.C.R.
SUPREME COURT REPORTS
931
detention. The satisfaction that it is 'necessary to detain
a person for the purpose of preventing him from acting
in a prejudicial manner is thus the basis of the order under s. 3(1)(a), and this basis is clearly absent in the
case of the petitioner. Therefore, we see no escape from
the conclusion that the detention of the petitioner in the
circumstances of this case, is not justified by s. 3(1) (a)
and is outside its purview. The District Magistrate, Burdwan who ordered the detention of the detenu acted
outside his powers conferred on him bys. 3(1)(a) when
he held that it was necessary to detain the petitioner
in order to prevent him from acting in a prejudicial manner. That being so, we must hold that Mr. Garg
is right when he contends that the detention of the
petitioner is not justified by s. 3 ( 1) (a). In this connection, we may add that the Assam High Court in two of
its decisions appears to have taken the same view about
the scope and effect of the relevant provisions of s. 3 ( 1) (a)
of the Act, vide Labaram Deka Barua & Anr. v. The
State('), and Haridas Deka v. State(').
Mr. Sen has, however, relied on the decision of the
Assam High Court in Sahadat Ali v. The State of Assam
& Ors.('). In that case, it appeared that the Government had decided in public interest to abandon the prosecution which was pending against the
detenu. The
said decision was duly conveyed to the police and so, the
police reported under section 173 of the Criminal Procedure Code for the release of the detenu. In anticipation
of this release, the order of detention was passed
against him and it was served on him after he was actually released. These facts clearly illustrate how an order
of detention can be passed against a person even though
he may be in detention or jail custody, and also show
that the said order should be served on the detenu after
he is released. The test of proximity of time is fully satisfied in such a case and no invalidity or infirmity is attached to the making of the order or its service. Therefore,
we do not think that the decision in Sahadat Ali's case is
of any assistance to Mr. Sen.
(') A.LR. 1951 Assam 43.
( 3) A.LR. 1953 Assam 97.
(2) A.LR. 1952 Assam 175.
1963
Ramesh war
Shaw
v.
District
Magistrate,
Burdwan &
Anr.
Gajendragadkar f.
1963
Ramesh war
Shaw
v.
Distrz'ct
Magistrate,
Burdwan &
Anr.
Gajendragadkar /.
1963
October 11
932
SUPREME COURT REPORTS
[1964]
The result is, i:he petition succeeds and the order of
detention passed against the petitioner by the District Magistrate, Burdwan, on the 9th February, 1963, is set aside.
We direct that the petitioner should be released forthwith.
Petition aUowed.
MAKHAN SINGH TARSIKKA
••
THE STATE OF PUNJAB
(P. B. GAJENDRAGADKAR, K. SuBBA RAo, K. N. WANCHOO,
J. C. SHAH AND RAGHUBAR DAYAL JJ.)
Defence of India Rules 1962, rr. 30(1), 30(1)(b)-Person in
iail custody-Detention order, if can be served-Validity.
On the 20th November, 1962, an order of detention was passed
against the appellant under Rule 30(1)(b) of the Defence of India
Rules, 1962. This order was served on the appellant on the 21st
November, 1962, while he was in jail custody as an under-trial
prisoner in connection with a criminal case pending against him.
He \Vas arrested on the 25th October, 1962 in connection with the
said criminal case and since then he was in jail custody.
On the
26th October, 1962,
Emergency
was
declared by the President.
Whilst the appellant was in jail custody, he was allowed to interview his friends and about nine persons•interviev.·ed him between
3rd November to the 19th November, 1962. It was alleged by the
respondent that during these interviews, the appellant instigated the
persons who saw him, to commit prejudicial activities.
The a{>'
pellant moved a writ petition in the High Court against the said
detention order.
The High Court dismissed the writ petition on
the ground that the appellant had failed to make out a case that
his detention was illegal.
Held: (i) The decision in
Rameshwar Shaw's case would
be applicable to the present appeal, because the scheme of Rule
30(1) is not radically different from the scheme of s. 3(l)(a) of
the preventive Detention Act and does not affect the construction
of Rule 30(l)(b) of the Rules.
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