# SURAJ PAL SAHU v. STATE OF MAHARASHTRA &ORS

- **Citation:** [1986] 3 S.C.R. 837
- **Court:** Supreme Court of India
- **Decided:** 1986-09-25
- **Case number:** Writ Petition No. 1of1986
- **Bench:** R.S. Pathak, Sabyasachi Mukharji, Ranganath Misra
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/suraj-pal-sahu-v-state-of-maharashtra-ors-9301
- **Pages:** 29

## Headnote

National Security Act, 1980-S. 3(2)-'-Detention Order-Detenu
alfeady in Jail-Validity of detention order-Principles for determination of-Legal mala /ides explained.
The delenn was arrested on December 17, 1985 pursuant to a
detention order dated December 16, 1985 passed niider s. 3(2) of the
National Security Act, 1980 and the grounds pf detention were served
on him the same day_. It was all.eged in the order that since the year 1979
the detenu had been continuously engaging himself in oommitting acts
prejudicial to the maintenance of supplies and services essential to the
community, i.e., removing of permanent way material stocked aloug
rail lines for maintenance of rail tracks, removing parts of carriages,
wagons and signal telecommunication materials utilised for repair of
railway wagons and maintenance of signals; that he used to arrange to
remove railway property with the help of his 'gang' and stock the same
in his godown, himself remaining behind the scence; that in a number of
cases railway properties were loaded and carried away in a truck owned.
by the detenu and, thus, the work of maintenance of the tracks was
hampered and quick movement of the wagons loaded with essential
commodities such as foodgrains, arms, ammunition required by the
general public and the armed forces could not be made.
The grounds indicated six different cases in which the detenu was
involved, out of which in two cases he was acquitted and four cases were
pending against him on the date of the passing of detention order. Each
of the grounds indicated in the detention order individually·and colleclively was not only germane but also sufficient to satisfy the detaining
authority with a view to preventing the detenu from acting in any manner prejudicial to the maintenance of supplies and services· essential to
the community and as such it was necessary to detain him.
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SUPREME COURT REPORTS
11986] 3 S.C.R.
The grounds were communicated to the detenu urider s. 8 of the
Act read with Art. 22(5) of the Constitution. Copies of the documents
mentioned in the detention order and placed before the detahting authority were enclosed with the detention order sent to the detenu. The
detenu was informed that he had a right to make a representation to the
State Government against the order of detention, that he should address it in the manner indicated therein, that the State Government
would within three weeks from the date of detention make a reference to
the Advisory Board constituted under s. 9 of the Act to make a report of
detention and that he had right to make the representation to the Advisory Board and if he wanted he would be heard in person by the Advisory
Board if necessary.
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A reference under s. 10 of the Act was n13de to the Advisory
Board and the Advisory Board considered the representation dated
January 8, 1986 of the detenu at the time of interviewing him on
January 29, 1986. The Board submitted its report under s. 12(1) of the
Act on February 3, 1986, which was received by the Government within
the stipulated period of 7 weeks from the date of the detention, and the
Government after considering the representation of the detenu and the
report of the Advisory Board confirmed the defention order.
The detenu challenged the detention order under Article 226 of
the Constitution alleging: (i) that the order was mala fide; (ii) that there
was total absence of material; and (iii) that in any event the provisions
of National Security Act, 1980 were not attracted but the provisions of
the Prevention of Black-marketing and Maintenance of Supplies of Essential Commodities Act, 1980 would be attracted.
A Division Bench dismissed the petition holding that permanent
way material is essential to the maintenance of railway track and safety
of the railway travelling public; that there were good grounds for detention and it was not possible to hold that there were no grounds of
detention relevant for the Act; that only Na

## Text

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SURAJ PAL SAHU
v.
STATE OF MAHARASHTRA &ORS.
SEPTEMBER 25, 1986
[R.S. PATHAK, SABYASACHI MUKHARJI AND
RANGANATH MISRA JJ.)
National Security Act, 1980-S. 3(2)-'-Detention Order-Detenu
alfeady in Jail-Validity of detention order-Principles for determination of-Legal mala /ides explained.
The delenn was arrested on December 17, 1985 pursuant to a
detention order dated December 16, 1985 passed niider s. 3(2) of the
National Security Act, 1980 and the grounds pf detention were served
on him the same day_. It was all.eged in the order that since the year 1979
the detenu had been continuously engaging himself in oommitting acts
prejudicial to the maintenance of supplies and services essential to the
community, i.e., removing of permanent way material stocked aloug
rail lines for maintenance of rail tracks, removing parts of carriages,
wagons and signal telecommunication materials utilised for repair of
railway wagons and maintenance of signals; that he used to arrange to
remove railway property with the help of his 'gang' and stock the same
in his godown, himself remaining behind the scence; that in a number of
cases railway properties were loaded and carried away in a truck owned.
by the detenu and, thus, the work of maintenance of the tracks was
hampered and quick movement of the wagons loaded with essential
commodities such as foodgrains, arms, ammunition required by the
general public and the armed forces could not be made.
The grounds indicated six different cases in which the detenu was
involved, out of which in two cases he was acquitted and four cases were
pending against him on the date of the passing of detention order. Each
of the grounds indicated in the detention order individually·and colleclively was not only germane but also sufficient to satisfy the detaining
authority with a view to preventing the detenu from acting in any manner prejudicial to the maintenance of supplies and services· essential to
the community and as such it was necessary to detain him.
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SUPREME COURT REPORTS
11986] 3 S.C.R.
The grounds were communicated to the detenu urider s. 8 of the
Act read with Art. 22(5) of the Constitution. Copies of the documents
mentioned in the detention order and placed before the detahting authority were enclosed with the detention order sent to the detenu. The
detenu was informed that he had a right to make a representation to the
State Government against the order of detention, that he should address it in the manner indicated therein, that the State Government
would within three weeks from the date of detention make a reference to
the Advisory Board constituted under s. 9 of the Act to make a report of
detention and that he had right to make the representation to the Advisory Board and if he wanted he would be heard in person by the Advisory
Board if necessary.
·
A reference under s. 10 of the Act was n13de to the Advisory
Board and the Advisory Board considered the representation dated
January 8, 1986 of the detenu at the time of interviewing him on
January 29, 1986. The Board submitted its report under s. 12(1) of the
Act on February 3, 1986, which was received by the Government within
the stipulated period of 7 weeks from the date of the detention, and the
Government after considering the representation of the detenu and the
report of the Advisory Board confirmed the defention order.
The detenu challenged the detention order under Article 226 of
the Constitution alleging: (i) that the order was mala fide; (ii) that there
was total absence of material; and (iii) that in any event the provisions
of National Security Act, 1980 were not attracted but the provisions of
the Prevention of Black-marketing and Maintenance of Supplies of Essential Commodities Act, 1980 would be attracted.
A Division Bench dismissed the petition holding that permanent
way material is essential to the maintenance of railway track and safety
of the railway travelling public; that there were good grounds for detention and it was not possible to hold that there were no grounds of
detention relevant for the Act; that only National Security Act was
attracted in the facts and circumstances of the instant case.
In the Special Leave Petition and the Petition under Article 32, on
behalf of the detenu it was contended; (i) that the grounds of detention
were vague, irrelevant and non-existent; (ii) that the grounds of detention related to as far back as 1979 and, therefore, it was not open to the
detaining authority to order detention on those grounds because in
respect of the alleged grounds criminal cases were pending against him
S.P. SAHUv. STATE OF MAHARASHTRA
839
and he had been enlarged on bail; (iii) that when a judicial authority
was satisfied ou the materials placed before it that there were no
grounds for keeping the detenu in 'detention, on the same materials the
executive authority could not substitute the judicial judgment and order
detention to prevent to detenu· from ading in a manner prejudicial to
the interest of the community; (iv) that in view of the fact that the
detenu was on bail, the power of preventive detention had been used to
defeat the provisions of the Code of Criminal Procedure (v) that the
alleged grounds were merely allegations of ordinary criminai cases
which either had ended in.acquittal or in respect of which appeals were
pending or were pending determination and as such the formation of
the belief by the detaining authority for the detention order was merely
on surmises and on materials which the detaining authority was not
competent to take note of; (vi) that the pending criminal cases did not
disclose any activity of the detenu prejudicial to the maintenance of
supplied and services essential to the community. The connection of the
detenu with the alleged offences was not there and as such the satisfaction could not be there of the detaining authority. The detenu was in no
manner connected with the alleged theft committed hy certain named
persons and though the ownership of the truck attributed to the detenu
was not denied or disputed but the involvement of the detenu did not
foilow rr.\m that fact.
Dismissing the Writ Petition and the Special Leave Petition,
BLED: (I) There was no infraction of any procedural safeguard
engrafted in National Security Act, 1980 and that there was rational
subjective satisfaction arrived at bona fide on the basis of the materials
available to the detaining authority and the materials had rational
nexus with the purpose and object of the detention as contemplated by
the Act. Tbe detention order was therefore valid. [865A-Bl.
(2) In view of the Explanation to s. 3 of the Prevention of Blackmarketing and Maintena_nce of Supplies Act, 1980, (Act 7 of 1980) the
expression "acting in any manner prejudicial to the maintenance of
supplies of commodities essential to the communities" has certain particular connotation. But in the instant case, the conduct of the detenu was
prejudicial to the maintenance of supplies and services essential to the
community in general and contemplated by s. 3(2) of the National Security Act and uot in any particular mode contemplated by the Explanation to s. 3(1) of Act 7 of 1980 and as such is not excluded by the
Explanation to sub-s. (2) of s. 3 of the Act. Therefore the' High Court
was right in the view it took on this aspect of the matter. [853B-D I ·
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SUPREME COURT REPORTS
[1986] 3 S.C.R.
(3) Even the existence of one ground is sufficient to sustain the
detention order. [853F~
( 4) An order is ma/a fide when there is malice in law although
there is no malice in fact. The malice in law is to be inferred when order
is made contrary to the objects and purposes of the Act. Whether in any
particular case this is so or not must depend upon the facts and
circumstances of the case. The fact that the person sought to be detained is in fact under detention is a relevant and material factor but the
allegations or the incidents leading to his detention have also to be borne
in mind co-related to the object of a particular Act under which preventive detention is contemplated. [854E-F]
(5) The National Security Act, 1980 provides for preventive detention in certain cases. Power has been given under s. 3 authorising
preventive detention and sub-s. (2) thereof provides that the Central
Government or the State Government might, if satisfied with respect to
any person that with a view to preventing him from acting in any
manner prejudicial to the maintenance of public order or from. acting in
any manner prejudicial to the maintenance of supplies and services
essential to the community it was necessary so to do, make an order
directing that such person be detained then the same can be done. The
Explanation to this sub-section makes it clear that the expression "acting in any manner prejudicial to the maintenance of supp lies and
services essential to the community" does not include "acting in any
manner prejudicial to the maintenance of supplies of commodities essential to the community" as defined in the Explanation to sub-s. (1) of
s. 3 of the Prevention of Black-marketing and Maintenance of Supplies
of Essential Commodities Act 1980. [854F-H; 855A-B]
( 6) Merely on the ground that an accused in detention as an
under-trial prisoner is likely to get bail, an order of detention under the
National Securuity Act should not ordinarily be passed. If the
apprehension of the detaining authority is true, the bail application has
to be opposed and in case bail is granted, challenge against that order in
the higher forum has to be raised. But this principle will have to be
judged and applied iu the facts and 'circumstances of each case. Where a
person accused of certain offences whereunder he is undergoing trial or
has been acquitted, the appeal is pending and in respect of which he
may be granted bail may not in all circumstances entitle an authority to
direct preventive detention and the said principle must apply but where
the offences in respect of which the detenu is acused are so inter-linked
and continuous in character and are of such nature that these affect
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S.P. SAHU v. STATE OF MAHARASHTRA
841
continuous maintenance of essential supplies and thereby jeopardise the
security of the State, then subject to other conditions being fulfilled, a
man being in detention would not detract from the order being passed
for preventive detention. [855D-G I
Ramesh Yad~v v. District Magistrate, Etah and Others [1985] 4
sec 232 followed.
(7) For maintaining supplies throughout the country, the
railways is per se essential and, therefore, interference with railway
lines would be endangering the maintenance of supplies. [856D]
Mohd. Subrati Alias Mohd. Karim v. State of West Bengal I 1973]
2 SCR 990 at 992 followed.
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(8) The past conduct or antecedent history on which the authority,
purport to act should ordinarily be proximate in point of time and have
a rational connection with the conclusion that the detention of .the
pers()n was necessary. [86JF]
Rameshwar Shaw v. District Magistrate, Burdwan & Anr. [1964]
4 SCR 921 followed.
(9) Whether an order of detention could be passed against a
person who was in detention or in jail would always have to be considered in the facts and circumstances of each case. [864E I
Makhan Singh Tarsikha v' State of Punjab I 1964] 4 SCR 932.
followed.
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(JO) Merely because the detaining authority had chosen to base
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the order of detention on the discharge of the detenu by Court for want
of evidence it could not be held that the order was bad in law. This
branch of jl!risprudence, as interpreted by this Court, has made it
futile for a detenu to urge that because the ground of detention had been
snbject matter of criminal cases which had ended in discharge, ther.efore, the order of detention was mala fide. The basic imperative of
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proof beyond reasonable doubt did not apply to the component of subjective satisfaction for imprisonment for reasons of internal security.
'l'here might be extreme cases where the Court had held a criminal case
to be false and the detaining authority for want of evidence claimed to
· ·be ·satisfied about prospective prejudicial activities based on what a
Conrt had found to be baseless. There must be a live link between the
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SUPREME COURT REPORTS
11986) 3 S.C.R.
grounds of criminal activities alleged by the detaining authority and the
purposes of detenti(/n. This credible chain is snapped if there was too
long and unexplained interval between the offending acts and order of
detention. If the detaining authority took the chance of conviction and,
when the Court verdict \vent against it, fell back on its detention power
to punish one whom the Court would not convict, it was an abuse and
virtual nullification of the judicial process. But if' honestly, fmding a
dangerous person getting away with it by over-awing witnesses or concealing the Commission cleverly, an authority thought on the material
before it that there was need to interdict public disorder at his instance
he might validly direct detention. [862A-D J
(11) It was always the past conduct, activities or the antecedent
history of a person which the detaining authority took into account, in
making a detention order. No doubt the past conduct, activities or
antecedent history should ordinarily be proximate in point of time and
should have a rational connection with the conclusion that the detention
of the person was necessary but it was for the detaining authority who
had to arrive at a subjective satisfaction in considering the past activities and coining to his conclusion if on the basis of those activities he
was to be satisfied. that the activities of the person concerned were such
that he was likely to indulge in prejudicial activities necessitating his
detention. Where an earlier order of detention was either revoked or
had expired, any subsequent detention order could be passed only on fresh
facts arising after the expiry or revocation of the e~rlier order. [86 IF-HI
Masood Alam Etc. v. Union of the India and Others I 1973]
sec 551 followed.
(12) Mere service of detention order in jail per seis not had.
( 13) The law of preventive detention is a hard law and therefore
should be strictly construed. Care should be taken that the liberty of the
person was not jeopardised, unless the case fell squarely within the four
corners of the rele.vant law. The law of preventive detention is not to he
used merely to clip the wings of the accused who was involved in a
criminal prosecution. Where a person was enlarged on bail by a competent criminal Court, great caution should be exercised in scrutinising the
validity of an order of preventive detention which was treated on the vei-y
same charge which was to be tried by the criminal Court. [863A-B]
Vijay Narain Singh v. State of Bihar & Ors. I 19841. 3 SCR 435
followed.
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843
(14) Having regard to the purpose of the Act, ihe detaining authority must take into consideration rational, proximate, reasonable
past and present and that shonld be the basis for the horoscope for the
futnre so as to determine whether the person proposed to be detained
comes within the mischief of the Act. If the person is in detention or is
nnder trial and his conviction is likely but his conduct comes within the
mischief of the Act then the authority is entitled to take a rational view
of the matter. The grounds must be there. The decision must be bona
fide. [8630-F]
(15) The fact that a man is not in jail per se would not be determinative of the factor that order of preventive detention could not be
passed against him. The fact that a man was found not guilty in a
criminal trial would not also be determinative of the factors alleged
therein. All these factors most be objectively considered and if there are
casual connections and if bona fide belief was formed then there was
nothing to prevent from serving an order of preventive detention even
against the person who was in jail custody if there is imminent possibility of his being released and set at liberty if the detaining authority was
duly satisified, [864E-G]
Ramesh Yadav v. District Magistrate, Etah and Others [1985J 4
SCC 232, Rameshwar Shah v .. District Magistrate Burdwan & Anr.
[1964] 4 SCR, 921 and Makhan Singh Tarsikka v. State of Punjab
[1964] 4SCR 932 distinguished.
Maledath Bharathan Ma/yali v. The Commissioner of Police AIR
1950 Bombay 202, Merugu Satyanarayan Etc. Etc. v. State of Andhra
Pradesh and Others [1983] I SCR 635, Golam Hussain Alias Gama v.
The Commissioner of Police Calcutta and Others [1974] 3 SCR 613,
Sahib Singh Duga/v. Union of India, [1966] l SCR 313, Mohd. Salim
Khan v. Shri C. C: Bose & Another I 1972] 2 SCC 607, Borjahan Gorey
v. State of West Bengal [ 1972] 2 SCC 550, Godavari Shamrao Parulekar
v. State of Maharashtra & Others [1964] 6 SCR 446, Gopi Ram v. State
of Rajasthan AIR 1967 SC 241, Masood Alam Etc. v. Union of India
and Others [1973] 1 SCC 551, Dula/ Roy v. The District Magistrate,
Burdwan & Others [1975] I SCC 837, Dr. Ramakrishna Rawat v.
District Magistrate, Jabalpur and Another, [ 1975] 4 SCC 164 at 167 and
169, The Barium Chemicals Ltd. & Anr. v. The Company Law Board
and Others [1966] Supp. SCR 311.at 354 and 363, Prakash Chandra
Mehta v. Commissioner and Secretary, Government of Kera/a and
Others I 1985] Supp. SCC 144 and Shiv Ratan Makim s/o. Nandlal
Makim v. Union of India and Others [1986] 1SCC404 considered.
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[1986] 3 S.C. R.
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ORIGINAL/CRIMINAL
APPELLATE
JURISDICTION:
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Writ Petition (Criminal) No. 296 of 1986.
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Under Article 32 of the Constitution oflndia.
with
Special Leave Petition (Criminal) No. 1265of1986
From the the Judgment and Order dated 27.2.1986 of the
Bombay High Court in Crl. Writ Petition No. 1of1986.
R.K. Garg and Sunil K. Jain for the Petitioner.
S.B. Bhasme, A.S. Bhasme and A.K. Khanwilkar for the
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The Judgment of the Court was delivered by
SABYASACHI MUKHARJI, J. Writ Petition No. 296 of 1986
and Sepcial Leave Petition (Criminal) No. 1265 of 1986 are connected
and relate to an order of detention of one Rampa! Sahu dated 16th
December, 1985 under section 3(2) of the National Security Act, 1980
(hereinafter called the said 'Act'). These are dealt with by this +-•
judgment.
The said Rampa! Sahu (hereinafter called 'the detenu' was detained by the aforesaid order which was served on him on 17th December, 1985 with the grounds of detention. According to the writ
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petition as well as the special leave petition the grounds of detention
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served on the detenu did not disclose any violation of the Essential
Commodities Act or Essential Servi~ Maintenance Act. Jn the pre-
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mises it is the contention of the petitioner that the detention was illegal
and unconstitutional. The· State of Maharashtra approved the detention on 24th December, 1985.
The detention order as mentioned hereinbefore was under section 3(2) of the said Act. The detenu was arrested on 17th December,
1985 and the grounds of detention were served on the same day. The
order, alleged, inter alia, that since the year 1979, -the detenu had been
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continuously engaging himself in committing acts prejudicial to the
maintenance of supplies and services essential to the community i.e.,
removing of permanent way material stocked along mil lines for
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S.P. SAHU v. STATE OF M'.>.HARASHTRA (MUKHARJI,J.l
845
maintenance of rail tracks removing parts of carriages, Wagons and
Signal Telecommunication materials utilised for repair of Railway Wagons and maintenance of singnals. It was further alleged that the said
detenu used to arrange to remove railway property with the help of his
'gang' and stock the same in his godown, himself remaining behind the
scene. It was alleged that in a number of cases railway properties were
loaded and carried away in truck No. MHG 6302 which was owned by
the detenu. It was stated that he was indulging in removing railway
· material which was stocked along the rail tracks for the maintenance of
the tracks, thus the work of maintenance of the tracks was hampered
and quick movement of the wagons loaded with essential commodities
such as food-grains, arms, ammunition required by the gene~al public
and the armed forces could not be made. Such acts were prejudicial,
according to the order of detention, to the maintenance of supplies
and services essential to the community.
The grounds further indicated six different cases. The case numbers were:
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1. P.S. Deori Crime No. 69/83 u/s 379, 34 l.P .C. decided
by the J.M.F.C. Sakoli vide C.C. No. 50/84.
2. R.P. E. Post Ajni Crime No. 20/84 u/s 3 R.P. (UP) Act,
1966 An appeal u/s 378 of the code of Criminal Procedure
is being filed in the High Court against the order of aquittal
dated 24/5/85 passed by the J.M.F.C., Railway Court,
Nagpur, videC.C. No. 362/84.
3. R.P.F. Post Ajni Crime No. 43/84 u/s 3 RP (UP) Act
1966 pending trial before the J.M.F.C. (Rly.). Nagpur,
vide C.C. No. 153/85.
4. P.S. Kamptee Crime No. 195/84 u/s 379, 411, 341.P.c:
pending trial before the J.M.F.C., VIII Court, Nagpur,
vide C.C. No. 200/84.
5. P.S. Kamptee Crime No. 53/85 u/s 379, 34 IPCunder
investigation.
6. R.P.F. Post Ajni Crime No. 41/85 u/s 3 RP(UP) Act
pending trial before the J.M.F.C. (Rly.) Court, Nagpur,
vide C.C. No. 212/85.
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SUPREME COURT REPORTS
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The incident in the first case was alleged to have taken place on
26th December, 1983. It was alleged that a truck bearing Registration
No. MHG 6302 was standing near the iron bridge on the National
Highway and some thieves were trying to cut the steel girders meant
for constructing road bridge for removing the same. Other particulars
were named therein and the names of two persons were also mentioned. There was some stealing. The stolen property including 'steel
girders and the truck mentioned above were seized. It appears that the
truck was owned by the detenu. The detenu was arrested on 26th
February, 1984 and the aforesaid two persons were convicted under
section 379 read with section 34 I.P.C. The detenu, however, was
acquitted.
In the second case report had been received that some railway
material including 32 Lbs. CST 9 plates and tie bars were stolen from
the railway track in between Borkhedi and Sindi Railway Stations by a
gang of culprits who threatended the witness, i.e., the chowkidar on
duty and took away the railway property in a Matador. During enquiry
into the above complaint, it transpired that the stolen property was
unlawfully kept by the detenu in his godown at Nagpur and a search
warrant was obtained and the stolen railway property valued at
Rs.25,000 was recovered from the godown of the detenu on 19th June,
1984. The detenu was acquitted by the Magistrate but an appeal had
been preferred in the High Court of Nagpur and the same was pending
when the detention order was passed. It was further stated that the
permanent way material was essential for the maintenance of the railway tracks and the safety of the travelling public. It was normally kept
at secure places near the track for ready availability for replacing the
broken or unserviceable material in the track. The trains were required to be detained .as a result of theft causing loss to the Government and there was delay. in making supplies to the public. It was
further alleged that as many as 28 wagons were marked sick for repairs
·and were sent to Ajni workshop for repairs, for want of the required
spare parts which were seized from the unlawful possession of the
detenu. According to the order of detention, as a result the Government and public indents of Wagons totalling 792 could not be cleared
for loading different commodities to;be supplied in various parts of the
country.
In case No. 3, a report had been received that at a particular
point between Buti Bori & Umrer section at some Km. near the railway crossing gate, 400 fish plates were stolen. The enquiry had revealed that the stolen property was unlawfully obtained and kept by
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·s.P.SAHU v. STATE OF MAHARASHTRA [MUKHARJl,J.[
847
the detenu at certain place at Nagpur. A search warrant was obtained
and 400 fish plates apd carriage and Wagon parts were recovered from
the godown of the detenu. In the premises the detenu was arrested on
14th December, 1984 and the aforesaid case i.e., third case was pending on the date of the order of detention. It is the case of the Government
that due to the unlawful possession of the railway property by the
detenu, as many as ten wagons had to be marked sick and could not be
made available to the puhlic and the Government for loading different
essential commodities to be supplied in different parts of the country in
the month of December, 1984. As a result of this, as many as 3224
indents put up by the Government and the public for the supply of -
wagons could not be cleared due to shortage of empty wagons.
The fourth case related to an offence under section 379 l.P.C.
which was registered against the detenu under sections 379, 411and34
I.P.C. and was pending trial in Nagpur. The complaint was io the
effect that 128 CST-9 plates were stolen from five points between
Kamptee & Kalmana Railway Line and these were valued at Rs.4608.
The property was loaded in truck bearing No. MHG 6302 owned by
the detenu. The truck driver was arrested anu the property was recovered from the. godown of the detenu at the instance of the driver. .
The detenu was arrested in connection with this case on 3rd
December, 1984, and the case was pending on the date of the issue of
the detention order.
Regarding the fifth case it may be mentioned that an offence was
alleged to have been committed by the detenu under section 379 read
with section 34 l.P.C. on the complaint of certain person who was
working as a Manager of the Jamshedpur Transport Corporation,
Nagpur. It was reported that three bundles of Aluminium wire weighing about 500 kgs .. valued at Rs.1,60,000 were stolen by some unknown
criminals on 21st March, 1985. During investigation it was disclosed
that the culprits belonged to the 'gang' of the detenu and that they had
threatened the chowkidars on duty and forcibly removed the aluminium wire bundles. It was stated in the detention order that the detenu was the main brain behind this big daring robbery and he used his
truck bearing No. MHG 6302 for transporting the stolen property. The
detenu anticipating arrest moved the court and obtained anticipatory
bail with a view to avoid arrest by the police. The case was pending
investigation. It was further stated that the aluminium wire which was
stolen was meant for the use of various public and Govt. departments
and due to aforesaid cririiinal activity as indicated above the supply of
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SUPREME COURT REPORTS
11986] 3 S.C.R.
the wire could not be maintained as it was broken into pieces and made
unserviceable.
In respect of the sixth case it was further alleged that on receiving
information that 90 Lbs, rails 31 meters long were received and kept
unlawfully by the detenu in his godown at Nagpur. the inspector of
the C.I.B. and Railway Protection Force raided the godown on 22nd
May, 1985 and seized 90 Lbs. rails about 30 meters \ong, break and
some new steel sleepers and other materials. The stolen property was
worth Rs.20,000. The detenu was arrested in this case on 22nd May,
1985. The case was pending trial on the date of the issue of the detention order in Nagpur. It is the case of the detaining authority that due
to this unlawful possession of break-locks by the detenu, four wagons
were marked sick and had to be sent to the Railway Carriage and
Wagon Workshop at Ajni for repair, as a result was indents put up to
the Railway Administration by the Public and the Government to
provide the empty wagons for supply of the different commodities in
the different parts of country could not be complied with ..
In the backdrop of the aforesaid grounds it was further stated
that the activities of the detenu were prejudicial to the maintenance of
supplies and services essential to the community. It was further alleged
that each of the grounds indicated above individually and collectively
was not only germane but also sufficient to satisfy the detaining authority with a view of preventing the detenu from acting in any manner
prejudicial to fhe maintenance of supplies and services essential to the
community and as such it was necessary to detain him. It was further
stated that these grounds were communicated to the detenu under
setion 8 of the aforesaid Act read with article 22(5) of the Constitution
of India upon which the detention order had been made. Copies of the
documents mentioned in the said order which were placed before the
detaining authority were enclosed with the detention orcer sent to the
detenu. He was further informed that he had a right to make a representation to the State Government ,,gains! the order of detention and
would be afforded the earliest opportunity to make such a representation. He was further informed that he should address it in the manner
indicated therein. He wa• informed that the Stat.e Government would
within three weeks from the date of detention of the detenu make a
reference to and place the requisite material before the Advisory
Board constituted under section 9 of th.e said Act and asking them to
n1ake a report of detention within seven w~eks. He was informed that
he had a right to make the representation to the Advisory Board and if
, ....
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S.P. SAHU v. STATE OF MAHARASHTRA [MUKHARJ!,J.[
849
~)
he wanted, he would be heard in person by the Advisory Board in. the
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course; if it found it necessary.
. In this petition under article 32 of the Constitution, it is the case
. of the petitioner on behalf of the detenu that the grounds of detention
were vague, irrelevant and non-existent. It was further urged on behalf
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of the petitioners that the grounds of detention on which the detenu
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was detained relating to as far back as 1979. It was not open to the
detaining authority to order detention of the detenu on the said
grounds. It was highlighted that in respect of. alleged grounds, criminal
cases were pending against the 'detenu and he had been enlarged on
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bail. It was submitted that when a judicial authority was satisfied on the
materials placed before it that there were no grounds for keeping the
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detenu in detention, on the same materials the executive authority
namely, the detaining authority could not substitute the judicial judgmen! and order detention to prevent the detenu from acting in a manI
ner prejudicial to the interest of the community.
It was submitted by Mr. Garg on behalf of the detenu that in this
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case in view of the fact that the detenu was on bail, the power of
preventive detention ·was being used to defeat the provisions of the
Code of Criminal Procedure and ordinary normal procedure. It was
further the submissjon of Mr. Garg that the alleged grounds were
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merely allegations of ordinary criminai cases which either had ended in
acquittal or in respect of which appeals were pending or were pending
E
determination and as such the formation of the belief by the detaining
authority for the detention order was merely on surmises and on materials which the detaining authority was not competent to take note of.
)
With reference to the various pending cases, it was submitted on behalf of the detenu that these criminal cases did not disclose any activity
of the detenu prejudicial to the maintenance of supplies and services
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essential to the community. The connection of the detenu with the
alleged offences was not there and as such the satisfaction could not be
there of the detaining authority. The detenu according to the petiti oner, was in no manner connected with the alleged theft committed
by certain named persons and though the onwership of the truck attributed to the detehu was not denied or disputed but the involvement
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of the detenu did not follow from that fact, it was submitted on behalf
of the detenu.
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It is further the case on behalf of the detenu and the submission
of Mr. Garg that it was not open to the detaining authority to use the
allegations of the criminal cases to justify 'preventive detention'. It
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SUPREME COURT REPORTS
[1986] 3 S.C.R.
was further his submission that these did not establish proximate relation either with the maintenance of 5upplies or services essential to the
life of the community nor did these involve any violation of relevant
laws made by the Parliament dealing with the maintenance of supplies
of essential commodities or maintenance of essential services. It is the
case on behalf of the detenu that preventive detention is no substitute
for detention under the ordinary criminal law. According to the petitioner,
there was bo allegation against the detenu of any violation of Essential Commodities Act or any provision of the Maintenance of Essential
Services Act. The grounds mentioned were cases of ordinary theft and
should have been proceeded against under the ordinary law of crimes.
The det~nu was released on bail. The connection of the detenu with
the removal of fish plates for the·supply of wagons was too remote to
be any basis of satisfaction. In fourth case the detenu was on bail and
detenu could not be kept' under preventive detnetion in derogation of
his liberty granted by bail by the appropriate judicial authority. Regarding the fifth case, the detenu had already been granted anticipatory bail. The order of the court could not be defeated by keeping the
detenu in preventive detention, it was submitted by Mr. Garg. It was
urged that requisite satisfaction required under section 3(2) of the said
Act was not in fact formed and could not have been formed on the
grounds alleged nor was there any rational connection for the formation of such satisfaction. The alleged incidents were denied and it was
further submitted that if at all mere infractions of ordinary law could
not fall in the category of public order or violation of any law indicated
to the maintenance of supply or essential services. It. was open to
justify the order of detention even if one or more of the six grounds
were found to be relevant. The documents, further, did not disclose
factual connection with the alleged offences. No statement of the
witnesses had been supplied except one related in ground No. 5, it was
urged in the petition.
.
It was further submitted that the provisions of Act 7 of 1980
being Prevention of Blackmarketing and Maintenance of Supplies of
Essential Commodities Act, 1980 could perhaps have application and
in view of Explanation to Section 3(2) of the Act, the impugned order
was bad. Our attention was drawn to the provisions of the said Act of·
1980. Section 3( 1) and (2) of the said Act reads as follows:
"Power to make orders detaining certain persons-
(1) The Central Government or a State Government or
·any officer of the Central Government, not below the rank
of a Joint Secretary to that Government specially
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. S.P.SAHU v. STATE OF MAHARASHTRA [MUKHARJI,J.]
851
empowered for the purposes of this section by that Government, or any officer of a State Government, not· below the
rank of a Secretary to that Government specially empowered for the purposes of this section by that G.over.nment, may, if satisfied, with respect to any person that.with
a view to preventing him from acting in any manner prejudicial to the maintenance of supplies of commodities essential to the community it is necessary so to do, make an
order directing that such person be detained.
Explanation-For the purposes of this sub-section, the expression "acting in any manner, prejudicial to the mainteA
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nance of supplies of commodities essential to the communC
ity" means:-
(a) committing or instigating any person to commit any
offence punishable under the Essential Commodities Act,
1955 ( 10 of 1955), or under any other law for the time being
in force relating to the control of the production, supply or
distribution· of, or trade and commerce in, any commodity
essential to the community; or
(b) dealing in any commodity-
(i) which is an essential commodity as defmed in the
Essential Commodities Act, 1955 (10of1955), or
(ii) with respect to which provisions have been made
in any such other law as is referred to in clause (a),
with a view to making gain in any manner which may directly or indirectly defeat or tend to defeat the provisions
of that Act or other law aforesaid.
(2) Any of the following officers, namely:
(a) District Magistrates:
(b) Commissions of Police, wherever they have been
appointed,
may also, if satisfied as provided in sub-section
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SUPREME COURT REPORTS
11986] 3 S.C.R.
(1), exercise the powers conferred by the said sub-section.
In answer to the petition in the affidavit of the opposition filed
on behalfof the respondent, it was stated that the detenu Rampa! Sahu
was detained and a reference had been duly made under section 10 of
the said Act to the Advisory Board. The detenu was interviewed by
the Advisory Board on 29th January, 1986 and the Board had submitted its report under section 12(1) of the said Act on 3rd February, 1986
which had been received by the Department on the same day. As such
the report of the Advisory Board was received by the Government
within the stipulated period of seven weeks from the date of detention
as required by the law.
The detenu had submitted his representation dated 8th January,
1986 to the Advisory Board which was considered by the Board at the
time of his interview before the Board on 29th January, 1986. The said
representation was received by the Home Department along with the
report of the Advisory Board and was considered together with the
report of the Advisory Board by Government and the detention order
was confirmed by the Government Order. All procedural safeguards
of law were duly followed. There was no breach of the same. It is not
necessary to reiterate the affidavit in reply.
As has been mentioned hereinbefore, on the same facts, the
petition under article 226 had been filed in the High Court at Nagpur.
The said application was dismissed by a Division Bench of the High
Court on 27th February, 1986. The ·petitioner has come up from the
said decision which is the next matter being Special Leave Petition No.
1265 of 1986 and same will be disposed of by this judgment.
The High Court in its judgment referred to the grounds. It
reiterated that permanent way material is essential to the maintenance
of railway track and safety of the railway travelling public. After referring to the various grounds referred to hereinbefore, the High Court
has noted that three points were urged before it on behalf of the
detenu namely; (!) the order was mala fide, (2) there was total absence of material, and (3) in any event the provisions of the Prevention
of Black-marketing and Maintenance of Supplies of Essential Commodities Act, 1980 being Act of 1980 would be attracted. The High Court
referred to the affidavits of the Commissioner of Police who passed the
detention order which was filed in th·e High Court and found that there
were good grounds for detention and it was not possible to hold that
ther~ were no grounds of detention relevant for the Act.
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s:r. SAHU v. STATE OF MAHARASHTRA [MUKHARJI, J. I
853
The High Court referred to the expression 'acting in any manner,
prejudicial to the maintenance of supplies of commodities essential to
the community' as mentioned in Explanation to section 3 of the Prevention of Black Marketing and Maintenance of Supplies of Essential
Commodities Act, 1980.