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PETITIONER: SURAJ PAL SAHU

       Vs.

RESPONDENT: STATE OF MAHARASHTRA &ORS.

DATE OF JUDGMENT25/09/1986

BENCH: MUKHARJI, SABYASACHI (J) BENCH: MUKHARJI, SABYASACHI (J) PATHAK, R.S. MISRA RANGNATH

CITATION:  1986 AIR 2177            1986 SCR  (3) 837  1986 SCC  (4) 378        JT 1986   538  1986 SCALE  (2)484  CITATOR INFO :  R          1986 SC2090  (5)  RF         1986 SC2173  (18,23)  RF         1987 SC2098  (7)  RF         1988 SC  34  (13,34)  R          1988 SC1175  (6)  R          1988 SC1256  (13)  R          1989 SC2265  (16)  RF         1990 SC1196  (5,13,17)  D          1990 SC1597  (12)  RF         1991 SC1640  (12)

ACT:      National Security  Act, 1980-S.  3(2)-Detention  Order- Detenu  already   in  Jail-Validity   of  detention   order- Principles for determination of-Legal mala fides explained.

HEADNOTE:      The detenu  was arrested  on December 17, 1985 pursuant to a detention order dated December 16, 1985 passed under s. 3(2) of  the National  Security Act, 1980 and the grounds of detention were served on him the same day. It was alleged in the order  that since  the year  1979 the  detenu  had  been continuously engaging himself in committing acts prejudicial to the maintenance of supplies and services essential to the communiy, i.e.,  removing of  permanent way material stocked along 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

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date of  the passing of detention order. Each of the grounds indicated  in   the   detention   order   individually   and collectively 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. 838      The grounds  were communicated to the detenu under 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  detaining  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 made  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 839 and he had been enlarged on bail; (iii) that when a judicial authority was  satisfied on  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  acting  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

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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 criminal 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  by 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 follow from that fact.      Dismissing the  Writ Petition  and  the  Special  Leave Petition, ^      HLED: (1)  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. The detention order was therefore valid. [865A- B]      (2)  In  view  of  the  Explanation  to  s.  3  of  the Prevention of  Blackmarketing and  Maintenance  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 not 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] 840      (3) Even  the existence  of one ground is sufficient to sustain the detention order. [853F]      (4) An  order is  mala 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

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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 supplies 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 in 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 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]      Ramesh Yadav  v. District  Magistrate, Etah  and Others [1985] 4 SCC 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 [1973] 2 SCR 990 at 992 followed.      (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 person was necessary. [861F]      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]      Makhan Singh  Tarsikha v.  State of Punjab [1964] 4 SCR 932 followed.      (10) Merely  because the detaining authority had chosen to base  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 jurisprudence, as interpreted  by this  Court, has  made it  futile  for  a detenu to urge that because the ground of detention had been subject  matter   of  criminal  cases  which  had  ended  in discharge, therefore,  the order of detention was mala fide. The basic  imperative of  proof beyond  reasonable doubt did not apply  to the  component of  subjective satisfaction for imprisonment for  reasons of  internal security. There might

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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 Court had found to be baseless. There must be a live link between the 842 grounds of  criminal activities  alleged  by  the  detaining authority and the purposes of detention. 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  went  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,  finding  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]      (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 coming 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 earlier order. [861F- H]      Masood Alam  Etc. v.  Union of  the  India  and  Others [1973] 1 SCC 551 followed.      (12) Mere  service of detention order in jail per se is not bad.      (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 releyant law.  The law  of preventive detention is not to be 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 very same  charge which  was to  be tried  by  the  criminal Court. [863A-B]      Vijay Narain  Singh v.  State of  Bihar & Ors. [1984] 3 SCR 435 followed. 843      (14) Having  regard to  the purpose  of  the  Act,  the detaining authority  must take  into consideration rational, proximate, reasonable  past and  present and  that should be the basis  for  the  horoscope  for  the  future  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 under 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.

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The grounds  must be  there. The decision must be bona fide. [863D-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 must  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 [1985] 4  SCC 232,  Rameshwar Shah  v.  District  Magistrate Burdwan &  Anr. [1964]  4 SCR, 921 and Makhan Singh Tarsikka v. State of Punjab [1964] 4 SCR 932 distinguished.      Maledath  Bharathan  Malyali  v.  The  Commissioner  of Police AIR 1950 Bombay 202, Merugu Satyanarayan Etc. Etc. v. State of  Andhra Pradesh  and Others [1983] 1 SCR 635, Golam Hussain Alias  Gama v.  The Commissioner  of Police Calcutta and Others  [1974] 3  SCR 613, Sahib Singh Dugal v. Union of India, [1966]  1 SCR 313, Mohd. Salim Khan v. Shri C.C. Bose JUDGMENT: 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, Dulal Roy v. The District Magistrate,  Burdwan   &  Others   [1975]  1  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  Kerala  and Others [1985]  Supp. SCC  144  and  Shiv  Ratan  Makim  s/o. Nandlal Makim  v. Union of India and Others [1986] 1 SCC 404 considered. 844

&      ORIGINAL/CRIMINAL APPELLATE JURISDICTION: Writ Petition (Criminal) No. 296 of 1986.      Under Article 32 of the Constitution of India.                             with      Special Leave Petition (Criminal) No. 1265 of 1986      From the  the Judgment and Order dated 27.2.1986 of the Bombay High Court in Crl. Writ Petition No. 1 of 1986.      R.K. Garg and Sunil K. Jain for the Petitioner.      S.B. Bhasme,  A.S. Bhasme  and A.K.  Khanwilkar for the Respondents.      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 Rampal 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  Rampal 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 petition as well as the special leave petition the  grounds of  detention served on the detenu did

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not disclose  any violation of the Essential Commodities Act or Essential Services Maintenance Act. In the premises 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 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 rail lines for 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  general 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:           1. P.S.  Deori Crime  No. 69/83 u/s 379, 34 I.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, vide           C.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, 34           I.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 IPC           under 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. 846      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

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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 847 the detenu  at certain place at Nagpur. A search warrant was obtained and  400 fish  plates and  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  public  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 I.P.C.  which   was  registered  against  the  detenu  under sections 379,  411 and  34 I.P.C.  and was  pending trial in Nagpur. The  complaint was  to 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 and 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.

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    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  I.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 criminal activity as indicated above the supply of 848 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 long, 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 the 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 order sent to the detenu. He was further  informed   that  he   had  a   right  to   make   a representation to  the State Government against 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 was informed that  the State 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

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constituted under  section 9 of the said Act and asking them to make  a report  of detention  within seven  weeks. He was informed that  he had  a right to make the representation to the Advisory Board and if 849 he wanted, he would be heard in person by the Advisory Board in the 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  of  the petitioners that  the grounds  of  detention  on  which  the detenu 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 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 detenu  in detention, on the same materials the executive  authority  namely,  the  detaining  authority could  not   substitute  the  judicial  judgment  and  order detention to  prevent the  detenu from  acting in  a  manner prejudicial to the interest of the community.      It was  submitted by  Mr. Garg  on behalf of the detenu that in this 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 submission of Mr. Garg that the alleged grounds were merely allegations of ordinary criminal  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. 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 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 petitioner, was in no manner connected with the alleged theft committed by certain named  persons   and  though  the  onwership  of  the  truck attributed to  the detenu was not denied or disputed but the involvement of  the detenu did not follow from that fact, it was submitted on behalf of the detenu.      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 850 was further  his submission  that these  did  not  establish proximate relation  either with  the maintenance of supplies 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  no 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

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ordinary theft  and should have been proceeded against under the ordinary law of crimes. The detenu 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 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   Government,   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  maintenance  of  supplies  of  commodities           essential to the community" 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                defined in  the  Essential  Commodities  Act,                1955 (10 of 1955), or                (ii) with  respect to  which provisions  have

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              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 852           (1), exercise  the powers  conferred by  the  said           sub-section.      In answer  to the  petition in  the  affidavit  of  the opposition filed  on behalf of the respondent, it was stated that the detenu Rampal 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; (1)  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 the High Court and found 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. 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. The  High Court was of the view that it was  clear that  only National Security Act was attracted

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in the facts and circumstances of this case.      In view  of the  Explanation to  section 3  of Act 7 of 1980, it  appears "acting  in any  manner prejudicial to the maintenance of  supplies of  commodities  essential  to  the community" has  certain particular  connotation. But  in the instant case the Act under consideration, the conduct of the detenu was  prejudicial to  the maintenance  of supplies and services  essential   to  the   community  in   general   as contemplated by  section 3(2) and not in any particular mode contemplated by Explanation to section 3(1) of Act 7 of 1980 and as  such is  not excluded  by the  Explanation  to  sub- section (2)  of section 3 of the Act. In the premises we are therefore of  the opinion  that the  High Court was right in the view  it took  on this aspect of the matter. We are also of  the   opinion  that   for  the  same  reason,  the  same contentions urged  before us in support of the writ petition cannot be sustained.      As mentioned  hereinbefore, before  the High Court also the insertion  of section  5A of  the Act  by  the  National Security (Second  Amendment) Act,  1984 was challenged under which even the existence of one ground is sufficient. Before us no  ground was  canvassed about  the validity of the said Amendment and inclusion of section 5A of the Act.      It must  therefore be  held that  even the existence of one ground was sufficient to sustain the detention order.      Mr. Garg  drew our attention to certain observations of Chagla, C.J.,  in a Full Bench decision of the High Court of Bombay in  Maledath Bharathan Malyali v. The Commissioner of Police AIR 1950 Bombay 202. That was a case under the Bombay Public Security  Measure Act  being Act No. 6 of 1947. There was an order of detention under section 2(A1) of the Act for the collateral  purpose. It was held that when the detaining authority had  made up  his mind  to detain a person who was alleged to  have committed  an offence,  then, the detaining authority  had   made  his   choice  and  it  would  not  be permissible,  according   to  that   decision,  for  him  to investigate the offence while still keeping the person under detention and not complying with the provi- 854 sions of  the law  with  regard  to  investigation.  If  the purpose of detaining a person was a collateral purpose i.e., to deprive  him of  his  rights  and  safeguards  under  the Criminal Procedure  Code and  to carry  on an  investigation without the  supervision of the Court then the detention was mala fide  and could  not be justified. Chagla, C.J. at page 203 speaking  for the  Full Bench  observed that an order of detention under  the Security Act could only be justified in a Court  of law provided it was made bona fide; and order of detention could  not be made for an ulterior motive or for a collateral purpose.  The detaining authority, it was further observed, must  only consider  the objects for which the Act was passed  and the only consideration which must weigh with the detaining  authority was  public safety,  maintenance of public order  and the  preservation of peace and tranquility in the  Province of  Bombay. If in making the order his mind was influenced  by any  consideration extraneous to the Act, then the  order would  be bad  and could  not be upheld. The question that  the Court  had to  consider in  that case was whether in  making the  order the  Commisioner of Police was influenced  by   any  collateral  purpose  and  whether  any extraneous factor  had weighed  on his mind when he made the order. When  we speak  of an  order being made mala fide, it did not  mean that  the Court  attributed to  the  detaining authority any improper motive.      An order  is mala  fide when  there is  malice  in  law

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although there is no malice in fact. The malice in law is to be inferred  when an  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 and co-related to the object  of  a  particular  Act  under  which  preventive detention is  contemplated. In the instant case, the Act was The National  Security Act,  1980. It  was an Act to provide for preventive  detention in  certain cases  and for matters connected therewith.  Power has  been given  under section 3 authorising preventive  detention of  any person from acting in any  manner prejudicial  to the  defence  of  India,  the relations of  India with  foreign powers and of the security of India.  Sub-section (2)  of section  3 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 security  of   the  State  or  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 855 directing that  such person be detained then the same can be done, (emphasis  supplied). The  Explanation  to  this  sub- section makes  it clear  that the  expression "acting in any manner  prejudicial  to  the  maintenance  of  supplies  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-section (1) of section 3 of the  Prevention of  Black-Marketing  and  Maintenance  of Supplies of  Essential Commodities  Act, 1980,  as  we  have noted before.      Our attention  was drawn  to several  authorities where this Act has been considered.      In  a   recent  decision  of  this  Court,  one  of  us (Ranganath Misra,  J) had  to consider the effect of passing order for preventive detention where the detenu was in jail.      In Ramesh Yadav v. District Magistrate, Etah and Others [1985] 4  SCC 232 it was held that merely on the ground that an accused  in detention  as  an  under-trial  prisoner  was likely to get bail, an order of detention under the National Security  Act  should  not  ordinarily  be  passed.  If  the apprehension of  the detaining  authority  was  true,  Court observed, the bail application had to be opposed and in case bail was granted, challenge against that order in the higher forum had  to be  raised. We  respectfully agree  with  this conclusion. But  this principle  will have  to be judged and applied in 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  principle enunciated  by  the aforesaid decision  must apply  but where  the  offences  in respect of  which the  detenu is accused are so inter-linked and continuous  in character  and are  of such  nature  that these affect  continuous maintenance  of essential  supplies and thereby  jeopardize 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

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preventive detention.  Merugu  Satyanarayana  Etc.  Etc.  v. State of  Andhra Pradesh and Others [1983] (1) SCR 635 was a case dealing  with an  order under  section 3(2) of the Act. There this  Court found  that the  affidavit  in  opposition supporting the  reply to  the show cause notice was not from the  person  who  passed  the  detention  order.  There  the affidavit was of a sub-inspector of police at whose instance the arrest  was made  and could  not therefore  satisfy  the constitutional mandate 856 that will  be treated  as nonest. In the instant case before us a  point was  made that  the counter  was made  by a desk clerk of  the Home  Department in  writ petition. This would have been a fatal defect and the government’s view could not have been  considered but  there was  an  application  under article 226  of  the  Constitution  before  the  High  Court challenging  the  identical  detention  order  on  the  same grounds. Before  the High  Court Sree Malhotra and Sree S.K. Seth who  were the  Commissioners of  Police had  filed  two separate affidavits  upholding the  issue of  the  detention order and  explaining the  grounds and  the reasons  for the same. If  those affidavits  are taken into consideration, as these must-be  then there is no substance in this ground. In the aforesaid  case assurance was given before this Court in an earlier  case that  preventive  detention  would  not  be resorted  to   against  political  opponents.  In  the  said decision the  facts were entirely different. That was a case affecting  the   liberty   of   a   subject   on   political consideration.      For maintaining  supplies throughout  the  country  the railways was  per se essential, and, therefore, interference with railway  lines would  be endangering the maintenance of supplies-see the observations of this Court in Mohd. Subrati Alias Mohd.  Karim. v. State of West Bangal [1973] 2 SCR 990 at 992.      This Court  in Remeshwar  Shaw v.  District Magistrate, Burdwan  &  Anr.,  [1964]  4  SCR,  921  had  to  deal  with preventive detention  of a  person who  was in jail custody. There the  petitioner  was  detained  by  an  order  of  the District Magistrate  under the  provisions of the Preventive Detention Act,  1950. The  order recited  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  the petitioner  on the  15th February, 1963, while  he  was  in  jail  custody  as  an  under-trial prisoner in  connection with a criminal case pending against him.      It was  urged on  behalf of the petitioner in that case that the  detention of  the petitioner  was not justified by the provisions  of section  3(1) of the Preventive Detention Act, 1950.  It was  noted by  Justice Gajendragadkar at page 925 of  the report  speaking for the Court that the basis of the order  of detention which the authority was empowered to pass against  a person under section 3(1)(a) was that if the said order  was not  passed against  him, he  might act in a prejudicial manner. In other words, the authority considered the material  brought before  it in  respect of  the person, examined the  said material  and reached the conclusion that the material showed that the said person 857 might indulge  in  prejudicial  activities  if  he  was  not prevented from  doing so by an order of detention. The Court then posed  the question how could the authority come to the conclusion that the person who was in jail custody might act

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in a  prejudicial manner unless he was detained. The learned judge was  of the  view  that  the  scheme  of  the  section postulated that  if an  order of  detention was  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 was brought into force, the person sought to be  detained might  have freedom  of action.  That  alone would justify  the requirement of the section that the order of detention  was passed  in order  to prevent a prejudicial conduct, of  the person  which took  place in  that case ten years before  the date  of detention  and nothing  was known against the person indicating i.e., the tendency to act in a prejudicial manner.  Even if  it  was  ten  years  old,  the authority was  satisfied that  detention was  necessary. The court also noted that the past conduct or antecedent history on which the authority purported to act should ordinarily be proximate in  point of  time and  have a rational connection with the  conclusion that  the detention  of the  person was necessary. The  court, however,  further  held  that  as  an abstract proposition  of law,  there might  not be any doubt that section  3(1)(a) of  the said  Act did not preclude the authority from  passing an  order  of  detention  against  a person while  he was  in  detention  or  in  jail.  But  the relevant facts  in connection  with the  making of the order might be  different and  that might make a difference in the application of  the principle  that the  order of  detention could be  passed  against  a  person  in  jail.  The  Court, however, was  reluctant to  lay down any inflexible test. In that case  the petitioner  was ordered to be released on the ground that  he was served with the order of detention while he was  in jail  custody. In the instant case before us, the petitioner is not in jail custody.      In Makhan  Singh Tarsikka  v. State  of Punjab [1964] 4 SCR 932  the court  was concerned more or less with the same facts. The  court observed  at p. 937 of the report that the aspect of  the matter  which was  emphasised in  the case of Rameshwar Shaw  (supra) was  the relevance of considerations of proximity  of time and concluded that whether an order of detention could  be passed  against  a  person  who  was  in detention of  in jail  would always have to be considered in the facts  and circumstances  of each  case.  The  order  of detention in  that case  was also  set aside  in view of the facts mentioned therein.      In Golam  Hussain Alias  Gama v.  The  Commissioner  of Police, Calcutta  and Others  [1974] 3  SCR 613 the question arose under sec- 858 tions 3(1)  and 3(2) of the Maintenance of Internal Security Act,  1971.   There  pursuant  to  an  order  under  section 3(1)(a)(ii) read  with section  3(2) of  the  said  Act  the petitioner in  that case was arrested for hurling soda water bottles, brick-bats and bombs indiscriminately on a group of persons on different dates. The order of detention said that if left  free and  unfettered the  petitioner was  likely to continue to disturb maintenance of public order by acting in similar manner.  In an  earlier criminal case the petitioner was discharged  since no witness deposed against him in open court. Thereafter the petitioner was detained under the Act. In a petitioner under article 32 of the Constitution, it was contended that  the detention  was mala  fide because it was after his  discharge by  the court  for want of evidence and secondly, there  had been  a long  interval of  nine  months between the  criminal incidents  and  the  detention  order, thirdly the  order of  detention which  did  not  specify  a period as  was violative  of section  12 of the said Act and

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lastly the  detention was  founded on  prevention of  public disorder while the acts imputed to the petitioner were aimed at a particular person, not the general public.      It was held that merely because the detaining authority had chosen  to base  the order of detention on the discharge of the petitioner by court for want of evidence it could not be held  that the  order was  bad in  law.  This  branch  of jurisprudence, as  interpreted by  this Court,  has made  it futile for  a detenu  to urge  that because  the grounds  of detention had  been the  subject matter  of  criminal  cases which had  ended  in  discharge,  therefore,  the  order  of detention was  mala fide.  The  basic  imperative  of  proof beyond reasonable  doubt did  not apply  to the component of subjective satisfaction  for  imprisonment  for  reasons  of internal security.  There 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 court had found to  be baseless.  In the  present case  the  order  of discharge was  made purely for want of evidence on the scope that  witnesses   were  too  afraid  to  depose  against  to desperate character, cannot come under the exceptions carved out by the court to this category. It was further emphasised that there  must be  a live  link  between  the  grounds  of criminal activities  alleged by  the detaining authority and the purpose  of detention. 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 went against it, feel 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 859 honestly, finding a dangerous person getting away with it by overaweing witnesses  or concealing the commission cleverly, in authority  thought on  the material  before it that there was need  to interdict  public disorder  at his  instance he might validly  direct detention.  In the  present case,  the acts were  serious, being bomb hurling and brickbat throwing in  public   places  creating   panic.  Involvement  of  the petitioner was  discovered only during the investigation. It was further  held that  the argument  that detention without defined  duration   is  ipso   jure  invalid  could  not  be sustained. No  responsible government  should  or  would  be unresponsive to  the claim  of citizen’s freedom. The nature of the  act from  the circumstances  of its  commission, the impact on  the people around and such factors constitute the pathology of  public  disorder.  These  acts  could  not  be isolated from  their public  setting nor  was it possible to analyse its  molecules as  in a  laboratory but  to take its total effect  on the  flow of  orderly life.  It might  be a question  of   degree  and   quality  of   activity  of  the sensitivity of  the question  involving people.  To  dissect further is  to defeat the purpose of social defence which is the paramount purpose of the preventive detention.      If, however,  a detention  order is  malafide then  the same is bad. Reliance was placed for this proposition on the decision of  this Court  in Sahib  Singh Dugal  v. Union  of India. [1966] 1 SCR 313.      Mohd. Salim  Khan v.  Shri C.C. Bose & Another [1972] 2 SCC 607  depended upon the particular facts of that case, so is the  position with Borjahan Gorey v. State of West Bengal [1972] 2  SCC 550 to which our attention was drawn, where it was  highlighted  that  judicial  trial  for  punishing  the accused for  the commission of an offence was a jurisdiction

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distinct from  that of  detention under the Act which had in view  the  object  of  preventing  the  detenu  from  acting prejudicial to  the security of the State and maintenance of public order. The fields of these two jurisdictions were not co-extensive  nor   were  they   alternatives.  It  must  be remembered that  the grounds  of detention  related to  past acts on  which an  opinion  as  to  the  likelihood  of  the repetition of such or similar acts could be based.      It was submitted that in order to invoke the provisions of these  Acts for  securing preventive  detention under the National Security  Act, there must be something imminent. In Godavari Shamrao  Parulekar v. State of Maharashtra & Others [1964] 6  SCR 446  where referring  to  several  authorities Wanchoo, J.  speaking for  the Court observed at page 452 of the report  that in  those cases  it was  held by this Court that where  a person was detained in jail as an under-trial- pris- 860 oner no  order of  detention  either  under  the  Preventive Detention Act  or under  the Rules  could be  served on  him because one of the necessary ingredients which go to make up the satisfaction  of the  detaining authority is necessarily absent in  such a  case. It  was pointed  out  in  Rameshwar Shaw’s  case   (supra)  that   before   an   authority   can legitimately come  to the  conclusion that  the detention of the person  was necessary  to prevent  him from  acting in a prejudicial manner,  the authority  had to be satisfied that if  the   person  was  not  detained,  he  would  act  in  a prejudicial manner and that inevitably postulated freedom of action to  the said  person at  the relevant time. The Court noted two  types of  cases. Those  two cases  were concerned with  the  service  of  an  order  of  detention  under  the Preventive Detention  Act or under the Rules on a person who was in  jail in one of two circumstances namely-where he was in jail  as an under-trial prisoner and the period for which he was  in jail was indeterminate or where he was in jail as a convicted  person and the period of his sentence had still to run  for some  length of time. In those cases the service of the order of detention under the Preventive Detention Act or under the Rules in jail would not be legal for one of the necessary ingredients  about which  the authority  had to be satisfied would  be absent, namely, that it was necessary to detain the  person concerned  which could only be postulated of a  person who  was not  already in  prison. But  in other types of  cases this Court had to deal with G.S. Parulekar’s case. The  appellants were  not under  detention  either  as under-trial  prisoners  for  an  indeterminate  time  or  as convicted persons whose sentences were still to run for some length of  time. They  were detained  under  the  Preventive Detention Act by an order dated 7th November, 1962 which had been reported  to Government  for approval  and which  order could only remain in force for 12 days under section 3(3) of the said  Act unless in the meantime it had been approved by the State  Government. In  those cases the principles of the decision referred  to in  Rameshwar Shaw’s  case  and  other cases could not be applied.      If there  was an  imminent possibility of the man being set at  liberty and  his detention coming to an end, then it appears, as  a principle,  if  his  detention  is  otherwise necessary and justified then there is nothing to prevent the appropriate  authorities  from  being  satisfied  about  the necessity of  passing an  appropriate  order  detaining  the person concerned.      In Gopi  Ram v.  State of  Rajasthan, AIR  1967 SC  241 Mudholkar, J.  reiterated the  principle that  law does  not

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permit double  detention and  referring to  Rameshwar Shaw’s case it was reiterated that when a 861 person was in jail custody and the criminal proceedings were pending against  him, the  appropriate authority  might in a given case take the view that criminal proceedings might end very soon  and might  terminate in  his acquittal. In such a case, it  would be open to the appropriate authority to make an order  of detention,  if the  requisite conditions of the Rule or  the section  were satisfied,  and serve  it on  the person concerned  even after  he was  acquitted in  the said criminal proceedings.      Masood Alam  Etc. v. Union of India and Others [1973] 1 SCC 551  was a  case where  it was  held that if the grounds were relevant and germane to the object of the detaining Act then merely  because the  objectionable  activities  covered thereby also  attracted  the  provisions  of  Chapter  VIII, Criminal Procedure  Code, the preventive detention could not for that reason alone be considered to be mala fide provided the authority  concerned was  satisfied of  the necessity of the detention  as contemplated  by the Act. The jurisdiction of preventive  detention sometimes described as jurisdiction of suspicion  depended on  subjective  satisfaction  of  the detaining authority.  If  the  detaining  authority  was  of opinion on  grounds which were germane and relevant, that it was necessary  to detain  a person from acting prejudicially as contemplated  by section 3 of the Act then it was not for this court  to consider  objectively how  imminent  was  the likelihood of  the detenu  indulging  in  those  activities. There was no legal bar in serving an order of detention on a person who  was in  jail custody  if he  was  likely  to  be released soon  thereafter and there was relevant material on which the  detaining authority  was satisfied  that if free, the person  concerned was  likely to  indulge in  activities prejudicial to  the security  of the State or maintenance of public order.  The Court  stressed upon the fact that 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 coming 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 earlier order. 862      Golan Hussain  Alia Gama  v.  Commissioner  of  Police, Calcutta, and  Others (supra) highlights the need for causal connection between  the grounds and the action proposed. The jurisprudence  dealing   with   prohibitory   detention   or preventive detention is well-settled and it can no longer be a  valid  contention  that  because  the  accused  had  been discharged in  a criminal  case, the  ground of charge could not be  relied upon  by the appropriate authority passing an order of  preventive detention.  The former  related to  the punitive branch  of criminal  law and  relied  on  the  past commissions, the  latter to  the preventive branch of social defence and  protected the  community from future injury. It

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is not  possible to  urge that simply because a man has been discharged in  a criminal  case, those  grounds could not be grounds for  preventive detention.  But there  must be live- link between  the grounds  of criminal activities alleged by the detaining  authority and  the purpose of detention. This credible chain  would be  snapped if  there was too long and unexplained an  interval between  the offending acts and the order  of   detention.  There  must  be  proximity,  but  no mechanical test  of counting  months of interval can be laid down-it depends on the nature of the acts alleged or relied, gravity of the situation and the reason for the delay. It is in  that   background  only  it  can  be  said  that  causal connection is  broken. The  power to detain and the right to liberty must be harmoniously balanced in the larger interest of the community.      Dulal Roy  v. The District Magistrate, Burdwan & Others [1975] 1  SCC 837  stressed that  the scheme of section 3(1) (a) of  the  Maintenance  of  Internal  Security  Act,  1971 presupposed that on the date of the order of detention or in the near  future the  person sought  to be  detained had  or would have  freedom of  action. If  a person  therefore  was serving a  long term  of imprisonment or was in jail custody as an  undertrial  and  there  was  no  immediate  or  early prospect of  his being  released on  bail or  otherwise, the authority could  not legitimately  be satisfied on the basis of his  past history  or antecedents  that he  was likely to indulge in  similar prejudicial activities after his release in the  distant or  indefinite future. To the similar effect are the  observations in  Dr. Ramakrishna  Rawat v. District Magistrate, Jabalpur  and Another.  [1975] 4  SCC 164 at 167 and 169.      Mere service  of detention  order in jail per se is not bad.      In Vijay  Narain Singh v. State of Bihar & Ors., [1984] 3 SCR  435 it  was highlighted  by two  learned  judges  (O. Chinnappa Reddy  & E.S.  Venkataramiah,  JJ)  of  the  three judges bench  consisting of  O. Chinnappa  Reddy, A.P. Sen & E.S. Venkataramiah, JJ. that the law of 863 preventive detention  was a hard law and therefore should be strictly construed. Care should be taken that the liberty of the person was not jeopardized unless the case fell squarely within the  four corners  of the  relevant law.  The law  of preventive detention  was not  to be 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  very same charge which was to  be tried  by  the  criminal  court.  The  Court  was considering the  expression ’habitual  offender’  under  the Bihar Control of Crimes Act, 1981.      Assuming the  facts alleged  to be right and there is a causal connection  between the facts alleged and the purpose of detention  and the  formation of  the opinion is not mala fide, then  the sufficiency  of the grounds and the truth of the grounds  is not  germane. See  the observations  of this Court in The Barium Chemicals Ltd. & Anr. v. The Company Law Board and Others [1966] Supp. SCR 311 at 354 and 363.      It has  to be  borne in  mind that having regard to the purpose of  the Act,  the detaining authority must take into consideration rational, proximate grounds and that should be the basis  for  the  horoscope  for  the  future  so  as  to determine whether  the person  proposed to be detained comes within the  mischief  of  the  Act.  If  the  person  is  in

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detention or  is under  trial and his conviction is unlikely 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.      In Prakash Chandra Mehta v. Commissioner and Secretary, Government of  Kerala and Others [1985] Supp. SCC 144 it was noted that  preventive detention  unlike punitive  detention which was  to punish  for the wrong done, was to protect the society by  preventing wrong  being done. Though such powers under those Acts must be very cautiously exercised as not to undermine the fundamental freedoms guaranteed to our people, the procedural  safeguards are to ensure that yet these must be looked at from a pragmatic and commonsense point of view. An understanding  between those who exercised powers and the people over  whom or  in  respect  of  whom  such  power  is exercised is  necessary. The purpose of exercise of all such powers by  the Government  must be  to promote  common well- being and  must be  to  subserve  the  common  good.  It  is necessary to protect therefore the individual rights insofar as practicable  which are not inconsistent with the security and well- 864 being of  the society.  Observance of  written law about the procedural safeguards  for the  protection of the individual is normally  the high  duty of  public official  but in  all circumstances not  the highest. The law of self-preservation and protection  of the  country and  national  security  may claim in certain circumstances higher priority.      In Shiv Ratan Makim s/o Nandlal Makim v. Union of India and Others  [1986] 1  SCC  404  it  was  stressed  that  the jurisdiction to  make orders  for preventive  detention  was different from that of judicial trial in courts for offences and of  judicial orders  for prevention  of  offences.  Even unsuccessful judicial  trial or proceeding would not operate as a  bar to  a detention  order or  render it  mala fide. A fortiori therefore the mere fact that a criminal prosecution can be instituted cannot operate as a bar against the making of an  order of  detention. If an order of detention is made only in  order to bypass a criminal prosecution which may be irksome because  of the  inconvenience of proving guilt in a court of law, it would certainly be an abuse of the power of preventive detention  and the  order of  detention would  be bad. But  if the object of making the order of detention was to prevent  the commission in future of activities injurious to  the  community,  it  would  be  a  prefectly  legitimate exercise of  power to make the order of detention. The court would have  to consider  all the  facts and circumstances of the case in order to determine on which side of the line the order of detention falls.      In view of the aforesaid principles that emerged, it is necessary to  consider the  grounds  and  determine  whether there are  causal connections. The fact that a man is not in jail per  se would  not be  determinative of the factor that order of  peventive 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  must be  objectively considered and if  there are causal connections and if bona fide belief was formed then there was nothing to prevent from serving an order of  preventive detention even against a 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 satisfied.      Before us  no substantial  point was made of infraction

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of any  procedural  safeguard  engrafted  in  the  Act.  The documents relied  on were  duly supplied.  We have  examined that question  from  the  records  and  materials  available before us. Proper opportunity to make a rep- 865 resentation was  given and  the representation  made to  the Advisory Board  was duly  considered by  the Advisory Board. Their recommendations were also duly considered by the State Government. In  the premises  there is  no substance  in the grievance  that  the  procedural  safeguards  had  not  been followed. It  further appears  to us 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.      Judged by  the standards laid down by various decisions mentioned  hereinbefore   and  in  view  of  the  fact  that procedural safeguards  had been  observed,  we  are  of  the opinion that  there is no substance in the challenge made in the writ  petition. We  are further  of the opinion that the High Court  was right in dismissing the writ petition before it.  Special   leave  application  from  the  said  decision therefore must  fail and  the writ  petition filed  in  this Court also fails for the reasons indicated before. A.P.J.                                  Petitions dismissed. 866