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PETITIONER: RAMESHWAR SHAW

       Vs.

RESPONDENT: DISTRICT MAGISTRATE, BURDWAN & ANR.

DATE OF JUDGMENT: 11/09/1963

BENCH: GAJENDRAGADKAR, P.B. BENCH: GAJENDRAGADKAR, P.B. SUBBARAO, K. WANCHOO, K.N. AYYANGAR, N. RAJAGOPALA MUDHOLKAR, J.R.

CITATION:  1964 AIR  334            1964 SCR  (4) 921  CITATOR INFO :  R          1964 SC1120  (7,8,9,10,16)  D          1964 SC1128  (5)  D          1966 SC 340  (3,4,5,6)  F          1966 SC 740  (3)  E          1967 SC 241  (4,5,8)  RF         1967 SC 295  (60)  RF         1967 SC1797  (5)  RF         1973 SC 844  (2)  F          1973 SC 897  (6)  R          1974 SC 183  (29)  RF         1974 SC1336  (5)  D          1975 SC  90  (5,6,8)  R          1975 SC 919  (6,14)  RF         1975 SC1508  (4)  RF         1976 SC1207  (116,208)  F          1982 SC1539  (5)  R          1982 SC1543  (11,14)  R          1982 SC1548  (5)  R          1982 SC2090  (5)  RF         1986 SC2177  (30,32,37,39)  R          1987 SC2098  (7)  RF         1987 SC2332  (23)  RF         1988 SC 934  (12)  R          1989 SC2027  (13,14,18,19,20)  RF         1989 SC2265  (12)  R          1990 SC 516  (6,10)  RF         1990 SC1196  (7)  RF         1990 SC1202  (12)  RF         1991 SC2261  (5,12)

ACT: Preventive Detention-Person in jail custody-Detention order, if  can be served-Validity-"Satisfaction" of the  authority- Preventive Detention Act, 1950 (Act 4 of 1950), s. 3(1).

HEADNOTE: The petitioner was detained by the order of the District Ma- gistrate  under the provisions of the  Preventive  Detention Act,  1950.  The order recited that the District  Magistrate

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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 that the  detention of the petitioner was not justified by the provisions of  s. 3(1) of the Act and was as such invalid. HELD  (i) The reasonbleness of the satisfaction of  the  de- taining authority cannot be questioned in a court of law for the reason that the satisfaction of the detaining  authority to which s 3(1)(a) refers is his subjective satisfaction the adequacy  of  the material on which  the  said  satisfaction purports to rest also cannot be examined in a court of  law. That   is  the  true  legal  position  in  regard   to   the satisfaction contemplated by s. 3(1)(a) of the Act. The  State  of  Bombay v. Atma Ram  Sridhar  Vaidya,  [1951] S.C.R. 167, relied on. (ii)The past conduct or antecedent history of a person  can be  taken into account in making a detention order, but  the past  conduct or antecedent history of the person, on  which the   authority  purports  to  act,  should  ordinarily   be proximate  in  point  of time and  should  have  a  rational connection  with  the conclusion that the detention  of  the person is necessary. Ujagar Singh v. The State of Punjab and Jagajit Singh v. The State of Punjab, [1952] S.C.R. 756, relied on. (iii)As an abstract proposition of law, there may not be any doubt  that  s.  3(1)(a) of the Act does  not  preclude  the authority  from  passing  an order of  detention  against  a person  whilst  he  is in detention or  in  jail.   But  the relevant  facts in connection with the making of  the  order may differ and that may make a difference in the application of the principle that a detention order 59-2 S C India/64 922 can  be passed against a, person in jail.  In  dealing  with this question, the considerations of proximity of time  will be  a relevant factor.  The question as to whether an  order of  detention  can  be passed against a person  who  is  in, detention  or in jail, will always have to be determined  in the circumstances of each case. Basanta  Chandra Ghose v. Emporer, A.I.R. 1945 F.C. 18,  ex- plained. (iv)An  order  of detention cannot be validly served  on  a person who is already in jail custody and in respect of whom it is rationally not possible to predicate that if the  said order  is not served on him, he would be able to indulge  in any prejudicial activity. Section   3(1)  of   the   Act necessarily postulates that a personsought     to     be detained would be free to act in a prejudicial manner if  he is not detained.  In other words, the freedom ofaction  to the  person sought to be detained at the relevant time  must be shown before an order of detention can be validly  served on  him under the said section.  If a person is  already  in jail  custody it cannot be rationally postulated that if  he is not detained he would act in a prejudicial manner. Labaram  Deka  Barua  v. State, A.I.R. 1951  Assam  43,  and Haridas Deka V. State, A.I.R. 1952 Assam 175, relied on. Sahadat Ali v. State of Assam, A.I.R. 1953 Assam 97,  refer- red to. (v)  The  satisfaction  that  it is necessary  to  detain  a person for the purpose  of preventing him from acting  in  a prejudicial manner  is thus the basis of the order under  s. 3(1)(a), and this basis is clearly absent in the case of the

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petitioner.    The  detention  of  the  petitioner  in   the circumstances of this case, is not justified by s.  3(1)(a). In  the  present  case  the petitioner  was  ordered  to  be released on the ground that he was served with the order  of detention whilst he was in jail custody.

JUDGMENT: ORIGINAL   JURISDICTION : Petition No. 145 of 1963. Petition under Art. 32 of the Constitution of India, for the enforcement of fundamental rights. R.   K.  Garg,  S.  C.  Agarawal, D.  P.  Singh  and  M.  K. Ramamurthi for the Petitioner. B. Sen and P. K. Bose, for the respondents. September  11,  1963).   The  judgment  of  the  Court   was delivered by, GAJENDRAGADKAR J.-The short question which this petition for Habeas  Corpus raises for our decision is whether the  order of  detention passed against, and served on  the  petitioner Rameshwar Shaw while lie was in jail 923 custody  is  justified  by section 3(1)  of  the  Preventive Detention Act, 1950 (No. 4 of 1950) (hereinafter called ’the Act’).   The answer to this question would naturally  depend upon  a  fair and reasonable construction  of  the  relevant clause of the said section. The District Magistrate, Burdwan, passed an Order on the 9th February,  1963,  whereby he directed  that  the  petitioner should  be  detained.  The Order recites that  the  District Magistrate was satisfied that it was necessary to detain the petitioner  with  a  view to prevent him from  acting  in  a manner prejudicial to the maintenance of public order.  This order  was  served on the petitioner on the  15th  February, 1963, in Burdwan Jail where he had been kept as a result  of a remand order passed by a court of competent.  Jurisdiction which  had taken cognizance of a criminal complaint  against him.   As  required by s. 7(1) of the Act,  the  grounds  on which  the  petitioner’s detention had been ordered  by  the detaining  authority  were communicated to him on  the  same day.   In due course, the State Government approved  of  the said  Order  on the 16th February, 1963.  The  case  of  the detenu  was  then  placed before the  Advisory  Board  which recommended  the continuance of the petitioner’s  detention. Thereafter, the State Government by its Order passed on  the 23rd  April, 1963 confirmed the detention of the  petitioner under s. 11 of the Act.  This Order of the State  Government was ultimately served on the petitioner in the Burdwan  Jail on the 29th April, 1963. The  grounds for the petitioner’s detention which have  been served on him indicate that material had been placed  before the detaining authority which showed that the petitioner was indulging in anti-social activities and that in pursuance of the  said  activities, he had threatened  many  people  with assault  and  in  fact had assaulted  them.   These  grounds further show that the petitioner had disturbed public  order in  areas  within  Faridpur, Andal,  Raniganj  and  Assansol police  stations  within the district of Burdwan,  and  five instances were cited in support of this ground.  The  notice conveying the said grounds to the petitioner further alleged that  as  a  result  of  the  criminal  activities  of   the petitioner set out in the notice, confusion had been created in the lives of the peaceful 924 citizens  of the areas, and so, the detaining authority  was

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satisfied that it was necessary to detain the petitioner  to prevent  him from indulging in prejudicial activities.   The notice further informed the petitioner that if he wanted  to make a representation against the order of detention  passed by the detaining authority, he should take steps to  forward his representation as indicated in the notice.  He was  also told that in case his representation was received, his  case would be forwarded to the Advisory Board, and if he  desired to address the Advisory Board personally.., he might make  a request in that behalf and the same would be considered. Mr.  Garg for the petitioner has challenged validity of  the petitioner’s detention on several grounds.  He contends that the  detention  of the petitioner is not  justified  by  the provisions of s. 3(1) of the Act and as such is invalid.  He also.argues  that  the order of detention  has  been  passed against the petitioner by the District Magistrate,  Burdwan, mala  fide.  According to him, the material facts stated  in the  notice  served  on the  petitioner  setting  forth  the grounds for his detention, are imaginary and nonexistent and some  of the grounds are vague and irrelevant ; and he  also contends  that  the  affidavits  filed  on  behalf  of   the respondents  clearly  indicate that some of the  grounds  on which   the  detaining  authority  relies  and  which   must therefore,  have  weighed in his mind at the time  when  the detention  order  was  passed, were  not  disclosed  to  the petitioner  when  notice of grounds was served on  him,  and that  makes  the  communication of  the  grounds  materially defective ; it also affected the petitioner’s right to  make an  effective  representation.   These  infirmities  in  the notice, says Mr. Garg, make the order of detention  invalid. It  has also been suggested that the petitioner was in  fact denied  an  opportunity to make his  representation  to  the Advisory Board and that also introduces an infirmity in  the order.  Since we have come to the conclusion that the  first contention  raised  by Mr. Garg is well-founded, we  do  not propose to consider the merits of the other arguments  urged by him in support of his petition. Let  us then read section 3(1) to determine the  true  scope and effect of the relevant clause on which Mr. Garg’s 925 argument is founded.  Section 3(1) provides inter alia, that the  Central Government or the State Government  may-(a)  if satisfied  with  respect of any person that with a  view  to preventing  him  from  acting  in  any  manner   prejudicial to........ (ii) the security of the State or the maintenance of  public  order, it is necessary so to do, make  an  order directing that such person be detained.  It will be  noticed that before an order of detention can be validly made by the detaining  authorities specified by s. 3(2),  the  authority must  be  satisfied  that the detention  of  the  person  is necessary  in  order  to  prevent him  from  acting  in  any prejudicial  manner as indicated in clauses (i) to (iii)  of s. 3(1)(a).  It is hardly necessary to emphasise that  since the  Act  authorises the preventive  detention  of  citizens without a trial, the material provisions of the Act must  be strictly  construed  and all safeguards which  the  Act  has deliberately provided for the protection of citizens must be liberally  interpreted.   The argument which  Mr.  Garg  has urged  before  us  is  that if a  person  is  already  under detention,  it  would  not be reasonably  possible  for  the appropriate authority to satisfy himself that the  detention of  such a person is necessary in order to prevent him  from acting in any prejudicial manner.  The basis of the order of detention which the authority is empowered to pass against a person  under  s. 3(1)(a) is that if the said order  is  not

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passed against him, he may act in a prejudicial manner.   In other  words  the authority considers the  material  brought before it in respect of a person, examines the said material and first reaches a conclusion that the material shows  that the said person may indulge in prejudicial activities if  he is  not  prevented from doing so by an order  of  detention. How  can the authority come to the conclusion that a  person who  is  in  jail custody may act in  a  prejudicial  manner unless he is detained?  The scheme of the section postulates that  if  an  order of detention is not  passed  against  ,a person,  he would be free and able to act in  a  prejudicial manner.   In  other  words, at the time when  the  order  of detention  is  brought into force, the person sought  to  be detained  must  have  freedom of  action.   That  alone  can justify  the  requirement of the section that the  order  of detention is passed in order to prevent a prejudicial acti- 926 vity  of  the  person  proposed to  be  detained.  That,  in substance,  is the contention on which the validity  of  the petitioner’s detention is challenged before us. It is true that the satisfaction of the detaining  authority to  which s. 3(1)(a) refers is his subjective  satisfaction, and so is not justiciable.  Therefore, it would not be  open to  the detenu to ask the Court to consider the question  as to whether the said satisfaction of the detaining  authority can be justified by the application of objective tests.   It would  not be open, for instance, to the detenu  to  contend that  the  grounds  supplied to him do  not  necessarily  or reasonably  lead  to  the  conclusion  that  if  he  is  not detained,  he would indulge in prejudicial activities.   The reasonableness   of  the  satisfaction  of   the   detaining authority  cannot  be  questioned in a  Court  of  law;  the adequacy  of  the material on which  the  said  satisfaction purports to rest also cannot be examined in a Court of  law. That  is the effect of the true legal position in regard  to the  satisfaction contemplated by section 3(1)(a), vide  The State of Bombay v. Atma Ram Sridhar Vaidya(1). There is also no doubt that if any of the grounds  furnished to  the detenu are found to be irrelevant while  considering the  application of clauses (i) to (iii) of s. 3(1) (a)  and in  that sense are foreign to the Act, the  satisfaction  of the  detaining authority on which the order of detention  is based  *is open to challenge and the detention order  liable to  be quashed.  Similarly, if some of the grounds  supplied to the detenu are so vague that they would virtually deprive the   detenu   of   his  statutory   right   of   making   a representation, that again may introduce a serious infirmity in  the order of his detention. If however, the  grounds  on which  the  order  of detention proceeds  are  relevant  and germane to the matters which fall to be considered under  s. 3(1)(a), it would not be open to the detenu to challenge the order  of detention by arguing that the satisfaction of  the detaining  authority is not reasonably based on any  of  the said grounds. It  is, however, necessary to emphasise in  this  connection that though the satisfaction of the detaining authority (1) [1951] S.C.R. 167, 176. 927 contemplated by s. 3(1)(a) is the subjective satisfaction of the  said  authority, cases may arise where the  detenu  may challenge  the  validity of his detention on the  ground  of mala  fides and in support of the said plea urge that  along with  other facts which show mala fides, the Court may  also consider  his  grievance  that the  grounds  served  on  him ’cannot possibly or rationally support the conclusion  drawn

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against him by the detaining authority.  It is only in  this incidental  manner and in support of the plea of mala  fides that  this  question can become justiciable;  otherwise  the reasonableness   or  propriety  of  the  said   satisfaction contemplated by s.  3(1)(a) cannot be questioned before  the Courts. It is also true that in deciding the question as to  whether it is necessary to detain a person, the authority has to  be satisfied  that if the said person is not detained,  he  may act  in  a prejudicial manner, and this  conclusion  can  be reasonably  reached by the authority generally in the  light of the evidence about the past prejudicial activities of the said  person.  When evidence is placed before the  authority in respect of such past conduct of the person, the authority has  to examine the said evidence and decide whether  it  is necessary to detain the said person in order to prevent  him from acting in a prejudicial manner.  That is why this Court has held in Ujagar Singh v. The State of Punjab  and  jagjit Singh  -v.  The State of Punjab(1) that the past conduct  or antecedent history of a person can be taken into account  in making  a  detention order, and as a matter of fact,  it  is largely from prior events showing tendencies or inclinations of  a  man that an inference could be drawn  whether  he  is likely even in the future to act in a manner prejudicial  to the maintenance of public order. In  this  connection, it is, however, necessary to  bear  in mind  that  the past conduct or antecedent  history  of  the person  on  which  the authority  purports  to  act,  should ordinarily  be proximate in point of time and should have  a rational  connection with the conclusion that the  detention of  the  person is necessary.  It would,  for  instance,  be irrational to take into account the conduct of (1) [1952] S.C.R. 756. 928 the person which took plate ten years before the date of his detention  and say that even though after the said  incident took  place nothing is known against the  person  indicating his tendency to act in a prejudicial manner, even so on  the strength  of  the  said incident which  is  ten  years  old, the authority is satisfied that his detention is  necessary. Inother  words,  where  an authority  is  acting  bona  fide andconsidering the question as to whether a person should be detained,  he would naturally expect that evidence on  which the  said  conclusion is ultimately going to  rest  must  be evidence  of  his past conduct or antecedent  history  which reasonably  and rationally justifies the conclusion that  if the  said  person  is  not  detained,  he  may  indulge   in prejudicial  activities.   We ought to add that it  is  both inexpedient and undesirable to lay down any inflexible test. The  question about the validity of the satisfaction of  the authority  will have to be considered on the facts  of  each case.   The detention of a person without a trial is a  very serious  encroachment  on his personal freedom, and  so,  at every stage, all questions in relation to the said detention must be carefully and solemnly considered. Mr. Sen for the respondent has contended that it is, open to the authority to pass an order of detention against a person who may be at that time in detention, and in support of this argument, he has relied on the decision of the Federal Court in  Basanta Chandra Ghose v. Emperor(1).  In that  case  the main question which arose for the decision of the Court was, however,  of a different character.  It was urged on  behalf of  the detenu before the Court that where an earlier  order of  detention passed against him was held to  be  defective, though  on formal grounds, it was not open to the  authority

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to  pass a subsequent order of detention against him on  the same  grounds as had been set out in support of the  earlier order.   This  plea was rejected by the Court.   Spems  C.J. observed that "where the earlier order of detention is  held defective  merely  on formal grounds, there  is  nothing  to preclude a proper order of detention being based on the pre- existing grounds themselves, especially in cases in- (1) A.I.R. 1945 F.C. 18. 929 which  the sufficiency of the grounds is not  examinable  by the Courts." It is in that connection that the learned  C.J. added that there is equally no force in the contention  that no order of detention can be passed against a person who  is already under detention. (As  an  abstract proposition of law, there may not  be  any doubt that s. 3 (1) (a) does not preclude the authority from passing an order of detention against a person whilst he  is in  detention  or  in  jail;  but  the  relevant  facts   in connection with the making of the order may differ and  that may  make a difference in the application of  the  principle that  a  detention order can be passed against a  person  in jail.   Take  for instance, a case where a person  his  been sentenced to rigorous imprisonment for ten years. It  cannot be  seriously  suggested  that soon after  the  sentence  of imprisonment  is  pronounced on the  person,  the  detaining authority  can make an order directing the detention of  the said person after he is released from jail at the end of the period of the sentence imposed on him.  In dealing with this question, again the considerations of proximity of time will not  be irrelevant.  On the other hand, if a person  who  is undergoing imprisonment, for a very short period, say for  a month  or two or so, and it is known that he would  soon  be released from jail, it may be possible for the authority  to consider  the  antecedent  history of the  said  person  and decide  whether  the detention of the said person  would  be necessary  after  he  is  released from  jail,  and  if  the authority  is  bona fide satisfied that  such  detention  is necessary,  he  can make a valid ,order of detention  a  few days  before  the  person is likely  to  be  released.   The antecedent  history and the past conduct on which the  order of  detention  would  be based would, in  such  a  case,  be proximate  in  point  of  time and  would  have  a  rational connection with the conclusion ,drawn by the authority  that the detention of the person after his release is  necessary. It  may  not be easy to discover  such  rational  connection between  the antecedent history of the person who  has  been sentenced  to ten years’ rigorous imprisonment and the  view that  his detention should be ordered after he  is  released after running the whole of his sentence.  Therefore, we  are satisfied  that  the  question as to  whether  an  order  of detention 930 can  be  passed against a person who is in detention  or  in jail, will always have to be determined in the circumstances of each case. The  question which still remains to be considered is can  a person in jail custody, like the petitioner, be served  with an  order  of detention whilst he is in  such  custody?   In dealing  with  this  point, it is  necessary  to  state  the relevant facts which are not in dispute.  The petitioner was arrested on the 25th January, 1963.  He has been in  custody ever  since.  On the 15th February, 1963 when the  order  of detention  was  served on him, he was in jail  custody.   On these facts, what we have to decide is : was it open to  the detaining  authority to come to the conclusion that  it  was

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necessary  to detain the petitioner with a view  to  prevent him from acting in a prejudicial manner when the  petitioner was  locked  up in jail?  We have already seen  the  logical process  which must be followed by the authority  in  taking action under s. 3(1)(a).  The first stage in the process  is to  examine  the material adduced against a person  to  show either  from his conduct or his antecedent history  that  he has  been  acting  in a prejudicial  manner.   If  the  said material  appears  satisfactory to the authority,  then  the authority has to consider whether it is likely that the said person would act in a prejudicial manner in future if he  is not  prevented from doing so by an order of  detention.   If this  question is answered against the petitioner, then  the detention  order can be properly made.  It is  obvious  that before an authority can legitimately come to the  conclusion that the detention of the person is necessary to prevent him from acting in a prejudicial manner, the authority has to be satisfied  that if the person is not detained, he would  act in  a  prejudicial  manner and  that  inevitably  postulates freedom  of action to the said person at the relevant  time. If  a  person  is  already  in  jail  custody,  how  can  it rationally  be  postulated that if he is  not  detained,  he would act in a prejudicial manner At the point of time  when an order of detention is going to be served on a person,  it must be patent that the said person would act  prejudicially if  he  is not detained and that is  a  consideration  which would be absent when the authority is dealing with a  person already in 931 detention.  The satisfaction that it is necessary to  detain a person for the purpose of preventing him from acting in  a prejudicial  manner is thus the basis of the order under  s. 3(1)(a), and this basis is clearly absent in the case of the petitioner.  Therefore, we see no escape from the conclusion that the detention of the petitioner in the circumstances of this case, is not justified by s. 3(1)(a) and is outside its purview.   The District Magistrate, Burdwan who ordered  the detention  of the detenu acted outside his powers  conferred on  him by s. 3(1)(a) when he held that it was necessary  to detain the petitioner in order to prevent him from acting in a prejudicial manner.  That being so, we must hold that  Mr. Garg  is  right when he contends that the detention  of  the petitioner  is not justified by s. 3 (1) (a).  In this  con- nection, we may add that the Assam High Court in two of  its decisions  appears  to have taken the same  view  about  the scope and effect of the relevant provisions of s. 3(1)(a) of the  Act, vide Labaram Deka Barua & Anr. v. The  State  (1), and Haridas Deka v. State (2). Mr.  Sen has, however, relied on the decision of  the  Assam High  Court in Sahadat Ali v. The State of Assam &  Ors.(3). In that case it appeared that the Government had decided  in public interest to abandon the prosecution which was pending against the detenu.  The said decision was duly conveyed  to the police and so, the police reported under section 173  of the  Criminal Procedure Code for the release of the  detenu. In anticipation of this release, the order of detention  was passed against him and it was served on him after he was ac- tually  released.   These facts clearly  illustrate  how  an order  of  detention  can be passed against  a  person  even though he may be in detention or jail custody, and also show that the,-said order should be served on the detenu after he is  released.   The test of proximity of time is  fully  sa- tisfied  in  such a case and no invalidity or  infirmity  is attached  to  the  making  of  the  order  or  its  service. Therefore, we do not think that the decision in Sahadat  Ali

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case is of any assistance to Mr. Sen. (1) A.I.R. 1951 Assam 43 (2) A.I.R. 1952 Assam 175. (3)  A.I.R. 1953 Assam 97. 932 The  result  is,  the petition succeeds  and  the  order  of detention passed against the petitioner by the District  Ma- gistrate, Burdwan, on the 9th February, 1963, is set  aside. We direct that the petitioner should be released forthwith. Petition allowed.