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PETITIONER: SAHIB SINGH DUGAL

       Vs.

RESPONDENT: UNION OF INDIA

DATE OF JUDGMENT: 30/07/1965

BENCH: WANCHOO, K.N. BENCH: WANCHOO, K.N. GAJENDRAGADKAR, P.B. (CJ) HIDAYATULLAH, M. SHAH, J.C. SIKRI, S.M.

CITATION:  1966 AIR  340            1966 SCR  (1) 313  CITATOR INFO :  R          1972 SC 530  (11)  RF         1972 SC1668  (4)  R          1972 SC1670  (8)  F          1972 SC1850  (5)  F          1973 SC 207  (5)  F          1973 SC 897  (4)  RF         1974 SC1161  (8)  F          1974 SC1214  (6)  R          1974 SC1336  (5)  RF         1975 SC 775  (10)  R          1986 SC2177  (35)

ACT: Defence  of  India Rules, r. 30(1) (b)-Detention  of  person immediately  after  his  discharge  from  a  criminal  case- Legality-Such detention whether mala fide.

HEADNOTE: The  petitioner  was  arrested on December 6,  1964  for  an offence  under 3 of the Official Secrets Act.  On  March  11 the  investigating officer made a report to  the  Magistrate that there was insufficient evidence to charge the  accused, and  thereupon  the Magistrate  discharged  the  petitioner. Immediately after the petitioner came out of the jail he was served  with An order under r. 30(1) (b) of the  Defence  of India  Rules under which he was to be detained in  order  to prevent  him  from  acting in a manner  Prejudicial  to  the defence of India, public safety, and India’s relations  with foreign  powers.  He was then arrested and sent to  jail  in accordance  with  the further orders of  the  Government  of India under r. 30(4) of the Rules.  In a petition under Art. 32 it was contended on behalf of the petitioner that in view of  this  Court’s  decision in  Rameshwar  Shaw’s  case  the detention  order  was illegal; it was also illegal  for  the that in the circumstances of the case it was mala fide. HELD:(i) What was decided in Rameshwar Shaw’s case was  that when a person was already in jail and would continue in jail custody  for  an indefinite length of time it could  not  be postulated  about him that if he was not detained  he  would

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act  in  a  prejudicial manner.  In  the  present  case  the petitioner  was not to continue in jail indefinitely but  on the other and stood discharged in the criminal case. [316 G] It  was further held in Rameshwar Shaw’s case that the  past activities  in the basis of which detention order is  passed against a person should Ordinarily be proximate in time.  In the  present case the petitioner had been in jail  only  for three  months and it could be said that the conduct  of  the petitioner  before  this  period of  three  months  was  not proximate  enough to justify an order of detention based  on that conduct. [317 D] Rameshwar  Shaw  v. District Magistrate,  Burdwan  [1964]  4 S.C.R. 921 distinguished. Smt.  Godavari Shamrao v. State of Maharashtra, A.I.R.  1964 S.C. 129, referred to. (ii)It may very well be that the executive authorities felt that  it  was  not possible to obtain  a  conviction  for  a particular  offence under the Official Secrets Act;  at  the same time they might reasonably have come on the  conclusion that the activities of the petitioner which had been watched for over two years before the order of detention was  passed were of such a nature as to justify the order of  detention. From the mere fact that the authorities decided to drop  the case under the Official Secrets Act and thereafter to  order the detention of the petitioner, it cannot be inferred  that the order of detention was mala fide. [317 G-H] 314

JUDGMENT: ORIGINAL  JURISDICTION  : Writ Petitions Nos. 55 and  56  of 1965. Petitions under Art. 32 of the Constitution of India for the enforcement of Fundamental Rights. R.   Gopalakrishnan,  for  the  petitioners  (in  both   the petitions) R.   Ganapathy  Iyer and R. N. Sachthey, for the  respondent (in both the petitions). The Judgment of the Court was delivered by Wanchoo,  J. These two writ petitions under Art. 32  of  the ,Constitution  for  a  writ of habeas  corpus  raise  common questions .and will be dealt with together.  We may set  out the  facts in one of the petitions (namely Petition  55)  in order  to  highlight  the points raised  on  behalf  of  the petitioners.  It is unnecessary to referred to the facts  in the  other petition as they are similar except that  in  the other  case  the original arrest took place  on  December  6 instead of December 8. Sahib Singh Dugal, petitioner, was employed in the Posts and Telegraph  Directorate  of the Central Government.   He  was arrested  on  December 8, 1964 and put in jail as  an  under trial  prisoner  for an offence under S. 3 of  the  Official Secrets Act, Various remands were taken up to March 11, 1965 in connection with the criminal case against the petitioner. It appears the besides Dugal, eight other persons were  also involved in the case under S. 3 of the Official Secrets Act, including  Jagdev Kumar Gupta petitioner in petition No.  56 of  1965.  On March 11, 1965, the Deputy  Superintendent  of Police  who  was apparently in-charge of  the  investigation made  a report to the court to the affect that all the  nine persons  involved in that criminal Case might be  discharged as  sufficient  evidence for their conviction could  not  be discovered  during  the  investigation.   Consequently,  the magistrate  discharged all the nine persons including  Sahib

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Singh Dugal and Jagdev Kumar Gupta petitioners and they were released  from  jail that very evening.   Immediately  after Sahib  Singh Dugal came out of the jail, he was served  with an  order  under. 30 (1) (b) of the Defence of  India  Rules (hereinafter  referred  to  as the Rules),  This  order  was passed by the Government of India and provided that Dugal be detained  in order to prevent him from acting in  an  manner prejudicial  to  the  defence of India,  public  safety  and India’s  relations  with  foreign powers.   Dugal  was  then arrested and detained in the Central Jail, Tehar, New  Delhi in accordance                             315 with  the further order of the Government of India under  r. 30(4) of the Rules. The  case of the petitioners before us is two-fold.  In  the first  place  they  rely on the decision of  this  Court  in Rameshwar Shaw V. District Magistrate, Burdwan(1) and  their case  is  that in view of that decision the order  of  their detention and the service of hat order are illegal and  they are therefore entitled to release.  In the second place,  it is  urged  that the order of detention is mala fide  in  the circumstances of the case and therefore should be set aside. The  Union contests the petitions and urges  that  Rameshwar Shaw’s case (1) has no application to the present cases  and that  there was no mala fide intention in making the  orders of detention. We  shall first consider whether the orders in  the  present cases are covered by the decision of this Court in Rameshwar Shaw’s  case(1)  and should therefore be set aside.   It  is necessary  in this connection to refer to the facts in  that case.  Rameshwar Shaw was ordered to be detained by an order passed on February 9, 1963.  This order was served on him on February 15, 1963.  At that time he was in Burdwan jail.  He had  been  in that jail for time past in connection  with  a criminal  complaint  pending against him.   Therefore,  both when  the  order  was  passed and  when  it  was  served  on Rameshwar  Shaw, he was already in jail in  connection  with the  criminal case pending against him and it was not  known how long he would remain in jail in that connection.  It was also  impossible  to say at that stage whether he  would  be convicted  in  the criminal case or acquitted.   It  may  be mentioned  that  that  was a case  of  detention  under  the Preventive  Detention Act where grounds and particulars  are supplied  to  the  detenu. But the main  question  that  was decided therein was that where a person was already in  jail for  an  indefinite  length of time  in  connection  with  a criminal  case pending against him it would not be  possible for  the  authority to come to the conclusion  that  such  a person’s detention is necessary in order to prevent him from acting in a manner prejudicial to the public safety etc.  It was  pointed out that 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; but  when  the  person against whom an order  is  passed  is already  in jail for an indefinite length of time or  for  a long  time  to come (say when be is undergoing  sentence  of imprisonment for a number of years) it could hardly be  said that such a person would act in a manner prejudicial to  the public  safety etc. unless he is detained.  In such  a  case preven- (1)  [1964] S. C. R. 921. 316 tive detention would be unnecessary for the person concerned is already in jail for an indefinite length of time or for a long  time, In Rameshwar Shaw’s case(1), he was in  jail  in

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connection with the criminal case pending against him for an indefinite  length of time.  It was in  those  circumstances that  this Court held that the authority ordering  detention could  not  legitimately  come to the  conclusion  that  the detention  of the person was necessary to prevent  him  from acting in a manner prejudicial to the public safety etc. for in  coming  to  that  conclusion the  authority  had  to  be satisfies  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  such  a  person  was already  in  jail  custody  for  an indefinite  length of time it could not be postulated  about him  that  if  he  was  not  detained  he  would  act  in  a prejudicial manner. This  matter  was  again considered by this  Court  in  Smt. Godavari Shamrao v. The State of Maharashtra.(1) That was  a case  where  a certain person had been  detained  under  the Defence  of India Rules.  Later, this order was revoked  and another  order was passed to remove some technical  defects. The latter order was challenged as illegal as it was  passed at  the time when the person concerned was in detention  and it was also served on her in jail.  This Court held that the second order of the State Government after it had decided to revoke  the earlier order was perfectly valid so far as  the time  of making the order was concerned and its  service  on the  detenu who was detained not as an under trial or  as  a convicted  person  could not be assailed, and  the  case  of Rameshwar Shaw(1) was distinguished. It  will be noticed that the facts of the present two  cases differ  from  the facts of Rameshwar Shaw’s case(1)  in  one material   particular.   Rameshwar  Shaw  was  in  jail   in connection with the criminal case pending against him for an indefinite duration.  The order of detention as well as  the service of that order was made on Rameshwar Shaw when he was in  jail  for an indefinite period in  connection  with  the criminal case pending against him.  In the present cases  it is  true  that the petitioners had been in  jail  for  about three months before the order of detention was made  against them.  But there is a significant difference in the  present cases,  namely, that the executive authorities  had  decided that  the  criminal case against the petitioners  could  not succeed for want of sufficient evidence and applied for  the discharge of the petitioners.  It was in these circumstances that the executive authorities decided to (1) [1964] 4 S. C. R. 921.               (2) A. 1. R. (1964) S. C. 1128 317 pass  an  order of detention.  So on March 11 a  report  was made  to  the  magistrate that  the  petitioners  should  be discharged  as there was not sufficient evidence  for  their conviction  and  on  the  same  date  the  order  for  their detention was passed under the Rules.  Further it was served on  the  petitioners immediately after  their  release  from jail.   In  these  circumstances,  the  ratio  decidendi  of Rameshwar Shaw’s case(1) will not apply, for the authorities had  decided  to  drop the criminal case  and  ask  for  the discharge  of’  the accused.  Then they  considered  whether there was justification for the detention of the petitioners under the Rules and decided to, detain them.  As was pointed out  by this Court in Rameshwar Shaw’s case(1) detention  is made  generally in the light of the evidence about the  past activities   of  the  person  concerned.   But  these   past activities  should ordinarily be proximate in point of  time in order to justify the order of detention.  In the  present cases the petitioners had been in jail for only three months

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before the order of detention was passed.  It cannot be said that  the conduct of the petitioners before this  period  of three months is not proximate enough to justify an order  of detention  based on that conduct.  As a matter of fact,  the affidavit  on behalf of the Government of India is that  the material  in  respect of the activities of  the  petitioners ranged  over  a  period of two years  before  the,  date  of detention  and that was taken into account to come  to  the, conclusion  whether  the  detention  under  the  Rules   was justified  or  not.  We are therefore of  opinion  that  the petitioners  cannot  get advantage of the decision  of  this Court in Rameshwar Shaw’scase(") on the facts in the present cases. The next contention on behalf of the petitioners is that the order is mala fide.  The reason for this contention is  that it  was  originally intended to  prosecute  the  petitioners under  s.  3  of  the Official  Secrets  Act  and  when  the authorities were unable to get sufficient evidence to obtain a  conviction they decided to drop the criminal  proceedings and  to  order the detention of the  petitioners.   This  by itself  is not sufficient to lead to the inference that  the action  of  the detaining authority was mala fide.   It  may very well be that the executive authorities felt that it was not possible to obtain a conviction for a particular offence under the Official Secrets Act; at the same time they  might reasonably come to the conclusion that the activities of the petitioners which had been watched for over two years before the  order of detention was passed were of such a nature  as to  justify the order of detention.  We cannot infer  merely from the fact that the authorities decided’ (1) [1964] 4 S. C. R. 921, sup.CI/65-6 318 to  drop  the  case  under  the  Official  Secrets  Act  and thereafter  to order the detention of the petitioners  under the Rules that the order of detention was mala fide.  As  we have  already  said,  it may not be  possible  to  obtain  a conviction for a particular offence; but the authorities may still be justified in ordering detention of a person in view of  his past activities which will be of a wider range  than the  mere proof of a particular offence in a court  of  law. We  are  not therefore prepared to hold that the  orders  of detention in these cases were mala fide. The  petitions  therefore  fail and  are  hereby  dismissed. Petitions dismissed. 319