RAMESHWAR SHAW versus DISTRICT MAGISTRATE, BURDWAN & ANR.

RAMESHWAR SHAW

DISTRICT MAGISTRATE, BURDWAN & ANR.

(P. B. GAJENDRAGADKAR, K. SuBBA RAo, K. N. WANCHoo, N. RAJAGOPALA AYYANGAR AND J. R. MunHOLKAR JJ.)

Preventive Detention-Person in jail custody-Detention order, £f can be served-Validity-"Satisfaction" of the authority-Pre~ venJive Detention Act, 1950 (Act 4 of 1950), s. 3(1).

The petitioner \Vas detained by the order of the District Ma-gistrate under the provisions of the Prev~ntive Detention Act, 1950. 'fhe order recited that the District Magistrate was satis-fied that it \Vas necessary to detain the petitioner with view to prevent him from acting in manner prejudicial to the mainten-ance of Public order. This order was served on the petitioner on the 15th February 1963, while he was in jail custody as an un-der-trial prisoner 1n connection with criminal case pending against him.

It was urged on behalf of the pet1ttoner that the detention of the petitioner was not justified by the provisions of s. 3(1) of the Act and was as such invalid.

HELD (i) The reasonbleness of the satisfaction of the de-taining authority cannot be questioned in 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 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 person can be taken into account in making detention order, but the past conduct or antecedent history of the person, on which the au· thority purports to act, should ordinarily be proximate in point of time and should have rational connection with the conclusion that the detention of the person is necessary.

Ujagar Singh v. The State of Punjab and fagajit Singh v. The State of Punjab, [1952] S.C.R. 756, relied on.

(iii) As an abstract proposition of law, there n1ay not be any doubt tha~ s. 3(l)(a) of the Aa does ?ot preclude the authority ~rom pass~ng an ~rd~r. of detention against person whilst he i.5 1n detention or in 1a1l. But the relevant facts in connection w_ith the i;iaking of _the_ order may ~li~er and that may make difference m the apphcation of the pnnc1ple that detention order 59-2 S lndia/64

September, 11

can be passed against person in jail. In dealing with this question, the considerations of proximity of time will be rele-vant factor. The question as to whether an order of detention can be passed against person who is in detention or in jail, will always have to be determined in the circumstances of each case.

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

Basanta Chandra GhoS< v. Emporer, A.LR. 1945 F.C. 18, ex-plained.

(iv) An order of detention cannot be validly served on per-son ,vho is already in jail custQ.,dy and in respect of whom it is rationally not possible to predicate that if the said order is not served on hi1n, he would be able to indulge in any prejudicial activity. Section 3( 1) of the Act necessarily postulates that person sought to be detained would be free to act in .preju-dicial manner if he is not detained. In other words, the free--dom of action to the person sought to be detained at the rele-vant time n1ust be sho¥.'n before an order of detention can be validly served on him under the said section. If person is already in jail custody it cannot be rationally postulated that if he is not detained he '\Vould act in prejudicial manner.

Labaram Deka Barua v. State, A.LR. 1951 Assam 43, and Haridas Deka v. State, A.LR. 1952 Assam 175, relied on.

Sahadat Ali v. State of Assam, A.LR. 1953 Assam 97, refer-red to.

( v) The satisfaction that it is necessary to detain person for the purpose of preventing him from acting in prejudicial manner is thus the basis of the order under s. 3(1)(a), and this basis is clearly absent in the case of the petitioner. The de-tention of the petitioner in the circumstances of this case, is not justified by s. 3(l)(a). In the present case the petitioner \Vas ordered to be released on the ground that he was served with the order of detention '\vhilst he was in jail custody.

ORIGINAL JuRISDICTION: Petition No. 145 of 1963. Petition under Art. 32 of the Constitution of India, for the enforcement of fundamental rights.

R. K. Garg, S. C. Agarwal, D. P. Singh and M. K. Ramamurthi, for the Petitioner.

B. Sen and P. K. Bose, for the respondents. September 11, 1963. The Judgment of the Court was delivered by

Gajendra-GAJENDRAGADKAR J.-The short question which this gadkar ]. petition for Habeas Corpus raises for our decision is whether the order of detention passed against, and served on the petitioner Rameshwar .Shaw while he was in jail

custody is justified by section 3(1) of tbe Preventive Deten-tion Act, 1950 (No. 4 of 1950) (hereinafter called 'the Act'). The answer to this question would naturally depend upon fair and reasonable construction of tbe re-levant clause of the said section. The District Magistrate, Burdwan, passed an Order on tbe 9th February, 1963, whereby he directed tbat tbe peti-tioner should be detained. The Order recites that the Dis-trict Magistrate was satisfied that it was necessary to detain the petitioner with view to prevent him from act-ing in manner prejudicial to the maintenance of pub-lic order. This order was served on tbe petitioner on tbe 15th February, 1963, in Burdwan Jail where he had been kept as result of remand order passed by court of competent jurisdiction which had taken cognizance of criminal complaint against him. As required by s. 7(1) of the Act, the grounds on which the petitioner's detention had been ordered by the detaining authority were communicated to him on the same day. In due course, the State Government approved of the said Order on the 16th February, 1%3. The case of the detenu was then placed before the Advisory Board which recommend-ed the continuance of the petitioner's detention. There-after, tbe State Government by its Order passed on the 23rd April, 1963 confirmed the detention of the petitioner under s. 11 of the Act. This Order of the State Govern-ment was ultimately served on the petitioner in the Burd-wan 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 dis-turbed public order in areas within Faridpur, Anda!, Rani-ganj 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 result of the cri-minal activities of the petitioner set out in the notice, con-fusion had been created in the lives of the peaceful

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

Gajendra-gadkar /.

Ramesh war Shaw v. District Magi.itrate, Burdwan l!r Anr.

Gaiendra· :•dkar /.

c1t1zem of the areas, and so, the detaining authority was satisfied that it was necessary to detain the petitioner to prevent him from indulging in prejudicial activities. The notice further informed the petitioner that if he want-ed to make representation against the order of detention passed by the detaining authority, he should take steps to forward his representation as indicated in the notice. He wa 1 also told that in case his representation was re-ceived, his case would be forwarded to the Advisory Board, and if he desired to address the Advisory Board per-sonally, he might make 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, Burd-wan, 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 non-existent and some of the grounds are vague and irrele-vant ; and he also contends that the affidavits filed on be-half 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 de-tention :nvalid. It has also been suggested that the peti-tioner was in fact denied an opportunity to make his re-presentation to the Advisory Board and that also intro-duces 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

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 view to preventing him from acting in any manner preju-dicial to ........ (ii) the security of the State or the main-tenance of public order, it is necessary so to do, make an order directing that such person be detained. It will be notice.cl that before an order of detention can be va-lidly 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 em-phasise that since the Act authorises the preventive de-tention of citizens without trial, the material provisions of the Act must be strictly construed and all safeguards which the Act has deliberately provided for the protec-tion of citizens must be liberally interpreted. The argu-ment which Mr. Garg has urged before us is that if person is already under detention, it would not be rea-sonably possible for the appropriate authority to satisfy himself that the detention of such 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 person under s. 3 (!) (a) is that if the said order is not passed against him, he may act in prejudicial manner. In other words the authority considers the material brought before it in respect of person, examines the said material and first reaches 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 person who is in jail costody may act in prejudicial manner unless he is detained? The scheme of the section postu-lates that if an order of detention is not passed against person, he would be free and able to act in prejudi-cial 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 prejudicial acti-

Rttmuh1111W Sha" Y. Dis tries M agistrot<, B11rdwan • A.or. Gajendr11-t•dkor f.

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

Gajendra· gadkar f.

vity of the person proposed to be detained. That, in subs-tance, is the contention on which the validity of the peti-tioner's detention is challenged before us.

It is true that the satisfaction of the detaining autho-rity to which s. 3(1)(a) refers is his subjective satisfac-tion, 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 detain-ing authority can be justified by the application of objec-tive tests. It would not be open, for instance, to the detenu to contend that the grounds supplied to him do not necessarily or reasonably lead to the conclusion that if he is not detained, he wonld indulge in prejudicial acti-vities. The reasonableness of the satisfaction of the de-taining authority cannot be questioned in Court of law; the adequacy of the material on which the said sa-tisfaction purports to rest also cannot be examined in Court of law. That is the effect of the true legal posi-tion in regard to the satisfaction contemplated by section 3(1)(a), vide The State of Bombay v. Atma Ram Sridhar Vtiidya(').There is also no doubt that if any of the grounds furnished to the detenu are found to be irrelevant while considering the application of clauses (i) to (iii) of s. 3( 1) (a) and in that sense are foreign to the Act, the sa-tisfaction of the detaining authority on which the order of detention is based is open to challenge and the de-tention 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 representation, that again may intro-duce serious infirmity in the order of his detention. If, however, the grounds on which the order of detention pro-ceeds 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 connec-tion that though the satisfaction of the detaining authority

( [1]) [1951] S.C.R. 167, 176.

contemplated by s. 3(l)(a) is the subjective satisfac-tion of the said authority, cases may arise where the detenu may challenge the validity of his detention on the ground of mala fides and in support of the said plea J.!rge that along with other facts which show mala fides, the Court may also consider his grievance that the grounds served on him cannot possibly or rationally sup-port the conclusion drawn against him by the detain-ing authority. It is only in this incidental manner and in support of the plea of mala fides that this ques-tion 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 whe-ther it is necessary to detain person, the authority has to be satisfied that if the said person is not detained, he may act in 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 per-son, 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 prejudicial man-ner. That is why this Court has held in Ujagar Singh v. The State of Punjab and /agjit Singh v. The State of Punjab(') that the past conduct or antecedent history of person can be taken into account in making de-tention order, and as matter of fact, it is largely from prior events showing tendencies or inclinations of man that an inference could be drawn whether he is likely even in the future to act in manner prejudicial to the main-tenance 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 rational connection with the conclusion that the detention of the person is necessary. It would, for ins-tance, be irrational to take into account the conduct of

(1) [ 1952 J S.C.R. 756.

Ramesh war Shaw T. District Magistrate, Burdwan & Anr.

Gajendra-gadkar f.

Ramesh war Shaw V-;. District Magistrate, Burdwan & Anr.

Gajendra-zadka1· /.

the person which took place ten years before the date of his detention and say that even though after the said in-cident took place nothing is known against the person indicating his tendency to act in prejudicial manner, even so on the strength of the said incident which is ten years old, the authority is satisfied that his detention is necessary. In other words, where an authority is acting bona fide and considering the question as to whether 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 justi-fies the conclusion that if the saicf person is not detained, he may indulge in prejudicial activities. We ought to add that it is both inexpedient and undesirable to lay down any inflexible test. The question about 'the validity of the satisfaction of the authority will bave to be consi-dered on the facts of each case. The detention of per-son without trial is very serious encroachment on his personal freedom, and so, at every stage, all questions in relation to the said detention must be carefully and sole-mnly considered.

Mr. Sen for the respondent has contended that it is open to the authority to pass an order of detention against person who may be at that time in detention, and in support of this argument, he has relied on the deci-sion of the Federal Court in Basanta Chandra Ghose v. Emperor('). In that case the main question which arose for the decision of the Court was, however, of dif-ferent character. It was urged on behalf of the detenu before the Court that where an earlier order of detention passed against him was held to be defective, though on formal grounds, it was not open to the authority to pass subsequent order of detention against him on the same grounds as had been set out in support of the earli-er order. This plea was rejected by the Court. Spens C.J. observed that "where the earlier order of detention is held defective merely on formal grounc:ls, there is nothing to preclude proper order of detention being based on the pre-existing grounds themselves, especially in cases in

( [1]) A.LR. 1945 F.C. 18.

SUPREME OOURT REPORTS I

4 S.c.R.

which the mllicicncy of the irounds is not cx•mioablc by the Courts." It is in that connection that the learned C.J. added that there is equally no force in the contention th.at no order of detention·can be passed against person who is already under detention.

... 1963

... D;;trin Magistrate, Burdtvan &-· Anr.

who is already under detention. As an abstract proposition of law, there may not be any doubt thats. 3(1)(a) docs.not preclude the authority from passing an order of detention against 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 difference in the application of the prin-cipls: that detention order can be passed against. • person in jail. Take for instance, c;ise where person . has been sentenced to rigorous imprisonment for ten years. It cannot •be · seriously suggested that soon after the sentence of imprisonment is pronounced on the person, ....• the detaining authority. can make an order directing the detention of the said person after he is released from jail · at the end of the period of µie sentence imposed on him. In dealing with this question, ·again the considerations of · ~ proximity of. time will not be irrelevant. · on· the other hand, if person who is undergoing imprisonment,· for · very shon period, say for 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 antece-dent history of the said person and decide whether the de-. tention of the said person would be necessary after he isre-Icased "from jail, and if the authority. is bona fide saris-. fied that such detention is necessary, he can make valid· • order of detention few days before· the person is likely , ~ be released. The antecedent history and the past con-duct on which the order of detention would be based would, in such i. case, be proximate in point of time .and would . have 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 dis-CX>Ycr such rational connection between the antecedent ,- ~ory of the person who has been sentenced to ten years' rigorous imprisonment and the view•. ~t his deten-tion should . be ordered after he is refeased after run-, ning thfi who!~ "of his sentence. . Therefore, WC arc satiS-fied th.at the question as to whether an order of detention

Gajendra.-gadk_ar f.

--, \:,·

1963 · \ -- .

RlzmesA~in-·. SAw.

v. ·vimict .· M agi~tr,ate> BurJw1111 &

Anr ..

GajmJr ... gaJ'1.11r f.

--_..,_ . .....

SUPREME COURT-REPORTS

cin be pas:!ed ag~t person who :_iSin detention or in jail, will always have to be. detennined in the circumstan-ces of each case. · \· · "

The question which still remaiils to be considered is : ·1. · can person in · jail custody, like the petitioner, be served with an order of detention whilst he is in such custody? Iti dealing with this point, . it is necessary to state the relevant facts which are not in dispute. The petitioner was arrested on the 25th January, 1963. He has been . in .. custody ever since. On the 15th February, 1963 ·when the order of detention was served on him, he was . in jail custody. On these fac:tS, what we have to decide is : was it open to the detaining authority to • come to the conclusion that it was necessary to detain the petitioner with view to prevent him from acting in prejudicial manner when the petitioner was lcicked up in jail? We have already seen the logical process which must · be followed· by the authority in taking action under s. 3(l)(a); The first stage in the process is to examine the material adduced against person to show either from his conduct or his antecedent history that ..+ he has been acting in prejudicial manner. If the 54.id material appears satisfactory to the authority, then the authority has to consider- whether it is likely that the said· person would . ·act in prejudicial manner · in future if he is not prevented I from doing so by an order of de-tention. If this question is answered against the petition· er, then the detention· order can be properly made. It is obvious that before an authority can legitimately come · . · to the conclusion that the detention of the person is ' necessary . to prevent him from acting in prejudicial • manner, the authority has to be satisfied that if the per· son is not detained, he would act in prejudicial manner· and that inevitably postulates freedom of action to the ' said person at the relevant time. If person is already in jail custody, how can it rationally be postulated that if. he is not detained, he would act in prejudicial manner? . At the point of time when an order. of detention is '11 , ·going to be served on person, it must be patent tll2t · the said person would act prejudicially if he is not de-tained and that is consideration which· would be absent . when the authority is dealing with person already in

4 S.C.R. SUPREME COURT REPORTS

detention. The satisfaction that it is 'necessary to detain person for the purpose of preventing him from acting in prejudicial manner is thus the basis of the order un-der 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, Burd-wan who ordered the detention of the detenu acted outside his powers conferred on him bys. 3(1)(a) when he held that it was necessary to detain the petitioner in order to prevent him from acting in prejudicial man-ner. 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('), and Haridas Deka v. State(').Mr. Sen has, however, relied on the decision of the Assam High Court in Sahadat Ali v. The State of Assam & Ors.('). In that case, it appeared that the Govern-ment had decided in public interest to abandon the pro-secution 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 Proce-dure 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 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 case and no invalidity or infirmity is atta-ched to the making of the order or its service. Therefore, we do not think that the decision in Sahadat Ali's case is of any assistance to Mr. Sen.

(') A.LR. 1951 Assam 43. (2) A.LR. 1952 Assam 175. ( [3]) A.LR. 1953 Assam 97.

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

Gajendra-gadkar f.

Ramesh war Shaw v. Distrz'ct Magistrate, Burdwan &

Anr.

Gajendra-gadkar /.

October 11

The result is, i:he 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 forth-with.

Petition aUowed.

MAKHAN SINGH TARSIKKA

THE STATE OF PUNJAB

(P. B. GAJENDRAGADKAR, K. SuBBA RAo, K. N. WANCHOO, J. C. SHAH AND RAGHUBAR DAYAL JJ.)

Defence of India Rules 1962, rr. 30(1), 30(1)(b)-Person in iail custody-Detention order, if can be served-Validity.

On the 20th November, 1962, an order of detention was passed against the appellant under Rule 30(1)(b) of the Defence of India Rules, 1962. This order was served on the appellant on the 21st November, 1962, while he was in jail custody as an under-trial prisoner in connection with criminal case pending against him. He \Vas arrested on the 25th October, 1962 in connection with the said criminal case and since then he was in jail custody. On the 26th October, 1962, Emergency was declared by the President. Whilst the appellant was in jail custody, he was allowed to inter-view his friends and about nine persons•interviev.·ed him between 3rd November to the 19th November, 1962. It was alleged by the respondent that during these interviews, the appellant instigated the persons who saw him, to commit prejudicial activities. The a{>' pellant moved writ petition in the High Court against the said detention order. The High Court dismissed the writ petition on the ground that the appellant had failed to make out case that his detention was illegal.

Held: (i) The decision in Rameshwar Shaw's case would be applicable to the present appeal, because the scheme of Rule 30(1) is not radically different from the scheme of s. 3(l)(a) of the preventive Detention Act and does not affect the construction of Rule 30(l)(b) of the Rules.