{"id":173190,"date":"1963-09-11T00:00:00","date_gmt":"1963-09-10T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/rameshwar-shaw-vs-district-magistrate-burdwan-on-11-september-1963"},"modified":"2015-05-22T15:07:14","modified_gmt":"2015-05-22T09:37:14","slug":"rameshwar-shaw-vs-district-magistrate-burdwan-on-11-september-1963","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/rameshwar-shaw-vs-district-magistrate-burdwan-on-11-september-1963","title":{"rendered":"Rameshwar Shaw vs District Magistrate, Burdwan & … on 11 September, 1963"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Rameshwar Shaw vs District Magistrate, Burdwan & … on 11 September, 1963<\/div>\n
Equivalent citations: 1964 AIR 334, \t\t 1964 SCR (4) 921<\/div>\n
Author: P Gajendragadkar<\/div>\n
Bench: Gajendragadkar, P.B., Subbarao, K., Wanchoo, K.N., Ayyangar, N. Rajagopala, Mudholkar, J.R.<\/div>\n
           PETITIONER:\nRAMESHWAR SHAW\n\n\tVs.\n\nRESPONDENT:\nDISTRICT MAGISTRATE, BURDWAN & ANR.\n\nDATE OF JUDGMENT:\n11\/09\/1963\n\nBENCH:\nGAJENDRAGADKAR, P.B.\nBENCH:\nGAJENDRAGADKAR, P.B.\nSUBBARAO, K.\nWANCHOO, K.N.\nAYYANGAR, N. RAJAGOPALA\nMUDHOLKAR, J.R.\n\nCITATION:\n 1964 AIR  334\t\t  1964 SCR  (4) 921\n CITATOR INFO :\n R\t    1964 SC1120\t (7,8,9,10,16)\n D\t    1964 SC1128\t (5)\n D\t    1966 SC 340\t (3,4,5,6)\n F\t    1966 SC 740\t (3)\n E\t    1967 SC 241\t (4,5,8)\n RF\t    1967 SC 295\t (60)\n RF\t    1967 SC1797\t (5)\n RF\t    1973 SC 844\t (2)\n F\t    1973 SC 897\t (6)\n R\t    1974 SC 183\t (29)\n RF\t    1974 SC1336\t (5)\n D\t    1975 SC  90\t (5,6,8)\n R\t    1975 SC 919\t (6,14)\n RF\t    1975 SC1508\t (4)\n RF\t    1976 SC1207\t (116,208)\n F\t    1982 SC1539\t (5)\n R\t    1982 SC1543\t (11,14)\n R\t    1982 SC1548\t (5)\n R\t    1982 SC2090\t (5)\n RF\t    1986 SC2177\t (30,32,37,39)\n R\t    1987 SC2098\t (7)\n RF\t    1987 SC2332\t (23)\n RF\t    1988 SC 934\t (12)\n R\t    1989 SC2027\t (13,14,18,19,20)\n RF\t    1989 SC2265\t (12)\n R\t    1990 SC 516\t (6,10)\n RF\t    1990 SC1196\t (7)\n RF\t    1990 SC1202\t (12)\n RF\t    1991 SC2261\t (5,12)\n\n\nACT:\nPreventive Detention-Person in jail custody-Detention order,\nif  can be served-Validity-\"Satisfaction\" of the  authority-\nPreventive Detention Act, 1950 (Act 4 of 1950), s. 3(1).\n\n\n\nHEADNOTE:\nThe petitioner was detained by the order of the District Ma-\ngistrate  under the provisions of the  Preventive  Detention\nAct,  1950.  The order recited that the District  Magistrate\nwas satisfied that it was necessary to detain the petitioner\nwith  a\t view  to  prevent  him\t from  acting  in  a  manner\nprejudicial to the maintenance of Public order.\t This  order\nwas  served  on the petitioner on the  15th  February  1963,\nwhile  he was in jail custody as an under-trial prisoner  in\nconnection with a criminal case pending against him.\nIt was urged on behalf of the petitioner that the  detention\nof the petitioner was not justified by the provisions of  s.\n3(1) of the Act and was as such invalid.\nHELD  (i) The reasonbleness of the satisfaction of  the\t de-\ntaining authority cannot be questioned in a court of law for\nthe reason that the satisfaction of the detaining  authority\nto which s 3(1)(a) refers is his subjective satisfaction the\nadequacy  of  the material on which  the  said\tsatisfaction\npurports to rest also cannot be examined in a court of\tlaw.\nThat   is  the\ttrue  legal  position  in  regard   to\t the\nsatisfaction contemplated by s. 3(1)(a) of the Act.\nThe  State  of\tBombay v. Atma Ram  Sridhar  Vaidya,<\/a>  [1951]\nS.C.R. 167, relied on.\n(ii)The past conduct or antecedent history of a person\tcan\nbe  taken into account in making a detention order, but\t the\npast  conduct or antecedent history of the person, on  which\nthe   authority\t purports  to  act,  should  ordinarily\t  be\nproximate  in  point  of time and  should  have\t a  rational\nconnection  with  the conclusion that the detention  of\t the\nperson is necessary.\nUjagar Singh v. The State of Punjab and Jagajit Singh<\/a> v. The\nState of Punjab, [1952] S.C.R. 756, relied on.\n(iii)As an abstract proposition of law, there may not be any\ndoubt  that  s.\t 3(1)(a) of the Act does  not  preclude\t the\nauthority  from\t passing  an order of  detention  against  a\nperson\twhilst\the  is in detention or\tin  jail.   But\t the\nrelevant  facts in connection with the making of  the  order\nmay differ and that may make a difference in the application\nof the principle that a detention order 59-2 S C India\/64\n922\ncan  be passed against a, person in jail.  In  dealing\twith\nthis question, the considerations of proximity of time\twill\nbe  a relevant factor.\tThe question as to whether an  order\nof  detention  can  be passed against a person\twho  is\t in,\ndetention  or in jail, will always have to be determined  in\nthe circumstances of each case.\nBasanta\t Chandra Ghose v. Emporer, A.I.R. 1945 F.C. 18,\t ex-\nplained.\n(iv)An\torder  of detention cannot be validly served  on  a\nperson who is already in jail custody and in respect of whom\nit is rationally not possible to predicate that if the\tsaid\norder  is not served on him, he would be able to indulge  in\nany prejudicial activity. Section   3(1)  of   the   Act\nnecessarily postulates that a personsought     to     be\ndetained would be free to act in a prejudicial manner if  he\nis not detained.  In other words, the freedom ofaction\tto\nthe  person sought to be detained at the relevant time\tmust\nbe shown before an order of detention can be validly  served\non  him under the said section.\t If a person is\t already  in\njail  custody it cannot be rationally postulated that if  he\nis not detained he would act in a prejudicial manner.\nLabaram\t Deka  Barua  v. State, A.I.R. 1951  Assam  43,\t and\nHaridas Deka V. State, A.I.R. 1952 Assam 175, relied on.\nSahadat Ali v. State of Assam, A.I.R. 1953 Assam 97,  refer-\nred to.\n(v)  The  satisfaction\tthat  it is necessary  to  detain  a\nperson for the purpose\tof preventing him from acting  in  a\nprejudicial manner  is thus the basis of the order under  s.\n3(1)(a), and this basis is clearly absent in the case of the\npetitioner.    The  detention  of  the\tpetitioner  in\t the\ncircumstances of this case, is not justified by s.  3(1)(a).\nIn  the\t present  case\tthe petitioner\twas  ordered  to  be\nreleased on the ground that he was served with the order  of\ndetention whilst he was in jail custody.\n\n\n\nJUDGMENT:\n<\/pre>\n
ORIGINAL   JURISDICTION : Petition No. 145 of 1963.
\nPetition under Art. 32 of the Constitution of India, for the
\nenforcement of fundamental rights.\n<\/p>\n
R.   K.\t Garg,\tS.  C.\tAgarawal, D.  P.  Singh\t and  M.  K.
\nRamamurthi for the Petitioner.\n<\/p>\n
B. Sen and P. K. Bose, for the respondents.\n<\/p>\n
September  11,\t1963).\t The  judgment\tof  the\t Court\t was
\ndelivered by,
\nGAJENDRAGADKAR J.-The short question which this petition for
\nHabeas\tCorpus raises for our decision is whether the  order
\nof  detention passed against, and served on  the  petitioner
\nRameshwar Shaw while lie was in jail
\n923<\/span>
\ncustody\t is  justified\tby section 3(1)\t of  the  Preventive
\nDetention Act, 1950 (No. 4 of 1950) (hereinafter called ‘the
\nAct’).\t The answer to this question would naturally  depend
\nupon  a\t fair and reasonable construction  of  the  relevant
\nclause of the said section.\n<\/p>\n
The District Magistrate, Burdwan, passed an Order on the 9th
\nFebruary,  1963,  whereby he directed  that  the  petitioner
\nshould\tbe  detained.  The Order recites that  the  District
\nMagistrate was satisfied that it was necessary to detain the
\npetitioner  with  a  view to prevent him from  acting  in  a
\nmanner prejudicial to the maintenance of public order.\tThis
\norder  was  served on the petitioner on the  15th  February,
\n1963, in Burdwan Jail where he had been kept as a result  of
\na remand order passed by a court of competent.\tJurisdiction
\nwhich  had taken cognizance of a criminal complaint  against
\nhim.   As  required by s. 7(1) of the Act,  the\t grounds  on
\nwhich  the  petitioner’s detention had been ordered  by\t the
\ndetaining  authority  were communicated to him on  the\tsame
\nday.   In due course, the State Government approved  of\t the
\nsaid  Order  on the 16th February, 1963.  The  case  of\t the
\ndetenu\twas  then  placed before the  Advisory\tBoard  which
\nrecommended  the continuance of the petitioner’s  detention.
\nThereafter, the State Government by its Order passed on\t the
\n23rd  April, 1963 confirmed the detention of the  petitioner
\nunder s. 11 of the Act.\t This Order of the State  Government
\nwas ultimately served on the petitioner in the Burdwan\tJail
\non the 29th April, 1963.\n<\/p>\n
The  grounds for the petitioner’s detention which have\tbeen
\nserved on him indicate that material had been placed  before
\nthe detaining authority which showed that the petitioner was
\nindulging in anti-social activities and that in pursuance of
\nthe  said  activities, he had threatened  many\tpeople\twith
\nassault\t and  in  fact had assaulted  them.   These  grounds
\nfurther show that the petitioner had disturbed public  order
\nin  areas  within  Faridpur, Andal,  Raniganj  and  Assansol
\npolice\tstations  within the district of Burdwan,  and\tfive
\ninstances were cited in support of this ground.\t The  notice
\nconveying the said grounds to the petitioner further alleged
\nthat  as  a  result  of\t the  criminal\tactivities  of\t the
\npetitioner set out in the notice, confusion had been created
\nin the lives of the peaceful
\n924<\/span>
\ncitizens  of the areas, and so, the detaining authority\t was
\nsatisfied that it was necessary to detain the petitioner  to
\nprevent\t him from indulging in prejudicial activities.\t The
\nnotice further informed the petitioner that if he wanted  to
\nmake a representation against the order of detention  passed
\nby the detaining authority, he should take steps to  forward
\nhis representation as indicated in the notice.\tHe was\talso
\ntold that in case his representation was received, his\tcase
\nwould be forwarded to the Advisory Board, and if he  desired
\nto address the Advisory Board personally.., he might make  a
\nrequest in that behalf and the same would be considered.
\nMr.  Garg for the petitioner has challenged validity of\t the
\npetitioner’s detention on several grounds.  He contends that
\nthe  detention\tof the petitioner is not  justified  by\t the
\nprovisions of s. 3(1) of the Act and as such is invalid.  He
\nalso.argues  that  the order of detention  has\tbeen  passed
\nagainst the petitioner by the District Magistrate,  Burdwan,
\nmala  fide.  According to him, the material facts stated  in
\nthe  notice  served  on the  petitioner\t setting  forth\t the
\ngrounds for his detention, are imaginary and nonexistent and
\nsome  of the grounds are vague and irrelevant ; and he\talso
\ncontends  that\tthe  affidavits\t filed\ton  behalf  of\t the
\nrespondents  clearly  indicate that some of the\t grounds  on
\nwhich\tthe  detaining\tauthority  relies  and\twhich\tmust
\ntherefore,  have  weighed in his mind at the time  when\t the
\ndetention  order  was  passed, were  not  disclosed  to\t the
\npetitioner  when  notice of grounds was served on  him,\t and
\nthat  makes  the  communication of  the\t grounds  materially
\ndefective ; it also affected the petitioner’s right to\tmake
\nan  effective  representation.\t These\tinfirmities  in\t the
\nnotice, says Mr. Garg, make the order of detention  invalid.
\nIt  has also been suggested that the petitioner was in\tfact
\ndenied\tan  opportunity to make his  representation  to\t the
\nAdvisory Board and that also introduces an infirmity in\t the
\norder.\tSince we have come to the conclusion that the  first
\ncontention  raised  by Mr. Garg is well-founded, we  do\t not
\npropose to consider the merits of the other arguments  urged
\nby him in support of his petition.\n<\/p>\n
Let  us then read section 3(1) to determine the\t true  scope
\nand effect of the relevant clause on which Mr. Garg’s
\n925<\/span>
\nargument is founded.  Section 3(1) provides inter alia, that
\nthe  Central Government or the State Government\t may-(a)  if
\nsatisfied  with\t respect of any person that with a  view  to
\npreventing  him\t from  acting  in  any\tmanner\t prejudicial
\nto…….. (ii) the security of the State or the maintenance
\nof  public  order, it is necessary so to do, make  an  order
\ndirecting that such person be detained.\t It will be  noticed
\nthat before an order of detention can be validly made by the
\ndetaining  authorities specified by s. 3(2),  the  authority
\nmust  be  satisfied  that the detention\t of  the  person  is
\nnecessary  in  order  to  prevent him  from  acting  in\t any
\nprejudicial  manner as indicated in clauses (i) to (iii)  of
\ns. 3(1)(a).  It is hardly necessary to emphasise that  since
\nthe  Act  authorises the preventive  detention\tof  citizens
\nwithout a trial, the material provisions of the Act must  be
\nstrictly  construed  and all safeguards which  the  Act\t has
\ndeliberately provided for the protection of citizens must be
\nliberally  interpreted.\t  The argument which  Mr.  Garg\t has
\nurged  before  us  is  that if a  person  is  already  under
\ndetention,  it\twould  not be reasonably  possible  for\t the
\nappropriate authority to satisfy himself that the  detention
\nof  such a person is necessary in order to prevent him\tfrom
\nacting in any prejudicial manner.  The basis of the order of
\ndetention which the authority is empowered to pass against a
\nperson\tunder  s. 3(1)(a) is that if the said order  is\t not
\npassed against him, he may act in a prejudicial manner.\t  In
\nother  words  the authority considers the  material  brought
\nbefore it in respect of a person, examines the said material
\nand first reaches a conclusion that the material shows\tthat
\nthe said person may indulge in prejudicial activities if  he
\nis  not\t prevented from doing so by an order  of  detention.
\nHow  can the authority come to the conclusion that a  person
\nwho  is\t in  jail custody may act in  a\t prejudicial  manner
\nunless he is detained?\tThe scheme of the section postulates
\nthat  if  an  order of detention is not\t passed\t against  ,a
\nperson,\t he would be free and able to act in  a\t prejudicial
\nmanner.\t  In  other  words, at the time when  the  order  of
\ndetention  is  brought into force, the person sought  to  be
\ndetained  must\thave  freedom of  action.   That  alone\t can
\njustify\t the  requirement of the section that the  order  of
\ndetention is passed in order to prevent a prejudicial acti-\n<\/p>\n
926<\/span><\/p>\n
vity  of  the  person  proposed to  be\tdetained.  That,  in
\nsubstance,  is the contention on which the validity  of\t the
\npetitioner’s detention is challenged before us.
\nIt is true that the satisfaction of the detaining  authority
\nto  which s. 3(1)(a) refers is his subjective  satisfaction,
\nand so is not justiciable.  Therefore, it would not be\topen
\nto  the detenu to ask the Court to consider the question  as
\nto whether the said satisfaction of the detaining  authority
\ncan be justified by the application of objective tests.\t  It
\nwould  not be open, for instance, to the detenu\t to  contend
\nthat  the  grounds  supplied to him do\tnot  necessarily  or
\nreasonably  lead  to  the  conclusion  that  if\t he  is\t not
\ndetained,  he would indulge in prejudicial activities.\t The
\nreasonableness\t of  the  satisfaction\tof   the   detaining
\nauthority  cannot  be  questioned in a\tCourt  of  law;\t the
\nadequacy  of  the material on which  the  said\tsatisfaction
\npurports to rest also cannot be examined in a Court of\tlaw.
\nThat  is the effect of the true legal position in regard  to
\nthe  satisfaction contemplated by section 3(1)(a), vide\t The
\nState of Bombay v. Atma Ram Sridhar Vaidya<\/a>(1).
\nThere is also no doubt that if any of the grounds  furnished
\nto  the detenu are found to be irrelevant while\t considering
\nthe  application of clauses (i) to (iii) of s. 3(1) (a)\t and
\nin  that sense are foreign to the Act, the  satisfaction  of
\nthe  detaining authority on which the order of detention  is
\nbased  *is open to challenge and the detention order  liable
\nto  be quashed.\t Similarly, if some of the grounds  supplied
\nto the detenu are so vague that they would virtually deprive
\nthe   detenu   of   his\t statutory   right   of\t  making   a
\nrepresentation, that again may introduce a serious infirmity
\nin  the order of his detention. If however, the\t grounds  on
\nwhich  the  order  of detention proceeds  are  relevant\t and
\ngermane to the matters which fall to be considered under  s.
\n3(1)(a), it would not be open to the detenu to challenge the
\norder  of detention by arguing that the satisfaction of\t the
\ndetaining  authority is not reasonably based on any  of\t the
\nsaid grounds.\n<\/p>\n
It  is, however, necessary to emphasise in  this  connection
\nthat though the satisfaction of the detaining authority
\n(1) [1951] S.C.R. 167, 176.\n<\/p>\n
927<\/span><\/p>\n
contemplated by s. 3(1)(a) is the subjective satisfaction of
\nthe  said  authority, cases may arise where the\t detenu\t may
\nchallenge  the\tvalidity of his detention on the  ground  of
\nmala  fides and in support of the said plea urge that  along
\nwith  other facts which show mala fides, the Court may\talso
\nconsider  his  grievance  that the  grounds  served  on\t him
\n‘cannot possibly or rationally support the conclusion  drawn
\nagainst him by the detaining authority.\t It is only in\tthis
\nincidental  manner and in support of the plea of mala  fides
\nthat  this  question can become justiciable;  otherwise\t the
\nreasonableness\t or  propriety\tof  the\t said\tsatisfaction
\ncontemplated by s.  3(1)(a) cannot be questioned before\t the
\nCourts.\n<\/p>\n
It is also true that in deciding the question as to  whether
\nit is necessary to detain a person, the authority has to  be
\nsatisfied  that if the said person is not detained,  he\t may
\nact  in\t a prejudicial manner, and this\t conclusion  can  be
\nreasonably  reached by the authority generally in the  light
\nof the evidence about the past prejudicial activities of the
\nsaid  person.  When evidence is placed before the  authority
\nin respect of such past conduct of the person, the authority
\nhas  to examine the said evidence and decide whether  it  is
\nnecessary to detain the said person in order to prevent\t him
\nfrom acting in a prejudicial manner.  That is why this Court
\nhas held in Ujagar Singh v. The State of Punjab\t and<\/a>  jagjit
\nSingh  -v.  The State of Punjab(1) that the past conduct  or
\nantecedent history of a person can be taken into account  in
\nmaking\ta  detention order, and as a matter of fact,  it  is
\nlargely from prior events showing tendencies or inclinations
\nof  a  man that an inference could be drawn  whether  he  is
\nlikely even in the future to act in a manner prejudicial  to
\nthe maintenance of public order.\n<\/p>\n
In  this  connection, it is, however, necessary to  bear  in
\nmind  that  the past conduct or antecedent  history  of\t the
\nperson\ton  which  the authority  purports  to\tact,  should
\nordinarily  be proximate in point of time and should have  a
\nrational  connection with the conclusion that the  detention
\nof  the\t person is necessary.  It would,  for  instance,  be
\nirrational to take into account the conduct of
\n(1) [1952] S.C.R. 756.\n<\/p>\n
928<\/span><\/p>\n
the person which took plate ten years before the date of his
\ndetention  and say that even though after the said  incident
\ntook  place nothing is known against the  person  indicating
\nhis tendency to act in a prejudicial manner, even so on\t the
\nstrength  of  the  said incident which\tis  ten\t years\told,
\nthe authority is satisfied that his detention is  necessary.
\nInother\t words,\t where\tan authority  is  acting  bona\tfide
\nandconsidering the question as to whether a person should be
\ndetained,  he would naturally expect that evidence on  which
\nthe  said  conclusion is ultimately going to  rest  must  be
\nevidence  of  his past conduct or antecedent  history  which
\nreasonably  and rationally justifies the conclusion that  if
\nthe  said  person  is  not  detained,  he  may\tindulge\t  in
\nprejudicial  activities.   We ought to add that it  is\tboth
\ninexpedient and undesirable to lay down any inflexible test.
\nThe  question about the validity of the satisfaction of\t the
\nauthority  will have to be considered on the facts  of\teach
\ncase.\tThe detention of a person without a trial is a\tvery
\nserious\t encroachment  on his personal freedom, and  so,  at
\nevery stage, all questions in relation to the said detention
\nmust be carefully and solemnly considered.
\nMr. Sen for the respondent has contended that it is, open to
\nthe authority to pass an order of detention against a person
\nwho may be at that time in detention, and in support of this
\nargument, he has relied on the decision of the Federal Court
\nin  Basanta Chandra Ghose v. Emperor(1).  In that  case\t the
\nmain question which arose for the decision of the Court was,
\nhowever,  of a different character.  It was urged on  behalf
\nof  the detenu before the Court that where an earlier  order
\nof  detention passed against him was held to  be  defective,
\nthough\ton formal grounds, it was not open to the  authority
\nto  pass a subsequent order of detention against him on\t the
\nsame  grounds as had been set out in support of the  earlier
\norder.\t This  plea was rejected by the Court.\t Spems\tC.J.
\nobserved that “where the earlier order of detention is\theld
\ndefective  merely  on formal grounds, there  is\t nothing  to
\npreclude a proper order of detention being based on the pre-
\nexisting grounds themselves, especially in cases in-
\n(1) A.I.R. 1945 F.C. 18.\n<\/p>\n
929<\/span><\/p>\n
which  the sufficiency of the grounds is not  examinable  by
\nthe Courts.” It is in that connection that the learned\tC.J.
\nadded that there is equally no force in the contention\tthat
\nno order of detention can be passed against a person who  is
\nalready under detention.\n<\/p>\n
(As  an\t abstract proposition of law, there may not  be\t any
\ndoubt that s. 3 (1) (a) does not preclude the authority from
\npassing an order of detention against a person whilst he  is
\nin  detention  or  in  jail;  but  the\trelevant  facts\t  in
\nconnection with the making of the order may differ and\tthat
\nmay  make a difference in the application of  the  principle
\nthat  a\t detention order can be passed against a  person  in
\njail.\tTake  for instance, a case where a person  his\tbeen
\nsentenced to rigorous imprisonment for ten years. It  cannot
\nbe  seriously  suggested  that soon after  the\tsentence  of
\nimprisonment  is  pronounced on the  person,  the  detaining
\nauthority  can make an order directing the detention of\t the
\nsaid person after he is released from jail at the end of the
\nperiod of the sentence imposed on him.\tIn dealing with this
\nquestion, again the considerations of proximity of time will
\nnot  be irrelevant.  On the other hand, if a person  who  is
\nundergoing imprisonment, for a very short period, say for  a
\nmonth  or two or so, and it is known that he would  soon  be
\nreleased from jail, it may be possible for the authority  to
\nconsider  the  antecedent  history of the  said\t person\t and
\ndecide\twhether\t the detention of the said person  would  be
\nnecessary  after  he  is  released from\t jail,\tand  if\t the
\nauthority  is  bona fide satisfied that\t such  detention  is
\nnecessary,  he\tcan make a valid ,order of detention  a\t few
\ndays  before  the  person is likely  to\t be  released.\t The
\nantecedent  history and the past conduct on which the  order
\nof  detention  would  be based would, in  such\ta  case,  be
\nproximate  in  point  of  time and  would  have\t a  rational
\nconnection with the conclusion ,drawn by the authority\tthat
\nthe detention of the person after his release is  necessary.
\nIt  may\t not be easy to discover  such\trational  connection
\nbetween\t the antecedent history of the person who  has\tbeen
\nsentenced  to ten years’ rigorous imprisonment and the\tview
\nthat  his detention should be ordered after he\tis  released
\nafter running the whole of his sentence.  Therefore, we\t are
\nsatisfied  that\t the  question as to  whether  an  order  of
\ndetention
\n930<\/span>
\ncan  be\t passed against a person who is in detention  or  in
\njail, will always have to be determined in the circumstances
\nof each case.\n<\/p>\n
The  question which still remains to be considered is can  a
\nperson in jail custody, like the petitioner, be served\twith
\nan  order  of detention whilst he is in\t such  custody?\t  In
\ndealing\t with  this  point, it is  necessary  to  state\t the
\nrelevant facts which are not in dispute.  The petitioner was
\narrested on the 25th January, 1963.  He has been in  custody
\never  since.  On the 15th February, 1963 when the  order  of
\ndetention  was\tserved on him, he was in jail  custody.\t  On
\nthese facts, what we have to decide is : was it open to\t the
\ndetaining  authority to come to the conclusion that  it\t was
\nnecessary  to detain the petitioner with a view\t to  prevent
\nhim from acting in a prejudicial manner when the  petitioner
\nwas  locked  up in jail?  We have already seen\tthe  logical
\nprocess\t which must be followed by the authority  in  taking
\naction under s. 3(1)(a).  The first stage in the process  is
\nto  examine  the material adduced against a person  to\tshow
\neither\tfrom his conduct or his antecedent history  that  he
\nhas  been  acting  in a prejudicial  manner.   If  the\tsaid
\nmaterial  appears  satisfactory to the authority,  then\t the
\nauthority has to consider whether it is likely that the said
\nperson would act in a prejudicial manner in future if he  is
\nnot  prevented from doing so by an order of  detention.\t  If
\nthis  question is answered against the petitioner, then\t the
\ndetention  order can be properly made.\tIt is  obvious\tthat
\nbefore an authority can legitimately come to the  conclusion
\nthat the detention of the person is necessary to prevent him
\nfrom acting in a prejudicial manner, the authority has to be
\nsatisfied  that if the person is not detained, he would\t act
\nin  a  prejudicial  manner and\tthat  inevitably  postulates
\nfreedom\t of action to the said person at the relevant  time.
\nIf  a  person  is  already  in\tjail  custody,\thow  can  it
\nrationally  be\tpostulated that if he is  not  detained,  he
\nwould act in a prejudicial manner At the point of time\twhen
\nan order of detention is going to be served on a person,  it
\nmust be patent that the said person would act  prejudicially
\nif  he\tis not detained and that is  a\tconsideration  which
\nwould be absent when the authority is dealing with a  person
\nalready in
\n931<\/span>
\ndetention.  The satisfaction that it is necessary to  detain
\na person for the purpose of preventing him from acting in  a
\nprejudicial  manner is thus the basis of the order under  s.
\n3(1)(a), and this basis is clearly absent in the case of the
\npetitioner.  Therefore, we see no escape from the conclusion
\nthat the detention of the petitioner in the circumstances of
\nthis case, is not justified by s. 3(1)(a) and is outside its
\npurview.   The District Magistrate, Burdwan who ordered\t the
\ndetention  of the detenu acted outside his powers  conferred
\non  him by s. 3(1)(a) when he held that it was necessary  to
\ndetain the petitioner in order to prevent him from acting in
\na prejudicial manner.  That being so, we must hold that\t Mr.
\nGarg  is  right when he contends that the detention  of\t the
\npetitioner  is not justified by s. 3 (1) (a).  In this\tcon-
\nnection, we may add that the Assam High Court in two of\t its
\ndecisions  appears  to have taken the same  view  about\t the
\nscope and effect of the relevant provisions of s. 3(1)(a) of
\nthe  Act, vide Labaram Deka Barua & Anr. v. The\t State\t(1),
\nand Haridas Deka v. State (2).\n<\/p>\n
Mr.  Sen has, however, relied on the decision of  the  Assam
\nHigh  Court in Sahadat Ali v. The State of Assam &  Ors.(3).
\nIn that case it appeared that the Government had decided  in
\npublic interest to abandon the prosecution which was pending
\nagainst the detenu.  The said decision was duly conveyed  to
\nthe police and so, the police reported under section 173  of
\nthe  Criminal Procedure Code for the release of the  detenu.
\nIn anticipation of this release, the order of detention\t was
\npassed against him and it was served on him after he was ac-
\ntually\treleased.   These facts clearly\t illustrate  how  an
\norder  of  detention  can be passed against  a\tperson\teven
\nthough he may be in detention or jail custody, and also show
\nthat the,-said order should be served on the detenu after he
\nis  released.\tThe test of proximity of time is  fully\t sa-
\ntisfied\t in  such a case and no invalidity or  infirmity  is
\nattached  to  the  making  of  the  order  or  its  service.
\nTherefore, we do not think that the decision in Sahadat\t Ali
\ncase is of any assistance to Mr. Sen.\n<\/p>\n
(1) A.I.R. 1951 Assam 43
\n(2) A.I.R. 1952 Assam 175.\n<\/p>\n
(3)  A.I.R. 1953 Assam 97.\n<\/p>\n
932<\/span><\/p>\n
The  result  is,  the petition succeeds\t and  the  order  of
\ndetention passed against the petitioner by the District\t Ma-
\ngistrate, Burdwan, on the 9th February, 1963, is set  aside.
\nWe direct that the petitioner should be released forthwith.
\nPetition allowed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Rameshwar Shaw vs District Magistrate, Burdwan & … on 11 September, 1963 Equivalent citations: 1964 AIR 334, 1964 SCR (4) 921 Author: P Gajendragadkar Bench: Gajendragadkar, P.B., Subbarao, K., Wanchoo, K.N., Ayyangar, N. Rajagopala, Mudholkar, J.R. PETITIONER: RAMESHWAR SHAW Vs. RESPONDENT: DISTRICT MAGISTRATE, BURDWAN & ANR. DATE OF JUDGMENT: 11\/09\/1963 BENCH: […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-173190","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nRameshwar Shaw vs District Magistrate, Burdwan & ... on 11 September, 1963 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/rameshwar-shaw-vs-district-magistrate-burdwan-on-11-september-1963\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Rameshwar Shaw vs District Magistrate, Burdwan & ... on 11 September, 1963 - 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