The service of a detention order on a person in jail custody is invalid under Rule 30(1)(b) of the Defence of India Rules, 1962, as it is not rationally possible to allege that such a person would indulge in prejudicial activities if the order was not served.

Judgment

GAJENDRAGADKAR, J. : The detenu Makhan Singh Tarsikka whose habeas corpus petition has been dismissed by the Punjab High Court, has brought this appeal before us by special leave. It appears that on October, 22, 1962, F. I. R. was filed at the police Station, Jandiale, alleging that offences under Ss. 307, 324, 364 and 367 I. P. C. had been committed by certain persons including the appellant. In pursuance of the investigation which commenced on receipt of the said F.I.R. the appellant was arrested on October 25, 1962. On October 26, 1962, Emergency was declared by the President. On November 1, 1962, the appellant was transferred to judicial custody of the Sub-Divisional Magistrate, Amritsar. Whilst the appellant was in jail custody, he was allowed to interview his friends and about nine persons interviewed him between 3rd November to 19th Nov. 1962. On November 20, 1962 an order of detention was passed against the appellant under Rule 30(1) (b) of the Defence of India Rules, 1962 (hereinafter called the Rules ) This order was served on the appellant on November 21, 1962 and it appears he was removed to the jail at Hissar. On January 30, 1963, he was brought back to Amritsar, and on February 9, 1963, he filed the present writ petition.

2. In his petition which was filed by the appellant, the main allegation which he made was challenging the validity of his detention was that the grounds set up in the order of detention were "very vague, concocted and totally false". The detention order had stated that the appellant was detained because he was found to be "indulging in activities prejudicial to the Defence of India and Civil Defence by making propagandas against joining the armed and civil defence forces and by urging peopled not to contribute to the National Defence Fund". The order added that having regard to his activities, it was thought necessary to detain him in order to prevent him from carrying on the said prejudicial activities.

3. On March 4, 1963, the appellant made an additional affidavit in which he urged that the fact that the deponent was in confinement before the declaration of emergency on October 26, 1962 and the Chinese invasion, clearly showed that the allegations against the deponent were false and concocted. By this supplementary affidavit, the appellant furnished an additional ground in support of his original plea that the grounds on which his detention had been ordered were false and concocted.

4. On March 6, 1963, the appellant filed a third affidavit in which he stated that his political activities as a member of the Legislative Assembly were disliked "by the High ups.". He referred to several Starred Questions of which he had given notice in the Punjab Legislative Assembly to show that the ruling high-ups were angry with him. These Questions, the appellant alleged, "revealed the naked corruption of the ruling high-ups". The appellant further alleged that the Jandiala Police were enraged by the fact that at his instance the Punjab High Court had appointed the Sessions Judge at Amritsar to hold an enquiry in village Ramana Chak affairs. According to him, the S.S.P., Amritsar who was a near relative of the ruling Chief, was also hostile to him. It is on these additional grounds also that the appellant purported to challenge the validity of his detention before the Punjab High Court.

5. These three affidavits were duly challenged by counter-affidavits made on behalf of the respondent, State of Punjab. It was in one of these affidavits that the respondent brought out the fact that the appellant had nine interviews in jail between the 3rd November to 19th November, 1962 and the information received by the respondent was that during these interviews, the appellant instigated the persons who saw him to commit prejudicial activities. The affidavits filed by the respondent also disputed the other allegations made by the appellant in the three affidavits to which we have already referred.

6. It appears tha