Judgment

SARKAR1A, J.:- The petitioner challenges the order of his detention made under the Maintenance of Internal Security Act, 1971 by the District Magistrate 24-Parganas on the ground that it was necessary to prevent him from acting in any manner prejudicial to the maintenance of supplies and services essential to the community.

2. The impugned order was made on March 4, 1974. It was founded on a simple, solitary incident of theft of anticreep wire from the Railway installations between Gobardanga & Machhalandapur in Bongaon section of Eastern Railway. The report to the State Government under Section 3 (3) of the Act was made by the District Magistrate on 5-3-l974. The order of detention was approved by the State Government on 11-3-1974, and on the same day, the fact was reported by it to the Central Government pursuant to the order of detention, the petitioner was detained on 13-3-1974 and the grounds of detention were served on him the same day.

3. The contention of Mr. P. S. Khare, appearing as amicus curiae for the petitioner, is that this was a case of theft simpliciter for which he could easily he prosecuted under the ordinary penal law and that the averment in the counter affidavit to the effect that the prosecution witnesses, out of fear, were not coming forth to give evidence is something which no reasonable man can believe. This is a case in which the power of preventive detention, according to the Counsel has been exercised in a colourable manner to subvert the process of a criminal trial. Reliance has been placed on the decision of this Court in Srilal Shaw v. State of West Bengal,W. P. No.453 of 1974, D/-4-12-1974 and Noor Chand Sheikh v. State of West Bengal, AIR 1974 SC 2120.

4. As against this Mr. Chatterjee, learned Counsel appearing for the State contends that the averments in the counter-affidavit show with sufficient clarity that the detention order was passed because the prosecution against the petitioner was fore-doomed to failure by reason of the witnesses not coming forward to depose against him. It is maintained that there is nothing in the Act which precludes the detaining authority from basing the order on such an instance of prejudicial activity. Counsel has cited Kartik Chander Guha v. State of West Bengal, AIR 1974 SC 2149 in support of his contentions.

5. The striking feature of this case is that the petitioner has been preventively detained for committing an offence of simple theft for which he could be dealt with under the ordinary penal law. He was arrested by the police in connection with that theft and forwarded to a Judicial Magistrate. The impugned order was passed when the petitioner was in jail custody. While it is true that in theory, an order of preventive detention can be validly passed against a person in jail custody on the same facts on which he is being prosecuted, such an order is often vulnerable to the charge that it has been passed as a colourable exercise of jurisdiction. The reason is that the scheme of Section 3 of the Act postulates that the person against whom the detention order is made has freedom to act in a prejudicial manner. In such cases, therefore, in response to Rule Nisi the respondent State must disclose full facts showing how in spite of the detenu being in jail, it was reasonably possible to apprehend that he was likely to act in the same prejudicial manner in future. All the circumstances showing inter alia that the jail custody of the detenu was not going to be long and why he was or was about to be discharged by the court must be set out.

6. In the instant case in the counter it is said that the prosecution of the petitioner could not be pursued because the witnesses being afraid were not willing to give evidence in court against him. This explanation is so repugnant to reason and reality that it cannot be swallowed even by an ultra-credulous man without straining his credulity to the utmost.

7. It may be remembered that the power under Section 3 of the Act c