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SUPREME COURT OF INDIA
V.R. KRISHNA IYER AND R.S. SARKARIA, JJ.
Dulal Roy, Petitioner
Versus
The District Magistrate, Burdwan and others Respondents.
Writ Petn. No. 428 of 1974, D/-15-1-1975.
Held, that where in a habeas corpus petition a Rule Nisi is issued, it is incumbent upon the State to satisfy the court that the liberty of the detenue has been taken away in accordance with Law and in due compliance of Art. 22(5) of the Constitution and the best informed person to file counter-affidavit is the authority who made the detention order u/s 3.
Held further, that the order of preventive detention under the Act may be validly passed against a person in jail custody on the same facts on which he is being prosecuted for a substantive offence in a court, such an order of detention is more easily vulnerable - than the one against a person not in such custody to the charge that without there being any basis whatever for the satisfaction of the detaining authority, which is a condition precedent for taking action u/s 3, the power has been misused as a cloak solely for the purpose of punishing the detenue for the substantive offence for which he was being prosecuted, by subverting and circumventing the penal law and irksome court procedure. To make the detention order immune against such an attack, the detaining authority must particularise all the material circumstances on the basis of which he was satisfied as to the necessity of the preventive action despite the detenue being already in jail custody
(AIR 1974 SC 679 Ref.) (Paras 7 & 9)
(ii) Maintenance of Internal Security Act, 1971, Sec. 3 (1) (a)-Detenue in custody for offences under ordinary penal law-Police Submitting final form in the cases- Order of detention passed on the day when the detenue was released-Grounds of detention based on the same facts -order whether mechanical and colourable exercise of power-Scheme of the section.
Held, that the scheme of the section pre supposes that on the date of the order of detention or in the near future, the person sought to be detained has or will have freedom of action. If a person therefore is serving a long term of imprisonment or is in jail custody as an undertrial and there is no immediate or early prospect of his being released on bailor otherwise, the authority can not legitimately be satisfied on basis of his past history or antecedents that he is likely to indulge in similar prejudicial activities after his release in the distant or indefinite future. There must be proximate nexus' between the preventive action and the past activity of the detenue on which it is founded. (Para 6)
Held further, that in absence of any explanation or apparent reason as to why his prosecution for the substantive offences resulted in his discharge and as to why the making of the preventive' order was deemed necessary even while he was in jail custody and had no freedom of action, the conclusion is inescapable that the impugned order has been passed mechanically and as a colourable exercise of jurisdiction. (Para 12)
Judgment
SARKARIA, J.:- Dulal Roy, the petitioner challenges the order, dated August , 21, 1972, of his detention made by the District Magistrate, Burdwan under Section 3 of the Maintenance of Internal Security Act, 1971 (hereinafter called the Act). The order states that it is necessary to detain him with a view to preventing him from acting in any manner prejudicial to the maintenance of supplies and services essential to the community.
2. The grounds of detention communicated to the detenu run as under;
"1. On 21-7-72 at 1 a.m. you with your associates Kartick Karmaker and others committed theft of Electric wire from Tower Nos. 23 and 24 situated near Dhangachha village and by such act you caused stoppage of electric supply which is essential for maintenance of supplies and services to the community, in Memari area and its vicinity.
2. On 29-7-72 at 2 a.m. you with your associates committed theft of Tower Members from Tower Nos. 246, 247, 248 situated on the field near Dewandighi, P. S. Burdwan and by commission of such theft the towers were likely to fall resulting in stoppage of supply of electricity which is essential for maintenance of supplies and services to the community, in Calcutta area and its suburbs."
3. In connection with the above thefts, two cases, one on 21-7-72 and the other on 1-8-1972, under Section 379, Penal Code were registered with the police. The petitioner was not named in the F.I.R. His complicity was detected in the course of investigation. He was consequently arrested on 3-8-72 -and sent up before the Judicial Magistrate. After further investigation, the police submitted a final report and the petitioner was discharged in both the cases on 3-972. On the same day, he was taken into custody pursuant to the impugned order of detention.
4. Mr..A. K. Gupta appearing as amicus curiae for the petitioner contends that the impugned order has been passed to subvert the process of the ordinary penal law, as a colourable exercise of jurisdiction. It is stressed that on 21-8-72 when the detention order was passed, the petitioner was already in custody as an undertrial. In the absence of anything in the counter affidavit showing that his custody was going to terminate soon, proceeds the argument, it was not reasonably possible for the authority to be satisfied that the petitioner might indulge in prejudicial activities unless he was detained. It is urged that the detaining authority never applied its mind to satisfy itself with regard to this imperative requirement of Section 3 and consequently the order of detention is illegal. To highlight the casualness of the authority in taking the impugned action Counsel has pointed out that the counter-affidavit has not been filed by the District Magistrate who had made the impugned order. In support of these contentions, learned Counsel has relied upon Rameshar Shaw v. District Magistrate Burdwan, (1964) 4 SCR 921; Noor Chand Sheikh v. State of West Bengal 1974 Cri LJ 1394) and the recent judgment of this Court in Sri Lal shaw v. State of West Bengal,Writ Petn.No.453 of 1974 D/- 4-12-1974.
3. Mr. Chatterjee, learned Counsel for the Respondent-State submits that the mere fact that the petitioner was on the date of the detention order in judicial custody did not stand in the way of the detaining authority being satisfied about his propensity to act prejudicially in future after his release from judicial custody. It is emphasised that the authority must have been aware that the petitioner was likely to be released shortly as in fact he was released by the Judicial Magistrate on 3-9-72, i.e. about 13 days after the making of the detention order. Reference, in this connection, has been made to Kartick Chander Guha v. State of West Bengal, (1974 Cri LJ 1474).
6. Section 3 of the Act- provides that the Central Government or the State Government may if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to .. . . . .(iii) the m
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