P.K.GOSWAMI, J. -
(1.) THIS is an application under Article 226 of the Constitution of India praying for a writ in the nature of habeas corpus and directed against the order of detention passed on 2nd March 1968 by the District Magistrate, Kamrup, under Section 3(2) of the Preventive Detention Act, 1950, hereinafter referred to as 'the Act'.
(2.) THE facts appearing in the petition as well as in the counter -affidavit are as follows:
The petitioner was arrested by the Police on 26th February 1968 at a place called Darrangagiri, Goalpara, under Section 54 of the Criminal Procedure Code. He was later taken to Gauhati under custody on 28th February 1968 and was lodged in Gauhati Jail. As many as five police cases were started against him by the Police while he was in detention. One o the cases ended in final report and the petitioner was discharged. While he was still in detention, he was served with the order of detention under Section 3(2) of the Act issued by the District Magistrate and the same was served on him on 3rd March 1968. He was served with the grounds of detention on 7th March. He submitted his representation addressed to the State Government through the Superintendent, Gauhati Jail, on 19th March. The order of the District Magistrate was approved by the Government on 12th March although this order was served on the petitioner on 28th March 1968.
The petitioner states that he secured bail orders in connection with several criminal cases which were registered by the Police against him and even his bail bonds were accepted by the Magistrate on 13th March 1968, and although release order from the Magistrate was passed in connection with those cases, he was kept in detention under the impugned order. The District Magistrate in the counter -affidavit has stated that 'the State Government placed the representation along with the grounds and the report of the Dist. Magistrate on 30.3.68 before the Advisory Board. The Advisory Board took into consideration the representation of the petitioner and other relevant records and also gave personal hearing to the petitioner and finally recommended the detention of the petitioner. The Government on receipt of the recommendation passed the final order on 22nd May, 1963. This order was communicated to the petitioner on 28th June 1968.
The learned Counsel for the petitioner urges the following grounds questioning the validity of the detention order:
(1) The order of detention is invalid as the same was served on the petitioner while he was in detention. (2) The Advisory Board which finally considered the matter was not the Board to which the case of the petitioner had been referred by the State Government. (3) The order of confirmation by the State Government was beyond three months of the date of detention. (4) The grounds which have been furnished to the petitioner are vague, illusory, irrelevant and non -existent, and, as such, the petitioner could not make an effective representation against the detention order and hence the order of detention is invalid.
(3.) IT is admitted that the impugned order was served on the petitioner while in jail custody in connection with some other offences. The District Magistrate in his affidavit has affirmed that as there was possibility of the petitioner being released on bail and he was satisfied from his activities that immediately on his release on bail he would indulge in like activities prejudicial to the security of the State and maintenance of public order, he passed the impugned order on 2nd March 1968. The petitioner also has admitted that but for this detention order, he would have been released on bail. In this context the point that arises for consideration is whether an order under the Preventive Detention Act will be invalid in law if the same is served while the petitioner is in custody. The learned Counsel draws our attention to a decision of the Supreme Court in the case of Rameshwar Shaw v. District Magistrate, Burdwan : 1964CriLJ257 , where the following passage occurs:
Before an authority can legitimately come to the conclusion that the detention of the person is necessary to prevent him from acting in a prejudicial manner, the authority has to be satisfied that if the person is not detained, he would act in a prejudicial mariner and that inevitably postulates freedom of action to the said person at the relevant time. If a person is already in jail custody, as a result of a remand order passed by a competent authority, it cannot rationally be postulated that if he is not detained, he would act in a prejudicial manner. At the point of time when an order of detention is going to be served on a person, it must be patent that the said person would act prejudicially if he is not detained and that is a consideration which would be absent when the authority is dealing with a person already in detention. The satisfaction that it is necessary to detain a person for the purpose at preventing him from acting in a prejudicial manner is thus the basis of the order under Section 3(1)(a), and this basis is clearly absent in the case of a person already in jail custody.
In this connection the Supreme Court has referred to two decisions of this Court reported in AIR 1951 Assam 43, Labaram Deka v. The State and AIR 1952 Assam 175, Haridas Deka v. State. Their Lordships also noticed another decision of this Court reported in AIR 1953 Assam 97, Sahadat Ali v. State of Assam. Their Lordships noticed that the detention order in Sahadat Ali's case AIR 1953 Assam 97, was passed in anticipation of his release order in a police case. The Court observed as follows:
These facts clearly illustrate how an order of detention can be passed against a 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 satisfied in such a case and no invalidity or infirmity is attached to making of the order or its service.
From the aforesaid observations of the Supreme Court, the learned Counsel submits that an order of detention, even though it may be passed while he is in detention, cannot be served while he is still behind the bars and such an order served in that manner is invalid in law. The facts of Rameshwar Shaw's case : 1964CriLJ257 , are as follows: He was detained under the Preventive Detention Act by an order of the District Magistrate, Burdwan, on 9.2.1963 and the same was served on 15.2.63 while he was lodged in Burdwan Jail where he had been kept in pursuance of the remand order of a competent Court which had taken cognizance of a criminal complaint against him. In this case there was nothing to show that there was any prospect of his release. In the circumstances of this case, the Supreme Court ordered release of Rameshwar Shaw. The decision in Rameshwar Shaw's case : 1964CriLJ257 , was made on 11.9.1963 and a month later on 11.10.1963 the Supreme Court had to consider this decision in Makhan Singh's case : 1964CriLJ269 . Gajendragadkar, J., as he then was, speaking for the Court, while referring to Rameshwar Shaw's case : 1964CriLJ257 , observed as follows:
It would be recalled that in that case also, Rameshwar Shaw was ordered to be released on the ground that he was served with the order of detention whilst he was in jail and not on the ground that the making of the order was invalid. In fact, this Court made no finding on that question and based its decision on the narrow ground that the service of the order was invalid.
While setting aside the order of detention in Makhan Singh's case : 1964CriLJ269 at para 18, their Lordships observed as follows:
The result is, the appeal is allowed and the order of detention passed against the appellant is set aside on the ground that the service of the order is invalid and is outside the scope of Rule 30(1)(b) of the Rules.
It may be mentioned that their Lordships have held that there is no difference so far as this matter is concerned whether the detention is under Rule 30(1)(b) of the Defence of India Rules or under Section 3(1)(a) of the Preventive Detention Act. The aforesaid two cases had again to be considered in another decision of the Supreme Court in the case of Smt. Godavari Shamrao v. State of Maharashtra : 1964CriLJ222 , on 29.1.1964 and Gajendragadkar J., as he then was, was a party to this decision as his Lordship was in the two earlier decisions. In Godavari's case : 1964CriLJ222 , Wanchoo J., as he then was, speaking for the Court, while referring to the aforesaid two decisions Rameshwar Shaw and Makhan Singh Tarsikka's cases : 1964CriLJ257 respectively observed as follows:
Those two cases' referring to Rameshwar Shaw and Makhan Singh Tarsikka's cases : 1964CriLJ257 respectively, 'were concerned with the service of an order of detention under the Preventive Detention Act or under the Rules on a person who was in jail in one of two circumstances, namely - (1) where he was in jail as an undertrial prisoner and the period for which he was in jail was indeterminate, or (2) where he was in jail as a convicted person and the period of his sentence has still to run for some length of time. In those cases the service of the order of detention under the Preventive Detention Act or under the Rules in jail would not be legal for one of the necessary ingredients about which the authority had to be satisfied would be absent, namely, that it was necessary to detain the person concerned which could only be postulated of a person who was not already in prison.
Observing as above, their Lordships upheld the order of detention in the case as the petitioners in that case were detained under the Preventive Detention Act by the orders of the Commissioner of Police which when sent to the State Government for approval, the latter revoked the same and passed orders of detention under the Defence of India Rules, and the order of the State Government was served on the petitioners while they were already lodged in jail, in pursuance of the earlier order of detention of the Commissioner of Police. In viewing this aspect, their Lordships observed in Godavari's case, : 1964CriLJ222 , as follows:
In these circumstances it would be in our opinion an empty formality to allow the appellants to go out of jail on the revocation of the order of November 7 and to serve them with the order dated November 10, 1962, as soon as they were out of jail.
Even so, Mr. Mazumdar, the learned Counsel for the State, submits that the decision of the Supreme Court in the case of Gopi Ram v. State of Rajasthan : 1967CriLJ279 , is an authority for the proposition that the order of detention can be served on an undertrial prisoner and the same cannot be held to be invalid on that ground. He draws our attention to the following passage in para 8 at p. 242:
Since he was already in jail custody, the argument proceeds, how could the District Magistrate be reasonably satisfied that his detention in jail was necessary for preventing him from acting in a manner prejudicial to public safety, etc? Reliance was strongly placed by the learned Counsel on certain observations in Makhan Singh's case : 1964CriLJ269 , in support of his contention that if a person is already in jail, the service of an order of detention on him is bad. As we read that decision as well as the one in Rameshwar Shaw's case : 1964CriLJ257 , the validity of an order of detention does not necessarily depend upon whether the order was served on him when he was or was not in jail custody. All the surrounding circumstances have got to be borne in mind for deciding whether or not the order is valid.
Their Lordships of the Supreme Court have consistently held in the aforesaid decisions Rameshwar Shaw, Makhan Singh Tarsikka and Godavari's cases : 1964CriLJ257 respectively that the service or an order or detention while a person is lodged in jail as an undertrial prisoner or as a convict for some length of time, makes the order invalid in the eye of law. In Gopi Ram's case : 1967CriLJ279 , their Lordships have not decided anything to the contrary. They have only held that the validity of the order of detention does not necessarily depend upon whether the order was served on him when he was or was not in jail custody. This observation of their Lordships will have to be understood in the context the case under their consideration. In Gopi Ram's case : 1967CriLJ279 , the order of detention was originally passed by the District Magistrate, Ganganagar, on 5.4.1963 and the same could not be served as the man was absconding. He was arrested on 1.11.1964 for offences under Sections 307/395, Indian Penal Code and was released on bail. The detention order dated 5.4.1963 was served on him on 4.11.1964.
The original order of detention was cancelled by the Government on 18.1.1965 because of some defect and he was released on 21.1.1965. A fresh order of detention had been passed by the District Magistrate, Ganganagar, on 19.1.1965. The order of cancellation was served on him on 21.1.65 and he was released in pursuance thereto. Immediately thereafter, he was arrested for offences under Sections 307/395, I.P.C., under a warrant issued by the Sub -Divisional Magistrate, Karampur. Prior to this on 19.1.65 the District Magistrate, Ganganagar, made the impugned order of detention of the petitioner. This order was served on him in jail on 23.1.1965 while he was in detention in pursuance of the warrant issued by the Sub -Divisional Magistrate, Karampur. In the circumstances of this case, their Lordships observed as follows:
In these circumstances the order dated January 19, 1965, cannot but be regarded as being based upon the satisfaction of the District Magistrate regarding the necessity of the detention of the petitioner arrived at before the petitioner was detained in jail as an undertrial prisoner.
And their Lordships refused to set aside the detention order in this case merely because the detention order was served while he was in jail custody. It may be noticed hers that in Gopi Ram's case : 1967CriLJ279 , the District Magistrate, Ganganagar, passed the impugned order of detention while another officer, namely, Sub -Divisional Magistrate, Karampur, had issued the warrant of arrest which also introduces a distinguishing feature in this case. Coming to the Assam cases AIR 1951 Assam 43 and AIR 1952 Assam 175, in Labaram's case AIR 1951 Assam 43, he was an undertrial prisoner in connection with a non -bailable police case and there was no prospect of is release either on bail or otherwise. In Haridas' case AIR 1952 Assam 175, he was also in detention in connection with a criminal case and awaiting trial. It was not established that there was any prospect of his release from detention in that case, From the aforesaid discussion it may be safely concluded that as an abstract proposition of law, it cannot be said that all orders of detention served on a person while in jail custody are for that reason alone in -valid.
The facts and circumstances of each case will have to be judged. It is, however, absolutely clear that if the person is lodged in jail in connection with a non -bailable case or when he is undergoing a sentence for some length of time, the order of detention cannot be served on him while in such detention. Although an order can be passed while the person is in detention provided the other conditions under Section 3(1)(a) of the Preventive Detention Act are satisfied, such an order cannot be served on the person while in detention. The position will not be the same if the petitioner is arrested not in connection with any particular offences but with a view to detain him under the Preventive Detention Act. Then the order passed under the Preventive Detention Act fulfilling the other conditions laid down under the law can be sewed on him even while he is in detention. Every case will have, therefore, to be judged on its own facts and circumstances. The danger of 'double detention' must be in case and not in posse; it must be a real danger and that is the test which must be applied in determining the validity of an order of detention, when served in jail custody.
It is sufficient to state as will be shown below that this danger is absent in the instant case, while their Lordships of the Supreme Court found that to be present in the cases of Rameshwar Shaw : 1964CriLJ257 and Makhan Singh : 1964CriLJ269 , but not in the cases of Godavari : 1964CriLJ222 and Gopi Ram : 1967CriLJ279 , as already discussed herein above. Having laid down the law as above, we have to consider whether in the case of this petitioner it can be said that he fulfils the test laid down for holding that the order of detention served on him while he was in jail is invalid. The petitioner's own case is that, but for the detention order, he would have been released on bail in all the cases brought against him as bail bonds had already been accepted by the Magistrate. He also claims that he was already discharged in the other police case. If that is the position, the service of the order of detention on the petitioner while he was in jail custody cannot be said to be invalid on that score. As their Lordships of the Supreme Court observed 'it would 13e, in our opinion, an empty formality' to allow him to get out of the jail and then take him back behind the bars after service of the detention order. The contention of the learned Counsel, therefore, cannot be accepted.;