T.P. Mukherjee, J. - (1.) A detenu against whom the District Magistrate of Nadia made an order under Sec. 3(2) of the Preventive Detention Act of 1950, obtained this Rule on his petition whereby he challenged the validity of the order and prayed for release from custody. The order of the District Magistrate was made on January 3, 1968, and the purpose behind the detention was to prevent the detenu from acting in a manner prejudicial to the maintenance of public order. The order for detention and the grounds containing eight separate and distinct allegations against him were duly served.
(2.) Mr. Chatterjee, appearing in support of the Rule, contends amongst others that the detention of the detenu is unjustified in view of the fact that the order of detention was served on him while he was in jail custody in connection with some other case. In this connection he refers to the Supreme Court decision in Rameshwar Shaw v/s. District Magistrate, Burdwan : A.I.R. 1964 S.C 334 and Makhan Singh v/s. State of Punjab : A.I.R. 1964 S.C. 1120.
(3.) Mr. Chowdhury, appearing for the State, refers to a latter Supreme Court decision in Gopi Ram v/s. State of Rajasthan : A.I.R. 1967 S.C. 241 and contends that this decision has virtually done away with the limitations in the matter of service of an order of detention in custody leaving the whole question of validity of the service open for decision in the light of all the attending circumstances. In Rameshtvar Shaw's case (1) as well as Makhan Singh's case (2) referred to above what the Supreme Court held was that if a person was in detention for a temporary period in anticipation of his release, an order for detention under the Preventive Detention Act could be made, but then that order could not be, served on the detenu so long as he was in custody. Custody, it was observed, denies freedom of action which is essential to permit of indulgence in unlawful activities. When there is no freedom of action, therefore, there could be no detention to prevent one from indulging in unlawful activity. In deciding Gopi Ram's case (3) the Supreme Court did not disapprove of the decision in the two earlier cases. It referred to another decision of theirs in Godavari Shamrao Parulekar v/s. State of Maharashtra : A.I.R. 1964 S.C. 1128 wherein also the earlier two decisions had been considered. The detenu, in Godavari's case, while in detention was served with a fresh order of detention on cancellation of the earlier order which was found to be defective and the validity of this detention was upheld by the Supreme Court and it was observed: The principle of those two cases (Rameshwar and Makhan Singh) cannot, in our opinion, be applied to a case where a fresh order of detention was passed after the cancellation or revocation of an earlier order of detention. The Supreme Court in that case approved of the decision in Rameshwar Shaw's case (1) and Makhan Singh's case (2) but made an exception in cases where an earlier order of detention was cancelled or revoked and a fresh order was made and served in jail. In Gopi Ram's case (3) the Supreme Court reaffirmed this observation of theirs in Godavari Shamrao Parulekar's case ( Supra). In Gopi Ram's case a question of cancellation of an earlier order of detention was involved. As that earlier order was found defective, it was cancelled and the detenu was released but was at once taken into custody in connection with some other case. While he was in custody in connection with that case a fresh order of detention was served upon him in jail, and it was the validity of his detention on the basis of that service which was questioned before the Supreme Court. The Supreme Court, as stated above, did not disapprove of the decision in Rameshwar Shaw's case ( Supra) and Makhan Singh's case ( Supra). It also approved the observation in Godavari Shamrao Parulekar's case ( Supra) with the result that the legal position as enunciated was that the principle that an order of detention could not be served while the person concerned was in custody in connection with a criminal case for an indefinite period or for a period which had to run for some length of time, was approved, and an exception to that principle was also approved that it might not apply in the case of a cancellation or revocation of an earlier order and service in jail of a subsequent order while the person concerned was in custody. In Gopi Ram's case (3), as stated above, a question of cancellation or revocation of an earlier order and a subsequent order made and served in jail was also involved and it would appear that the above legal position was approved as the correct position. It was observed that all the surrounding circumstances have got to be borne in mind in deciding whether or not the order is valid. Obviously, the surrounding circumstances that was involved in Gopi Ram's case was the one mentioned above. We cannot find anything in Gopi Ram's case to indicate that the general principle enunciated in Rameshwar Shaw's case (Supra) and Makhan Singh's case (Supra) with the rider added thereto by Godavari Shamrao Parulekar's case (Supra) does not hold the field even now.;