Sahib Singh Dugal Vs. Union of India
 INSC 143 (30 July 1965)
30/07/1965 WANCHOO, K.N.
GAJENDRAGADKAR, P.B. (CJ) HIDAYATULLAH, M.
CITATION: 1966 AIR 340 1966 SCR (1) 313
R 1972 SC 530 (11) RF 1972 SC1668 (4) R 1972
SC1670 (8) F 1972 SC1850 (5) F 1973 SC 207 (5) F 1973 SC 897 (4) RF 1974 SC1161
(8) F 1974 SC1214 (6) R 1974 SC1336 (5) RF 1975 SC 775 (10) R 1986 SC2177 (35)
Defence of India Rules, r. 30(1)
(b)-Detention of person immediately after his discharge from a criminal case-
Legality-Such detention whether mala fide.
The petitioner was arrested on December 6,
1964 for an offence under 3 of the Official Secrets Act. On March 11 the
investigating officer made a report to the Magistrate that there was
insufficient evidence to charge the accused, and thereupon the Magistrate
discharged the petitioner.
Immediately after the petitioner came out of
the jail he was served with An order under r. 30(1) (b) of the Defence of India
Rules under which he was to be detained in order to prevent him from acting in
a manner Prejudicial to the defence of India, public safety, and India's
relations with foreign powers. He was then arrested and sent to jail in
accordance with the further orders of the Government of India under r. 30(4) of
the Rules. In a petition under Art.
32 it was contended on behalf of the
petitioner that in view of this Court's decision in Rameshwar Shaw's case the
detention order was illegal; it was also illegal for the that in the
circumstances of the case it was mala fide.
HELD:(i) What was decided in Rameshwar Shaw's
case was that when a person was already in jail and would continue in jail
custody for an indefinite length of time it could not be postulated about him
that if he was not detained he would act in a prejudicial manner. In the
present case the petitioner was not to continue in jail indefinitely but on the
other and stood discharged in the criminal case. [316 G] It was further held in
Rameshwar Shaw's case that the past activities in the basis of which detention
order is passed against a person should Ordinarily be proximate in time. In the
present case the petitioner had been in jail only for three months and it could
be said that the conduct of the petitioner before this period of three months
was not proximate enough to justify an order of detention based on that
conduct. [317 D] Rameshwar Shaw v. District Magistrate, Burdwan  4 S.C.R.
Smt. Godavari Shamrao v. State of Maharashtra,
A.I.R. 1964 S.C. 129, referred to.
(ii)It may very well be that the executive
authorities felt that it was not possible to obtain a conviction for a
particular offence under the Official Secrets Act; at the same time they might
reasonably have come on the conclusion that the activities of the petitioner
which had been watched for over two years before the order of detention was
passed were of such a nature as to justify the order of detention.
From the mere fact that the authorities
decided to drop the case under the Official Secrets Act and thereafter to order
the detention of the petitioner, it cannot be inferred that the order of
detention was mala fide. [317 G-H] 314
ORIGINAL JURISDICTION : Writ Petitions Nos.
55 and 56 of 1965.
Petitions under Art. 32 of the Constitution
of India for the enforcement of Fundamental Rights.
R. Gopalakrishnan, for the petitioners (in
both the petitions) R. Ganapathy Iyer and R. N. Sachthey, for the respondent
(in both the petitions).
The Judgment of the Court was delivered by
Wanchoo, J. These two writ petitions under Art. 32 of the ,Constitution for a
writ of habeas corpus raise common questions .and will be dealt with together.
We may set out the facts in one of the petitions (namely Petition 55) in order
to highlight the points raised on behalf of the petitioners. It is unnecessary
to referred to the facts in the other petition as they are similar except that
in the other case the original arrest took place on December 6 instead of
Sahib Singh Dugal, petitioner, was employed
in the Posts and Telegraph Directorate of the Central Government. He was
arrested on December 8, 1964 and put in jail as an under trial prisoner for an
offence under S. 3 of the Official Secrets Act, Various remands were taken up to
March 11, 1965 in connection with the criminal case against the petitioner.
It appears the besides Dugal, eight other
persons were also involved in the case under S. 3 of the Official Secrets Act,
including Jagdev Kumar Gupta petitioner in petition No. 56 of 1965. On March
11, 1965, the Deputy Superintendent of Police who was apparently in-charge of
the investigation made a report to the court to the affect that all the nine
persons involved in that criminal Case might be discharged as sufficient evidence
for their conviction could not be discovered during the investigation.
Consequently, the magistrate discharged all the nine persons including Sahib
Singh Dugal and Jagdev Kumar Gupta petitioners and they were released from jail
that very evening. Immediately after Sahib Singh Dugal came out of the jail, he
was served with an order under. 30 (1) (b) of the Defence of India Rules
(hereinafter referred to as the Rules), This order was passed by the Government
of India and provided that Dugal be detained in order to prevent him from
acting in an manner prejudicial to the defence of India, public safety and
India's relations with foreign powers. Dugal was then arrested and detained in
the Central Jail, Tehar, New Delhi in accordance 315 with the further order of
the Government of India under r.
30(4) of the Rules.
The case of the petitioners before us is
two-fold. In the first place they rely on the decision of this Court in
Rameshwar Shaw V. District Magistrate, Burdwan(1) and their case is that in
view of that decision the order of their detention and the service of hat order
are illegal and they are therefore entitled to release. In the second place, it
is urged that the order of detention is mala fide in the circumstances of the
case and therefore should be set aside.
The Union contests the petitions and urges
that Rameshwar Shaw's case (1) has no application to the present cases and that
there was no mala fide intention in making the orders of detention.
We shall first consider whether the orders in
the present cases are covered by the decision of this Court in Rameshwar Shaw's
case(1) and should therefore be set aside. It is necessary in this connection
to refer to the facts in that case. Rameshwar Shaw was ordered to be detained
by an order passed on February 9, 1963. This order was served on him on
February 15, 1963. At that time he was in Burdwan jail. He had been in that
jail for time past in connection with a criminal complaint pending against him.
Therefore, both when the order was passed and when it was served on Rameshwar
Shaw, he was already in jail in connection with the criminal case pending
against him and it was not known how long he would remain in jail in that
connection. It was also impossible to say at that stage whether he would be
convicted in the criminal case or acquitted. It may be mentioned that that was
a case of detention under the Preventive Detention Act where grounds and
particulars are supplied to the detenu. But the main question that was decided
therein was that where a person was already in jail for an indefinite length of
time in connection with a criminal case pending against him it would not be
possible for the authority to come to the conclusion that such a person's
detention is necessary in order to prevent him from acting in a manner
prejudicial to the public safety etc. It was pointed out that the scheme of the
section postulates that if an order of detention is not passed against a person
he would be free and able to act in a prejudicial manner;
but when the person against whom an order is
passed is already in jail for an indefinite length of time or for a long time
to come (say when be is undergoing sentence of imprisonment for a number of
years) it could hardly be said that such a person would act in a manner
prejudicial to the public safety etc. unless he is detained. In such a case
preven- (1)  S. C. R. 921.
316 tive detention would be unnecessary for
the person concerned is already in jail for an indefinite length of time or for
a long time, In Rameshwar Shaw's case(1), he was in jail in connection with the
criminal case pending against him for an indefinite length of time. It was in
those circumstances that this Court held that the authority ordering detention
could not legitimately come to the conclusion that the detention of the person
was necessary to prevent him from acting in a manner prejudicial to the public
safety etc. for in coming to that conclusion the authority had to be satisfies
that if the person is not detained, he would act in a prejudicial manner and
that inevitably postulates freedom of action to the said person at the relevant
If such a person was already in jail custody
for an indefinite length of time it could not be postulated about him that if
he was not detained he would act in a prejudicial manner.
This matter was again considered by this
Court in Smt.
Godavari Shamrao v. The State of
Maharashtra.(1) That was a case where a certain person had been detained under
the Defence of India Rules. Later, this order was revoked and another order was
passed to remove some technical defects.
The latter order was challenged as illegal as
it was passed at the time when the person concerned was in detention and it was
also served on her in jail. This Court held that the second order of the State
Government after it had decided to revoke the earlier order was perfectly valid
so far as the time of making the order was concerned and its service on the
detenu who was detained not as an under trial or as a convicted person could
not be assailed, and the case of Rameshwar Shaw(1) was distinguished.
It will be noticed that the facts of the
present two cases differ from the facts of Rameshwar Shaw's case(1) in one
material particular. Rameshwar Shaw was in jail in connection with the criminal
case pending against him for an indefinite duration. The order of detention as
well as the service of that order was made on Rameshwar Shaw when he was in
jail for an indefinite period in connection with the criminal case pending
against him. In the present cases it is true that the petitioners had been in
jail for about three months before the order of detention was made against
them. But there is a significant difference in the present cases, namely, that
the executive authorities had decided that the criminal case against the
petitioners could not succeed for want of sufficient evidence and applied for
the discharge of the petitioners. It was in these circumstances that the
executive authorities decided to (1)  4 S. C. R. 921. (2) A. 1. R. (1964)
S. C. 1128 317 pass an order of detention. So on March 11 a report was made to
the magistrate that the petitioners should be discharged as there was not
sufficient evidence for their conviction and on the same date the order for
their detention was passed under the Rules. Further it was served on the
petitioners immediately after their release from jail. In these circumstances,
the ratio decidendi of Rameshwar Shaw's case(1) will not apply, for the
authorities had decided to drop the criminal case and ask for the discharge of'
the accused. Then they considered whether there was justification for the
detention of the petitioners under the Rules and decided to, detain them. As
was pointed out by this Court in Rameshwar Shaw's case(1) detention is made
generally in the light of the evidence about the past activities of the person
concerned. But these past activities should ordinarily be proximate in point of
time in order to justify the order of detention. In the present cases the
petitioners had been in jail for only three months before the order of
detention was passed. It cannot be said that the conduct of the petitioners
before this period of three months is not proximate enough to justify an order
of detention based on that conduct. As a matter of fact, the affidavit on
behalf of the Government of India is that the material in respect of the
activities of the petitioners ranged over a period of two years before the,
date of detention and that was taken into account to come to the, conclusion
whether the detention under the Rules was justified or not. We are therefore of
opinion that the petitioners cannot get advantage of the decision of this Court
in Rameshwar Shaw'scase(") on the facts in the present cases.
The next contention on behalf of the
petitioners is that the order is mala fide. The reason for this contention is
that it was originally intended to prosecute the petitioners under s. 3 of the
Official Secrets Act and when the authorities were unable to get sufficient
evidence to obtain a conviction they decided to drop the criminal proceedings
and to order the detention of the petitioners. This by itself is not sufficient
to lead to the inference that the action of the detaining authority was mala
fide. It may very well be that the executive authorities felt that it was not
possible to obtain a conviction for a particular offence under the Official
Secrets Act; at the same time they might reasonably come to the conclusion that
the activities of the petitioners which had been watched for over two years
before the order of detention was passed were of such a nature as to justify
the order of detention. We cannot infer merely from the fact that the
authorities decided' (1)  4 S. C. R. 921, sup.CI/65-6 318 to drop the
case under the Official Secrets Act and thereafter to order the detention of
the petitioners under the Rules that the order of detention was mala fide. As
we have already said, it may not be possible to obtain a conviction for a
particular offence; but the authorities may still be justified in ordering
detention of a person in view of his past activities which will be of a wider
range than the mere proof of a particular offence in a court of law.
We are not therefore prepared to hold that
the orders of detention in these cases were mala fide.
The petitions therefore fail and are hereby