(1.) This application under Section 491 of the Criminal Procedure Code has been filed by the petitioner Kanai Pal on behalf of Kartick Chandra Nag against whom the District Magistrate of Nadia made an order under Section 3 (2) of the Preventive Detention Act on November 27, 1967. The purpose behind the order for detention was to prevent the detenu from acting in a manner prejudicial to the maintenance of public order. Three specific grounds are mentioned in the order of the District Magistrate disclosing the course of conduct of the detenu which according to him was prejudicial to the maintenance of public order and which justified his detention under the Act.
(2.) The learned Advocate appearing for the petitioner on behalf of the detenu has raised two arguments against the validity of the order of the District Magistrate. The first ground is that the detention is unjustified inasmuch as the order and the grounds were served on the detenu while he was in Jail custody to connection with a criminal case. The second argument is that the order is mala fide.
(3.) In support of the first contention reliance is placed on the case of Rameshwar Shaw v. District Magistrate of Burdwan, and Makhan Singh v. State of Punjab, AIR 1964 SC 3120. These two cases no doubt laid down the principle that an order for detention on the ground of maintenance of public order cannot be served while the detenu is in jail custody in connection with some other case. According to those decisions the detention would be unjustified because the man is already in custody and such custody denies him freedom of action which is essential to permit of indulgence in unlawful activities. These two cases were further considered in Godavari Shamrao v. State of Maharashtra, and in Gopi Ram v. State of Rajasthan.