SAMIR KAR Vs. STATE OF WEST BENGAL

JUDGEMENT

(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: