GIAN PRAKASH GUPTA Vs. STATE

JUDGEMENT

(1.) THIS order may be read in continuation of my order 9-4-1964. The petitioner is confined in Central Jail, Tehar, under the Defence of India Rules since October, 1963. He had been sent to that jail on 22-8-1963 to serve out a sentence of four month's imprisonment imposed by the learned Sessions Judge, Delhi, under section 324, Indian Penal Code. While he was still undergoing imprisonment for the said offence, he was served by the District Magistrate in October, 1963, with an order under the Defence of India Rules and on the expiry of his sentence under section 324, Indian Penal Code, on 4-12-1963, he was kept in custody in the said jail under the Defence of Indian Rules.

(2.) THE learned District Magistrate, Shri S. G. Bose Mullick, has in the return stated that the order under Rule 30 of the Defence of India Rules was passed by him on 18-10-1963 and this order was also reviewed by the Administrator. Union territory, Delhi. Service of this order was effected on the petitioner in jail on 2611-1963. It has been admitted by the District Magistrate that the petitioner was undergoing imprisonment under S. 324 Indian penal Code from 22-8-1963 and sentence to expire on 22-12-1963.

(3.) THE question, therefore, is whether the detention order in these circumstances if valid. Shri Yogeshwar Dayal has drawn my attention to a decision of the supreme Court by a Bench of five judges in Makhan Singh Tarsikka v. State of punjab, Criminal Appeal No. 80 of 1963: (AIR 1964 SC 381) in which reference was made to an earlier decision of that Court in Rameshwar Shaw v. District magistrate, Burdwan, since reported as AIR 1964 SC 334. In Rameshwar Shaw's case, AIR 1964 SC 334 the Supreme Court construed section 3 (1) of the preventive Detention Act to necessary postulate that a person sought to be detained would be free to act in a prejudicial manner if not detained. The freedom of action of the person sought to be detained at the relevant time must, according to that decision, be shown before an order of detention can be validly served on him under the said provision of law and if a person is already in jail custody, it can hardly be postulated rationally that if he is not detained he would act in a prejudicial manner. The ration of the case was contoured by the Court in tarsikka's case, Criminal Appeal No. 80 of 1963: (AIR 1964 SC 381) to mean that an order of detention cannot be validly served on a person who is rationally not possible to predicate that if the said order is not served on him, he would be able to indulge in any prejudicial activity. The Court further proceeded to observe as follows: