iminal Appeal No 80 of 1963
Appeal by special leave from the judgment and order dated March 26 1963 of the Punjab High Court in Criminal Misc
No 186 of 1963
R K Garg section C Agarwal M K Ramamurthi and D P Singh for the appeallant
L K Kaushal Senior Deputy Advocate General for the State of Punjab and B R G K Achar for the respondent
October 11 1963
The judgment of the Court was delivered by GAJENDRAGADKAR J
The detenu Makhan Singh Tarsikka whose Habeas Corpus petition has been dismissed by the Punjab High Court has brought this appeal before us by special leave
It appears that on the 22nd October 1962 FIR was filed at the Police Station Jandiala alleging that offences under sections 307 324 364 and 367 IPC had been committed by certain persons including the appellant
In pursuance of the investigation which commenced on receipt of the said FIR the appellant was arrested on the 25th October 1962
On the 26th October 1962 Emergency was declared by the President
On the 1st November 1962 the appellant was transferred to judicial custody of the Sub Divisional Magistrate Amritsar
Whilst the appellant was in jail custody he was allowed to interview his friends and about nine persons interviewed him between 3rd November to the 19th November 1962
On the 20th November 1962 an order of detention was passed against the appellant under Rule 301b of the Defence of India Rules 1962 hereinafter called the Rules 
This 935 order was served on the appelant on the 21st November 1962 and it appears he was removed to the jail at Hissar
On the 30th January 1963 he was brought back to Amritsar and on the 9th February 1963 he filed the present writ petition
In his petition which was filed by the appellant the main allegation which he made in challenging the validity of his detention was that the grounds  set up in the order of detention were very vague concocted and totally false
The detention order had stated that the appellant was detained because he was found to be indulging in activities prejudicial to the Defence of India and Civil Defence by making propaganda against joining the armed and civil defence forces and by urging people not to contribute to the National Defence Fund
 The order added that having regard to his activities it was thought necessary to detain him in order to prevent him from carrying on the said prejudicial activities
On the 4th March 1963 the appellant made an additional affidavit in which be urged that the fact that the depone it was in confinement before the declaration of emergency on the 26th October 1962 and the Chinese invasion clearly showed that the allegations against the deponent were false and concocted
By this supplementary affidavit the appellant furnished an additional ground in support of his original plea that the grounds on which his detention had been ordered were false and concocted
On the 6th March 1963 the appellant filed a third affidavit in which he stated that his political activities as a member of the Legislative Assembly were disliked by the High ups
He referred to several Starred Questions of which lie had given notice in the Punjab Legislative Assembly to show that the ruling high ups were angry with him
These Questions the appellant alleged revealed the naked corruption of the ruling high ups
The appellant further alleged that the Jandiala Police were enraged by the fact that at his instance the Punjab High Court bad appointed the Sessions Judge at Amritsar to hold an inquiry in village Ramana Chak affairs
According to him the SSP Amritsar who was a near relative of the ruling Chief was also hostile to him
It is on these additional grounds also that the appellant purported to 936 challenge the validity of his detention before the Punjab High Court
These three affidavits were duly challenged by counter affidavits made on behalf of the respondent State of Punjab
It was in one of these affidavits that the res pondent brought out the fact that the appellant had nine interviews in jail between the 3rd November to 19th November 1962 and
the information received by the respondent was that during these interviews the appellant instigated the persons who saw him to commit prejudicial activities
The affidavits filed by the respondent also disputed the other allegations made by the appellant in the three affidavits to which we have already referred
It appears that before the High Court it was urged by the appellant that the order of his detention had been passed malafide and his contention was sought to be supported on the ground that he had been arrested on the 25th October 1962 and so it would not be rationally possible to allege against him that he had indulged in the prejudicial activities mentioned in the said order
It was also argued before the High Court on his behalf that since a criminal case under section 307 IPC was pending against him at the relevant time it was not open to the detaining authority to detain him under Rule 301b of the Rules
The learned Judge who heard the habeas corpus petition filed by the appellant rejected both these Contentions
In the result he held that the appellant had failed to make out a case that his detention was illegal and so the writ petition was dismissed
On behalf of the appellant Mr Garg has urged that the service of the order of detention which was effected on the 21st November 1962 is illegal and in support of his argument he has relied on a recent decision of this Court in Rameshwar Shaw vs The District Magistrate Burdwan  Another1
Mr Garg points out that the material words used in section 31 of the Preventive Detention Act 1960 No 4 of 1960 hereinafter called the Act  which were construed by this Court in the case of Rameshwar Shaw1 are substantially the same as in Rule 301 of the rules with which the present appeal is concerned and he contends that the said decision fully justifies his argument 1 937 that the service of the impugned order of detention on the appellant when he was already in ail custody is outside the purview of Rule 301
In our opinion this argument is well founded and must be accepted
In the case of Rameshwar Shaw1 this Court construed section 31 of the Act and held that the said provision necessarily postulates that a person sought to be detained would be free to act in a prejudicial manner if he is not detained
In other words the freedom of action to the person sought to be detained at the relevant time must be shown before an order of detention can be validly served on him under the said section
If a person is already in jail custody it was observed in the said judgment how can it rationally be postulated that if be is not detained lie would act in a prejudicial manner and so the effect of the said decision is that an order of detention cannot be validly served on person who is already in jail custody and in respect of whom it 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
In the case of Rameshwar Shaw1 this Court also considered the question as to whether an order of detention can be made against a person who is in Jail custody and It was held that as an abstract proposition of law there may not be any doubt that section 31a of the Act does not preclude the authority from passing an order of detention against a person whilst he is in detention or in ail
But this Court also added that the relevant facts in connection with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail
Dealing with this aspect of the matter this Court emphasised the relevance of the considerations of proximity of time and concluded that whether in order of detention can be passed against a person who is in detention or in ail will always have to be determined in the circumstances of each case
It would thus be seen that in the case of Rameshwar Shaw 1 his application was allowed and he was ordered to be set at liberty on the ground that the service of the order detaining him was 1 60 2 S C India64 938 effected when he was in jail
Mr Garg naturally relies on this authority in support of his first contention that the service of the detention order against the appellant whilst he was in jail is similarly invalid
The learned Dy
Advocate General who appears for the respondent attempted to argue that the decision in Rameshwar Shaw s case 1 would not be applicable to the present appeal because the scheme of Rule 301 is radically different from the scheme of section 31 of the Act
He concedes that the operative portion of Rule 301 is subs tantially similar to section 31
Rule 301 provides
The Central Government or the State Government if it is satisfied with respect to any particular person that with a view to preventing him from acting in any manner prejudicial to the defence of India and civil defence the public safety the maintenance of public order India s relations with foreign powers the maintenance of peaceful conditions in any part of India the efficient conduct of military operations or the maintenance of supplies and services essential to the life of the community it is necessary so to do may make an order
 Then follow eight clauses which authorise the specified categories of orders which may be passed under Rule 301
Clause b relates to detention and it is with this clause that we are concerned in the present appeal
The argument is that the eight clauses indicate that it is not only the detention which can be ordered by the appropriate authority but there are several other kinds of orders which can be passed  under clause a for instance the person can be directed to remove himself from India in such manner by such time and by such route as may be specified in the order and be prohibited from returning to India
Clause c authorises the appropriate authority to impose limitations against a person prohibiting him from going into any such area or place as may be specified in the order
Clause d contemplates a kind of internment of the person within the area specified in the order
Under clause e the movements of the person can be regulated by asking him to report himself or to notify his movements or both in the manner indicated in that clause
Clausef 1 939 permits imposition of restrictions in respect of the employ ment or business carried on by the person while under clause g restrictions may be imposed on the possession or use by the person of any articles mentioned in the order
Clause h is general in terms and it provides that the appropriate authority may make an order otherwise regulating the conduct of the person in any such particular as may be specified in the order
It is thus clear that the nature and the scope of the orders which can be validly passed under Rule 301 is very much wider than the order of detention which alone can be made under section 31 of the Act
But the question which we have to consider is  does this fact make any difference to the interpretation of the operative provisions of Rule 301 in relation to detention In our opinion the answer to this question must be in the negative
Rule 301b like section 31a clearly postulates that an order can be made under it only where it is shown that but for the imposition of the said detention the person concerned would be able to carry out a prejudicial activity of the character specified in Rule 301
In other words one of the conditions precedent to the service of the order permitted under Rule 3001 b is that if the said order is not served on the person he would be free and able to carry out his prejudicial activity in question
The fact that other kinds of orders can be passed against a person under Rule 361 does not alter the essential condition of a valid service of the order contemplated by Rule 301b that if the said order is not served the prejudicial activity may follow
Therefore we are satisfied that on a plain construction of Rule 301b it must be held that the order permitted by it can be served on a person who would be free otherwise to carry out his prejudicial activity
Such a freedom cannot be predicated of the appellant in the present case because he was in ail at the relevant time
Therefore we do not think that the distinction which the Dy
Advocate General seeks to make between the provisions of Rule 301b and section 31a makes any difference to the construction of the Rule
The service of a detention order on a person who is already in jail custody virtually seeks to effectuate what may be called a double detention  and such double detention is not 940 intended either by section 31a or by Rule 301b it is plainly unnecessary and outside the purview of both the provisions
It was also argued by the learned Dy
Advocate General that in the case of an under trial prisoner who is entitled to interview his friends or relatives under rules framed in that behalf
it would be possible for him to send out messages and thereby carry on his prejudicial activities in an indirect way and that could be stopped only if he is detained under Rule 301b
We are not impressed by this argument
It appears that Rule 13 of the Punjab Detenus Rules 1950 allows a detenu to interview a near relative in accordance with these rules and Rule 19 requires that all interviews shall take place unless otherwise directed by the Dy
Inspector General Criminal Investigation Department in the presence of an officer deputed for the purpose by the Superintendent of Police of the district and it provides that such officer may stop the interview if the conversation turns on any undesirable subject
The contention is that whereas an ordinary under trial prisoner is not required to interview his friends and relatives in the presence of the Police Officer that is a condition imposed by Rule 19 and so in order to prevent the appellant from carrying out his prejudicial activities by means of interviews even whilst lie is in jall custody it was necessary to make the order of detention and serve it on him though he was in Jail
That it is suggested is a distinctive feature of the scheme contemplated by Rule 301 of the Rules
The obvious answer to this argument however is that if the restriction contemplated by Rule 19 of the Punjab Detenus Rules was intended to be imposed against the appellant under Rule 301 it could easily have been done by regulating his conduct whilst he was an under trial prisoner in jail
We have already seen that Rule 301h authorises the appropriate authority to regulate the conduct of a person in any such particular as may be specified in the order and there can be no difficulty in holding that if the respondent took the view that from jail the appellant was carrying out prejudicial activities an appropriate order could have been passed against him under R 301h
That being so we do not think that the argument that the scheme of R 301 is radically different from the scheme 941 of section 31a of the Act and affects the construction of the operative portion of Rule 301b can be sustained
If the appropriate authority wants to detain a person under Rule 301b it must be shown that when the order of detention is served on him he was free to carry out his prejudicial activities and his prejudicial activities could be prevented only by his detention
Therefore we must hold that the service of the order of detention on the appellant whilst he was in ail custody is invalid
In this connection our attention has been drawn to two decisions to which reference may be made
In Emperor vs Mool Chand  Ors1 the Allahabad High Court has held that the detention of persons who have already been arrested cannot be said to be mala fide merely for the reason that the order of detention was passed against them when they had already been arrested
The mere fact says the judgment that persons were first arrested under some provisions of the ordinary law and were later ordered to be detained under the UP Maintenance of Public Order Temporary Act is not in itself proof of mala fides and that it is for the party setting up mala fides to prove circumstances from which mala fides could be reasonably inferred
It would thus be seen that the point argued before the Court and which has been decided by the judgment is that a detenu cannot succeed in proving that the order of his detention has been passed mala fide solely for the reason that prior to the date of the order he had been arrested
In other words in order to prove mala fides in passing the detention order adequate evidence must be led and the mere allegation that the order followed the arrest of the detenu under the Cr
Procedure Code for an offence will not sustain his plea of mala fides
We do not see how this judgment can assist the respondent in the present appeal
In Dayanand Modi vs The State of Bihar2 the question raised was whether detention and prosecution of the same person can be simultaneously made
In other words the point urged was whether a person who is being prosecuted under the ordinary criminal law can 1 ITR1948 All 288
2 ILR 30 Patna 630
942 be detained whilst the prosecution is still pending against him
This decision has no bearing on the question as to the construction of Rule 301b and the effect of the service of an order of detention on a person who is already in ail custody
All that the Patna High Court did in that case was that it rejected the extreme proposition urged for the detenu that when an offence is alleged to have been committed the State Government has no authority to detain but must launch a prosecution and wait for the decision of the Court or that the withdrawal of a pending prosecution will in certain cases amount to an acquittal and therefore deprive the State Government of any legal authority to make an order of detention on the same facts
As we will presently indicate the problem which the Patna High Court has considered in that case was sought to be raised before us by Mr Garg but since we have come to the conclusion that the service of the order of detention on the appellant whilst he was in ail custody is invalid we do not propose to deal with that question
We may however indicate the nature of the point which Mr Garg sought to raise before us
Basing himself on the decision of the Full Bench of the Bombay High Court in Maledath Bharathan Malyali vs The Commissioner of Police1 Mr Garg contended that it was not open to the respondent to take simultaneously two actions against the appellant one under the ordinary Cr
Procedure Code and the other under Rule 3O1b
The Bombay High Court appears to have held that the State cannot pursue both the rights at the same time if on the facts of a particular case it is apparent that these two rights are inconsistent and cannot be exercised at the same time the two rights in question being the right to investigate and prosecute a person under the ordinary criminal law and the right to detain him under the Preventive Detention Act
As we have just mentioned we do not propose to deal with this point in the present appeal
Mr Garg also contended that the making of the 1 ILR 943 order of detention itself is invalid because at the time when the order was made the appropriate authority knew that the appellant was in ail and so the order passed was not justified and is therefore invalid under Rule 301
In support of this argument Mr Garg has relied upon the observations made by this Court in the case of Rameshwar Shaw1
It would be recalled that in that case also Rameshwar Shaw was ordered to be released on the ground that he was served with the order of detention whilst he was in jail and not on the ground that the making of the order was invalid
In fact this Court made no finding on that question and based its decision on the narrow ground that the service of the order was invalid
We propose to adopt the same course in the present appeal
In dealing with the question about the validity of the making of the order it would be necessary to ascertain some more relevant and material facts
Even though the appellant was in jail custody it is not unlikely that he could have applied for bail and might have obtained an order of bail and_ bearing that contigency in mind the appropriate authority would be justified in making an order of detention against the appellant provided of course the authority waited for the service of the order after the appellant was released on bail  so that on principle it would be difficult to state as a general proposition that an order of detention cannot be validly made against a person who is in jail custody for the reason that investigation is proceeding in regard to an offence alleged to have been committed by him
In fact as we have already pointed out in the case of Rameshwar Shaw1 as an abstract proposition of law this Court has held that an order of detention can be validly made against a person in jail custody
Whether or not the said making of the order is valid in a particular case may have to be determined in the light of the relevant and material facts
In the absence of any such facts in the present case we do not think we would be justified in dealing with Mr Garg s argument that the making of the order was invalid
In fact we were told that after the criminal case pending against the appellant was transferred from 1 944 Amritsar to a court of competent jurisdiction in UP the said court has allowed the appellant s application for ball subject of course to his detention under the impugned order of detention  and so the possibility that the appropriate authority might have apprehended that the appellant would move for bail and might succeed in that behalf cannot be ruled out in dealing with the question about the validity of the making of the order
Besides when a person is in jail custody and criminal proceedings are pending against him the appropriate authority may in a given case take the view that the criminal proceedings may end very soon and may terminate in his acquittal
In such a case it would be open to the appropriate authority to make an order of detention if the requisite conditions of the Rule or the section are satisfied and serve it on the person concerned if and after he is acquitted in the said criminal proceedings
That leaves the question about mala fides to which Mr Garg referred in the course of his arguments
We do not think Mr Garg can be permitted to raise that point in the present appeal because we find that adequate material has not been produced by the appellant in support of his plea in the present proceedings
In fact the allegations of mala fides which were introduced by the appellant for the first time in the affidavit filed by him on the 6th March 1963 are far from satisfactory
The case which Mr Garg wanted to make under the head of mala fides is directed against the Chief Minister of Punjab and it is plain that even the third affidavit filed by the appellant does not disclose any allegations which can justify the said plea being raised
Therefore we do not think it would be possible to entertain the said plea in the present case
A plea of mala fides must always be made by proper pleadings at the trial stage so that the respondent has an opportunity to meet the said pleadings
Mr Garg no doubt attempted to refer us to certain averments made by the appellant in his petition for special leave but we do not think we can permit Mr Garg to make out a case of mala fides on the averments made for the first time in the application for 945 special leave
That is why we propose to express no opinion on the merits of the plea of mala fides which the appellant wanted to raise before us
The result is the appeal is allowed and the order of detention passed against the appellant is set aside On the ground that the service of the order is invalid and is outside the scope of Rule 301b of the Rules
We accordingly direct that the appellant should be released forthwith
Appeal allowed


Summary:
On the 20th November 1962 an order of detention was passed against the appellant under Rule 301b of the Defence of India Rules 1962
This order was served on the appellant on the 21st November 1962 while lie was in jail custody as an under trial prisoner in connection with a criminal case pending against him
He was arrested on the 25th October 1962 in connection with the said criminal case and since then he was in jail custody
On the 26th October 1962 Emergency was declared by the President
Whilst the appellant was in jail custody he was allowed to interview his friends and about nine persons interviewed him between 3rd November to the 19th November 1962
It was alleged by the respondent that during these interviews the appellant instigated the persons who saw him to commit prejudicial activities
The appellant moved a writ petition in the High Court against the said detention order
The High Court dismissed the writ petition on the ground that the appellant had failed to make out a case that his detention was illegal
Held  i The decision in Rameshwar Shaw s case would be applicable to the present appeal because the scheme of Rule 301 is not radically different from the scheme of section 31a of the preventive Detention Act and does not affect the construction of Rule 301b of the Rules
933 Rameshwar Shaw vs District Magistrate Burdhwan  relied on
ii It is true that the nature and scope of the orders which can be validly passed under Rule 301 of the Defence of India Rules is very much wider than the order of detention which alone can be made under section 31 of the Preventive Detention Act
But the operative portion of Rule 301 is substantially similar to section 31 of the Act
iii Rule 301b like section 31a of the Act clearly postulates that an order can be made under it only where it is shown that but for the imposition of the said detention the person concerned would be able to carry out a prejudicial activity of the character specified in Rule 301
On a plain construction of Rule 301b it must be held that the order permitted by it can be served on a person who would be free otherwise to carry out his prejudicial activity
Such freedom cannot be predicated of the appellant in the present case because he was in jail at the relevant time
iv The service of a detention order on a person who is already in jail custody virtually seeks to effectuate what may be called a double detention  and such double detention is not intended either by section 31a or by Rule 3O1b it is plainly unnecessary and outside the purview of both the provisions
v If the appropriate authority wants to detain a person under Rule 301b it must be shown that when the order of detention is served on him he was free to carry out his prejudicial activities and his prejudicial activities could be prevented only by his detention
Therefore the service of the order of detention on the appellant whilst he was in jail custody was invalid
Emperor vs Mool Chand AIR 1948 All 288 inapplicable
Dayanand Modi vs State of Bihar ILR 30 Pat
630 and Meledath Bharathan Malyali vs Commissioner of Police  ILR  referred to
vi On principle it would be difficult to state as a general proposition that an order of detention cannot be validly made against a person who is in jail custody for the reason that investigation is proceeding in regard to an offence alleged to have been committed by him
This Court has held in Rameshwar Shaw that as an abstract proposition of law an order of detention can be validly made against a person in jail custody
Whether or not the said making of the order is valid in a particular case may have to be determined in the light of the relevant and material facts
In the present case the making of the order of detention was not invalid
In Rameshwar Shaw the petitioner was ordered to be released on the ground that he was served with the order of detention whilst he was in jail and not on the ground that the making of the order was invalid
934 vii The plea of malafide cannot be permitted to be raised for the first time in the petition for special leave for the reason that a plea of malafides must always be made by proper pleadings at the trial stage so that the respondent has an opportunity to meet the said proceedings
viii The order of detention passed against the appellant is set aside on the ground that the service of the order is invalid and is outside the scope of the Rules