Holding

The detention order under the National Security Act, 1980 is valid; the existence of even one ground is sufficient, and the order is not mala‑fide.

Summary

Rampa! Sahu was detained on 17 December 1985 under section 3(2) of the National Security Act, 1980 for allegedly removing railway material and thereby prejudicing the maintenance of essential supplies. The State served the grounds, allowed a representation, referred the matter to the Advisory Board, and confirmed the order after the Board’s report. Sahu challenged the order on grounds of mala‑fide intent, lack of material, and that the Prevention of Black‑marketing Act, 1980 should apply instead. The Supreme Court held that the procedural safeguards of the Act were complied with, that the detaining authority’s subjective satisfaction was bona‑fide, and that even a single ground suffices to sustain a detention order. Consequently, the Court dismissed the writ petition and the special leave petition, upholding the validity of the detention.

Issues considered

The validity of the detention order under section 3(2) of the National Security Act, 1980 in view of the alleged grounds and procedural safeguards.
Whether the Explanation to section 3 of the Prevention of Black‑marketing and Maintenance of Supplies of Essential Commodities Act, 1980 excludes the applicability of the National Security Act.
Whether a person already under trial or on bail can be detained preventively under the Act.
Whether the existence of a single ground is sufficient to sustain a preventive detention order.
Whether the detention order was mala‑fide.

Legislation cited

Code of Criminal Procedure, 1973
Essential Commodities Act, 1955
National Security Act, 1980s. 10, s. 12, s. 3(2), s. 5A, s. 8, s. 9
Prevention of Black‑marketing and Maintenance of Supplies of Essential Commodities Act, 1980s. 3(1), s. 3(2)

Subjects

preventive detentionNational Security Actmala fideessential suppliesrailway theftadvisory boardprocedural safeguardsbailantecedent conduct

Judgment

A

SURAJ PAL SAHU
v.
STATE OF MAHARASHTRA &ORS.
B
SEPTEMBER 25, 1986

[R.S. PATHAK, SABYASACHI MUKHARJI AND
RANGANATH MISRA JJ.)

~·
National Security Act, 1980-S. 3(2)-'-Detention Order-Detenu
alfeady in Jail-Validity of detention order-Principles for determina-
c
tion of-Legal mala /ides explained.

The delenn was arrested on December 17, 1985 pursuant to a
,~ detention order dated December 16, 1985 passed niider s. 3(2) of the
National Security Act, 1980 and the grounds pf detention were served D
on him the same day_. It was all.eged in the order that since the year 1979
the detenu had been continuously engaging himself in oommitting acts
prejudicial to the maintenance of supplies and services essential to the
community, i.e., removing of permanent way material stocked aloug
rail lines for maintenance of rail tracks, removing parts of carriages,
:...-.+ wagons and signal telecommunication materials utilised for repair of
railway wagons and maintenance of signals; that he used to arrange to
E
remove railway property with the help of his 'gang' and stock the same
in his godown, himself remaining behind the scence; that in a number of
cases railway properties were loaded and carried away in a truck owned.
by the detenu and, thus, the work of maintenance of the tracks was
·~ hampered and quick movement of the wagons loaded with essential F
\ commodities such as foodgrains, arms, ammunition required by the
general public and the armed forces could not be made.
A.
The grounds indicated six different cases in which the detenu was
involved, out of which in two cases he was acquitted and four cases were
pending against him on the date of the passing of detention order. Each G
of the grounds indicated in the detention order individually·and collec-

.. lively was not only germane but also sufficient to satisfy the detaining
authority with a view to preventing the detenu from acting in any man-
ner prejudicial to the maintenance of supplies and services· essential to
the community and as such it was necessary to detain him.

8J7
H
838 SUPREME COURT REPORTS 11986] 3 S.C.R.

A The grounds were communicated to the detenu urider s. 8 of the
Act read with Art. 22(5) of the Constitution. Copies of the documents
mentioned in the detention order and placed before the detahting au-
thority were enclosed with the detention order sent to the detenu. The
detenu was informed that he had a right to make a representation to the
B State Government against the order of detention, that he should ad-
dress it in the manner indicated therein, that the State Government
would within three weeks from the date of detention make a reference to
the Advisory Board constituted under s. 9 of the Act to make a report of
detention and that he had right to make the representation to the Advis-
ory Board and if he wanted he would be heard in person by the Advisory
Board if necessary. ·
c
A reference under s. 10 of the Act was n13de to the Advisory
Board and the Advisory Board considered the representation dated
January 8, 1986 of the detenu at the time of interviewing him on
January 29, 1986. The Board submitted its report under s. 12(1) of the
Act on February 3, 1986, which was received by the Government within
D
the stipulated period of 7 weeks from the date of the detention, and the
Government after considering the representation of the detenu and the
report of the Advisory Board confirmed the defention order.

The detenu challenged the detention order under Article 226 of
the Constitution alleging: (i) that the order was mala fide; (ii) that there
E
was total absence of material; and (iii) that in any event the provisions
of National Security Act, 1980 were not attracted but the provisions of
the Prevention of Black-marketing and Maintenance of Supplies of Es-
sential Commodities Act, 1980 would be attracted.

A Division Bench dismissed the petition holding that permanent
F
way material is essential to the maintenance of railway track and safety
of the railway travelling public; that there were good grounds for deten-
tion and it was not possible to hold that there were no grounds of
detention relevant for the Act; that only National Security Act was
attracted in the facts and circumstances of the instant case.
G In the Special Leave Petition and the Petition under Article 32, on
behalf of the detenu it was contended; (i) that the grounds of detention
were vague, irrelevant and non-existent; (ii) that the grounds of deten-
tion related to as far back as 1979 and, therefore, it was not open to the
detaining authority to order detention on those grounds because in
respect of the alleged grounds criminal cases were pending against him
H
S.P. SAHUv. STATE OF MAHARASHTRA 839

and he had been enlarged on bail; (iii) that when a judicial authority A
was satisfied ou the materials placed before it that there were no
grounds for keeping the detenu in'detention, on the same materials the
executive authority could not substitute the judicial judgment and order
detention to prevent to detenu· from ading in a manner prejudicial to
the interest of the community; (iv) that in view of the fact that the
detenu was on bail, the power of preventive detention had been used to B
defeat the provisions of the Code of Criminal Procedure (v) that the
alleged grounds were merely allegations of ordinary criminai cases
which either had ended in.acquittal or in respect of which appeals were
pending or were pending determination and as such the formation of
the belief by the detaining authority for the detention order was merely
on surmises and on materials which the detaining authority was not
competent to take note of; (vi) that the pending criminal cases did not CJ
disclose any activity of the detenu prejudicial to the maintenance of
supplied and services essential to the community. The connection of the
detenu with the alleged offences was not there and as such the satisfac-
tion could not be there of the detaining authority. The detenu was in no
manner connected with the alleged theft committed hy certain named D
persons and though the ownership of the truck attributed to the detenu
was not denied or disputed but the involvement of the detenu did not
foilow rr.\m that fact.

Dismissing the Writ Petition and the Special Leave Petition,
E
BLED: (I) There was no infraction of any procedural safeguard
engrafted in National Security Act, 1980 and that there was rational
subjective satisfaction arrived at bona fide on the basis of the materials
available to the detaining authority and the materials had rational
nexus with the purpose and object of the detention as contemplated by
the Act. Tbe detention order was therefore valid. [865A-Bl. F

(2) In view of the Explanation to s. 3 of the Prevention of Black-
marketing and Maintena_nce of Supplies Act, 1980, (Act 7 of 1980) the
expression "acting in any manner prejudicial to the maintenance of
supplies of commodities essential to the communities" has certain particu-
lar connotation. But in the instant case, the conduct of the detenu was G
prejudicial to the maintenance of supplies and services essential to the
community in general and contemplated by s. 3(2) of the National Sec-
urity Act and uot in any particular mode contemplated by the Explana-
tion to s. 3(1) of Act 7 of 1980 and as such is not excluded by the
Explanation to sub-s. (2) of s. 3 of the Act. Therefore the' High Court
was right in the view it took on this aspect of the matter. [853B-D I · H
840 SUPREME COURT REPORTS [1986] 3 S.C.R.

A (3) Even the existence of one ground is sufficient to sustain the
detention order. [853F~

(4) An order is ma/a fide when there is malice in law although
there is no malice in fact. The malice in law is to be inferred when order
is made contrary to the objects and purposes of the Act. Whether in any
B
particular case this is so or not must depend upon the facts and
circumstances of the case. The fact that the person sought to be de-
tained is in fact under detention is a relevant and material factor but the
allegations or the incidents leading to his detention have also to be borne
in mind co-related to the object of a particular Act under which preven-
tive detention is contemplated. [854E-F]
c
(5) The National Security Act, 1980 provides for preventive de-
tention in certain cases. Power has been given under s. 3 authorising
preventive detention and sub-s. (2) thereof provides that the Central
Government or the State Government might, if satisfied with respect to y·
any person that with a view to preventing him from acting in any
D manner prejudicial to the maintenance of public order or from. acting in
any manner prejudicial to the maintenance of supplies and services
essential to the community it was necessary so to do, make an order
directing that such person be detained then the same can be done. The
Explanation to this sub-section makes it clear that the expression "act-
ing in any manner prejudicial to the maintenance of supp lies and
E services essential to the community" does not include "acting in any +-
manner prejudicial to the maintenance of supplies of commodities es-
sential to the community" as defined in the Explanation to sub-s. (1) of
s. 3 of the Prevention of Black-marketing and Maintenance of Supplies
of Essential Commodities Act 1980. [854F-H; 855A-B]

F (6) Merely on the ground that an accused in detention as an A.
under-trial prisoner is likely to get bail, an order of detention under the
'
National Securuity Act should not ordinarily be passed. If the
apprehension of the detaining authority is true, the bail application has
to be opposed and in case bail is granted, challenge against that order in
the higher forum has to be raised. But this principle will have to be
G judged and applied iu the facts and 'circumstances of each case. Where a
person accused of certain offences whereunder he is undergoing trial or
has been acquitted, the appeal is pending and in respect of which he
may be granted bail may not in all circumstances entitle an authority to
direct preventive detention and the said principle must apply but where
the offences in respect of which the detenu is acused are so inter-linked
H and continuous in character and are of such nature that these affect
S.P. SAHU v. STATE OF MAHARASHTRA 841

continuous maintenance of essential supplies and thereby jeopardise the A
security of the State, then subject to other conditions being fulfilled, a
man being in detention would not detract from the order being passed
for preventive detention. [855D-G I

Ramesh Yad~v v. District Magistrate, Etah and Others [1985] 4
sec 232 followed. B

(7) For maintaining supplies throughout the country, the
railways is per se essential and, therefore, interference with railway
lines would be endangering the maintenance of supplies. [856D]

Mohd. Subrati Alias Mohd. Karim v. State of West Bengal I 1973] c
2 SCR 990 at 992 followed. -
.....
I (8) The past conduct or antecedent history on which the authority,
purport to act should ordinarily be proximate in point of time and have
a rational connection with the conclusion that the detention of .the
pers()n was necessary. [86JF] D

Rameshwar Shaw v. District Magistrate, Burdwan & Anr. [1964]
4 SCR 921 followed.

(9) Whether an order of detention could be passed against a
person who was in detention or in jail would always have to be con- E
sidered in the facts and circumstances of each case. [864E I

Makhan Singh Tarsikha v' State of Punjab I 1964] 4 SCR 932.
followed.

(JO) Merely because the detaining authority had chosen to base F
the order of detention on the discharge of the detenu by Court for want
of evidence it could not be held that the order was bad in law. This
branch of jl!risprudence, as interpreted by this Court, has made it
futile for a detenu to urge that because the ground of detention had been
snbject matter of criminal cases which had ended in discharge, ther.e-
fore, the order of detention was mala fide. The basic imperative of G
proof beyond reasonable doubt did not apply to the component of sub-
jective satisfaction for imprisonment for reasons of internal security.
'l'here might be extreme cases where the Court had held a criminal case
to be false and the detaining authority for want of evidence claimed to
· ·be ·satisfied about prospective prejudicial activities based on what a
Conrt had found to be baseless. There must be a live link between the H
842 SUPREME COURT REPORTS 11986) 3 S.C.R.

A grounds of criminal activities alleged by the detaining authority and the
purposes of detenti(/n. This credible chain is snapped if there was too
long and unexplained interval between the offending acts and order of
detention. If the detaining authority took the chance of conviction and,
when the Court verdict \vent against it, fell back on its detention power
to punish one whom the Court would not convict, it was an abuse and
B virtual nullification of the judicial process. But if' honestly, fmding a
dangerous person getting away with it by over-awing witnesses or con-
cealing the Commission cleverly, an authority thought on the material
before it that there was need to interdict public disorder at his instance
he might validly direct detention. [862A-D J

c . (11) It was always the past conduct, activities or the antecedent
history of a person which the detaining authority took into account, in
making a detention order. No doubt the past conduct, activities or
antecedent history should ordinarily be proximate in point of time and
should have a rational connection with the conclusion that the detention
of the person was necessary but it was for the detaining authority who
D had to arrive at a subjective satisfaction in considering the past ac-
tivities and coining to his conclusion if on the basis of those activities he
was to be satisfied. that the activities of the person concerned were such
that he was likely to indulge in prejudicial activities necessitating his
detention. Where an earlier order of detention was either revoked or
had expired, any subsequent detention order could be passed only on fresh
+
E facts arising after the expiry or revocation of the e~rlier order. [86 IF-HI

Masood Alam Etc. v. Union of the India and Others I 1973]
sec 551 followed.
_.(
(12) Mere service of detention order in jail per seis not had. '
F
( 13) The law of preventive detention is a hard law and therefore
should be strictly construed. Care should be taken that the liberty of the
person was not jeopardised, unless the case fell squarely within the four
corners of the rele.vant law. The law of preventive detention is not to he
used merely to clip the wings of the accused who was involved in a
G. criminal prosecution. Where a person was enlarged on bail by a compe-
tent criminal Court, great caution should be exercised in scrutinising the
validity of an order of preventive detention which was treated on the vei-y
same charge which was to be tried by the criminal Court. [863A-B]

Vijay Narain Singh v. State of Bihar & Ors. I 19841. 3 SCR 435
H followed.
S.P. SAHU v. STATE OF MAHARASHTRA 843

(14) Having regard to the purpose of the Act, ihe detaining au- A
thority must take into consideration rational, proximate, reasonable
past and present and that shonld be the basis for the horoscope for the
futnre so as to determine whether the person proposed to be detained
comes within the mischief of the Act. If the person is in detention or is
nnder trial and his conviction is likely but his conduct comes within the
mischief of the Act then the authority is entitled to take a rational view B
of the matter. The grounds must be there. The decision must be bona
fide. [8630-F]

(15) The fact that a man is not in jail per se would not be de- •
terminative of the factor that order of preventive detention could not be
passed against him. The fact that a man was found not guilty in a c
criminal trial would not also be determinative of the factors alleged
therein. All these factors most be objectively considered and if there are
casual connections and if bona fide belief was formed then there was
nothing to prevent from serving an order of preventive detention even
against the person who was in jail custody if there is imminent possibil-
ity of his being released and set at liberty if the detaining authority was D
duly satisified, [864E-G]

Ramesh Yadav v. District Magistrate, Etah and Others [1985J 4
SCC 232, Rameshwar Shah v .. District Magistrate Burdwan & Anr.
[1964] 4 SCR, 921 and Makhan Singh Tarsikka v. State of Punjab
[1964] 4SCR 932 distinguished. E

Maledath Bharathan Ma/yali v. The Commissioner of Police AIR
1950 Bombay 202, Merugu Satyanarayan Etc. Etc. v. State of Andhra
Pradesh and Others [1983] I SCR 635, Golam Hussain Alias Gama v.
The Commissioner of Police Calcutta and Others [1974] 3 SCR 613,
Sahib Singh Duga/v. Union of India, [1966] l SCR 313, Mohd. Salim F
Khan v. Shri C. C: Bose & Another I 1972] 2 SCC 607, Borjahan Gorey
v. State of West Bengal [1972] 2 SCC 550, Godavari Shamrao Parulekar
v. State of Maharashtra & Others [1964] 6 SCR 446, Gopi Ram v. State
of Rajasthan AIR 1967 SC 241, Masood Alam Etc. v. Union of India
and Others [1973] 1 SCC 551, Dula/ Roy v. The District Magistrate,
Burdwan & Others [1975] I SCC 837, Dr. Ramakrishna Rawat v. G
District Magistrate, Jabalpur and Another, [ 1975] 4 SCC 164 at 167 and
169, The Barium Chemicals Ltd. & Anr. v. The Company Law Board
and Others [1966] Supp. SCR 311.at 354 and 363, Prakash Chandra
Mehta v. Commissioner and Secretary, Government of Kera/a and
Others I 1985] Supp. SCC 144 and Shiv Ratan Makim s/o. Nandlal
Makim v. Union of India and Others [1986] 1SCC404 considered. H
I

844 SUPREME COURT REPORTS [1986] 3 S.C. R.

A ORIGINAL/CRIMINAL APPELLATE JURISDICTION: _l,...
Writ Petition (Criminal) No. 296 of 1986.

Under Article 32 of the Constitution oflndia.

with
B
Special Leave Petition (Criminal) No. 1265of1986

From the the Judgment and Order dated 27.2.1986 of the
Bombay High Court in Crl. Writ Petition No. 1of1986.

c R.K. Garg and Sunil K. Jain for the Petitioner.

S.B. Bhasme, A.S. Bhasme and A.K. Khanwilkar for the
~00~~ ~

The Judgment of the Court was delivered by
D
SABYASACHI MUKHARJI, J. Writ Petition No. 296 of 1986
and Sepcial Leave Petition (Criminal) No. 1265 of 1986 are connected
and relate to an order of detention of one Rampa! Sahu dated 16th
December, 1985 under section 3(2) of the National Security Act, 1980

E
(hereinafter called the said 'Act'). These are dealt with by this +- •
judgment.

The said Rampa! Sahu (hereinafter called 'the detenu' was de-
tained by the aforesaid order which was served on him on 17th De-
cember, 1985 with the grounds of detention. According to the writ /
petition as well as the special leave petition the grounds of detention -~:
F served on the detenu did not disclose any violation of the Essential
Commodities Act or Essential Servi~ Maintenance Act. Jn the pre- -.l
mises it is the contention of the petitioner that the detention was illegal
and unconstitutional. The· State of Maharashtra approved the deten-
tion on 24th December, 1985.

G The detention order as mentioned hereinbefore was under sec-
tion 3(2) of the said Act. The detenu was arrested on 17th December,
1985 and the grounds of detention were served on the same day. The
order, alleged, inter alia, that since the year 1979, -the detenu had been )'
continuously engaging himself in committing acts prejudicial to the
maintenance of supplies and services essential to the community i.e.,
H removing of permanent way material stocked along mil lines for
S.P. SAHU v. STATE OF M'.>.HARASHTRA (MUKHARJI,J.l 845

maintenance of rail tracks removing parts of carriages, Wagons and A
·J Signal Telecommunication materials utilised for repair of Railway Wa-
gons and maintenance of singnals. It was further alleged that the said
detenu used to arrange to remove railway property with the help of his
'gang' and stock the same in his godown, himself remaining behind the
scene. It was alleged that in a number of cases railway properties were B
loaded and carried away in truck No. MHG 6302 which was owned by
the detenu. It was stated that he was indulging in removing railway
t · material which was stocked along the rail tracks for the maintenance of
the tracks, thus the work of maintenance of the tracks was hampered
and quick movement of the wagons loaded with essential commodities
such as food-grains, arms, ammunition required by the gene~al public
and the armed forces could not be made. Such acts were prejudicial, c
according to the order of detention, to the maintenance of supplies
and services essential to the community.

The grounds further indicated six different cases. The case num-
bers were: I D
1. P.S. Deori Crime No. 69/83 u/s 379, 34 l.P .C. decided
by the J.M.F.C. Sakoli vide C.C. No. 50/84.

2. R.P. E. Post Ajni Crime No. 20/84 u/s 3 R.P. (UP) Act,
1966 An appeal u/s 378 of the code of Criminal Procedure
E
is being filed in the High Court against the order of aquittal
dated 24/5/85 passed by the J.M.F.C., Railway Court,
Nagpur, videC.C. No. 362/84.

3. R.P.F. Post Ajni Crime No. 43/84 u/s 3 RP (UP) Act

t 1966 pending trial before the J.M.F.C. (Rly.). Nagpur,
vide C.C. No. 153/85.

4. P.S. Kamptee Crime No. 195/84 u/s 379, 411, 341.P.c:
pending trial before the J.M.F.C., VIII Court, Nagpur,
vide C.C. No. 200/84.
F

G
5. P.S. Kamptee Crime No. 53/85 u/s 379, 34 IPCunder
investigation.

6. R.P.F. Post Ajni Crime No. 41/85 u/s 3 RP(UP) Act
pending trial before the J.M.F.C. (Rly.) Court, Nagpur,
vide C.C. No. 212/85. H
846 SUPREME COURT REPORTS [1986] 3 S.C.R.

A The incident in the first case was alleged to have taken place on
26th December, 1983. It was alleged that a truck bearing Registration
No. MHG 6302 was standing near the iron bridge on the National
Highway and some thieves were trying to cut the steel girders meant
for constructing road bridge for removing the same. Other particulars
were named therein and the names of two persons were also men-
B tioned. There was some stealing. The stolen property including 'steel
girders and the truck mentioned above were seized. It appears that the
truck was owned by the detenu. The detenu was arrested on 26th
February, 1984 and the aforesaid two persons were convicted under
section 379 read with section 34 I.P.C. The detenu, however, was
acquitted.
c In the second case report had been received that some railway
material including 32 Lbs. CST 9 plates and tie bars were stolen from
the railway track in between Borkhedi and Sindi Railway Stations by a
gang of culprits who threatended the witness, i.e., the chowkidar on
duty and took away the railway property in a Matador. During enquiry
D into the above complaint, it transpired that the stolen property was
unlawfully kept by the detenu in his godown at Nagpur and a search
warrant was obtained and the stolen railway property valued at
Rs.25,000 was recovered from the godown of the detenu on 19th June,
1984. The detenu was acquitted by the Magistrate but an appeal had
been preferred in the High Court of Nagpur and the same was pending +
E when the detention order was passed. It was further stated that the
permanent way material was essential for the maintenance of the rail-
way tracks and the safety of the travelling public. It was normally kept
at secure places near the track for ready availability for replacing the
broken or unserviceable material in the track. The trains were re-
quired to be detained .as a result of theft causing loss to the Govern-
F ment and there was delay. in making supplies to the public. It was
further alleged that as many as 28 wagons were marked sick for repairs
·and were sent to Ajni workshop for repairs, for want of the required
spare parts which were seized from the unlawful possession of the
detenu. According to the order of detention, as a result the Govern-
ment and public indents of Wagons totalling 792 could not be cleared
G for loading different commodities to;be supplied in various parts of the
country.

In case No. 3, a report had been received that at a particular
point between Buti Bori & Umrer section at some Km. near the rail-
way crossing gate, 400 fish plates were stolen. The enquiry had re-
H vealed that the stolen property was unlawfully obtained and kept by
·s.P.SAHU v. STATE OF MAHARASHTRA [MUKHARJl,J.[ 847

the detenu at certain place at Nagpur. A search warrant was obtained A
and 400 fish plates apd carriage and Wagon parts were recovered from
the godown of the detenu. In the premises the detenu was arrested on
14th December, 1984 and the aforesaid case i.e., third case was pend-
ing on the date of the order of detention. It is the case of the Government
that due to the unlawful possession of the railway property by the B
detenu, as many as ten wagons had to be marked sick and could not be
made available to the puhlic and the Government for loading different
essential commodities to be supplied in different parts of the country in
the month of December, 1984. As a result of this, as many as 3224
indents put up by the Government and the public for the supply of -
wagons could not be cleared due to shortage of empty wagons.
c
The fourth case related to an offence under section 379 l.P.C.
which was registered against the detenu under sections 379, 411and34
I.P.C. and was pending trial in Nagpur. The complaint was io the
effect that 128 CST-9 plates were stolen from five points between
Kamptee & Kalmana Railway Line and these were valued at Rs.4608. D
The property was loaded in truck bearing No. MHG 6302 owned by
the detenu. The truck driver was arrested anu the property was re-
covered from the. godown of the detenu at the instance of the driver. .
The detenu was arrested in connection with this case on 3rd
December, 1984, and the case was pending on the date of the issue of
the detention order. E
Regarding the fifth case it may be mentioned that an offence was
alleged to have been committed by the detenu under section 379 read
with section 34 l.P.C. on the complaint of certain person who was
working as a Manager of the Jamshedpur Transport Corporation,
Nagpur. It was reported that three bundles of Aluminium wire weigh-
F
ing about 500 kgs .. valued at Rs.1,60,000 were stolen by some unknown
criminals on 21st March, 1985. During investigation it was disclosed
that the culprits belonged to the 'gang' of the detenu and that they had
threatened the chowkidars on duty and forcibly removed the alu-
minium wire bundles. It was stated in the detention order that the de-
tenu was the main brain behind this big daring robbery and he used his
truck bearing No. MHG 6302 for transporting the stolen property. The G
detenu anticipating arrest moved the court and obtained anticipatory
bail with a view to avoid arrest by the police. The case was pending
investigation. It was further stated that the aluminium wire which was
stolen was meant for the use of various public and Govt. departments
and due to aforesaid cririiinal activity as indicated above the supply of
H
848 SUPREME COURT REPORTS 11986] 3 S.C.R.

A the wire could not be maintained as it was broken into pieces and made ....
,
unserviceable.

In respect of the sixth case it was further alleged that on receiving
information that 90 Lbs, rails 31 meters long were received and kept
B unlawfully by the detenu in his godown at Nagpur. the inspector of
the C.I.B. and Railway Protection Force raided the godown on 22nd
May, 1985 and seized 90 Lbs. rails about 30 meters \ong, break and
some new steel sleepers and other materials. The stolen property was
worth Rs.20,000. The detenu was arrested in this case on 22nd May,
1985. The case was pending trial on the date of the issue of the deten-
tion order in Nagpur. It is the case of the detaining authority that due
c to this unlawful possession of break-locks by the detenu, four wagons
were marked sick and had to be sent to the Railway Carriage and
Wagon Workshop at Ajni for repair, as a result was indents put up to
the Railway Administration by the Public and the Government to
provide the empty wagons for supply of the different commodities in
the different parts of country could not be complied with ..
D
In the backdrop of the aforesaid grounds it was further stated
that the activities of the detenu were prejudicial to the maintenance of
supplies and services essential to the community. It was further alleged
that each of the grounds indicated above individually and collectively
was not only germane but also sufficient to satisfy the detaining au-
E
thority with a view of preventing the detenu from acting in any manner
prejudicial to fhe maintenance of supplies and services essential to the
community and as such it was necessary to detain him. It was further
stated that these grounds were communicated to the detenu under
setion 8 of the aforesaid Act read with article 22(5) of the Constitution
of India upon which the detention order had been made. Copies of the
F documents mentioned in the said order which were placed before the
detaining authority were enclosed with the detention orcer sent to the
detenu. He was further informed that he had a right to make a represen-
tation to the State Government ,,gains! the order of detention and
would be afforded the earliest opportunity to make such a representa-
tion. He was further informed that he should address it in the manner
G indicated therein. He wa• informed that the Stat.e Government would
within three weeks from the date of detention of the detenu make a
reference to and place the requisite material before the Advisory
Board constituted under section 9 of th.e said Act and asking them to
n1ake a report of detention within seven w~eks. He was informed that
he had a right to make the representation to the Advisory Board and if
H
, S.P. SAHU v. STATE OF MAHARASHTRA [MUKHARJ!,J.[ 849

he wanted, he would be heard in person by the Advisory Board in. the A
~) course; if it found it necessary.

. of .theInpetitioner
this petition under article 32 of the Constitution, it is the case
on behalf of the detenu that the grounds of detention
were vague, irrelevant and non-existent. It was further urged on behalf
of the petitioners that the grounds of detention on which the detenu B
was detained relating to as far back as 1979. It was not open to the
+ detaining authority to order detention of the detenu on the said
grounds. It was highlighted that in respect of. alleged grounds, criminal
cases were pending against the 'detenu and he had been enlarged on
~- bail. It was submitted that when a judicial authority was satisfied on the
materials placed before it that there were no grounds for keeping the c
detenu in detention, on the same materials the executive authority
namely, the detaining authority could not substitute the judicial judg-
men! and order detention to prevent the detenu from acting in a man-
I ner prejudicial to the interest of the community.

It was submitted by Mr. Garg on behalf of the detenu that in this D
case in view of the fact that the detenu was on bail, the power of
preventive detention ·was being used to defeat the provisions of the
Code of Criminal Procedure and ordinary normal procedure. It was
further the submissjon of Mr. Garg that the alleged grounds were
+ merely allegations of ordinary criminai cases which either had ended in
acquittal or in respect of which appeals were pending or were pending E
determination and as such the formation of the belief by the detaining
authority for the detention order was merely on surmises and on mate-
rials which the detaining authority was not competent to take note of.
With reference to the various pending cases, it was submitted on be-
) half of the detenu that these criminal cases did not disclose any activity
of the detenu prejudicial to the maintenance of supplies and services F
essential to the community. The connection of the detenu with the
>- alleged offences was not there and as such the satisfaction could not be
there of the detaining authority. The detenu according to the peti-
ti oner, was in no manner connected with the alleged theft committed
by certain named persons and though the onwership of the truck at-
tributed to the detehu was not denied or disputed but the involvement G
of the detenu did not follow from that fact, it was submitted on behalf
of the detenu.
··{
It is further the case on behalf of the detenu and the submission
of Mr. Garg that it was not open to the detaining authority to use the
allegations of the criminal cases to justify 'preventive detention'. It H
850 SUPREME COURT REPORTS [1986] 3 S.C.R.

A was further his submission that these did not establish proximate rela-
tion either with the maintenance of 5upplies or services essential to the
life of the community nor did these involve any violation of relevant
laws made by the Parliament dealing with the maintenance of supplies
of essential commodities or maintenance of essential services. It is the
case on behalf of the detenu that preventive detention is no substitute
B for detention under the ordinary criminal law. According to the petitioner,
there was bo allegation against the detenu of any violation of Essen-
tial Commodities Act or any provision of the Maintenance of Essential
Services Act. The grounds mentioned were cases of ordinary theft and
should have been proceeded against under the ordinary law of crimes.
The det~nu was released on bail. The connection of the detenu with
c the removal of fish plates for the·supply of wagons was too remote to
be any basis of satisfaction. In fourth case the detenu was on bail and
detenu could not be kept' under preventive detnetion in derogation of
his liberty granted by bail by the appropriate judicial authority. Re-
garding the fifth case, the detenu had already been granted anticipat-
ory bail. The order of the court could not be defeated by keeping the
D detenu in preventive detention, it was submitted by Mr. Garg. It was
urged that requisite satisfaction required under section 3(2) of the said
Act was not in fact formed and could not have been formed on the
grounds alleged nor was there any rational connection for the forma-
tion of such satisfaction. The alleged incidents were denied and it was

E
further submitted that if at all mere infractions of ordinary law could
not fall in the category of public order or violation of any law indicated
+
to the maintenance of supply or essential services. It. was open to
justify the order of detention even if one or more of the six grounds
were found to be relevant. The documents, further, did not disclose
factual connection with the alleged offences. No statement of the ...,..,
witnesses had been supplied except one related in ground No. 5, it was J.
F urged in the petition.

. It was further submitted that the provisions of Act 7 of 1980
being Prevention of Blackmarketing and Maintenance of Supplies of
Essential Commodities Act, 1980 could perhaps have application and
in view of Explanation to Section 3(2) of the Act, the impugned order
G was bad. Our attention was drawn to the provisions of the said Act of·
1980. Section 3( 1) and (2) of the said Act reads as follows:

"Power to make orders detaining certain persons-
(1) The Central Government or a State Government or
·any officer of the Central Government, not below the rank
H of a Joint Secretary to that Government specially
. S.P.SAHU v. STATE OF MAHARASHTRA [MUKHARJI,J.] 851

empowered for the purposes of this section by that Govern- A
ment, or any officer of a State Government, not· below the
rank of a Secretary to that Government specially em-
powered for the purposes of this section by that G.over.n-
ment, may, if satisfied, with respect to any person that.with
a view to preventing him from acting in any manner prejud-
B
icial to the maintenance of supplies of commodities essen-
tial to the community it is necessary so to do, make an
+ order directing that such person be detained.

Explanation-For the purposes of this sub-section, the ex-
pression "acting in any manner, prejudicial to the mainte-
nance of supplies of commodities essential to the commun- C
ity" means:-

(a) committing or instigating any person to commit any
-.,
I offence punishable under the Essential Commodities Act,
1955 ( 10 of 1955), or under any other law for the time being
in force relating to the control of the production, supply or D
distribution· of, or trade and commerce in, any commodity
essential to the community; or

(b) dealing in any commodity-
+ (i) which is an essential commodity as defmed in the E
Essential Commodities Act, 1955 (10of1955), or

(ii) with respect to which provisions have been made
in any such other law as is referred to in clause (a),

with a view to making gain in any manner which may di- F
rectly or indirectly defeat or tend to defeat the provisions
of that Act or other law aforesaid.

(2) Any of the following officers, namely:

(a) District Magistrates: G

(b) Commissions of Police, wherever they have been
appointed,

may also, if satisfied as provided in sub-section
H
852 SUPREME COURT REPORTS 11986] 3 S.C.R.

A (1), exercise the powers conferred by the said sub-section.

In answer to the petition in the affidavit of the opposition filed
on behalfof the respondent, it was stated that the detenu Rampa! Sahu
was detained and a reference had been duly made under section 10 of
the said Act to the Advisory Board. The detenu was interviewed by
B the Advisory Board on 29th January, 1986 and the Board had submit-
ted its report under section 12(1) of the said Act on 3rd February, 1986
which had been received by the Department on the same day. As such +
the report of the Advisory Board was received by the Government
within the stipulated period of seven weeks from the date of detention
as required by the law.
c
The detenu had submitted his representation dated 8th January,
1986 to the Advisory Board which was considered by the Board at the
time of his interview before the Board on 29th January, 1986. The said
representation was received by the Home Department along with the
report of the Advisory Board and was considered together with the
D report of the Advisory Board by Government and the detention order
was confirmed by the Government Order. All procedural safeguards
of law were duly followed. There was no breach of the same. It is not
necessary to reiterate the affidavit in reply.

As has been mentioned hereinbefore, on the same facts, the
E petition under article 226 had been filed in the High Court at Nagpur.
The said application was dismissed by a Division Bench of the High
Court on 27th February, 1986. The ·petitioner has come up from the
said decision which is the next matter being Special Leave Petition No.
1265 of 1986 and same will be disposed of by this judgment.

F The High Court in its judgment referred to the grounds. It
reiterated that permanent way material is essential to the maintenance
of railway track and safety of the railway travelling public. After refer-
ring to the various grounds referred to hereinbefore, the High Court
has noted that three points were urged before it on behalf of the
detenu namely; (!) the order was mala fide, (2) there was total ab-
G sence of material, and (3) in any event the provisions of the Prevention
of Black-marketing and Maintenance of Supplies of Essential Commo-
dities Act, 1980 being Act of 1980 would be attracted. The High Court
referred to the affidavits of the Commissioner of Police who passed the
detention order which was filed in th·e High Court and found that there
were good grounds for detention and it was not possible to hold that
H ther~ were no grounds of detention relevant for the Act.
s:r. SAHU v. STATE OF MAHARASHTRA [MUKHARJI, J. I 853

The High Court referred to the expression 'acting in any manner, A
prejudicial to the maintenance of supplies of commodities essential to
the community' as mentioned in Explanation to section 3 of the Pre-
vention of Black Marketing and Maintenance of Supplies of Essential
Commodities Act, 1980. The High Court was of the view that it was
clear that only National Security Act was attracted in the facts and
circumstances of this case.

t In view of the Explanation to section 3 of Act 7 of 1980, it
appears "acting in any manner prejudicial to the main_tenance of sup-
plies of commodities essential to the community" has certain particu-
lar connotation. But in the insiant case the Act under consideration,
the conduct of the detenu was prejudicial to the maintenance of sup- c
plies and services essential to the community in general as contemplated
by section 3(2) and not in any particular mode contemplated by Expla-
nation to section 3(1) of Act 7" of 1980 and as such.is not excluded by
the Explanation to sub-section (2) -of section 3 of the Act. In the
premises we are therefore of the opinion that the High Court was right .
in the view it took on this aspect of the matter. We are also of the D
opinion that for the same reason, the same contentions urged before us
in support of the writ petition cannot be sustained.

As mentioned hereinbefore, before the High Court also the in-
+ sertion of section 5A of the Act by the National Security (Second
Amendment) Act, 1984 was challenged under which even the exist- E
e.nce of one ground is sufficient. Before us no ground was canvassed
about the validity of the said Amendment and inclusion of section 5A
of the Act. ·

It must therefore be held that even the existence of one ground
was sufficient to sustain the detention order. F

Mr. Garg drew our attention to certain. observations of Chagla,
C.J., in a Full Bench decision of the High Couri of Bombay in
Maledath Bharathan Malyali v. The Commissioner of Police AIR 1950
Bombay 202. That was a case under the Bombay Public Security Mea-
sure Act being Act No. 6 of 1947. There was an order of detention G
under section 2(Al} of the Act for the collateral purpose. It was held

L
that when the detainirig authority had made up his mind to detain a
person who was alleged to have committed an offence, then, the de-
taining authority had made his choice and it would not be permissible,
according to that decision, for him to investigate the offence while still
keeping the person under detention and not complying with the provi- H
854 SUPREME COURT REPORTS [1986] 3 S.C.R.

A sions of the law with regard to investigation. If the purpose of detain-
ing a person was a collateral purpose i.e., to deprive him of his rigths
and safegurads under the Criminal Procedure Code and to carry on an
investigation without the supervision of the Court then the detention
was mala fide and could not be justified. Chagla, C.J. at page. 203
speaking for the Full Bench observed that an order of detention under
B the Security Act could only be justified in a Court of law provided it
was made bona fide; and order of detention could not be made for an
ulterior motive or for a collateral purpose. The detaining authority, it
• was further observed, must only consider the objects for which the Act
was passed and the only consideration which must weigh with the
detaining authority was public safety, maintenance of public order and
c the preservation of peace and tranquility in the Province of Bombay. If
in making the order bis mind was influenced by any consideration
extraneous to the Act, then the order would be bad and could not be
upheld. The question that the Court bad to consider in that case was
whether in making the order the Commisioner of Police was
influenced by any collateral purpose and whether any extraneous
D factor bad weighed on his mind when he made the order. When we
speak of an order being made mala fide, it did not mean that the Court
attributed to the detaining.authority any improper motive.

An order is mala fide when there is malice in law although there
is no malice in fact. The malice in law is to be inferred when an order is
E made cqntrary to the objects and purposes of the Act. Whether in any
particular case this is so or not must depend upon the facts and
circumstances of the case. The fact that the person sought to be de-
tained is in fact under detention is a relevant and material factor but
the allegations or the incidents leading to his detention have also to be
borne in mind and co-related to the object of a particular Act under
F which preventive detention is contemplated. In the instant case, the
Act was The National Security Act, 1980. It was an Act to provide for
preventive detention in certain cases and for matters connected there-
with. Power has been given under section 3 authorising preventive
detention of any person from acting in any manner prejudicial to the
defence of India, the relations of India with foreign powers and of the
G securiti of India. Sub-section (2) of section 3 provides that the Central
Government or the State Government might, if satisfied with respect
to any person that with a view to preventing him from acting in any
manner prejudicial to the security of the State or from acting in any
manner prejudicial to the maintenance of public order or from acting in
any manner prejudicial to the maintenance of supplies and services
H essential to the community it was necessary so to do, make an order
S.P. SAHU v. STATE OF MAHARASHTRA [MUKHARJI,J.[ 855

directing that such person be detained then the same can be dnne, (em- A
phasis supplied). The Explanation to .this sub-section makes it clear
that the expression "acting in any manner prejudicial to the mainte-
nance of supplies and services essential to the community" does not
include "acting in any manner prejudicial to the maintenance of sup-
plies of commodities essential to the community" as defined in the
Explanation to sub-section (1) of section 3 of the Prevention of Black- B
marketing and Maintenance of Supplies of Essential Commodities
+ Act, 1980, as we have noted before.

Our attention was drawn to several authorities where this Act
has been considered.
c
In a recent decision of this Court, one of us (Ranganath Misra, J)
had to consider the effect of passing order for preventive detention
where the detenu was in jail.

In Ramesh Yadav v. District Magistrate, Etah and Others [1985] 4
SCC 232 it was hi:ld that merely on the ground that an accused in D
detention as an under-trial prisoner was likely to get bail, an order of
detention under the National Security Act should not ordinarily be
passed. If the apprehension of the detaining authority was true, Court
observed, the bail application had to be opposed and in case bail was
+ granted, challenge against that order in the higher forum had to be
raised_. We respectfully agree with this conclusion. But this principle E
will have to be judged and applied in the facts and circumstances of
each case. Where a person accused of certain offenceswhereunder he
is undergoing trial or has been acquitted, the appeal is pending and in
respect of which he may be granted bail may not in all circumstances
entitle an authority to direct preventive detention and the principle
enunciated by the aforesaid decision must apply but where the off- F
. ences in respect of which the detenu is accused are so inter-linked and
continuous in character and are of such nature that these affect con-
tinuous maintenance of essential supplies and thereby .jeopardize the
security of the State, then subject to other conditions being fulfilled, a
man being in detention would not detract from the order being passed
for preventive detention. Merugu Satyanarayana Etc. Etc. v. State of G
Andhra Pradesh and Others [1983] ( 1) SCR 635 was a case dealing with
an order under section 3(2) of the Act. There this Court found that the
affidavit in opposition supporting the reply to the show cause notice
was not from the person who passed the detention order. There the
affidavit was of a sub-inspector of police at whose instance the arrest
was made and could not therefore satlsfy the constitutional mandate H
856 SUPREME COURT REPORTS [19861 3 S.C.R.

A that will be treated as nonest. In the instant case before us a point was
made that the counter was made by a desk clerk of the Home Depart-
ment in writ petition. This would have been a fatal defect and the
government's view could. not have been considered but there was an
application under article 226 of the Constitution before the High Court
challenging the identical detention order on the same grounds. Before
B the High Court Sree Malhotra and Sree S.K. Seth who were the Com-
missioners of Police had filed two separate affidavits upholding the
issue of the detention order and explaining the grounds and the +
reasons for the same. If those affidavits are taken into consideration,
as these must-be then there is no substance in this ground. In the
aforesaid case assurance was given before this Court in an earlier case
c that preventive detention would not be resorted to against political
opponents. In the said decision the facts were entirely different. That
was a case affecting the liberty of a subject on political consideration.

For maintaining supplies throughout the country the railways
was per se essential, and, therefore, interference with railway lines-
D would be endangering the maintenance of supplies-see the observa-
tions of this Court in Mohd. Subrati Alias Mohd. Karim. v. State of
West Bangal l 1973] 2 SCR 990 at 992.

This Court in Remeshwar Shaw v. District Magistrate, Burdwan
& Anr., [1964] 4 SCR, 921 had to deal with preventive detention of a
E person who was in jail custody. There the petitioner was detained by
an order of the District Magistrate under the provisions of the Preven-
tive Detention Act, 1950. The order recited that the District Magis-
trate was satisfied that it was necessary to detain the petitioner with a
view to prevent him from acting in a manner prejudicial to the mainte-
nance of Public order. This order was served on the petitioner on the
F 15th February, 1963, while he was in jail custody as an under-trial
prisoner in connection with a criminal case pending against him.

It was urged on behalf of the petitioner in that case that the
detention of the petitioner was not justified by the provisions of sec- ·
tion 3(1) of the Preventive Detention Act, 1950. It was noted by
G Justice Gajendragadkar at page 925 of the report speaking for the
Court that the basis of the order of detention which the authority was
empowered to pass against a person under section 3(1)(a) was that if
the said order was not passed against him, he might act in a prejudicial
manner. In other words, the authority considered the material brought
before it in respect of the person, examined the said mate_rial and
H reached the conclusion that the material showed that the said person
S.P. SAHU v. STATE OF MAHARASHTRA IMUKHARJI,J.J 857

might indulge in prejudicial activities if he was not prevented from A
doing so by an order of detention. The Court then posed the ques\ion
how could the authority come to the conclusion that the person who
was in jail custody might act in a' prejudicial manner unless he was
detained. The learned judge was of the view that the scheme of the
section postulated that if an order of detention was not passed against
a person, he>would be free and able to act in a prejudicial manner. In 13

+ other words, at the time when the order of detention was brought into
force, the person sought to be detained might have freedom of action.
That alone would justify the requirement of the section that the order
of detention was passed in order to prevent a prejudicial conduct, of
ihe person which took place in that, case ten years before the date of
detention and nothing was known against the person indicating i.e., . c
the tendency to act in a prejudicial manner. Even if it was ten years
old, the authority was satisfied that detention was necessary. The
court also noted that the past conduct or antecedent history on which
the authority purported to act should ordinarily be proximate in point
of time and have a rational connection with the conclusion that the
detention of the person was necessary. The court, however, further D
held that as an abstract proposition of law, there might not be any
doubt that section 3(1)(a) of the said Act did not preclude the author-
ity from passing an order of detention against a person while he was in

+ detention or in jail. But the relevant facts in connection with the
making of the order might be different and that might make a differ-
ence in the application of the principle that the order of detention E
could be passed against a person in jail. The Court, however, was
reluctant to lay down any inflexible test. In that case the petitioner was
ordered to be released on the ground that he was served with the order
of detention while he was in jail custody. In the instant case before us,
the petitioner is not in jail custody.
F
~ In Makhan Singh Tarsikka v. State of Punjab [1964] 4 SCR 932
the court was concerned more or less with the same facts. The court
observed at p. 937 of the report that the aspect of the matter which vas
emphasised in the case of Rameshwar Shaw (supra) was the relevance
of considerations of proximity of time and concluded that whether an
order of detention could be passed against a person who was in deten- • G
tion of in jail would always have to be considered in the facts and
circumstances of each case. The order of detention in that case was
also set aside in view of the facts mentioned therein.

In Go/am Hussain Alias Gama v. The Commissioner of Police,
Calcutta and Others 11974] 3 SCR 613 the question arose under sec-· 1-1
'
858 SUPREME COURT REPORTS [1986] 3 S.C.R.

A lions 3(1) and 3(2) of the Maintenance of Internal Security Act, 1971.
There pursuant to an order under section 3(1)(a)(ii) read with section
3(2) of the said Act the petitioner in that case was arrested for hurling
soda water bottles, brick-bats and bombs indiscriminately on a group
of persons on different dates. The order of detention said that if left
free and unfettered the petitioner was likely to continue to disturb
B maintenance of public order by acting in similar manner. In an earlier
criminal case the petitioner was discharged since no witness deposed
against him in open court. Thereafter the petitioner was detained un-
. der the Act. In a petitioner under article 32 of the Constitution, it was
contended that the detention was mala fide because it was after his
discharge by the court for want of evidence and secondly, there had
c been a long interval of nine months between the criminal incidents and
the detention order, thirdly the order of detention which did not
specify a period as was violative of section 12 of the said Act and lastly
the detention was founded on prevention of public disorder while the
acts imputed to the petitioner were aimed at a particular person, not
the general public.
D
It was held that merely because the detaining authority had cho-
sen to base the order of detention on the discharge of the petitioner by
court for want of evidence it could not be held that the order was bad
in law. This branch of jurisprudence, as interpreted by this Court, has
made it futile for a detenu to urge that because the grounds of deten-
E tion had been the subject matter of criminal cases which had ended in
discharge, therefore, the order of detention was mala fide. The basic
imperative of proof beyond reasonable doubt did not apply to the
component of subjective satisfaction for imprisonment for reasons of
internal security. There might be extreme cases where the court had
held a criminal case to be false and the detaining authority for want of
F evidence claimed to be satisfied about prospective prejudicial activi-
ties based on what a court had fount to be baseless. In the present case
the order of discharge was made purely for want of evidence on the
scope that witnesses were too afraid to depose against to desperate
character, cannot come under the exceptions carved out by the court
to this category. It was further emphasised that there must be a live
G link between the grounds of criminal activities alleged by the detaining
authority and the purpose of detention. This credible chain is snapped
if there was too long and unexplained interval b~tween the. offending
acts and order of detention. If the detaining authority took the chance
of conviction and, when the court verdict went against it, feel back on
its detention power to punish one whom the court would not convict, it
H was an abuse and virtual nullification of the judicial process. But if
S.P. SAHU v. STATE OF MAHARASHTRA [MUKHARJI, J. J 859

..l honestly, finding a dangerous person getting away with it by overaweing A
witnesses or concealing the commission cleverly, in authority thought
. on the material before it that there was need to interdict public disor-
der at his instance he might validly direct detention. In the present
case, the acts were serious, being bomb hurling and brickbat'throwing
in public places creating panic. Involvement of the petitioner was dis-
covered only during the investigation. It was further held that the B
argument that detention without defined duration is ipso jure invalid
t could not be sustained. No responsible government should or would be
unresponsive to the claim of citize.n's freedom: The nature of the act

r from the circumstances of its commission, the impact on the people
around and such factors constitute the pathology of public disorder.
These acts could not be isolated from their public setting nor was it c
possible to analyse its molecules as in a latioratory but to take its total
effect on the flow of orderly life. It might be a question of degree and
quality of activity of the sensitivity of the question involving people.
To dissect further is to defeat the purpose of social defence which is
the paramount purpose of the preventive detention.
D
If, however, a detention order is malafide then the same is bad.
Reliance was placed for this proposition on the decision of this Court
in Sahib Singh Dugalv. Union of India. [1966) l SCR 313.

Mohd. Salim Khan v. Shri C.C. Bose & Another [1972) 2 SCC .
607 depended upon the particular facts of that case, so is the position E
with Borjahan Gorey v. State of West Bengal [1972] 2 SCC 550 to
which our attention was drawn, where it was highlighted that judicial
trial for punishing the accused for the commission of an offence was a
\ jurisdiction distinct from that of detention under the Act which had in
/ - view the object of preventing the detenu·from acting prejudicial to the
security of the State and maintenance oCpublic order. The fields of F
\f· these two jurisdictions were not co-extensive nor were they alterna-
tives. It must be remembered that the grounds of detention related to
past acts on which an opinion as to the likelihood of the repetition of
such or similar acts could be based.

It was submitted that in order to invoke the provisions of these G

~
Acts for securing preventive detention under the National Security
Act, there must be something imminent. In Godavari Shamrao
Parulekar v. State of Maharashtra & Others [1964) 6 SCR 446 where
referring to several authorities Wanchoo, J. speaking for the Court
observed at page 452 of the report that in those cases it was held by this
Court that where a person was detained in jail as an under-trial pris- H
860 SUPREME COURT REPORTS· [1986] 3 S.C.R.

A oner no order of detention 'either under the Preventive Detention Act
or under the Rules could be served on him because one of the neces-
sary ingrectients whic~ go to ma~e up the satisfaction of t?e detaini~g
authonty i;.necessanly absent m such a case. It was pomted out m
Rameshwar Shaw's case (supra) that before an authority can legiti-
mately come to the conclusion that the detention of the person was
B necessary to prevent him from acting in a prejudicial manner, the
authority had to be satisfied that if the person was not detained, he
would act in a prejudicial manner and that inevitably postulated free- t
dom of action to the said person at the relevant time. The Court noted
two types of cases. Those two cases were concerned with the service of
an order of detention under the Preventive Detention Act or under the
c Rules on a person who was in jail in one of two circumstances
namely-where he was in jail as an under-trial prisoner and the period
for which he was in jail was indetenninate or where he was in jail as a
convicted person and the period of his sentence had still to run for
some length of time. In those cases the service of the order of deten-
tion under the Preventive Detention Act or under the Rules in jail
D would not be legal for one of the necessary ingredients about which the
authority had to be satisfied would be absent, namely, that it was
necessary to detain the person concerned which could only be post-
ulated of a person who was not already in prison. But in other types of
cases this Court had to deal with G.S. Parulekar's case. The appellants
were not under detention either as under-trial prisoners for an inde-
E terminate time or as convicted persons whose sentences were still to
run for some length of time. They were detained under the Preventive
Detention Act by an order dated 7th November,1962 which had been
reported to Government for approval and which order could only
remain in force for 12 days under section 3(3) of the said Act unless in
the meantime it had been approved by the State Government. In those
F cases the principles of the decision referred to in Rameshwar Shaw's
case and other cases could not be applied.

If there was an imminent possibility of the man being set at
liberty and his detention coming to an end, then it appears, as a princi-
ple, if his detention is otherwise necessary and justified then there is
G nothing to prevent the appropriate authorities from being satisfied
about the necessity of passing an appropriate order detaining the .
person concerned. 4
In Gopi Ram v. State of Rajasthan, AIR 1967 SC241 Mudholkar,
J. reiterated the principle that law does not permit double detention
H and referring to Rameshwar Shaw's case it was reiterated that when a
S.P. SAHU v. STATE OF MAHARASHTRA [MUKHARJl,J.J 861

person was in jail custody and the criminal proceedings were pending A
against him, the appropriate authority might in a given case take the
view that criminal proceedings might end very soon and might termi-
nate in his acquittal. In such a case, it would be operi to the
appropriate authority to make an order of detention, if the requisite
conditions of the Rule or the section were satisfied, and serve it on the .B
person concerned even after he was acquitted in the said criminal
proceedings.

Masood Alam Etc. v. Union of India and Others [1973] I SCC
551 was a case where it was held that if the grounds were relevant and
~ ·germane to the object 0f the detaining Act then merely because the
r-. objectionable activities covered thereby also .attracted the provisions c
of Chapter VIII, Criminal Procedure Code, the preventive detention
could not for that reason alone be considered to be mala fuie provided
the authority concerned was satisfied of the necessity of the detention
""'(': as contemplated by the Act. The jurisdiction of preventive detention
sometimes described as jurisdiction of suspicion d€pended on subjec-
tive satisfaction of the detaining authority. If the detaining authority D
was of opinion on grounds whi'ch were germane and relevant, that' it
was necessary to detain a person from acting prejudicially as contemp-
lated by section 3 of the Act then it was not for this court to consider
objectively how imminent was the likelihood of the detenu indulging in
..+- those activities. There was no legal bar in serving an order of detention
on a person who was in jail custody if he was likely to be released soon E ,
thereafter and there was relevant material on which the detaining
authority was satisfied that if free, the person concerned was likely to
indulge in activities prejudicial to the security of the State or mainte-
,, always of
nance public order. The Court stressed upon the fact that it was
the past conduct, activities or the antecedent history of a person
)- which the detaining authority took into account in making a detention F
order. No doubt the past conduct, activities or antecedent history
'-'f should ordinarily be proximate in point of time and should have a
rational connection with the conclusion that the detention of the person
was necessary but it was for the detaining authority who had to arrive at
a subjective satisfaction in considering the past activities and coming to
his conclusion if on the· basis of those activities he was to be satisfied that G
the activities of the person concerned were such that he was likely to
indulge in prejudicial activities necessitating his detention. Where an
earlier order of detention was either revoked clr had expired, any subse-
quent detention order could be passed only on fresh facts arising after
'the expiry or revocation of the earlier order.
H
8~2 SUPREME COURT REPORTS [1986] 3 S.C.R.

A Golan Hussain Alia Gama v. Commissioner of Police, Calcutta,
and Others (supra) highlights the need for caus.al connection between
the grounds and the action proposed. The jurisprudence dealing with
· prohibitory detention or preventive detention is well-settled and it can
no longer be a valid contention that because the accused had been
discharged in a criminal case, the ground of charge could not be relied
B upon by the appropriate authority passing an order of preventive de-
tention. The former related to the punitive branch of criminal law and
relied on the past commissions, the latter to the preventive branch of
social defence and protected the community from future injury. It is
not possible to urge that simply because a man has been discharged in
a criminal case, those grounds could not be grounds for preventive
c detention. But there must be live-link between the grounds of criminal
activities alleged by the detaining authority and the purpose of deten-
tion. This credible chain would be snapped if there was too long and
unexplained an interval between the offending acts and the order of
detention. There must be proximity, but no mechanical test of count-
ing months of interval can be laid down-it depends on the nature of
D the acts alleged or relied, gravity of the situation and the reason for the
delay. It is in that background only it can be said that causal connec-
tion is broken. The power to detain and the right to liberty must be
harmoniously balanced in the larger interest of the community.

Dula/ Roy v. The District Magistrate, Burdwan & Others [1975] l
E SCC 837 stressed that the scheme of section 3(1) (a) of the Mainte-
nance of Internal Security Act, 1971 presupposed that on the date of
the order of detention or in the near future the person sought to be
detained had or would have freedom of action. If a person therefore
was serving a long term of imprisonment or was in jail custody as an
undertrial and there was no immediate or early prospect of his being
F released on bail or otherwise, the authority could not legitimately be
satisfied on the basis of his past history or antecedents that he was
likely to indulge in similar prejudicial activities after his release in the
distant or indefinite future. To the similar effect are the observations
in Dr. Ramakrishna Rawat v. District Magistrate, Jabalpur and
Another. [1975] 4 SCC 164 at 167 and 169.
G
Mere service of detention order in jail per se is not bad.

In Vijay Narain Singh v. State of Bihar & Ors., [1984] 3 SCR 435 r
it was highlighted by two learned judges (0. Chinn~ppa Reddy & E.S. ·
Venkataramiah, JJ) of the three judges bench consisting of 0. Chin-
H nappa Reddy, A.P. Sen & E.S. Venkataramiah, JJ. that the law of
S.P. SAHU v. STATE OF MAHARASH1RA [MUKHARJI, J.] 863

preventive detention was a hard law and therefore should be strictly A
construed. Care should be taken that the liberty of the person was. not
jeopardized unless the case fell squarely within tlie four corners of the
relevant law. The law of preventive detention was not to be used
merely to clip the wings of the accused who was involved in a criminal
prosecution. Where a person was enlarged on bail by a competent
criminal court, great caution should be exercised in scrutinising the B
validity of an order of preventive detention which was treated on the
very same charge which was to be tried by the criminal court. The
Court was considering the expression 'habitual offender' under the
Bihar Control of Crimes Act, 1981.

Assuming the facts alleged to be right and there is a causal con- c
nection between the facts alleged and the purpose of dete.ntion and the
formation of the opinion is not mala fide, then the sufficiency of the
grounds and the truth of the grounds Is not germane. See the observa-
tions of this Court in The Barium Chemicals Ltd. & Anr. v. The Com-
pany Law Board and Others (1966] Supp. SCR 311at354 ~nd 363.
o:
It has to be borne in mind that having regard to the purpose of
the Act, the detaining authority must take into consideration rational,
proximate grounds and that should be the basis for the horoscope for
the future so as to determine whether the person proposed to be de-
tained comes within the mischief of the Act. If the person is in deten-
tion or is under trial and his conviction is unlikely but his conduct E
comes within the mischief of the Act then the authority is entitled to
take a rational view of the matter. The grounds must be there. The
decision must be bona fide.

In Prakash Chandra Mehta v. Commissioner and Secretary, Gov-
erfzment of Kera/a and Others (1985] Supp. SCC 144 it was noted that F
preventive detention unlike punitive detention which was to punish for
the wrong done, was to protect the society by preventing wrong being
done. Though such powers under those Acts must be very cautiously
exercised as not to undermine the fundamental freedoms guaranteed
to our people, the procedural safeguards are to ensure that yet these
must be looked at from a pragmatic and commonsense point of view. .G
An understanding between those who exercised powers and the people
over whom or in respect of whom such power is exercised is necessary.
The purpose of exercise of all such powers by the Government must be
( to promote common ·well-being and must be to suoserve the common
good. It is necessary to protect therefore the individual rights _insofar
as practicable which are not inconsistent with the security and well- H
864 SUPREME COURT REPORTS [1986) 3 S.C.R.

A being of the society. Observance of written law about the procedural
safeguards for the protection of the ·individual is normally the high
duty of public official but in all circumstances not the highest. The law
of self-preservation and protection of the country and nation~! security
may claim in certain circumstances higher priority.
B In Shiv Ratan Makim s/o Nandlal Makim v. Union of India and
Others [1986) 1 SCC 404 it was stressed that the jurisdiction to make
orders for preventive detention was different from that of judicial trial
in courts for offences and of judicial orders for prevention of offences.
Even unsuccessful judicial trial or proceeding would not operate as a
bar to a detention order or render it mala fide. A fortiori therefore the )
c mere fact that a criminal prosecution can be instituted cannot operate
as a bar against the making of an order of detention. If an order of
detention is made only in order to bypass a criminal prosecution which
may be irksome because of the inconvenience of proving guilt in a
court of law, it would certainly be an abuse of the power of preventive
detention and the order of detention would be bad. But if the object of
D making the order of detention was to prevent the commission in future
of activities injurious to the community, it would be a prefectly legiti-
mate exercise of power to make the order of detention. The court
would have to consider all the facts and circumstances of the case in
order to determine on which side of the line the order of detention
falls.
E
In view of the aforesaid principles that emerged, it is necessary to
consider the grounds and detem1ine whether there are causal connec-
tions. The fact that a man is not in jail per se would not be determina-
tive of the factor that order of peventive detention could not be passed
against him. The fact that a man was found not guilty in a criminal trial
F would not also be determinative of the factors alleged therein. All
these factors must be objectively considered and if there are causal
connections and if bona fide belief was formed then there was nothing
to prevent from serving an order of preventive detention even against
a person who was in jail custody if there is imminent possibility of his
being released and set at liberty if the detaining authority was duly
G satisfied.

Before us no substantial point was made of infraction of any
procedural safeguard engrafted in the Act. The documents relied on
were duly supplied. We have examined that question from the records
and materials available before us. Proper opportunity to make a rep-
H
S.P. SAHU v. STATE OF MAHARASHTRA IMUKHARJI, l .] 865

resentation was given and the representation made to the Advisory A
Board was duly considered by the Advisory Board. Their recommen-
dations were also duly considered by the State Government. In the
premises there is no substance in the grievance that the procedural
safeguards had not been followed. It further appears to us that there
was rational subjective satisfaction arrived at bona fide on the basis of B
the materials available to the detaining authority and the materials had
rational nexus with the purpose and object of the detention as contem-
plated by the Act.

Judged by. the standards laid down by various decisions men-
tioned hereinbefore and in view .of the fact that procedural safeguards
had been observed, we are of the opinion that there is no substance in c
the challenge made in the writ petition. We are further of the opinion
that the High Court was right in dismissing the writ petition before it.
Special leave application from the said decision therefore must fail and
the writ petition filed in this Court also fails for the reasons indicated
before.
D
A.P.J. Petitions dismissed .

•
(