T.P. Mukherji, J.
1. This application under Section 491 of the Criminal Procedure Code has been filed by the petitioner Kanai Pal on behalf of Kartick Chandra Nag against whom the District Magistrate of Nadia made an order under Section 3 (2) of the Preventive Detention Act on November 27, 1967. The purpose behind the order for detention was to prevent the detenu from acting in a manner prejudicial to the maintenance of public order. Three specific grounds are mentioned in the order of the District Magistrate disclosing the course of conduct of the detenu which according to him was prejudicial to the maintenance of public order and which justified his detention under the Act.
2. The learned Advocate appearing for the petitioner on behalf of the detenu has raised two arguments against the validity of the order of the District Magistrate. The first ground is that the detention is unjustified inasmuch as the order and the grounds were served on the detenu while he was in Jail custody to connection with a criminal case. The second argument is that the order is mala fide.
3. In support of the first contention reliance is placed on the case of Rameshwar Shaw v. District Magistrate of Burdwan, : 1964CriLJ257 , and Makhan Singh v. State of Punjab, AIR 1964 SC 3120. These two cases no doubt laid down the principle that an order for detention on the ground of maintenance of public order cannot be served while the detenu is in jail custody in connection with some other case. According to those decisions the detention would be unjustified because the man is already in custody and such custody denies him freedom of action which is essential to permit of indulgence in unlawful activities. These two cases were further considered in Godavari Shamrao v. State of Maharashtra, : 1964CriLJ222 and in Gopi Ram v. State of Rajasthan, : 1967CriLJ279 .
4. In Godavari's case, : 1964CriLJ222 (supra) the detenus were served with orders of detention under the Preventive Detention Act and were taken into custody. Within three days the order of detention was cancelled and fresh orders under the D. I. Rules were served on them in jail and it was the validity of detention under the later order which was agitated before the Supreme Court. The Supreme Court considered Rameshwar's case, : 1964CriLJ257 and Makhan Singh's case, AIR 1964 SC 3120 in both of which the detenus concerned were served with orders of detention while they were in custody as under-trial prisoners in connection with specific criminal cases and held that the principle of those cases will apply where the detenu was in jail as an under-trial prisoner and the period of his custody as such was indeterminate or where he was in jail as a convicted prisoner and the period of his sentence has still to run for sometime but would not apply where a fresh order of detention is made after the cancellation or revocation of an earlier order of detention. Releasing from custody on cancellation or revocation of the earlier order and taking him into custody at the jail gate on service of the fresh order would mean an empty formality. The detention in the case was held to be quite valid.
5. In Gopi Ram's case, : 1967CriLJ279 a detenu was released on cancellation of his order of detention because of some defect therein. That was on January 21, 1965. Immediately thereafter he was re-arrested in connection with a criminal case and a fresh order of detention was served on him on January 23, 1965. It was the validity of his detention under the fresh order which came up for the decision of the Supreme Court.
6. The Supreme Court noted their decisions in Rameshwar's case and Makhan Singh's case, : 1964CriLJ269 and how they were distinguished in Godavari's case, : 1964CriLJ222 on the ground that the principle laid down in them may apply to a case where the person against whom the order of detention is made is either an under-trial prisoner or a convicted prisoner whose period of imprisonment has still to run for some time and further approved the observation in Godavari's case, : 1964CriLJ222 that the principle of the two earlier cases above would not apply to a case where a fresh order of detention is made on cancellation or revocation of an earlier order of detention. It held that
'the validity of an order of detention does not necessarily depend upon whether the order was served on him when he was or was not in jail custody. All the surrounding circumstances have to be borne in mind for deciding whether the order is or is not valid,'
7. The legal position as enunciated above is that a proposition that an order for detention cannot be served in jail while the detenu is in jail custody in connection with a criminal case, is not good as an absolute proposition of law. All the attendant circumstances involved in a case have to be considered in finding whether such service is legal and whether the detention on the strength of an order so served on the detenu in jail is justified or not.
8. So far as the present case is concerned, it is not in dispute that although the detenu was in jail at the time the order was served upon him there was an order for bail in the criminal case with the result that any moment the detenu could have furnished bail and left the jail custody. This is a circumstance which is liable to be taken into account for the purpose of determining the validity of the service of the order for detention of the petitioner and for determining whether the detention is justified or not. In view of the admitted position that there was an order for bail in favour of the detenu in the criminal case at the time the present order for detention was served on him, we cannot find that the service was invalid or that his detention on the basis of that order is not justified.
9. On the question of mala fides apart from urging some extraneous matters regarding the political affiliations of the detenu and the character of the ministry in office at the time the order was made in this case nothing is urged in relation to the grounds that are the basis of the order for detention. We cannot find that that has any relevance to the point at issue. It is not the petitioner's case that the grounds alleged in justification of the necessity for detention are non-existent or vague or that they have no relation to the purpose of the detention or that the alleged prejudicial acts of the detenu have no proximity in time to the date of the order. If that be so, the satisfaction of the detaining authority on the basis of those grounds is not liable to be questioned.
10. In view of the above, we find that the petitioner has been detained under due process of law.
11. The Rule stands discharged.
R.N. Dutt, J.
12. I agree.