BIRU MAHATO versus DISTRICT MAGISTRATE, DHANBAD.

Citation: [1983] 1 S.C.R. 584 · Decided: 15-10-1982 · Supreme Court of India · Bench: D.A. DESAI · Disposal: Appeal(s) allowed

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Judgment (excerpt)

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584 
BIRU MAHATO 
v. 
DISTRICT MAGISTRATE, DHANBAD. 
October 15, · 1982 
[D.A. DESAI AND R: B. MISRA, JJ.) 
NatioMI Security Act, 1980, Section 3(2) Scope of-Prevelltive detention of 
the detenu whose liberty has otherwise already been prevented by keeping in ]ail is 
impermissible under the N.S. Act-Non•awareness of the 
detaining. authority 
about the detenu's detention in jail would vitiate the order of detention on the 
ground of non-application of mind-Affidavit should be that of'the detaining 
authority who had the su~jective satisfaction of the detention. 
' 
Detenu Biru Mahato was arrested on January 13, 1982' on the allegation 
that he was involved in two incidents which occurred, first at S p.m. and the 
second at 5:30p.m. on January 12, 1982. In the first occurrence detenu and 
his associates were alleged to have committed offences under sections 341, 323 
and 506 of Indian Penal Code, as per the F.LR. 25(1)/82 at Bagmara Police 
Station. In the second case, F.I R. 24{1)/82 registered at the same police 
station, they were said to have committed offences under sections 307 and 323 
I.P.C. After his arrest the detenu was 
confined :. in 
prison. In 
respect 
of the 
first occurrence . bail -application 
was accepted, 
but in respect 
of the second occurrence the bail application was rejected by the District & 
Session Judge, Dhanbad on February S, 1982, on the ground that in exercise of 
powers conferred by sub section (2) read with sub section (3) of Section 3 of the. 
National Security Act, 1980, the detenu is detainec:l by the order of the District 
Magistrate so as to prevent him from acting in any _manner prejudical to the 
maintenance of public order and the bail application bas become infructuous, 
On February 1o, 1982, grounds of detention were served on the detenu in jail 
where he was already detained. The grounds of detention referred to the two 
incidents occurred on January 12, 1982. The detenu made a representation on 
February IS, 1982 which was rejected by the State Government on Februa~y 16, 
1982. The case of the detenu was referred to the Advisory Board and after 
-receipt of its report the State Goverii!llent confirmed the·order of detention. 
. 
-.....-/ Detenu preferred a petition for a writ of habeas corpus in the High Court 
at Patna which was dismissed in limine by a Division Bench of the High Court. 
Hence the appeal by special ieave and lhe writ petition. 
Allowing the appeal and the petition, the Court 
HELD : 1.1 
A preventive action postulates that if preventive step is not 
taken the pCTSOn sought tO be prevented may indulge into an activity prejudicial 
to the maintenance of public order. 
In other words, unlesa the activity is 
interdicted by a preventive detention order the activity which is being indulged 
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lliRU MAHATO V. DJSn. MAGISTRATE 
S85 
into' is likely to be repeated, This is the postulate of- _section 3 of the National 
Security Act. _ And this indubitably transpires from the language employed in 
sub section (2) which says that the detention order can be made with a view to 
preventing the person [sought to be detained from acting in any manner pre~ 
judicial to the maintenance of public order. If, it is shown that the man sought 
to be prevented by a preventive order is already effectiveiy prevented, the power 
under sub section (2) of Section 3, if exercised, would imply that one who is 
already prevented is sought to be further prev_ented, whicp is not the mandate 
· of tbe section~ and would appear tautologous. t5B8 C-E] 
... 
.1.2. The detaining authority before exerctsmg the power of preventive 
detention would take into consideration the~st conduct ot: antecedent history 
of the person and· as a matter offact it is largely from the prior events showing 
the tendencies or inclinations of a man that an inference could be drawn .whether 
he is likely even in the future to act in a manner prejudicial to ·the maintenance 
of public order. If the subjective satisfaction of th;e detaining authority leads 
. to tliis conclusion it can put an end to the activity by makitlg a preventive 
detention order. If the man is already detained a detaining a~thority cannot 
be said to have subjectively satisfied himself that a ,preventive detention order 
need be made. [588 E·H] 
Ujagar Singh v. Slalt of Punjab: Jagir Singh v. Stale ·of Punjab, [1952] 
SCR 756; Rameslewar Shaw v. District Magistrate, Burdwan and ·anoth

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