DULAL ROY versus THE DISTRICT MAGISTRATE, BURDWAN AND ORS.

Citation: [1975] 3 S.C.R. 186 · Decided: 15-01-1975 · Supreme Court of India · Bench: V.R. KRISHNA IYER · Disposal: Case Allowed

Cited by 3 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

18 6 
DULAI. ROY 
A 
v. 
THE DISTRICT MAGISTRATE, BURDWAN AND ORS. 
January 15, 1975 
[V. R. KRISHNA IYER AND R. S. SARKARIA, JJ.] 
Maintenance of l11ternal Security Act, 1971. Section 3-Passing of order 
• B 
of detemion dn the same facts while petitioner was in custody as an under-
trial-Arrest and dete11tion of 
petitioner as soon as he 
was discharged-
Detention, if illegal. 
In connection with two incidents of theft, two cases, one on 21-7-72 and 
the other on 1-8-72, under sec. 379, Penal Code, were registered with the 
police. The petitioner was not named in the F.l.R. 
His complicity was 
detected in the course of investig'ation.. 
He was consequently arrested on 
3-8-72 and· sent up before the Judicial 
Magistrate. On 21~8-72 when 
the 
C 
petitioner was in custody as an undertria\, and order of detention was made by 
the District Magistrate, the respondent, under Sec. 3 of the Maintenance of Int~r-
nal Security Act, 1971, with a ".icw to preventing him from acting in any manner 
prejudicial to the maintenance of supplies and services essential to the commodity. 
After further investigation, the police submitted a final report and 1he peti-
tioner was discharged in both the cases on 3-9-72. ·on the sal):l.e day,, he was 
taken into custody pursuant to the order of detention which is impugned in 
the writ petition instituted by him on a letter dated August 24, 1974, from 
D 
the jail. 
It was contended that the order of detention has been made to subvert 
the process of ordinary penal law, as a colourable exercise or jurisdiction and 
was, therefore illegal. 
Accepting the contention and making the rule absolute, 
HELD : 
While it .is true, as an abstract legal proposition that an order 
of preven1ive detention under .the Act may be validly pasSed against a person 
in jail c.ustody on the same f<!_cts on which he is being prosecuted for a subs-
tantive offence in a court, such an prder of detention is more easily vulner-
able-than the one against a person not in such custody-to the charge that 
without there being any basis whatever for the satisfaction of the detaining 
authority, which is a. condition precedent for taking action under s. 3 
the 
power has been misused as a cloak solely for the purpose of puni:;hing the 
detenu for the substantive offence for which he was being prosecuted 
by 
subverting and circumventing the penal Jaw and irksome court procedure. To 
make the di:tention order immune against such an attack, the detaining autho-
rity in its counter-allidavit must particularise all the material circumstances 
on the basi5 of which he was satisfied as to the ne~ssity of the preventive 
action despite the detenu being already in jail custody and having no free-
dom of action on ·the date of the detention order. Jn the present cas1~ this bas 
not be~n done. 
No counter.affidavit bas been filed by the person who had 
made the impugned order. Even the 
Deputy Secretary who has :filed 
the 
counter aft~r gathering some information from the record docs not disclose 
all the material facts from which it would be rationally 
possible 
for 
the 
detaining authority to predi'catc that if the impugned order was not 
made 
against the petitioner, though in judicial custody, he could be able to indulge 
in the prejudicial activities indicated in the impugned order. There is no 
avertment v1hatever that the charges against the petitioner were tru'e but the 
evidence cojlected against the netitioner was deficient, or, for reason other than 
the charge being groundless, the prosecution of the petitioner for substantive 
offences was foredoomed to failu_re. 
The circumstances in which the petitioner 
was discharged by the Judicial Magistrate have not been set out. A bare 
statement that a "final report" was submitted by the Police is neither here nor 
there. The counter-affidavit is silent with regard to the nature of this police 
report and the situation in which the petitioner was discharged. It does not 
say whether this repqrt had reference to deficiency or sufficiency of\evidence 
or groundlessness of the charge against the petitioner. 
[189E-H; J90R-B] 
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F 
G 
H 
I 
I 
A 
B 
c 
DULAL ROY v. DIST. MAGISTRATE (Sarkaria, !.) 
187 
The grounds of detention relate to two incidents of theft simpliciter in 
respect of which the petitioner could easily be prosecuted utider the penal law. 
J ~1 the absence of any explanation or apparent reason as to why his prosecu-
tion .for the substantiv~ offences resulted in

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