MAKHAN SINGH TARSIKKA versus THE STATE OF PUNJAB

Citation: [1964] 4 S.C.R. 932 · Decided: 11-10-1963 · Supreme Court of India · Bench: P.B. GAJENDRAGADKAR · Disposal: Appeal(s) allowed
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Judgment (excerpt)

1963 
Ramesh war 
Shaw 
v. 
Distrz'ct 
Magistrate, 
Burdwan & 
Anr. 
Gajendra-
gadkar /. 
1963 
October 11 
932 
SUPREME COURT REPORTS 
[1964] 
The result is, i:he petition succeeds and the order of 
detention passed against the petitioner by the District Ma-
gistrate, Burdwan, on the 9th February, 1963, is set aside. 
We direct that the petitioner should be released forth-
with. 
Petition aUowed. 
MAKHAN SINGH TARSIKKA 
•• 
THE STATE OF PUNJAB 
(P. B. GAJENDRAGADKAR, K. SuBBA RAo, K. N. WANCHOO, 
J. C. SHAH AND RAGHUBAR DAYAL JJ.) 
Defence of India Rules 1962, rr. 30(1), 30(1)(b)-Person in 
iail custody-Detention order, if can be served-Validity. 
On the 20th November, 1962, an order of detention was passed 
against the appellant under Rule 30(1)(b) of the Defence of India 
Rules, 1962. This order was served on the appellant on the 21st 
November, 1962, while he was in jail custody as an under-trial 
prisoner in connection with a criminal case pending against him. 
He \Vas arrested on the 25th October, 1962 in connection with the 
said criminal case and since then he was in jail custody. 
On the 
26th October, 1962, 
Emergency 
was 
declared by the President. 
Whilst the appellant was in jail custody, he was allowed to inter-
view his friends and about nine persons•interviev.·ed him between 
3rd November to the 19th November, 1962. It was alleged by the 
respondent that during these interviews, the appellant instigated the 
persons who saw him, to commit prejudicial activities. 
The a{>' 
pellant moved a writ petition in the High Court against the said 
detention order. 
The High Court dismissed the writ petition on 
the ground that the appellant had failed to make out a case that 
his detention was illegal. 
Held: (i) The decision in 
Rameshwar Shaw's case would 
be applicable to the present appeal, because the scheme of Rule 
30(1) is not radically different from the scheme of s. 3(l)(a) of 
the preventive Detention Act and does not affect the construction 
of Rule 30(l)(b) of the Rules. 
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4 S.C.R. 
SUPREME COURT REPORTS 
933 
Rameshwar Shaw v. 
District Magistrate, 
Burdhwan, [1964] 
~ S.C.R. 921 relied on. 
(ii) It is true that the nature and scope of the orders which 
can be validly passed under Rule 30(1) of the Defence of India 
Rules is very n1uch wider than the order of detention which alone 
can be made under s. 3( I) of the Preventive Detention Act. But 
the operative portion of Rule 30(1) 
is 
substantially similar to 
s. 3( 1) of the Act. 
(iii) Rule 30(1)(b), like s. 3(1)(a), of the Act clearly postu-
lates that an order can be; made under it only where it is shown 
that but for the imposition of the said detention, the person con~ 
cerned would be able to carry 
out a prejudicial activity of the 
character specified in Rule 30(1 ). On a 
plain 
construction of 
Rule 30(l)(b) it must be held that the order permitted by it can 
be served on a person who would be free otherwise to carry out 
his prejudicial activity. Such freedom cannot be predicated of the 
ap~llant in the present case because he was in jail at the relevant 
time. 
(iv) The service of a detention order on a person who is 
already in jail custody virtually seeks to effecniate what may be 
called 'a double detention' and sllch double detention is not intend-
ed either bys. 3(l)(a) orbyRule30(1)(b); it is plainlyunneces-
sary and outside the purview of both the provisions. 
( v) If the appropriate authority wants to detain a person under 
Rule 30(1)(b), it must be shown that when the order of detention 
is served on him, he was free to carry out his prejudicial activities 
and his prejudicial activities could be prevented only by his deten-
tion. 
Therefore, the service of the order of detention on the ap-
pellant whilst he was in jail custody was invalid. 
Emperor v. Mool Chand, A.I.R. 1948 All 288, inapplicable. 
Dayanand Modi v. State of Bihar, I.LR. 30 Pat. 630 and 
Meledath Bharathan Malyali v. Commissioner of Police, I.LR. 1950 
Born. 438, referred to. 
(v.i~ On principle, it would be ?ifficult to state as a general 
proposition that an 
o~d~r ?f. detention cannot be validly made 
against a person who 1s 1n 1a1l custody for the reason that investi-
gation_ is procee~ing in ~egard to an offence alleged to have been 
committed by him. Thts Court has 
held in Rameshwar Shaw 
that as an abstract proposition of law an order of detention can be 
validl~ made. against a person in jail custody. 
Whether or not 
~e said mak1_ng
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