Case Note & Summary
The Supreme Court of India heard an appeal by special leave against the dismissal of a habeas corpus petition by the Punjab High Court. The appellant, Makhan Singh Tarsikka, challenged his detention under Rule 30(1)(b) of the Defence of India Rules, 1962. He was arrested on 25 October 1962 in connection with a criminal case alleging offences under Sections 307, 324, 364 and 367 of the Indian Penal Code and remained in jail custody. On 26 October 1962, the President declared an Emergency. While in jail, the appellant was allowed nine interviews with friends between 3 November and 19 November 1962. The respondent State alleged that during these interviews, the appellant instigated persons to commit prejudicial activities. On 20 November 1962, an order of detention was passed against the appellant under Rule 30(1)(b) of the Defence of India Rules, 1962, and it was served on him on 21 November 1962 while he was still in jail custody. The detention order stated that he was indulging in activities prejudicial to the Defence of India and Civil Defence by making propaganda against joining the armed and civil defence forces and by urging people not to contribute to the National Defence Fund. The appellant filed a writ petition in the Punjab High Court on 9 February 1963, challenging the detention on grounds that the allegations were vague, concocted and false, and that his political activities had caused enmity among ruling high-ups. He also argued that since a criminal case under Section 307 IPC was pending, detention under Rule 30(1)(b) was not permissible. The High Court dismissed the petition on 26 March 1963, holding that the appellant failed to make out a case of illegal detention. In the Supreme Court, the appellant contended that the service of the detention order on a person already in jail custody was invalid, relying on Rameshwar Shaw v. District Magistrate, Burdwan. The Court held that the material words of Section 3(1) of the Preventive Detention Act, 1960 and Rule 30(1) of the Defence of India Rules, 1962 were substantially the same. It held that an order of detention under Rule 30(1)(b) postulates that the person sought to be detained would be free to act in a prejudicial manner if not detained. Since the appellant was in jail custody at the time of service, he could not be said to be free, and service of the order amounted to double detention, which was unnecessary and outside the purview of the provision. The Court distinguished between the making of an order against a person in jail and its service, holding that while making such an order is not per se invalid, its validity depends on the facts and circumstances of each case, particularly the proximity of time. In the present case, the making of the order was not invalid, but its service was invalid. The Court also declined to entertain the plea of malafide raised for the first time in special leave petition, as it required proper pleadings at the trial stage. Accordingly, the Supreme Court allowed the appeal, set aside the detention order, and ordered the appellant to be released.
Headnote
A) Preventive Detention - Service of Detention Order on Person in Jail - Rule 30(1)(b) Defence of India Rules, 1962; Section 3(1)(a) Preventive Detention Act, 1960 - An order of detention can be validly served only on a person who is free to carry out prejudicial activities; service on a person already in jail custody constitutes invalid double detention not contemplated by the provisions. The appellant was arrested on 25-10-1962 and remained in jail; the detention order was served on 21-11-1962 while he was in judicial custody. The Supreme Court held that because the appellant was not free to act, the service was outside the purview of Rule 30(1)(b). Held that the service of the detention order on the appellant whilst he was in jail custody was invalid and the order was set aside (Paras 1-10). B) Preventive Detention - Making of Detention Order Against Person in Jail - Rule 30(1)(b) Defence of India Rules, 1962 - As an abstract proposition, an order of detention can be validly made against a person in jail custody; validity depends on facts including proximity of time and circumstances. The Court distinguished between making an order and serving it; in Rameshwar Shaw the order was set aside not because making was invalid but because service was invalid while in jail. In the present case the making was not invalid. Held that the making of the order was not invalid, but service was invalid (Paras 1-10). C) Preventive Detention - Double Detention - Rule 30(1)(b) Defence of India Rules, 1962 - Service of detention order on a person already in jail custody amounts to double detention, which is unnecessary and outside the scope of the provision. The purpose is to prevent prejudicial activity by depriving freedom, but a person in jail lacks such freedom already. Held that the service of the order was invalid as constituting double detention (Paras 1-10). D) Criminal Procedure - Plea of Malafide - Not raised at trial - Plea of malafide cannot be permitted to be raised for first time in special leave petition; must be made by proper pleadings at trial stage so that respondent has opportunity to meet. The appellant attempted to raise malafides in the Supreme Court. Held that the plea could not be entertained (Paras 1-10).
Issue of Consideration
Whether the service of a detention order under Rule 30(1)(b) of the Defence of India Rules, 1962 on a person already in jail custody is valid; whether the order of detention itself was invalid when made against a person in jail; whether a plea of malafide can be raised for the first time in a special leave petition.
Final Decision
The Supreme Court allowed the appeal, set aside the detention order, and ordered the appellant to be released. It held that service of the detention order on a person already in jail custody was invalid and outside the scope of Rule 30(1)(b) of the Defence of India Rules, 1962, as it amounted to double detention. The making of the order was not invalid, but the service was invalid. Plea of malafide was not entertained.
Law Points
- An order of detention under Rule 30(1)(b) of the Defence of India Rules
- 1962 can only be served on a person free to carry out prejudicial activities
- service on a person already in jail custody is invalid as double detention
- making of an order against a person in jail is not per se invalid but depends on facts
- plea of malafide must be raised at trial stage with proper pleadings
