bengal 1972 2 scc 550 godavari shamrao parulekar v. state
of maharashtra others 1964 6 scr 446 gopi ram v. state
of rajasthan air 1967 sc 241 masood alam etc. v. union of
india and others 1973 1 scc 551 dulal roy v. the district
magistrate burdwan others 1975 1 scc 837 dr.
ramakrishna rawat v. district magistrate jabalpur and
anumberher 1975 4 scc 164 at 167 and 169 the barium
chemicals limited anr. v. the companypany law board and others
1966 supp. scr 311 at 354 and 363 prakash chandra mehta

commissioner and secretary government of kerala and
others 1985 supp. scc 144 and shiv ratan makim s o.
nandlal makim v. union of india and others 1986 1 scc 404
considered. original criminal appellate jurisdiction writ petition
 criminal  number 296 of 1986.
under article 32 of the companystitution of india. with
special leave petition  criminal  number 1265 of 1986
from the the judgment and order dated 27.2.1986 of the
bombay high companyrt in crl. writ petition number 1 of 1986.

k. garg and sunil k. jain for the petitioner. b. bhasme a.s. bhasme and a.k. khanwilkar for the
respondents. the judgment of the companyrt was delivered by
sabyasachi mukharji j. writ petition number 296 of 1986
and sepcial leave petition  criminal  number 1265 of 1986 are
connected and relate to an order of detention of one rampal
sahu dated 16th december 1985 under section 3 2  of the
national security act 1980  hereinafter called the said
act . these are dealt with by this judgment. the said rampal sahu  hereinafter called the detenu
was detained by the aforesaid order which was served on him
on 17th december 1985 with the grounds of detention. according to the writ petition as well as the special leave
petition the grounds of detention served on the detenu did
number disclose any violation of the essential companymodities act
or essential services maintenance act. in the premises it is
the companytention of the petitioner that the detention was
illegal and unconstitutional. the state of maharashtra
approved the detention on 24th december 1985.
the detention order as mentioned hereinbefore was under
section 3 2  of the said act. the detenu was arrested on
17th december 1985 and the grounds of detention were served
on the same day. the order alleged inter alia that since
the year 1979 the detenu had been companytinuously engaging
himself in companymitting acts prejudicial to the maintenance of
supplies and services essential to the companymunity i.e. removing of permanent way material stocked along rail lines
for
maintenance of rail tracks removing parts of carriages
wagons and signal telecommunication materials utilised for
repair of railway wagons and maintenance of singnals. it was
further alleged that the said detenu used to arrange to
remove railway property with the help of his gang and
stock the same in his godown himself remaining behind the
scene. it was alleged that in a number of cases railway
properties were loaded and carried away in truck number mhg
6302 which was owned by the detenu. it was stated that he
was indulging in removing railway material which was stocked
along the rail tracks for the maintenance of the tracks
thus the work of maintenance of the tracks was hampered and
quick movement of the wagons loaded with essential
commodities such as food-grains arms ammunition required
by the general public and the armed forces companyld number be
made. such acts were prejudicial according to the order of
detention to the maintenance of supplies and services
essential to the companymunity. the grounds further indicated six different cases. the
case numbers were

p.s. deori crime number 69/83 u s 379 34 i.p.c. decided by the j.m.f.c. sakoli vide c.c. number
50/84. r.p.e. post ajni crime number 20/84 u s 3 r.p.  up  act 1966 an appeal u s 378 of the companye of
criminal procedure is being filed in the high
court against the order of aquittal dated 24/5/85
passed by the j.m.f.c. railway companyrt nagpur vide

c. number 362/84. r.p.f. post ajni crime number 43/84 u s 3 rp  up
act 1966 pending trial before the j.m.f.c.  rly. . nagpur vide c.c. number 153/85. p.s. kamptee crime number 195/84 u s 379 411 34

p.c. pending trial before the j.m.f.c. viii
court nagpur vide c.c. number 200/84. p.s. kamptee crime number 53/85 u s 379 34 ipc
under investigation. r.p.f. post ajni crime number 41/85 u s 3 rp up
act pending trial before the j.m.f.c.  rly.  companyrt nagpur vide c.c. number 212/85. the incident in the first case was alleged to have
taken place on 26th december 1983. it was alleged that a
truck bearing registration number mhg 6302 was standing near
the iron bridge on the national highway and some thieves
were trying to cut the steel girders meant for companystructing
road bridge for removing the same. other particulars were
named therein and the names of two persons were also
mentioned. there was some stealing. the stolen property
including steel girders and the truck mentioned above were
seized. it appears that the truck was owned by the detenu. the detenu was arrested on 26th february 1984 and the
aforesaid two persons were companyvicted under section 379 read
with section 34 i.p.c. the detenu however was acquitted. in the second case report had been received that some
railway material including 32 lbs. cst 9 plates and tie bars
were stolen from the railway track in between borkhedi and
sindi railway stations by a gang of culprits who threatended
the witness i.e. the chowkidar on duty and took away the
railway property in a matador. during enquiry into the above
complaint it transpired that the stolen property was
unlawfully kept by the detenu in his godown at nagpur and a
search warrant was obtained and the stolen railway property
valued at rs.25000 was recovered from the godown of the
detenu on 19th june 1984. the detenu was acquitted by the
magistrate but an appeal had been preferred in the high
court of nagpur and the same was pending when the detention
order was passed. it was further stated that the permanent
way material was essential for the maintenance of the
railway tracks and the safety of the travelling public. it
was numbermally kept at secure places near the track for ready
availability for replacing the broken or unserviceable
material in the track. the trains were required to be
detained as a result of theft causing loss to the government
and there was delay in making supplies to the public. it was
further alleged that as many as 28 wagons were marked sick
for repairs and were sent to ajni workshop for repairs for
want of the required spare parts which were seized from the
unlawful possession of the detenu. according to the order of
detention as a result the government and public indents of
wagons totalling 792 companyld number be cleared for loading
different companymodities to be supplied in various parts of the
country. in case number 3 a report had been received that at a
particular point between buti bori umrer section at some
km. near the railway crossing gate 400 fish plates were
stolen. the enquiry had revealed that the stolen property
was unlawfully obtained and kept by
the detenu at certain place at nagpur. a search warrant was
obtained and 400 fish plates and carriage and wagon parts
were recovered from the godown of the detenu. in the
premises the detenu was arrested on 14th december 1984 and
the aforesaid case i.e. third case was pending on the date
of the order of detention. it is the case of the government
that due to the unlawful possession of the railway property
by the detenu as many as ten wagons had to be marked sick
and companyld number be made available to the public and the
government for loading different essential companymodities to be
supplied in different parts of the companyntry in the month of
december 1984. as a result of this as many as 3224 indents
put up by the government and the public for the supply of
wagons companyld number be cleared due to shortage of empty wagons. the fourth case related to an offence under section 379

p.c. which was registered against the detenu under
sections 379 411 and 34 i.p.c. and was pending trial in
nagpur. the companyplaint was to the effect that 128 cst-9
plates were stolen from five points between kamptee
kalmana railway line and these were valued at rs.4608. the
property was loaded in truck bearing number mhg 6302 owned by
the detenu. the truck driver was arrested and the property
was recovered from the godown of the detenu at the instance
of the driver. the detenu was arrested in companynection with
this case on 3rd december 1984 and the case was pending on
the date of the issue of the detention order. regarding the fifth case it may be mentioned that an
offence was alleged to have been companymitted by the detenu
under section 379 read with section 34 i.p.c. on the
complaint of certain person who was working as a manager of
the jamshedpur transport companyporation nagpur. it was
reported that three bundles of aluminium wire weighing about
500 kgs. valued at rs.160000 were stolen by some unknumbern
criminals on 21st march 1985. during investigation it was
disclosed that the culprits belonged to the gang of the
detenu and that they had threatened the chowkidars on duty
and forcibly removed the aluminium wire bundles. it was
stated in the detention order that the detenu was the main
brain behind this big daring robbery and he used his truck
bearing number mhg 6302 for transporting the stolen property. the detenu anticipating arrest moved the companyrt and obtained
anticipatory bail with a view to avoid arrest by the police. the case was pending investigation. it was further stated
that the aluminium wire which was stolen was meant for the
use of various public and govt. departments and due to
aforesaid criminal activity as indicated above the supply of
the wire companyld number be maintained as it was broken into
pieces and made unserviceable. in respect of the sixth case it was further alleged
that on receiving information that 90 lbs rails 31 meters
long were received and kept unlawfully by the detenu in his
godown at nagpur the inspector of the c.i.b. and railway
protection force raided the godown on 22nd may 1985 and
seized 90 lbs. rails about 30 meters long break and some
new steel sleepers and other materials. the stolen property
was worth rs.20000. the detenu was arrested in this case on
22nd may 1985. the case was pending trial on the date of
the issue of the detention order in nagpur. it is the case
of the detaining authority that due to this unlawful
possession of break-locks by the detenu four wagons were
marked sick and had to be sent to the railway carriage and
wagon workshop at ajni for repair as a result was indents
put up to the railway administration by the public and the
government to provide the empty wagons for supply of the
different companymodities in the different parts of companyntry
could number be companyplied with. in the backdrop of the aforesaid grounds it was further
stated that the activities of the detenu were prejudicial to
the maintenance of supplies and services essential to the
community. it was further alleged that each of the grounds
indicated above individually and companylectively was number only
germane but also sufficient to satisfy the detaining
authority with a view of preventing the detenu from acting
in any manner prejudicial to the maintenance of supplies and
services essential to the companymunity and as such it was
necessary to detain him. it was further stated that these
grounds were companymunicated to the detenu under setion 8 of
the aforesaid act read with article 22 5  of the
constitution of india upon which the detention order had
been made. companyies of the documents mentioned in the said
order which were placed before the detaining authority were
enclosed with the detention order sent to the detenu. he was
further informed that he had a right to make a
representation to the state government against the order of
detention and would be afforded the earliest opportunity to
make such a representation. he was further informed that he
should address it in the manner indicated therein. he was
informed that the state government would within three weeks
from the date of detention of the detenu make a reference to
and place the requisite material before the advisory board
constituted under section 9 of the said act and asking them
to make a report of detention within seven weeks. he was
informed that he had a right to make the representation to
the advisory board and if
he wanted he would be heard in person by the advisory board
in the companyrse if it found it necessary. in this petition under article 32 of the companystitution
it is the case of the petitioner on behalf of the detenu
that the grounds of detention were vague irrelevant and
number-existent. it was further urged on behalf of the
petitioners that the grounds of detention on which the
detenu was detained relating to as far back as 1979. it was
number open to the detaining authority to order detention of
the detenu on the said grounds. it was highlighted that in
respect of alleged grounds criminal cases were pending
against the detenu and he had been enlarged on bail. it was
submitted that when a judicial authority was satisfied on
the materials placed before it that there were numbergrounds
for keeping the detenu in detention on the same materials
the executive authority namely the detaining authority
could number substitute the judicial judgment and order
detention to prevent the detenu from acting in a manner
prejudicial to the interest of the companymunity. it was submitted by mr. garg on behalf of the detenu
that in this case in view of the fact that the detenu was on
bail the power of preventive detention was being used to
defeat the provisions of the companye of criminal procedure and
ordinary numbermal procedure. it was further the submission of
mr. garg that the alleged grounds were merely allegations of
ordinary criminal cases which either had ended in acquittal
or in respect of which appeals were pending or were pending
determination and as such the formation of the belief by the
detaining authority for the detention order was merely on
surmises and on materials which the detaining authority was
number companypetent to take numbere of. with reference to the various
pending cases it was submitted on behalf of the detenu that
these criminal cases did number disclose any activity of the
detenu prejudicial to the maintenance of supplies and
services essential to the companymunity. the companynection of the
detenu with the alleged offences was number there and as such
the satisfaction companyld number be there of the detaining
authority. the detenu according to the petitioner was in no
manner companynected with the alleged theft companymitted by certain
named persons and though the onwership of the truck
attributed to the detenu was number denied or disputed but the
involvement of the detenu did number follow from that fact it
was submitted on behalf of the detenu. it is further the case on behalf of the detenu and the
submission of mr. garg that it was number open to the detaining
authority to use the allegations of the criminal cases to
justify preventive detention. it
was further his submission that these did number establish
proximate relation either with the maintenance of supplies
or services essential to the life of the companymunity number did
these involve any violation of relevant laws made by the
parliament dealing with the maintenance of supplies of
essential companymodities or maintenance of essential services. it is the case on behalf of the detenu that preventive
detention is numbersubstitute for detention under the ordinary
criminal law. according to the petitioner there was no
allegation against the detenu of any violation of essential
commodities act or any provision of the maintenance of
essential services act. the grounds mentioned were cases of
ordinary theft and should have been proceeded against under
the ordinary law of crimes. the detenu was released on bail. the companynection of the detenu with the removal of fish plates
for the supply of wagons was too remote to be any basis of
satisfaction. in fourth case the detenu was on bail and
detenu companyld number be kept under preventive detnetion in
derogation of his liberty granted by bail by the appropriate
judicial authority. regarding the fifth case the detenu had
already been granted anticipatory bail. the order of the
court companyld number be defeated by keeping the detenu in
preventive detention it was submitted by mr. garg. it was
urged that requisite satisfaction required under section
3 2  of the said act was number in fact formed and companyld number
have been formed on the grounds alleged number was there any
rational companynection for the formation of such satisfaction. the alleged incidents were denied and it was further
submitted that if at all mere infractions of ordinary law
could number fall in the category of public order or violation
of any law indicated to the maintenance of supply or
essential services. it was open to justify the order of
detention even if one or more of the six grounds were found
to be relevant. the documents further did number disclose
factual companynection with the alleged offences. numberstatement
of the witnesses had been supplied except one related in
ground number 5 it was urged in the petition. it was further submitted that the provisions of act 7
of 1980 being prevention of blackmarketing and maintenance
of supplies of essential companymodities act 1980 companyld perhaps
have application and in view of explanation to section 3 2
of the act the impugned order was bad. our attention was
drawn to the provisions of the said act of 1980. section
3 1  and  2  of the said act reads as follows
power to make orders detaining certain persons-

the central government or a state government
or any officer of the central government number
below the rank of a joint secretary to that
government specially
empowered for the purposes of this section by that
government or any officer of a state government
number below the rank of a secretary to that
government specially empowered for the purposes of
this section by that government may if
satisfied with respect to any person that with a
view to preventing him from acting in any manner
prejudicial to the maintenance of supplies of
commodities essential to the companymunity it is
necessary so to do make an order directing that
such person be detained. explanation-for the purposes of this sub-section
the expression acting in any manner prejudicial
to the maintenance of supplies of companymodities
essential to the companymunity means-
 a  companymitting or instigating any person to companymit
any offence punishable under the essential
commodities act 1955  10 of 1955  or under any
other law for the time being in force relating to
the companytrol of the production supply or
distribution of or trade and companymerce in any
commodity essential to the companymunity or
 b  dealing in any companymodity-

which is an essential companymodity as
defined in the essential companymodities act
1955  10 of 1955  or

with respect to which provisions have
been made in any such other law as is
referred to in clause  a
with a view to making gain in any manner which may
directly or indirectly defeat or tend to defeat
the provisions of that act or other law aforesaid. any of the following officers namely

district magistrates

commissions of police wherever they have
been appointed
may also if satisfied as provided in sub-section
 1  exercise the powers companyferred by the said
sub-section. in answer to the petition in the affidavit of the
opposition filed on behalf of the respondent it was stated
that the detenu rampal sahu was detained and a reference had
been duly made under section 10 of the said act to the
advisory board. the detenu was interviewed by the advisory
board on 29th january 1986 and the board had submitted its
report under section 12 1  of the said act on 3rd february
1986 which had been received by the department on the same
day. as such the report of the advisory board was received
by the government within the stipulated period of seven
weeks from the date of detention as required by the law. the detenu had submitted his representation dated 8th
january 1986 to the advisory board which was companysidered by
the board at the time of his interview before the board on
29th january 1986. the said representation was received by
the home department along with the report of the advisory
board and was companysidered together with the report of the
advisory board by government and the detention order was
confirmed by the government order. all procedural safeguards
of law were duly followed. there was numberbreach of the same. it is number necessary to reiterate the affidavit in reply. as has been mentioned hereinbefore on the same facts
the petition under article 226 had been filed in the high
court at nagpur. the said application was dismissed by a
division bench of the high companyrt on 27th february 1986. the
petitioner has companye up from the said decision which is the
next matter being special leave petition number 1265 of 1986
and same will be disposed of by this judgment. the high companyrt in its judgment referred to the grounds. it reiterated that permanent way material is essential to
the maintenance of railway track and safety of the railway
travelling public. after referring to the various grounds
referred to hereinbefore the high companyrt has numbered that
three points were urged before it on behalf of the detenu
namely  1  the order was mala fide  2  there was total
absence of material and  3  in any event the provisions of
the prevention of black-marketing and maintenance of
supplies of essential companymodities act 1980 being act of
1980 would be attracted. the high companyrt referred to the
affidavits of the companymissioner of police who passed the
detention order which was filed in the high companyrt and found
that there were good grounds for detention and it was number
possible to hold that there were numbergrounds of detention
relevant for the act. the high companyrt referred to the expression acting in
any manner prejudicial to the maintenance of supplies of
commodities essential to the companymunity as mentioned in
explanation to section 3 of the prevention of black
marketing and maintenance of supplies of essential
commodities act 1980. the high companyrt was of the view that
it was clear that only national security act was attracted
in the facts and circumstances of this case. in view of the explanation to section 3 of act 7 of
1980 it appears acting in any manner prejudicial to the
maintenance of supplies of companymodities essential to the
community has certain particular companynumberation. but in the
instant case the act under companysideration the companyduct of the
detenu was prejudicial to the maintenance of supplies and
services essential to the companymunity in general as
contemplated by section 3 2  and number in any particular mode
contemplated by explanation to section 3 1  of act 7 of 1980
and as such is number excluded by the explanation to sub-
section  2  of section 3 of the act. in the premises we are
therefore of the opinion that the high companyrt was right in
the view it took on this aspect of the matter. we are also
of the opinion that for the same reason the same
contentions urged before us in support of the writ petition
cannumber be sustained. as mentioned hereinbefore before the high companyrt also
the insertion of section 5a of the act by the national
security  second amendment  act 1984 was challenged under
which even the existence of one ground is sufficient. before
us numberground was canvassed about the validity of the said
amendment and inclusion of section 5a of the act. it must therefore be held that even the existence of
one ground was sufficient to sustain the detention order. mr. garg drew our attention to certain observations of
chagla c.j. in a full bench decision of the high companyrt of
bombay in maledath bharathan malyali v. the companymissioner of
police air 1950 bombay 202. that was a case under the bombay
public security measure act being act number 6 of 1947. there
was an order of detention under section 2 a1  of the act for
the companylateral purpose. it was held that when the detaining
authority had made up his mind to detain a person who was
alleged to have companymitted an offence then the detaining
authority had made his choice and it would number be
permissible according to that decision for him to
investigate the offence while still keeping the person under
detention and number companyplying with the provi-
sions of the law with regard to investigation. if the
purpose of detaining a person was a companylateral purpose i.e. to deprive him of his rights and safeguards under the
criminal procedure companye and to carry on an investigation
without the supervision of the companyrt then the detention was
mala fide and companyld number be justified. chagla c.j. at page
203 speaking for the full bench observed that an order of
detention under the security act companyld only be justified in
a companyrt of law provided it was made bona fide and order of
detention companyld number be made for an ulterior motive or for a
collateral purpose. the detaining authority it was further
observed must only companysider the objects for which the act
was passed and the only companysideration which must weigh with
the detaining authority was public safety maintenance of
public order and the preservation of peace and tranquility
in the province of bombay. if in making the order his mind
was influenced by any companysideration extraneous to the act
then the order would be bad and companyld number be upheld. the
question that the companyrt had to companysider in that case was
whether in making the order the companymisioner of police was
influenced by any companylateral purpose and whether any
extraneous factor had weighed on his mind when he made the
order. when we speak of an order being made mala fide it
did number mean that the companyrt attributed to the detaining
authority any improper motive. an order is mala fide when there is malice in law
although there is numbermalice in fact. the malice in law is to
be inferred when an order is made companytrary to the objects
and purposes of the act. whether in any particular case this
is so or number must depend upon the facts and circumstances of
the case. the fact that the person sought to be detained is
in fact under detention is a relevant and material factor
but the allegations or the incidents leading to his
detention have also to be borne in mind and companyrelated to
the object of a particular act under which preventive
detention is companytemplated. in the instant case the act was
the national security act 1980. it was an act to provide
for preventive detention in certain cases and for matters
connected therewith. power has been given under section 3
authorising preventive detention of any person from acting
in any manner prejudicial to the defence of india the
relations of india with foreign powers and of the security
of india. sub-section  2  of section 3 provides that the
central government or the state government might if
satisfied with respect to any person that with a view to
preventing him from acting in any manner prejudicial to the
security of the state or from acting in any manner
prejudicial to the maintenance of public order or from
acting in any manner prejudicial to the maintenance of
supplies and services essential to the companymunity it was
necessary so to do make an order
directing that such person be detained then the same can be
done  emphasis supplied . the explanation to this sub-
section makes it clear that the expression acting in any
manner prejudicial to the maintenance of supplies and
services essential to the companymunity does number include
acting in any manner prejudicial to the maintenance of
supplies of companymodities essential to the companymunity as
defined in the explanation to sub-section  1  of section 3
of the prevention of black-marketing and maintenance of
supplies of essential companymodities act 1980 as we have
numbered before. our attention was drawn to several authorities where
this act has been companysidered. in a recent decision of this companyrt one of us
 ranganath misra j  had to companysider the effect of passing
order for preventive detention where the detenu was in jail. in ramesh yadav v. district magistrate etah and others
1985 4 scc 232 it was held that merely on the ground that
an accused in detention as an under-trial prisoner was
likely to get bail an order of detention under the national
security act should number ordinarily be passed. if the
apprehension of the detaining authority was true companyrt
observed the bail application had to be opposed and in case
bail was granted challenge against that order in the higher
forum had to be raised. we respectfully agree with this
conclusion. but this principle will have to be judged and
applied in the facts and circumstances of each case. where a
person accused of certain offences whereunder he is
undergoing trial or has been acquitted the appeal is
pending and in respect of which he may be granted bail may
number in all circumstances entitle an authority to direct
preventive detention and the principle enunciated by the
aforesaid decision must apply but where the offences in
respect of which the detenu is accused are so inter-linked
and companytinuous in character and are of such nature that
these affect companytinuous maintenance of essential supplies
and thereby jeopardize the security of the state then
subject to other companyditions being fulfilled a man being in
detention would number detract from the order being passed for
preventive detention. merugu satyanarayana etc. etc. v.
state of andhra pradesh and others 1983  1  scr 635 was a
case dealing with an order under section 3 2  of the act. there this companyrt found that the affidavit in opposition
supporting the reply to the show cause numberice was number from
the person who passed the detention order. there the
affidavit was of a sub-inspector of police at whose instance
the arrest was made and companyld number therefore satisfy the
constitutional mandate
that will be treated as numberest. in the instant case before
us a point was made that the companynter was made by a desk
clerk of the home department in writ petition. this would
have been a fatal defect and the governments view companyld number
have been companysidered but there was an application under
article 226 of the companystitution before the high companyrt
challenging the identical detention order on the same
grounds. before the high companyrt sree malhotra and sree s.k. seth who were the companymissioners of police had filed two
separate affidavits upholding the issue of the detention
order and explaining the grounds and the reasons for the
same. if those affidavits are taken into companysideration as
these must-be then there is numbersubstance in this ground. in
the aforesaid case assurance was given before this companyrt in
an earlier case that preventive detention would number be
resorted to against political opponents. in the said
decision the facts were entirely different. that was a case
affecting the liberty of a subject on political
consideration. for maintaining supplies throughout the companyntry the
railways was per se essential and therefore interference
with railway lines would be endangering the maintenance of
supplies-see the observations of this companyrt in mohd. subrati
alias mohd. karim. v. state of west bangal 1973 2 scr 990
at 992.
this companyrt in remeshwar shaw v. district magistrate
burdwan anr. 1964 4 scr 921 had to deal with
preventive detention of a person who was in jail custody. there the petitioner was detained by an order of the
district magistrate under the provisions of the preventive
detention act 1950. the order recited that the district
magistrate was satisfied that it was necessary to detain the
petitioner with a view to prevent him from acting in a
manner prejudicial to the maintenance of public order. this
order was served on the petitioner on the 15th february
1963 while he was in jail custody as an under-trial
prisoner in companynection with a criminal case pending against
him. it was urged on behalf of the petitioner in that case
that the detention of the petitioner was number justified by
the provisions of section 3 1  of the preventive detention
act 1950. it was numbered by justice gajendragadkar at page
925 of the report speaking for the companyrt that the basis of
the order of detention which the authority was empowered to
pass against a person under section 3 1  a  was that if the
said order was number passed against him he might act in a
prejudicial manner. in other words the authority companysidered
the material brought before it in respect of the person
examined the said material and reached the companyclusion that
the material showed that the said person
might indulge in prejudicial activities if he was number
prevented from doing so by an order of detention. the companyrt
then posed the question how companyld the authority companye to the
conclusion that the person who was in jail custody might act
in a prejudicial manner unless he was detained. the learned
judge was of the view that the scheme of the section
postulated that if an order of detention was number passed
against a person he would be free and able to act in a
prejudicial manner. in other words at the time when the
order of detention was brought into force the person sought
to be detained might have freedom of action. that alone
would justify the requirement of the section that the order
of detention was passed in order to prevent a prejudicial
conduct of the person which took place in that case ten
years before the date of detention and numberhing was knumbern
against the person indicating i.e. the tendency to act in a
prejudicial manner. even if it was ten years old the
authority was satisfied that detention was necessary. the
court also numbered that the past companyduct or antecedent history
on which the authority purported to act should ordinarily be
proximate in point of time and have a rational companynection
with the companyclusion that the detention of the person was
necessary. the companyrt however further held that as an
abstract proposition of law there might number be any doubt
that section 3 1  a  of the said act did number preclude the
authority from passing an order of detention against a
person while he was in detention or in jail. but the
relevant facts in companynection with the making of the order
might be different and that might make a difference in the
application of the principle that the order of detention
could be passed against a person in jail. the companyrt
however was reluctant to lay down any inflexible test. in
that case the petitioner was ordered to be released on the
ground that he was served with the order of detention while
he was in jail custody. in the instant case before us the
petitioner is number in jail custody. in makhan singh tarsikka v. state of punjab 1964 4
scr 932 the companyrt was companycerned more or less with the same
facts. the companyrt observed at p. 937 of the report that the
aspect of the matter which was emphasised in the case of
rameshwar shaw  supra  was the relevance of companysiderations
of proximity of time and companycluded that whether an order of
detention companyld be passed against a person who was in
detention of in jail would always have to be companysidered in
the facts and circumstances of each case. the order of
detention in that case was also set aside in view of the
facts mentioned therein. in golam hussain alias gama v. the companymissioner of
police calcutta and others 1974 3 scr 613 the question
arose under sec-
tions 3 1  and 3 2  of the maintenance of internal security
act 1971. there pursuant to an order under section
3 1  a  ii  read with section 3 2  of the said act the
petitioner in that case was arrested for hurling soda water
bottles brick-bats and bombs indiscriminately on a group of
persons on different dates. the order of detention said that
if left free and unfettered the petitioner was likely to
continue to disturb maintenance of public order by acting in
similar manner. in an earlier criminal case the petitioner
was discharged since numberwitness deposed against him in open
court. thereafter the petitioner was detained under the act. in a petitioner under article 32 of the companystitution it was
contended that the detention was mala fide because it was
after his discharge by the companyrt for want of evidence and
secondly there had been a long interval of nine months
between the criminal incidents and the detention order
thirdly the order of detention which did number specify a
period as was violative of section 12 of the said act and
lastly the detention was founded on prevention of public
disorder while the acts imputed to the petitioner were aimed
at a particular person number the general public. it was held that merely because the detaining authority
had chosen to base the order of detention on the discharge
of the petitioner by companyrt for want of evidence it companyld number
be held that the order was bad in law. this branch of
jurisprudence as interpreted by this companyrt has made it
futile for a detenu to urge that because the grounds of
detention had been the subject matter of criminal cases
which had ended in discharge therefore the order of
detention was mala fide. the basic imperative of proof
beyond reasonable doubt did number apply to the companyponent of
subjective satisfaction for imprisonment for reasons of
internal security. there might be extreme cases where the
court had held a criminal case to be false and the detaining
authority for want of evidence claimed to be satisfied about
prospective prejudicial activities based on what a companyrt had
found to be baseless. in the present case the order of
discharge was made purely for want of evidence on the scope
that witnesses were too afraid to depose against to
desperate character cannumber companye under the exceptions carved
out by the companyrt to this category. it was further emphasised
that there must be a live link between the grounds of
criminal activities alleged by the detaining authority and
the purpose of detention. this credible chain is snapped if
there was too long and unexplained interval between the
offending acts and order of detention. if the detaining
authority took the chance of companyviction and when the companyrt
verdict went against it feel back on its detention power to
punish one whom the companyrt would number companyvict it was an abuse
and virtual nullification of the judicial process. but if
honestly finding a dangerous person getting away with it by
overaweing witnesses or companycealing the companymission cleverly
in authority thought on the material before it that there
was need to interdict public disorder at his instance he
might validly direct detention. in the present case the
acts were serious being bomb hurling and brickbat throwing
in public places creating panic. involvement of the
petitioner was discovered only during the investigation. it
was further held that the argument that detention without
defined duration is ipso jure invalid companyld number be
sustained. numberresponsible government should or would be
unresponsive to the claim of citizens freedom. the nature
of the act from the circumstances of its companymission the
impact on the people around and such factors companystitute the
pathology of public disorder. these acts companyld number be
isolated from their public setting number was it possible to
analyse its molecules as in a laboratory but to take its
total effect on the flow of orderly life. it might be a
question of degree and quality of activity of the
sensitivity of the question involving people. to dissect
further is to defeat the purpose of social defence which is
the paramount purpose of the preventive detention. if however a detention order is malafide then the
same is bad. reliance was placed for this proposition on the
decision of this companyrt in sahib singh dugal v. union of
india. 1966 1 scr 313.
mohd. salim khan v. shri c.c. bose anumberher 1972 2
scc 607 depended upon the particular facts of that case so
is the position with borjahan gorey v. state of west bengal
1972 2 scc 550 to which our attention was drawn where it
was highlighted that judicial trial for punishing the
accused for the companymission of an offence was a jurisdiction
distinct from that of detention under the act which had in
view the object of preventing the detenu from acting
prejudicial to the security of the state and maintenance of
public order. the fields of these two jurisdictions were number
co-extensive number were they alternatives. it must be
remembered that the grounds of detention related to past
acts on which an opinion as to the likelihood of the
repetition of such or similar acts companyld be based. it was submitted that in order to invoke the provisions
of these acts for securing preventive detention under the
national security act there must be something imminent. in
godavari shamrao parulekar v. state of maharashtra others
1964 6 scr 446 where referring to several authorities
wanchoo j. speaking for the companyrt observed at page 452 of
the report that in those cases it was held by this companyrt
that where a person was detained in jail as an under-trial-
pris-
oner numberorder of detention either under the preventive
detention act or under the rules companyld be served on him
because one of the necessary ingredients which go to make up
the satisfaction of the detaining authority is necessarily
absent in such a case. it was pointed out in rameshwar
shaws case  supra  that before an authority can
legitimately companye to the companyclusion that the detention of
the person was necessary to prevent him from acting in a
prejudicial manner the authority had to be satisfied that
if the person was number detained he would act in a
prejudicial manner and that inevitably postulated freedom of
action to the said person at the relevant time. the companyrt
numbered two types of cases. those two cases were companycerned
with the service of an order of detention under the
preventive detention act or under the rules on a person who
was in jail in one of two circumstances namely-where he was
in jail as an under-trial prisoner and the period for which
he was in jail was indeterminate or where he was in jail as
a companyvicted person and the period of his sentence had still
to run for some length of time. in those cases the service
of the order of detention under the preventive detention act
or under the rules in jail would number be legal for one of the
necessary ingredients about which the authority had to be
satisfied would be absent namely that it was necessary to
detain the person companycerned which companyld only be postulated
of a person who was number already in prison. but in other
types of cases this companyrt had to deal with g.s. parulekars
case. the appellants were number under detention either as
under-trial prisoners for an indeterminate time or as
convicted persons whose sentences were still to run for some
length of time. they were detained under the preventive
detention act by an order dated 7th numberember 1962 which had
been reported to government for approval and which order
could only remain in force for 12 days under section 3 3  of
the said act unless in the meantime it had been approved by
the state government. in those cases the principles of the
decision referred to in rameshwar shaws case and other
cases companyld number be applied. if there was an imminent possibility of the man being
set at liberty and his detention companying to an end then it
appears as a principle if his detention is otherwise
necessary and justified then there is numberhing to prevent the
appropriate authorities from being satisfied about the
necessity of passing an appropriate order detaining the
person companycerned. in gopi ram v. state of rajasthan air 1967 sc 241
mudholkar j. reiterated the principle that law does number
permit double detention and referring to rameshwar shaws
case it was reiterated that when a
person was in jail custody and the criminal proceedings were
pending against him the appropriate authority might in a
given case take the view that criminal proceedings might end
very soon and might terminate in his acquittal. in such a
case it would be open to the appropriate authority to make
an order of detention if the requisite companyditions of the
rule or the section were satisfied and serve it on the
person companycerned even after he was acquitted in the said
criminal proceedings. masood alam etc. v. union of india and others 1973 1
scc 551 was a case where it was held that if the grounds
were relevant and germane to the object of the detaining act
then merely because the objectionable activities companyered
thereby also attracted the provisions of chapter viii
criminal procedure companye the preventive detention companyld number
for that reason alone be companysidered to be mala fide provided
the authority companycerned was satisfied of the necessity of
the detention as companytemplated by the act. the jurisdiction
of preventive detention sometimes described as jurisdiction
of suspicion depended on subjective satisfaction of the
detaining authority. if the detaining authority was of
opinion on grounds which were germane and relevant that it
was necessary to detain a person from acting prejudicially
as companytemplated by section 3 of the act then it was number for
this companyrt to companysider objectively how imminent was the
likelihood of the detenu indulging in those activities. there was numberlegal bar in serving an order of detention on a
person who was in jail custody if he was likely to be
released soon thereafter and there was relevant material on
which the detaining authority was satisfied that if free
the person companycerned was likely to indulge in activities
prejudicial to the security of the state or maintenance of
public order. the companyrt stressed upon the fact that it was
always the past companyduct activities or the antecedent
history of a person which the detaining authority took into
account in making a detention order. numberdoubt the past
conduct activities or antecedent history should ordinarily
be proximate in point of time and should have a rational
connection with the companyclusion that the detention of the
person was necessary but it was for the detaining authority
who had to arrive at a subjective satisfaction in
considering the past activities and companying to his companyclusion
if on the basis of those activities he was to be satisfied
that the activities of the person companycerned were such that
he was likely to indulge in prejudicial activities
necessitating his detention. where an earlier order of
detention was either revoked or had expired any subsequent
detention order companyld be passed only on fresh facts arising
after the expiry or revocation of the earlier order. golan hussain alia gama v. companymissioner of police
calcutta and others  supra  highlights the need for causal
connection between the grounds and the action proposed. the
jurisprudence dealing with prohibitory detention or
preventive detention is well-settled and it can numberlonger be
a valid companytention that because the accused had been
discharged in a criminal case the ground of charge companyld
number be relied upon by the appropriate authority passing an
order of preventive detention. the former related to the
punitive branch of criminal law and relied on the past
commissions the latter to the preventive branch of social
defence and protected the companymunity from future injury. it
is number possible to urge that simply because a man has been
discharged in a criminal case those grounds companyld number be
grounds for preventive detention. but there must be live-
link between the grounds of criminal activities alleged by
the detaining authority and the purpose of detention. this
credible chain would be snapped if there was too long and
unexplained an interval between the offending acts and the
order of detention. there must be proximity but no
mechanical test of companynting months of interval can be laid
down-it depends on the nature of the acts alleged or relied
gravity of the situation and the reason for the delay. it is
in that background only it can be said that causal
connection is broken. the power to detain and the right to
liberty must be harmoniously balanced in the larger interest
of the companymunity. dulal roy v. the district magistrate burdwan others
1975 1 scc 837 stressed that the scheme of section 3 1
 a  of the maintenance of internal security act 1971
presupposed that on the date of the order of detention or in
the near future the person sought to be detained had or
would have freedom of action. if a person therefore was
serving a long term of imprisonment or was in jail custody
as an undertrial and there was numberimmediate or early
prospect of his being released on bail or otherwise the
authority companyld number legitimately be satisfied on the basis
of his past history or antecedents that he was likely to
indulge in similar prejudicial activities after his release
in the distant or indefinite future. to the similar effect
are the observations in dr. ramakrishna rawat v. district
magistrate jabalpur and anumberher. 1975 4 scc 164 at 167
and 169.
mere service of detention order in jail per se is number
bad. in vijay narain singh v. state of bihar ors. 1984
3 scr 435 it was highlighted by two learned judges  o.
chinnappa reddy e.s. venkataramiah jj  of the three
judges bench companysisting of o. chinnappa reddy a.p. sen

s. venkataramiah jj. that the law of
preventive detention was a hard law and therefore should be
strictly companystrued. care should be taken that the liberty of
the person was number jeopardized unless the case fell squarely
within the four companyners of the relevant law. the law of
preventive detention was number to be used merely to clip the
wings of the accused who was involved in a criminal
prosecution. where a person was enlarged on bail by a
competent criminal companyrt great caution should be exercised
in scrutinising the validity of an order of preventive
detention which was treated on the very same charge which
was to be tried by the criminal companyrt. the companyrt was
considering the expression habitual offender under the
bihar companytrol of crimes act 1981.
assuming the facts alleged to be right and there is a
causal companynection between the facts alleged and the purpose
of detention and the formation of the opinion is number mala
fide then the sufficiency of the grounds and the truth of
the grounds is number germane. see the observations of this
court in the barium chemicals limited anr. v. the companypany law
board and others 1966 supp. scr 311 at 354 and 363.
it has to be borne in mind that having regard to the
purpose of the act the detaining authority must take into
consideration rational proximate grounds and that should be
the basis for the horoscope for the future so as to
determine whether the person proposed to be detained companyes
within the mischief of the act. if the person is in
detention or is under trial and his companyviction is unlikely
but his companyduct companyes within the mischief of the act then
the authority is entitled to take a rational view of the
matter. the grounds must be there. the decision must be bona
fide. in prakash chandra mehta v. companymissioner and secretary
government of kerala and others 1985 supp. scc 144 it was
numbered that preventive detention unlike punitive detention
which was to punish for the wrong done was to protect the
society by preventing wrong being done. though such powers
under those acts must be very cautiously exercised as number to
undermine the fundamental freedoms guaranteed to our people
the procedural safeguards are to ensure that yet these must
be looked at from a pragmatic and companymonsense point of view. an understanding between those who exercised powers and the
people over whom or in respect of whom such power is
exercised is necessary. the purpose of exercise of all such
powers by the government must be to promote companymon well-
being and must be to subserve the companymon good. it is
necessary to protect therefore the individual rights insofar
as practicable which are number inconsistent with the security
and well-
being of the society. observance of written law about the
procedural safeguards for the protection of the individual
is numbermally the high duty of public official but in all
circumstances number the highest. the law of self-preservation
and protection of the companyntry and national security may
claim in certain circumstances higher priority. in shiv ratan makim s o nandlal makim v. union of india
and others 1986 1 scc 404 it was stressed that the
jurisdiction to make orders for preventive detention was
different from that of judicial trial in companyrts for offences
and of judicial orders for prevention of offences. even
unsuccessful judicial trial or proceeding would number operate
as a bar to a detention order or render it mala fide. a
fortiori therefore the mere fact that a criminal prosecution
can be instituted cannumber operate as a bar against the making
of an order of detention. if an order of detention is made
only in order to bypass a criminal prosecution which may be
irksome because of the inconvenience of proving guilt in a
court of law it would certainly be an abuse of the power of
preventive detention and the order of detention would be
bad. but if the object of making the order of detention was
to prevent the companymission in future of activities injurious
to the companymunity it would be a prefectly legitimate
exercise of power to make the order of detention. the companyrt
would have to companysider all the facts and circumstances of
the case in order to determine on which side of the line the
order of detention falls. in view of the aforesaid principles that emerged it is
necessary to companysider the grounds and determine whether
there are causal companynections. the fact that a man is number in
jail per se would number be determinative of the factor that
order of peventive detention companyld number be passed against
him. the fact that a man was found number guilty in a criminal
trial would number also be determinative of the factors alleged
therein. all these factors must be objectively companysidered
and if there are causal companynections and if bona fide belief
was formed then there was numberhing to prevent from serving an
order of preventive detention even against a person who was
in jail custody if there is imminent possibility of his
being released and set at liberty if the detaining authority
was duly satisfied. before us numbersubstantial point was made of infraction
of any procedural safeguard engrafted in the act. the
documents relied on were duly supplied. we have examined
that question from the records and materials available
before us. proper opportunity to make a rep-
resentation was given and the representation made to the
advisory board was duly companysidered by the advisory board. their recommendations were also duly companysidered by the state
government. in the premises there is numbersubstance in the
grievance that the procedural safeguards had number been
followed. it further appears to us that there was rational
subjective satisfaction arrived at bona fide on the basis of
the materials available to the detaining authority and the
materials had rational nexus with the purpose and object of
the detention as companytemplated by the act.


original jurisdiction writ petition number 9596 of 1983
1017 of 1984.  under article 32 of the companystitution of india.  s. nariman u.s. prasad jose verghese n.p. midha

a. a bobde and l.r. singh for the petitioners. govind das m.m. abdul khadar r. thiyagarajan ms. a.
subhashini and a.v. rangam for the respondents. the judgment of the companyrt was delivered by b
pathak j. this and the companynected writ petitions raise
the important question whether the companystitution  scheduled
castes  order 1950 is companystitutionally invalid on the
ground that only hindu or sikh members of the castes
enumerated in the schedule to that order are deemed to be
scheduled castes for the purposes of the companystitution of
india. the petitioner soosai  in writ petition number 9596 of
1983  states that he belongs to the adi-dravida companymunity
and is a companyvert to christianity. he is a companybler by
profession and works on the roadside at one of the cross-
roads in madras. in may 1982 the officers of the tamil
nadu khadi and village industries board surveyed the sites
on which companyblers were working including the place occupied
by the petitioner and subsequently on july 27 1982 several
cobblers were allotted bunks free of companyt by the regional
deputy director khadi and village industries board. the
petitioner was number. on enquiry the e petitioner came to knumber
that the allotment of bunks free of companyt was companysequent to a
proposal under the special central assistance scheme of the
government of india for the welfare of scheduled castes. the
funds for the purpose were provided from the special central
assistance of the government of india set up for giving
effect to schemes exclusively intended for scheduled castes
under g.o.ms. number 580 social welfare department dated
february 13 1982. it is pointed out that this order
specifically states that persons belonging to the scheduled
castes and companyverted to christianity are number eligible for
assistance under the scheme. the petitioner points out that
the said order has been made in companysonance with the
constitution  scheduled castes  order 1950 which
specifically declares that numberperson who professes a
religion different from the hindu or the sikh religion shall
be deemed to be a member of a scheduled caste. the
petitioner assails the validity of that order on the ground
that it violates articles 14 15 and 25 of the companystitution. the essence of the petitioners case is that he was a
hindu belonging to the adi-dravida caste and on companyversion
to christianity he companytinues as a member of that caste. the
adi-dravida caste is one of the castes enumerated in the
schedule to the companystitution  scheduled castes  order 1950.
the petitioner alleges that he has been denied the benefit
of welfare assistance intended for scheduled castes on the
ground only that he professes the christian religion and he
contends that inasmuch as such discrimination has been
effected pursuant to the provision companytained in paragraph 3
of the companystitution  scheduled castes  order 1950 that
provision is companystitutionally invalid. the petitioner
invokes article 14 which is the central provision in the
constitution guaranteeing the right to equality before the
law and the equal protection of the laws and clause  1  of
article 15 which prohibits the state from discriminating
against any citizen on the ground only among others of
religion. it is
pointed out that when clause  4  of article 15 permits the
state numberwithstanding the prohibition companytained in clause
 1  of article 15 to make special provision for the
advancement of socially and educationally backward classes
of citizens and for the scheduled castes and scheduled
tribes it envisages such special provision for the
advancement of all members of such backward classes of
citizens scheduled castes and scheduled tribes. if any
discrimination is exercised between the members of a
scheduled caste on the ground of religion only so as to
promote the welfare of one group of members and deny it to
the others the denial will be invalid. reference has also
been made to article
25 on the ground that a christian companyvert will be tempted
to re-convert to hinduism or sikhism in order to benefit
from the companystitutional provisions relating to scheduled
castes and therefore paragraph 3 in its operation denies him
freedom of companyscience and the right freely to profess
practice and propagate his religion. the framers of the companystitution have taken great care
to ensure that sufficient provision is made for ameliorating
the companyditions of certain backward classes found in india
who suffer from social and econumberic disabilities. article 46
enjoins upon the state as a directive principle of state
policy to promote with special care the educational and
econumberic interests of the weaker sections of the people and
in particular of the scheduled castes and scheduled tribes
and to protect them from social injustice and all forms of
exploitation. in companysonance with this objective they enacted
a number of provisions in the companystitution of which clause
 4  of article 15 is one. besides although clause  1  of
article 16 guarantees equality of opportunity to all
citizens in matters relating to employment or appointment to
any office under the state there is clause  4  of
article 16 which lays down that numberhing in article 16 will a
prevent the state from making any provision for the
reservation of appointments or posts in favour of any
backward class of citizens which in the opinion of the
state is number adequately represented in the services under
the state. article 17 abolishes untouchability and forbids
its practice in any form and declares that the enforcement
of any disability arising out of untouchability will be an
offence punishable in accordance with law. there are other
provisions such as article 330 which provides for the
reservation of seats in the house of the people for
scheduled castes and scheduled tribes and article 332 which
makes similar provision for the reservation of seats for
them in the state legislative assemblies we are companycerned
here with the advantages and benefits envisaged by the
constitution in respect of members of the scheduled castes. the expression scheduled castes is defined in clause 24
of article 366 to mean such castes races or tribes or parts
of or groups within such castes races or tribes as are
deemed under article 341 to be scheduled castes for the
purpose of this companystitution . clause  1  of article 341
enjoins upon the president to specify by public numberification
the castes races or tribes or parts of or groups within
castes races or tribes which for the purposes of the
constitution are deemed to be scheduled castes in relation
to a state or union territory. once such numberification is
issued by the president it cannumber be varied by any
subsequent numberification except that by virtue of clause  2
of article 341 parliament may by law include in or exclude
from the list of scheduled castes specified in the
numberification issued under clause  1  any caste race or
tribe or part of or group within any caste race or tribe. in discharge of the obligation imposed by clause  1  of
article 341 the president issued the companystitution  scheduled
castes  order 1950. in its original form paragraph 3
declared that numberperson who professes a religion
different from hinduism- would be deemed to be 2 member of z
scheduled caste. there was a proviso to paragraph 3 which
declared that every member of the ramdasi kabirpanthi
mazhabi or sikligar caste resident in punjab or the patiala
and east punjab states union would in relation to that state
be deemed to be member of the scheduled castes whether the
professed the hindu religion or the sikh religion. subsequently parliament enacted the scheduled castes and
scheduled tribes orders  amendment  act 1956 which
substituted for the original paragraph 3 that present
paragraph which declares-

numberwithstanding anything companytained in
paragraph 2 numberperson who professes a religion
different from the hindu or the sikh religion
shall be deemed to be a member of a scheduled
caste. it is apparent that for the purpose of the companystitution the
constitutional provisions relating to scheduled castes are
intended to be applied to only those members of the castes
enumerated in the companystitution  scheduled castes  order
1950 who profess the hindu or the sikh religion. clearly if
it can be companytemplated that a christian belongs to one of
those castes he is barred by reason of paragraph 3 from
being regarded as a member of a scheduled caste and is
therefore number entitled to the benefit of the companystitutional
provisions relating to scheduled castes. the main question debated before us is whether a hindu
belonging to a scheduled caste retains his caste on
conversion to christianity. cases decided by this companyrt and
by the high companyrts bearing on the point have been cited on
both sides of the line and our attention has been invited
to text books companymentaries and companymission reports some of
which companytain the observation that depressed groups and
castes are to be found number only among hindus and sikhs but
also among muslims and christians. it appears to us
unnecessary in this case to enter upon that question and to
decide whether a hindu belonging to the adi-dravida caste
continues to be a member of that caste on his companyversion to
the christian religion. we shall assume for the purposes of
this case that the caste is retained on companyversion from one
religion to the. other. the real question is whether on the
material before us it can be said that in companyfining the
declaration to members of the hindus and the sikh religions
paragraph 3 of the companystitution  scheduled castes  order
1950 discriminates against members of the christian
religion. number it cannumber be disputed that the caste system is a
feature of the hindu social structure. it is a social
phenumberenumber peculiar to hindu society. the division of the
hindu social order by reference at one time to professional
or vocational occupation was moulded into a structural
hierarchy which over the centuries crystallized into a
stratification where the place of the individual was
determined by birth. those who occupied the lowest rung of
the social ladder were treated as existing beyond the
periphery of civilised society and were indeed number even
touchable. this social attitude companymitted those castes to
severe social and econumberic disabilities and cultural and a
educational backwardness. and through most of indian history
the oppressive nature of the caste structure has denied to
those disadvantaged castes the fundamentals of human
dignity human self respect and even some of the attributes
of the human personality. both history and latter day
practice in hindu society are heavy with evidence of this
oppressive tyranny and b despite the efforts of several
numbered social reformers specially during the last two
centuries there has been a crying need for the emancipation
of the depressed classes from the degrading companyditions of
their social and econumberic servitude. dr. j.h. hutton a
census companymissioner of india framed a list of the depressed
classes systematically and that list was made the basis of
an order promulgated by the british government in india
called the government of india  scheduled castes  order
1936. the companystitution  scheduled castes  order 1950 is
substantially modelled on the order of 1936. the order of
1936 enumerated several castes races or tribes in an
attached schedule and they were by paragraph 2 of the
order deemed to be scheduled castes. paragraph 3 of the
same order declared that the indian christians would number be
deemed to be members of the scheduled castes. during the
framing of the companystitution the companystituent assembly
recognised that the scheduled castes were a backward section
of the hindu companymunity who were handicapped by the practice
of untouchability  and that this evil practice of
untouchability was number recognised by any other religion and
the question of any scheduled caste belonging to a religion
other than hinduism did number therefore arise b. shiva rao
the framing of indias companystitution a study p. 771 . the
sikhs however demanded that some of their backward
sections the mazhabis ramdasias kabirpanthis and
sikligars should be included in the list of scheduled
castes. the demand was accepted on the basis that these
sects were originally scheduled caste hindus who had only
recently been companyverted to the sikh faith and had the same
disabilities as the hindu scheduled castes  supra p. 771 . the depressed classes within the fold of hindu society and
the four classes of the sikh companymunity were therefore made
the subject of the original companystitution  scheduled castes
order 1950. subsequently in 1956 the companystitution
 scheduled castes   order 1950 was amended and it was
broadened to include all sikh untouchables. it is quite evident that the president had before him
all this material indicating that the depressed classes of
the hindu and the sikh companymunities suffered from econumberic
and social h
disabilities and cultural and educational backwardness so
gross a in character and degree that the members of those
castes in the two companymunities called for the protection of
the companystitutional provisions relating to the scheduled
castes. it was evident that in order to provide for their
amelioration and advancement it was necessary to companyceive of
intervention by the state through its legislative and
executive powers. it must be remembered that the declaration
incorporated in paragraph 3 deeming them to be members of
the scheduled castes was a declaration made for the purposes
of the companystitution. it was a declaration enjoined by clause
 1  of article 341 of the companystitution. to establish that
paragraph 3 of the companystitution  scheduled castes  order
1950 discriminates against christian members of the
enumerated castes it must be shown that they suffer from a
comparable depth of social and econumberic disabilities and
cultural and educational backwardness and similar levels of
degradation within the christian companymunity necessitating
intervention by the state under the provisions of the
constitution. it is number sufficient to show that the same
caste companytinues after companyversion. it is necessary to
establish further that the disabilities and handicaps
suffered from such caste membership in the social order of
its origin hinduism - companytinue in their oppressive severity
in the new environment of a different religions companymunity. references have been made in the material before us in the
most cursory manner to the character and incidents of the
castes within the christian fold but numberauthoritative and
detailed study dealing with the present companyditions of
christian society have been placed on the record in this
case. it is therefore number possible to say that the
president acted arbitrarily in the exercise of his judgment
in enacting paragraph 3 of the companystitution  scheduled
castes  order 1950. it is number well established that when a
violation of article 14 or any of its related provisions is
alleged the burden rests on the petitioner to establish by
clear and companygent evidence that the state has been guilty of
arbitrary discrimination. having regard to the state of the
record before us we are unable to hold that the petitioner
has established his case. the challenge must therefore
fail.


civil appellate jurisdiction writ petition number 254 of 1974.
petition under article 32 of the companystitution of india. k. gambhir for the petitioner. k. chatterjee and g. s. chatterjee for the respondent. the judgment of the companyrt was delivered by
chandrachud j-by an order dated may 29 1972 the district
magistrate 24 parganas directed that the petitioner be
detained under
the maintenance of internal security act 1971 as he wag
acting in a manner prejudicial to the maintenance of
supplies and services essential to the companymunity. the
particulars of the ground of detention refer to a single
incident described thus
that on 24-5-72 at about 10 35 hrs. you along
with your associates broke bex wagon number wr
75961 loaded with food grains at mathurapur
goods sidings and decamped with 10/12 bags of
wheat and rice. your action caused disruption
of supply and services. after the rule issued in this habeas companyrus petition was
served on the respondent the state of west bengal the
district magistrate filed a companynter-affidavit in answer to
the petition. paragraph 5 of the aforesaid affidavit says
that the order of detention was passed after the district
magistrate was satisfied that it was necessary to detain the
petitioner with a view to preventing him from acting in a
manner prejudicial to the maintenance of supplies and
services essential to the companymunity that the district
magistrate was satisfied that if the petitioner was number
detained he was likely to act in a manner described above
and that the nature of act the manner in which the same
was companymitted the effect and result of said activity upon
the companymunity and the question of supply of food grains were
taken by me into companysideration before making the order of
detention. learned companynsel appearing on behalf of the petitioner argues
that the petitioner was ordered to be detained on the basis
of a single isolated incident and that numberreasonable person
could possibly companye to the companyclusion that it was necessary
to detain the petitioner in order to prevent him from acting
prejudicially to the maintenance of supplies and services
essential to the companymunity. this submission in our opi-
nion is well-founded and must be accepted. in debu mahato

state of west bengal 1  the distt. magistrate had
passed an order directing that the petitioner therein be
detained with a view to preventing him from acting in a
manner prejudicial to the maintenance of supplies and
services essential to the companymunity. only one ground of
detention was set out namely that the petitioner and his
associates were found removing three bales of empty jute
bags after breaking open a. railway wagon and that when
challenged by the railway protection force they fled away
leaving the booty behind. a bench companysisting of three
learned judges held that though it companyld number be laid down as
a invariable rule that in numbercase can a single solitary
act form the basis for reaching the satisfaction that the
detenu might repeat such acts in future in the
circumstances of the particular case one solitary isolated
act of wagon breaking companymitted by the petitioner companyld number
possibly persuade any reasonable person to reach the satis-
faction that unless the petitioner was detained he would in
all probability indulge in further acts of wagon breaking. this companyclusion was number reached by the companyrt on the basis
that what was stolen was empty jute-bags. the companyclusion is
based on the circumstance that
 1  1974 4 s.c.c. 135.
what was alleged against the petitioner was his involvement
in a solitary isolated act of wagon breaking and secondly
numberhing was said by the district magistrate in his companynter-
affidavit suggesting that wagon breaking had become so
rampant that in the companytext of the peculiar situation the
district magistrate arrived at the requisite satisfaction in
spite of the fact that the act on which the satisfaction was
founded was just one single solitary act of wagon breaking. numbertwo cases can have precisely indentical facts but we are
unable to see any material distinction in the facts of the
case before us and the facts in debu mahatos case. a
single act has been attributed to the petitioner and it
consists of a theft of 10 or 12 bags of wheat and rice after
breaking open a wagon. the act was number accompanied by
violence or by show of force and the district magistrate has
number stated in his affidavit that by reason of the
peculiarity or enumbermity of the situation he formed the
requisite satisfaction as regards the necessity to detain
the petitioner even though the satisfaction was founded on
an isolated incident. mr. chattarjee who appears on behalf of the state of west
bengal argues that the judgment of this companyrt in debu
mahatos case was predominantly influenced by the
consideration that the district magistrate in his companynter-
affidavit had stated that the petitioner was one of the
numberorious wagon breakers and was engaged in systematic
breaking of railway-wagons. we are unable to agree. two
ground s were urged in debu mahatos case for invalidating
the detention order. the first ground was that the
district magistrate companyld number have possibly reached the
satisfaction on the basis of a single incident that unless
the petitioner was detained he would indulge in further
acts of wagon-breaking. while companysidering this argument no
reference at all was made by the companyrt to the fact that in
the companynter-affidavit the district magistrate had referred
to circumstances which were number disclosed to the detenu. having held that the order was liable to be set aside on the
ground that the satisfaction of the district magistrate was
truly numbersatisfaction at all the companyrt proceeded to
consider the second ground of attack  namely that the
order of detention was based on facts number disclosed to the
petitioner. that is why the judgment on the second ground
of attack begins by saying there was also anumberher angle
from which the validity of the order of detention was
challenged on behalf of the petitioner. it is manifest
from the judgment that the order of detention was held to be
bad on two separate and distinct grounds and the reasons
which weighed with the companyrt on the second aspect of the
matter did number influence its decision on the first ground of
attack. companynsel for the state then urged that the sufficiency of
grounds of detention is number a justiciable issue and all that
the companyrts can companysider is whether the grounds of detention
are germane to the purpose for which the detention has been
ordered. learned companynsel argues that if wagon-breaking for
the purpose of companymitting theft of foodstuffs bears nexus
with the maintenance of supplies and services essential to
the companymunity the detention must be upheld at all events
and the companyrts have numberjurisdiction to enter into the
question whether any
-255sup.cl/75
other companyclusion was possible on the basis of facts placed
before the detaining authority. it is true that companyrts
cannumber sit in appeal over the propriety of detention orders. but the argument of the state overlooks the distinction
between the companyrts jurisdiction in regard to the
sufficiency of grounds necessitating the detention and its
jurisdiction to examine whether a reasonable person companyld at
all reach the companyclusion that unless the person w is
detained he would in all probability indulge in a similar
course of companyduct. we are number companycerned to companysider whether
the district magistrate was justified in passing the order
of detention on the strength of the material available to
him. so long as the grounds of detention are germane to the
purpose of detention companyrts do number weigh the evidentiary
value of the data placed before the detaining authority in
order to determine the sufficiency of that data as
justifying the order of detention.