Hadibandhu Das Vs. District
Magistrate, Cuttack & ANR  INSC 139 (2 May 1968)
02/05/1968 SHAH, J.C.
BHARGAVA, VISHISHTHA VAIDYIALINGAM, C.A.
CITATION: 1969 AIR 43 1969 SCR (1) 227
R 1970 SC 688 (3) R 1970 SC1664 (3) D 1972
SC1564 (6) F 1973 SC 897 (7) RF 1973 SC2469 (4) F 1974 SC2151 (17) R 1980
SC1751 (4) F 1980 SC2129 (2) R 1981 SC 728 (15,20) R 1981 SC1153 (5,7) R 1982
SC1500 (8) R 1986 SC 687 (65) R 1987 SC1192 (11) RF 1989 SC1234 (7) RF 1990 SC
Preventive Detention Act 4 of 1950, ss. 7 and
13(2)Requirements of-Translation of order and grounds thereof must be supplied
to detenue within five days of detention--Order under s. 13(2) after revocation
of earlier order must be based on fresh facts-Necessity of application of mind.
On December 15, 1967 the District Magistrate,
Cuttackserved an order made in exercise of power under s. 3 (1) (a) (ii) of the
Preventive Detention Act, 1950 directing that the appellant be detained on
various grounds. On December 19, 1967 the appellant filed a petition in the
High Court challenging the order of detention on the grounds inter alia that
the order and the grounds in support thereof served upon the appellant were
written in the English language which the appellant did not understand. On
January 18, 1968 the District Magistrate supplied to the appellant an Oriya
translation of the order and the grounds. On January 28, 1968 the State of
Orissa revoked the order and issued a fresh order of detention. A translation
of this order in Oriya was supplied to the appellant. Thereafter the appellant
submitted a supplementary petition challenging the validity of the order dated
January 28, 1968. The High Court of Orissa rejected the petition filed by the
appellant. Against that order, with certificate granted by the High Court the
appellant came to this Court.
HELD : (i) The order of the District
Magistrate passed on December 15, 1967 ran into fourteen typed pages. Mere oral
explanation of such an order without supplying him a translation in a script or
language which he understood, amounted to denial of the right of being
communicated the grounds and of being afforded the opportunity of making a
representation against the order. The order of the District Magistrate not
having been followed up by service within five days as provided by s. 7 (1) of
the communication to him of the grounds on which the order was made must be
deemed to have become invalid and any subsequent detention of the appellant was
unauthorised. [231 F-H] Harikisan v. State of Maharashtra. & Ors., 
Supp.1 S.C.R. 918, relied on.
(ii) The second order dated January 28, 1968
passed by the State Government was not passed on any fresh facts which had
arisen after the date of revocation of the first order and was on that ground
invalid. There is nothing in s. 13(2) which indicates that the expression
'revocation' means only revocation of an order which is otherwise valid and
operative : 'apparently it includes cancellation of all orders invalid as well
-as valid. [233 F-H] The principle underlying s. 13(2) in its present form is
the outcome of insistence by Parliament that the detaining authority shall fully
apply its mind to and comply with their requirements of the statute and of
insistence upon refusal to countenance slipshod exercise of power. [234 E] 228
Basanta Chandra Ghose v. King Emperor  F.C.R. 81, Naranjan Singh
Nathawaan v. State of Punjab,  S.C.R.
395, and Shibban Lal Saksena v. State of
Uttar Pradesh & Ors.  S.C.R. 418, referred to
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 1216 of 1968.
Appeal from the judgment and order dated
March 11, 1968 of the Orissa High Court in O.J.C. 454 of 1967.
A. S. R. Chari, Yinno Bhagat, and Ravinder
Narain, for the appellant.
Niren De, Solicitor-General, G. R.
Rajagopala, and R. N. Sachthey, for the respondents.
The Judgment of the Court was delivered by
Shah J.-By order pronounced on April 22, 1968, we directed that the, order
passed by the State of Orissa detaining the appellant under the Preventive
Detention Act be, quashed.
We proceed to record our reasons in support
of our order.
On December 15, 1967, the District
Magistrate, Cuttack served an order made in exercise of power under s. 3 ( 1 )
(a) (ii) of the Preventive Detention Act 4 of 1950 directing that the appellant
be detained on the grounds that he--the appellant-was acting in a manner
prejudicial to the maintenance of public order by committing breaches of public
peace, indulging in illicit business in Opium, Ganja, Bhang, country liquor,
riotous conduct, criminal intimidation and assault either by himself or through
his relations, agents and associates as set out in the order. On December 19,
1967 the appellant filed a petition in the Court of Orissa challenging the
validity of the order of detention on the grounds, inter alia, that the order
and the grounds in support thereof served upon the appellant were written in
the English language which the appellant did not understand. On January 18,
1968, the District Magistrate Cuttack supplied to the appellant an Oriya
translation of the order and the grounds. On January 28, 1968, the State of
Orissa revoked the order and issued a fresh order that :
"Whereas the order of detention dated
the 15th December, 1967, made by the District Magistrate, Cuttack against Shri
Hadibandhu Das son of late Ramchandra Das of Manglabag, town Cuttack has been
revoked by the State Government on account of defects of formal nature by their
order No. 396C dated the 28th January, 1968.
And whereas the State Government are
satisfied with respect to the said Hadibandhu Das, that with a 229 view to
prevent him from acting in any manner prejudicial to the maintenance of public
order, it is necessary to detain him.
Now, therefore, in exercise of the powers
conferred by Section 3 (1) (a) (ii) read with Section 4 (a) of the Preventive
Detention Act, 1950, the State Government do hereby direct that the said
Hadibandhu Das be detained in the District Jail at Cuttack until further
orders." A translation of that order in Oriya was supplied to the
On February 8, 1968, the appellant submitted
a supplementary petition challenging the validity of. the order dated January
28, 1968. The High Court of Orissa rejected the petition filed by the
appellant. Against that order with certificate granted by the High Court, this
appeal has been preferred by the appellant.
It is not necessary to set out and refer to
large number of grounds which were urged at the Bar in support of the appeal by
counsel for the appellant, since in the view we take the second order dated
January 28, 1968, was not passed on any fresh facts which had arisen after the
date of revocation of the first order, and -is on that account invalid, and an
order releasing the appellant from custody must be made.
The relevant provisions of the Preventive Detention
Act 4 of 1950 may be set out:
S. 3(1)-"The Central Government or the
State Government may(a) if satisfied with respect to any person that with a
view to preventing him from acting in any manner prejudicial to(i) the defence
of India, the relations of India with foreign powers, or the security of India,
or (ii) the security of the State or the maintenance of public order, or (iii)
the maintenance of supplies and services essential to the community, or (b) it
is necessary so to do. make an order directing that such person be
detained." S. 7-"(1 )When a person is detained in pursuance of a
detention order, the authority making the order SUP. C. I./6817 230 shall as
soon as may be, but not later than five days from the date of detention,
communicate to him the grounds on which the order has been made, and shall
afford him the earliest opportunity of making a representation against the
order to the appropriate Government.
"Section 8 provides for the constitution
of Advisory Boards, and by s. 9 the appropriate Government is enjoined to place
within thirty days from the date of detention under the order before the
Advisory Board constituted by it under S. 8 the grounds on which the order has
been made and the representation, if any, made by the person affected by the
order. Section 1 0 _deals with the -procedure of the Advisory Boards, and by S.
1 1 it is provided that in any case where the Advisory Board has reported that
there is in its opinion sufficient cause for the detention of a person, the
appropriate Government may confirm the detention order and continue the
detention of the person concerned for such period as it thinks fit, and in any
case where the Advisory Board has reported that there is in its opinion no
sufficient cause for the detention of the person concerned, the appropriate
Government shall revoke the detention order and cause the person to be released
forthwith. Section IIA provides that a person whose detention has been
confirmed in pursuance of the detention order shall not be detained, for a
period exceeding twelve months. By S. 13 power is conferred upon the State
Government and the Central Government to vacate the order of a subordinate
officer made under sub-s. (2) of S. 3, and upon the Central Government to -revoke
the order of a State Government.
Sub-section (2) of S. 13 provides :
"The revocation or expiry of a detention
order shall not bar the making of a fresh detention order under section 3
against the same person in any case where fresh facts have ari sen after the
date of revocation or expiry on which the Central Government or a State
Government or an officer, as the case may be, is satisfied that such an order
should be made." It is true that on January 18, 1968, the District
Magistrate on further consideration served a translation in Oriya of the order
and the grounds upon the appellant, but that was after expiry ,of five days as
prescribed by S. 7 of the Act.
This Court in Harikisan v. The State of
Maharashtra and others(") held that where a detenue is served with the
order of detention and the grounds in English and the detenue does not Know
English and his request for translation of the grounds in a language which he
(1) (1962) Supp. 2 S.C.R. 918.
231 understood was refused on the ground that
the order and the grounds had been orally translated to him at the time when
the order was served upon him", the guarantee under Art.
22(5) of the Constitution was violated and
the detention of the datenue was illegal. It was observed by this Court at p.
". . . . cl. (5) of Art. 22 requires
that the grounds of his detention should be made available to the detenue as
soon as may be, and that the earliest opportunity of making a representation
against the Order should also be afforded to him. In order that the detenue
should have that opportunity, it is not sufficient that he has been physically
delivered the means of -knowledge with which to make his representation. In
order that the detenue should be in a position effectively to make his
representation against the Order, he should have knowledge of the grounds of
detention, which are in the nature of the charge against him setting out the
kinds of prejudicial acts which the authorities attribute to him.
Communication, in this context, must, therefore, mean imparting to the detenue
sufficient knowledge of all the grounds on which the Order of Detention is
based. In this case the grounds are several, and are based on numerous speeches
said to have been made by the appellant himself on different occasions and
Naturally, therefore, any oral translation or
explanation given by the police officer serving those on the detenue would not
amount to communication, in this context, must mean bringing home to the
detenue effective knowledge of the facts and circumstances on which the Order
of Detention is based." The grounds in support of the order served on the
appellant ran into fourteen typed pages and referred to his activities over a
period of thirteen years, beside referring to a large number of court
proceedings concerning him and other persons who were alleged to be his
associates. Mere oral explanation of a complicated order of the nature made
against the appellant without supplying him the translation in script and
language which he understood would, in our judgment, amount to denial of the
right of being communicated the grounds and of being afforded the opportunity
of making a representation against the order.
The order made by the District Magistrate,
Cuttack not having been followed up by service within five days as provided by
s' 7(1) of the communication to him of the grounds on which the order was made
must be deemed to have become invalid and any subsequent detention of the
appellant was unauthorised.
On January 28, 1968, the State of Orissa
purported to revoke the first order and made a fresh order. The validity of the
232 fresh order dated January 28, 1968, made by the, State of Orissa is
challenged on the ground that it violates the express provisions of s. 13(2) of
the Preventive Detention Act. In terms that subsection authorises the making of
a fresh detention order against the same, person against whom the previous
order has been revoked or has expired, in any case where fresh facts have
arisen after the date of revocation or expiry, on which the detaining authority
is satisfied that such an order should be made. The clearest implication of S.
13(2) is that after revocation or expiry of the previous order, no fresh order
may issue on the grounds on which the order revoked or expired had been made.
In the present case the order dated December
15, 1967, passed by the District Magistrate, Cuttack, was revoked on January
28, 1968, and soon thereafter a fresh order was served upon the appellant. It
is not the case of the State that any fresh facts which had arisen after the
date of revocation on which the State Government satisfied that an order under
s. 3 (1)(a) (ii) may be made. There was a fresh order, but it was not based on
any fresh facts.
Counsel for the State of Orissa contended
that the detaining authority is prevented from making a fresh order on the same
grounds on which the original order which had been revoked was made, provided
the order revoked was a valid order initially and had not become illegal on
account of failure to comply with statutory provisions like s. 7 or s. 9 of the
Preventive Detention Act. Counsel says that the order which is illegal or has
become illegal is not required to be revoked, for it has no legal existence.
and a formal order of revocation of a previous order which has -no legal
existence does not fall within the terms of S. 13(2). He strongly relies in
support of this argument upon s. 13(2) as it stood before it was amended by Act
61 of 1952 :
"The revocation of a detention order
shall not bar the making of a fresh detention order under section 3 against the
same person." The phraseology of sub-s. (2) of s. 13 before it was amended
was explicit : there was no bar against a detaining authority making a fresh
order of detention after revoking a previous order based on the same or other grounds.
It contained -no implication that a fresh order may be made only if it was
founded on fresh grounds.
Counsel also relied in support of his
argument Uoon the decision of the Federal Court in Basanta Chandra Ghose v. King
Emperor(1); Naranjan Singh Nathawan v. The State of Pitnjab (2); Shibban Lal
Saksena v. The State of Uttar Pradesh and others(3). In Basanta Chandra Ghose's
case(1) an order was (1)  F.C.R. 81. (2) S.C.R.395.
(3)  S.C.R. 41 233 made under r. 26 of
the Defence of India Rules on March 19, 1942. The order was revoked on July 3,
1944, and a fresh order for detention of the detenue was passed on that very
date under Ordinance III of 1944. It was urged on behalf of the detenue that
the authority was debarred, except on fresh grounds., from passing a fresh
order of detention after cancellation of an earlier order, and the High. Court
was not justified in presuming that fresh materials must have existed when the
order of July 1944 was made. Spens, C.J., rejected the contention. He observed
in dealing with that ground "It may be that in cases in which it is open
to the Court to examine the validity of the grounds of detention a decision
that certain alleged grounds did no+. warrant a detention will preclude further
detention on the same grounds. But where the earlier order of detention is held
defective merely on formal (,rounds there is nothing to preclude a proper order
of detention being based on the preexisting grounds themselves, especially in
cases in which the sufficiency of the around is not examinable by the
Courts." That case arose from an order of detention under Ordinance III of
In Two latter judgments of this Court in
Naranjan Singh Nathawan's case(1) and Shibban Lal Saksena's case (2 ) decided
under the Preventive, Detention Act, 1950,it was ruled that where the previous
order was revoked on grounds of irregularity in the order, the detaining
authority was not debarred from making a fresh order complying with the
requirements of law in that behalf.
Relying upon these cases the
Solicitor-General contended that it was settled law before s. 13(2) was amended
by Act 61 of 1952 that a detaining authority may issue a fresh order after
revocation of an earlier order of detention if the previous order was defective
in point of form or had become unenforceable in consequence of failure to
comply with the statutory provisions of the Act, and that by the Amending Act
it was intended merely to affirm the existing state of law, and not to enact by
implication that revocation of a defective or invalid order attracts the bar
imposed by s. 13(2). There is, in. our judgment, nothing in the language used
by the Parliament which, supports that.
contention. The power of the detaining
authority must be determined by reference to the language. Used in the statute
and not by reference to any predilections about the legislative intent. 'There
is nothing in s. 1 3 (2) which indicates that, the expression
"revocation" means only revocation of an order which is otherwise
valid and opera,(1)  S.C.R. 395.
(2)  S.C.R. 418.
234 tive : apparently it includes
cancellation of all orders invalid as well as valid. The Act authorises the
executive to put severe restrictions upon the personal liberty of citizens
without even the semblance of a trial, and makes the subjective satisfaction of
an executive authority in the first instance the sole test of competent
exercise of power.
We are not concerned with the wisdom of the
Parliament in enacting the Act; or to determine whether circumstances exist
which necessitate the retention on the statute book of the Act which confers
upon the executive extraordinary power of detention for long period without
trial. But we would be loath to attribute to the plain words used by the
Parliament a restricted meaning so as to make the power more harsh and its
operation more stringent. The word "revocation" is not, in our
judgment, capable of a restricted interpretation without any indication by the
Parliament of such an intention.
Negligence or inaptitude of the detaining
authority in making a defective order or in failing to comply with the
mandatory provisions of the Act may in some cases enure for the benefit of the
detenue to which he is not entitled. But it must be remembered that the Act
confers power to make a serious invasion upon the liberty of the citizen by the
subjective determination of facts by an executive authority, and the Parliament
has provided several safeguards against misuse of the power. The very fact that
a defective order has been passed, or that it has become invalid because of
default in strictly complying with the mandatory provisions of the law bespeaks
negligence on the part of the detaining authority, and the principle underlying
S. 13(2) is, in our view, the outcome of insistence by the Parliament that the
detaining authority shall fully apply its mind to and comply with the
requirements of the statute and of insistence upon refusal to countenance
slipshod exercise of power.
Without, therefore, expressing any opinion on
the question whether the order passed by the State Government on January 28,
1968, was justified, we are of the view that it was incompetent by virtue of
sub-s. (2) of s. 13 of the Preventive Detention Act, 1950.