Kshetra Gogoi Vs. State of Assam
[1969] INSC 253 (19 September 1969)
19/09/1969 BHARGAVA, VISHISHTHA BHARGAVA,
VISHISHTHA SHELAT, J.M.
VAIDYIALINGAM, C.A.
RAY, A.N.
CITATION: 1970 AIR 1664 1970 SCR (2) 517 1970
SCC (1) 40
CITATOR INFO :
F 1973 SC 897 (7) RF 1973 SC2469 (4) R 1989
SC2265 (21)
ACT:
Preventive Detention Act, 1950, s.
13(2)--Fresh Order of detention' after expiry of earlier order--Requirements.
HEADNOTE:
Section 11-A(2) of the Preventive Detention
Act lays down in part that the maximum period of detention under s. 3 should be
12 months and no more, and after the expiry of that period, that order. of
detention would lapse. A fresh detention order under s. 13(2) can be made on
the revocation or expiry of a previous detention order only in cases where
fresh facts have arisen after the date of revocation or expiry. The petitioner,
was put in detention in pursuance of an order dated August 29, 1968. He
presented a petition under Art. 32 of the Constitution for the issue of a write
of habeas corpus, while this petition was pending, another order of detention
was issued on August 28, 196.9, a day before the expiry of the previous order.
The grounds of detention in this latter order was identical to that of August
28, 1968 excepting the charge that the petitioner, though in preventive custody
was maintaining links with certain named hostile persons through friends and
relatives and that his liberty would jeopardise the security of the State and
public order in the region. The petitioner challenged the latter order of
detention by adding additional grounds.
HELD.: The order of detention dated August
28, 1969 was not justified under s. 13(2) of the Act, being in violation of the
provisions of the Act, and was invalid. Under sec.
13(2) what is required is that fresh facts
should have arisen. after the expiry of the previous detention. Facts arising
during the period of detention, are, therefore, not relevant when applying the
provisions of s. 13(2). In the present case, the fresh order was passed on 28th
August, 1969, a day before the expiry, and it was obvious that no fresh facts
could by that date arise and yet be held to have arisen after the date of
expiry. It is very difficult to appreciate how a person in preventive custody
could continue to maintain links with his associates outside jail, who had gone
underground, even through his friends and relatives.
If the petition was able to maintain such
links, it cast a sad reflection on the persons in charge of him while he was in
custody and, in any case, it would appear that his detention could serve no
useful purpose. Even if it be accepted that such links were maintained, this
additional ground mentioned did not satisfy the requirements of s.
13(2) of the Act, because the only allegation
was that the links were maintained during the period of preventive detention.
ORIGINAL JURISDICTION:Writ Petition No. 211
of 1969.
Petition under Art. 32 of the Constitution of
India for a writ in the nature of habeas corpus.
Hardev Singh, for the petitioner, Naunit Lal,
for the respondent.
518 The Judgment of the Court was delivered
by Bhargava, J. The petitioner in this petition under Article 32 of the
Constitution was arrested and detained under an order made under section
3(1)(a)(ii) of the Preventive Detention Act, 1950 (hereinafter referred to as
"the Act") on 24th April, 1968. On 30th August, 1968, he filed a
petition in the High Court of Assam under Art. 226 of the Constitution for
issue of a writ of habeas corpus.
The same day he was released by the
Government and, according to him, without being set at liberty, he was again
put in detention in pursuance of a fresh order dated 29th August, 1968 passed
under s. 3(1)(a)(ii) of the Act. The grounds of detention were also served on
the same day. He made his representation on 17th September, 1968 and his case
was referred to the Advisory Board also on the same date. The report of the
Advisory Board was received on 28th October, 1968. On 7th November, 1968, his
order of detention was confirmed by the Government on the basis of the report
of the Advisory Board. This petition was then received in this Court from the
petitioner in July, 1969.
challenging his detention trader the order
dated 29th August, 1968. The petition came up for hearing before a Bench of
this Court on 29th August, 1969 when, at the request of the counsel for the
State of Assam, time was granted by the Court till 8th September, 1969 to send
for full material. Meanwhile, it appears that a fresh order for his detention
under s. 3(1)(a)(ii) of the Act was issued on 28th August, 1969 and this order
was served on the petitioner in Delhi on 29th August, 1969, after the
adjournment had been obtained from this Court. Thereupon, the petitioner, on
1st September, 1969, filed an application for amendment of the writ petition
and for adding additional new grounds so as to challenge the validity of his
detention under the order dated 28th August, 1969. The grounds of detention
under this new order were also served on the petitioner on 29th August, 1969.
When this petition came up for hearing before us on 9th September, 1969,
learned counsel for the State of Assam stated that no material had been
received from the Government and wanted time to be granted to meet the facts
put forward in the application dated 1st September, 1969. It appears that,
though an officer was sent by the Government of Assam to Delhi to serve the order
dated 28th August, 1969 on the detenu which he did on 29th August, 1969, no
attempt was made to obtain the material for which time had been obtained from
the Court on 29th August, 1969. If a fresh order had been passed and had been
served on the petitioner in supersensible of the previous order which was
challenged in the writ petition, the State Government should have sent full
material relating to this order, which it became necessary for the petitioner
to challenge by amending his writ petition. Detention of a person without
trial, even for a single day,, is a matter of great consequence and, hence, we
did not consider that, in the circumstances mentioned above, there was any
justification for granting further time to the State Government to obtain
material and file a reply to this application dated 1st September, 1969.
In view of the facts mentioned above, it is
clear that the' validity of the order of detention dated 29th August, 1968,
which was first challenged in the petition, has become immaterial because the
petitioner is now under detention by virtue of the fresh order dated 28th
August, 1969 served on him on 29th August, 1969. In the counter-affidavit filed
it was stated that the first order of detention dated 24th April, 1968 had
automatically lapsed, because that order did not receive the approval of the
State Government within 12 days as required by section 3(3) of the Act. This
admission would indicate that, after the expiry of those 12 days, the
petitioner's detention was not justified by any valid order passed in law until
the second detention order was served on him on the 30th August, 1968 after
releasing him from custody. However, in the present writ petition, we are not
concerned with the effect of this procedure adopted by the State Government,
because, even if it be assumed that the second order of detention was validly
served on the petitioner on 30th August, 1968, the period of that detention
expired on 28th August, 1969 in view of section 11-A of the Act which
prescribes a maximum period of 12 months for detention under the Act on the
basis of an order passed under s. 3 of the Act. On 29th August, 1969, the
detention under the second order dated 29th August, 1968 having expired, the
State Government passed this third order of detention and served it on the
petitioner while he was still in custody in Delhi. The question is whether the
further detention under this third order is valid.
The provision contained in section 11-A(2) of
the Act clearly lays down the intention of Parliament that on the basis of
grounds found to exist at one time, the maximum period of detention under
section 3 should be 12 months and no more. On the expiry of that period, that
order of detention would lapse; but a fresh order of detention is permitted to be
passed under section 13(2) of the Act which is as follows :-- "13. (2) 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 arisen after the date of revocation or expiry on which the Central
Government 520 or a State Government or an officer, as. the case may be, is
satisfied that such order should be made." "This provision clearly
lays down that a fresh detention order can be made on the revocation or expiry
of a previous detention order only in cases where fresh facts have arisen after
the date of revocation or expiry. This principle was explained by this Court in
Hadibandhu Das v.
District Magistrate, Cuttack and Another(1)
where it was held :-- "On January 28, 1968, the State of Orissa purported
to revoke the first order and made a fresh order. The validity of the fresh
order dated January 28, 1968, made by the State of Orissa is challenged on the
ground that it violates the express provisions of Section 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 Section 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 was satisfied that an order under Sec. 3(1)(a)(ii) may be
made. There was a fresh order, but it was not based on any fresh facts."
In view of this decision, we have to see whether, in the present case, the
requirements laid down by s. 13(2) of the Act for making a fresh order were or
were not satisfied.
The main requirement is that the order must
be made not merely on the past grounds, but no fresh facts which have arisen
after the date of expiry.
In the present case, we have compared the
grounds of detention served in pursuance of the order dated 28th August, 1969,
with the grounds of detention which were served on the petitioner pursuance of
the second detention order dated 29th August, 1968, and we find that the two
are identical, except that two (1) A.I.R. 1969 S.C. 43.
521 small paragraphs have been added when
serving the grounds of detention in respect of the detention order dated 28th
August, 1969. These paragraphs are as follows:
"That though in preventive custody, he
has been maintaining links with Shah Syed Hussain and other associates, who
went underground in Nagaland, through his friends and relatives. Shah Syed
Hussain and his gang since received some arms and explosives from Naga rebels
for committing acts of sabotage and creating large scale disturbances,
particularly in the plains areas along Assam Nagaland border.
That, in the circumstances, Shri Khetra
Gogoi's being at large will jeopardise the security of the State and the
maintenance of public order in this region." The first one of these two
paragraphs is the only one that purports to mention some ground in addition to
the grounds which were included amongst the grounds which were the basis of the
order dated 29th August, 1968. We have found it very difficult to appreciate
how a person in preventive custody could continue to maintain links with his
associates outside jail who had gone underground even through his friends and
relatives. of the (present) petitioner was able to maintain such links, it
casts a sad reflection on the persons in charge of him while he was in custody
and, in any case, it would appear that his detention could serve no useful
purpose. It appears (to us) to be, in fact, very doubtful whether any such
contacts could possibly have been maintained. However, even if we accept that
such links were maintained, this additional ground mentioned does not satisfy
the requirements of s. 13(2) of the Act, because the only allegation is that
the links were maintained during the period of preventive detention.
Under s. 13(2) what is required is that fresh
facts should have arisen after the expiry of the previous detention.
Facts arising during the period of detention
are, therefore, not relevant when applying the provisions of s. 13(2). In the
present case, the fresh order was passed on 28th August, 1969, a day before the
expiry, and it is obvious that no fresh facts could by that date arise and yet
be held to have arisen after the date of expiry.
The order dated 28th August, 1969 was,
therefore, not at all justified under s. 13(2) of the Act and that order being
in violation of the provisions of the Act has to be held to be invalid, so that
the detention under that order is illegal. The petition is allowed. The
petitioner shall be set at liberty forthwith.
Y.P.
Petition allowed.
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