Har Jas Dev Singh Vs. State of Punjab
& Ors  INSC 124 (25 July 1973)
REDDY, P. JAGANMOHAN REDDY, P. JAGANMOHAN
KHANNA, HANS RAJ KRISHNAIYER, V.R.
CITATION: 1973 AIR 2469 1974 SCR (1) 281 1973
SCC (2) 575
CITATOR INFO :
R 1984 SC 444 (21) F 1985 SC1082 (15) D 1989
Maintenance of Internal Security Act, (26 of
1971)-Section 14(2)-Fresh facts, what are-Order of detention served while in
confinement under Official Secrets Act-Order subsequently revoked-Thereafter
released on ball-Second order of detention on identical grounds-If release on
bail and variation in the enumeration of prejudicial acts amount to fresh
While the petitioner was in confinement under
section 3 of the Official Secrets Act. 1923 an order of detention, made under
section 3 of the Maintenance of Internal Security Act, 1971, was served on him.
The order expired since that was not approved by the State government.
Thereafter the petitioner was released on bail. After his release on bail a
fresh order of detention was passed. The detention was approved by the Advisory
Board and the State Government confirmed the order.
The grounds of detention served on the
petitioner were identical with the grounds on which the first order of
detention was based except at ground No. 7 stated that since the petitioner was
released on bail he was likely to continue his spying activities which would be
highly prejudicial to the security of the State. Another difference was that in
the first order of detention "Security of the State' and maintenance of
Public Order were mentioned but in the second order only, security of the State"
The petitioner urged that since the grounds
which formed the basis of the first order of detention were identical with the
grounds for detaining him under the subsequent order, the latter order was bad
and his detention was illegal. The respondent-State contended that since the
petitioner was in jail at the time when the first order was served on him and
revoked, his subsequent release on bail constituted a fresh fact. It was
further urged on behalf of the State that the Act made a distinction between
grounds and facts and that while grounds must have a nexus with the object of
the order of detention facts stated therein need not necessarily have that
On the question whether the two variations
from the first order of detention can be construed as "fresh facts"
justifying the impugned detention within the meaning of section 14(2) of the
HELD : There being no fresh facts on which
the impugned detention order is made the order is invalid and the detention of
the petitioner cannot be sustained had arisen on the basis of which the Central
Government or the State Government or an Officer, as the case may be, was
satisfied that such an order should be made the subsequent detention on the
very same grounds would be invalid. [287C] Masood v. Union, W.P. Nos. 469 &
470 of 1972 decided Jan.
11, 1973; Hadt Bardu Das v. District
Magistrate  1 S.C.R. 227 referred to.
(ii).While it is true that 'grounds' and
"facts" are used in opposition to each other, they must be taken as
referring to two different things. The grounds are conclusions of fact or
reasons which have induced the detailing authority to pass the order of
detention. These are sometimes referred to as basic facts. Facts, however,
constitute the evidence upon which the conclusions justifying the detention are
made. [288B] State of Bombay v. Atma Ram Vaidya  S.C.R. 157; Ram Krishan
v. State of Delhi  S.C.R. 708 referred to.
282 There may be facts which are not germane
or are not relevant to the grounds justifying the detention and when section 14
refers to "fresh facts" it does not refer to facts which are not
relevant but or such fresh facts on which the detaining authority is satisfied
that an order of detention should be made if the fresh facts cannot form the
basis of a conclusion on which the detention order can be made, then those
facts are not fresh facts which will justify the detaining authority to make an
order of detention. A fresh order of detention can only be made if fresh
grounds came into existence after the expiry or revocation of the earlier order
of detention. No fresh order could be made on the ground which existed prior to
the revocation or expiry of an earlier order of detention. Parliament has
enacted section 14 in order to prevent such a contingency.
[288E] Massod v. Union of India W.P. Nos. 469
& 470 of 1972 decided on Jan. 11, 1973.
(iii).....The release of the detenu on bail
does not constitute fresh facts as would justify the impugned detention order.
Both the detention orders are passed under s. 13(1)(a)(ii) which set out the
prejudicial acts under which the suspected actions of the detenu will fall and
for which the detention is made. It is immaterial whether the detaining
authority is satisfied that the grounds on which the detention is being made
for preventing the detenu from acting in any manner prejudicial to the security
of the State or the maintenance of public order or for preventing him from
acting in any manner prejudicial to the security of the State alone, because,
in either case, one of the objects is to prevent the detenu from acting in a
manner prejudicial to the security of the State. The variation in the
enumeration of prejudicial acts has nothing to do with fresh facts.
ORIGINAL JURISDICTION: Writ Petition No. 93
Under Article 32 of the Constitution of India
for issue of a writ in the nature of habeas corpus.
R. K. fain, for the petitioner.
Harbans Singh and R. N. Sachthey, for
respondents Nos. 1 to 4 & 7.
The following Judgment of the Court was
delivered by JAGANMOHAN REDDY, J.-The petitioner challenges the order of
detention dated March, 28, 1972 made under s. 3 of the Maintenance of Internal
Security Act No. 26 of 1971- hereinafter called 'the Act'. Initially he was
arrested under the Official Secrets Act, 19 of 1923, and was remanded by the
Magistrate on October 24, 1971. On November 19, 1971, the District Magistrate,
Gurdaspur made an order of detention under s. 3 of the Act which was served on
the petitioner while he was still in confinement under s. 3 of the Official
Secrets Act. He was also served with the grounds of the detention. The Order of
the District Magistrate, however, was not approved by the State Gov- ernment
and the petitioner was directed to be released in respect of his detention
under the Act. The petitioner thereafter moved the Sessions Judge for bail and
was directed on March 2, 1972 to be released on his executing a bail bond of
Rs. 50,000/-. The bail bond furnished by him was accepted by the Sessions Court
on March 14, 1972, on.
which date of the petitioner was released
from jail. On March 28. 1972, a fresh order of detention was passed by the
District Magistrate, Gurdaspur, which order was approved by the State
Government on April 4. 1972. It is alleged that from March 14, 1972 to February
12, 1973 the petitioner did not appear before the Court in spite of repeated
directions and undertakings given by his counsel. His application for
exemption-from appearance was refused and thereafter on 283 August 17, 1972 an
application was made for taking action against him under s. 7 of the Act. On
February 6, 1973 the detenu was declared a proclaimed offender. On March 12,
1973 he was arrested in Delhi and produced before a Delhi Magistrate who
granted a transit remand for being produced before the Court at Batala and was
accordingly produced before him on March 14, 1973. On March 15, 1973, the
detention order dated March 28, 1972, was served on him.
Representations made by him were rejected by
the Government on April 10, 1973, and finally on April 30, 1973, his detention
was approved by the Advisory Board. The State Government confirmed the order of
The contentions urged before us are better
appreciated by a perusal of the grounds of detention. There are :
"1. That you, Harjasdev Singh s/o Ujagar
Singh, Jat r/o village Talwara, p/s Srihargobindpur born on 15-4-41 in village
Talwara matriculated in 1962 joined Military Service on 28-8-63 as Sepoy Clerk
and later proomted as Havaldar Clerk in November, 1968 are Indian National. In
Feb., 1967 when you were transferred to 10th Infantry Div. Hq at Suianpur and
remained there till July, 1970 During this period, you, Hariasdev Singh have
been collecting information regarding military units and conveying the Same to
Pak Intelligence Services. In return. you were suitably rewarded by the
Pakistan officers and in support of this, the following facts have been duly
proved against you :- (i)...That during Oct., 1969, one Pritam Singh Jat r/o
Baleem p/s KalanaUr allured you to indulge in espionage activities against
India and give him Military intelligence and secret documents for passing on
the same to his Pak masters for which you would be paid handsomely. You felt
tempted and gave your consent to do the job. Pritam Singh gave you Rs. 60/- and
promised to come after a week.
Pritam Singh again met you after about a week
and you handed over to him a typed list of units uder 10th Infantry Div. with
their location-,. You were paid Rs. 100/- more by Pritam Singh for this Job.
(ii)..Again in the Month of Nov., 1969, the
abovesaid Pritam Singh, contacted you at Sujanpur and paid you Rs. 100/- as
your remuneration for supplying the list of staff officers at 10th Infantry
Div. HQ at Sujanpur and also one Sketch on tracing paper regarding Road routes
from Pathapkot to Akhnoor.
(iii).Again in the month Dec., 1969, you
supplied 10th Infantry Div. Exercise paper-, to Pritam Singh who promised to
compensate you for this after receiving payment from his Pak masters.
(iv)..That in Nov., 1970 when you were posted
in 'A' branch HQ 67 Independent Tnfantry Brigade Company at Abohar, you were
discharged from the Army due to your bad record.
284 "2. That during May/June, 1971
Pritam Singh who was on one month leave from the 26th Battalion to Shuk-argarh,
Distt. Sialkot (Pakistan) and produced you before Major Akhtar and Sub. Zafar
there. You along with Pritam Singh crossed the border from the left side of
Indian Picket Bohar Wadala onward by the side of Dhussi band and reached Pak
Picket Takhatpur, wherefrom you were taken to Pak Security Office, Shakargarh
in a jeep by Sub.
Zafar. There Major Akhtar and Sub. Zafar
talked with you in seclusion. You gave out all the details of 10th infantry
Div. to your knowledge to the Major. Your particulars were noted down on a
printed form which was got signed by you and you were also got photographed.
You passed on the following documents and Military Intelligence to the Pak
Security Officers : - (i)...Deployment statement of the Units under 25 Div. and
other connected with units other than those under 25 Div.
(ii)..There was no movement of the Army Units
in Dera Baba Nanak and Gurdaspur areas at that time.
The Major gave you Rs. 200/- as your
remuneration and assigned you following task :- (i)...To collect information
about the postings and trainings of the Officers under 10 Infantry Div.
(ii) To collect any secret or top secret
documents from any army...Officer.
(iii) To collect any pamphlet about the Army
training or containing technical number of the Indian Army Units.
Both you and Pritam Singh thereafter crossed
over to India via the same route.
3.....In the month of Sept., 1971 you alone
crossed the Border via the same old route and met Major Akhtar and Sub. Zafar
at Shakargarh and furnished the following documents and Military information to
them :- (i)...Ammunition scale of the units under 10 Infantry Div.
(ii)..One Pamphlet about the technical
numbers of the Army Divisions, Brigades and units of Indian Army.
(iii).About posting of Major General Jaswant
Singh as 10 Inf. Div. Commander.
(iv)..About movement of No. 10 Inf. Div. HQ
from its previous headquarter at Sujanpur to the left side of the Dalbousie
Road near Pathankot in the newly constructed barracks.
You were paid Rs. 200/- for this service and
further allotted the following task -- 285 (i)...To collect information about
the construction work of Railway line from Pathankot to Jammu via Kathua.
(ii)..1300 MM gun supplied by Russia with
which of the Indian Army and the location of that Unit.
(iii).Location of 4 House Units.
(iv) To collect Army new or old Photo of any
V.I.P. about his visit at 10 Inf. Div. HQ or any unit under the Div.
You were then made to cross to India with a
Pak national named Akhtar who was appointed a courier for collecting documents
and military intelligence from you.
4.That you along with Akhtar reached
Pathankot. Akhtar stayed there while you left for your village. After two days,
you returned to Pathankot and gave Akhtar the following documents to be
delivered to your Pak masters.
(i)...Three photos of Sh. Swaran Singh the
then Defence Minister of V.I.P. visits in Akhnoor sector in 3 different poses
with G.O.C. 10th inf. Div.
(ii)..Location statement of the units under
26 Inf. Div. and connected units.
(iii).Two sketches on tracing papers of
obstacle plan of Akhnoor- Sector-part I and part II.
(iv)..4 House unit moved from Patiala to
5.....That on 23-10-71 you were arrested by
the local police of p/s Srihargobindpur from your house in case FIR No. 178 u/s
30 S. Act.
On search of your house, the following
documents in connection with your activities prejudidical to the Security of
State were recovered (i)...A list typed in English of Officers ACRS to be
reviewed by the Brigade Commander.
(ii)..One white paper i.e. printed letter pad
of HQ Ambala Sub Area, Ambala Cantt. with formation sign of the Sub Area units.
(iii).A rough sketch about the road from
Batala Dera Baba Nanak-Kalanaur towards village Pakiwan showing some villages
prepared by you to go to and from Pakistan in connection with your espionage
activities, incriminating documents, along with other papers.
6.....That on interrogation you have been
found to be a pak Spy.
7.....That in case FIR No. 178 referred to in
Para 5 above, you have been released on bail by the District and Sessions
Judge, Gurdaspur and it is now likely that you will continue your spying
activities for the Pakistan Intelligence services or by crossing over to
Pakistan, you are likely to divulge intelligence collected by you about our
National vital 286 installations, Military formations and Civil Defence forces,
to Pak authorities which would be highly prejudicial to the security of the
State in these days of Pak hostilities.
It was first contended that as no return was
filed by the State Government, the petitioner is entitled to be set at liberty
under r. 5 of O. XXXV of the Supreme Court Rules;
secondly, there is no nexus between the
object of the order of detention and the grounds of detention; thirdly, a perusal
of the grounds of detention will disclose that the order is really made under
s. 3 (,1 ) (a) (i) of the Act and not under s. 3 (1) (a) (ii) under which it is
purported to be made, inasmuch a,,,, the acts alleged against the detenu would
justify an order being made to prevent him from acting in any manner
prejudicial to the Defence of India and cannot justify an order against him
from acting in any manner prejudicial to the Security of the State or the
maintenance of public order. Finally, it was urged that since the grounds which
formed the basis of the order of detention served on him on November 19, 1971
(hereinafter referred to as the first order) are identical with the grounds for
detaining him under the impugned order, the impugned order is bad and his
Taking the last point first it is not
disputed except for ground No. 7, that the grounds of detention first served on
the petitioner on November 19, 1971 are identical with the grounds on which the
impugned order of detention is made.
There is, however, another minor difference
between the two orders in that though the grounds mentioned in both the orders
set out that the petitioner has been detained under S. 3 (1) (a) (ii) the
grounds in the first order state that the detention of' the petitioner was to
prevent him from indulging in any manner prejudicial to the security of the
State or maintenance of public order, while the grounds in the impugned order
merely state that it was to prevent the petitioner from acting in any manner
prejudicial to the security of the state only. The question is, whether these
two variations from the first order can be construed as 'fresh facts'
justifying the impugned detention within the meaning of S. 14(2) of the Act
wherein it is provided;
"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 or a State Government
or an officer, as the case may be, is satisfied that such an order should be
made." There is no doubt that since the first order of detention dated
November 19, 1971 was not approved by the State Government that Order of
detention ceased to have force after 12 days from the date of the Order and
that detention order had therefore expired on December 1, 1971. Even if the
first order was revoked due to a technical defect the same result follows. In
Hadi Bandhu Das v. District Magistrate, Cuttack & Anr.(1) it was urged on
the analogous provisions of the Preventive (1)  1 S. C. R. 227 2 8 7
Detention Act 4 of 1950 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 a
failure to comply with the statutory provisions of the Act.
Negativing this contention the Court observed
at pp. '233- 234 "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". In these circumstances after the date on
which the order ceased to be in force, unless fresh facts had arisen on the
basis of which the Central Government or a State Gov- ernment or an officer, as
the case may be, was satisfied that such an order should be, made, the
subsequent detention on the very same grounds would be invalid. This Court has in
Masood Alam etc. v. Union of India & Others(1) has so held. In that case
the detenu was arrested on June 15, 1972 pursuant to an order of detention
dated June 14, 1972 made by the District Magistrate under s. (1) (a) (i) and
(ii) of the Act. The Government in that case also did not accord its approval
for the, petitioner's detention as required by s. 3 (3) of the Act and an order
of release was made and served on the detenu who was confined in jail as an
under- trial under s. 107//117 of the Code of Criminal Procedure.
A fresh order of detention was again passed
on the same day, namely, June 25, 1972 the grounds of which were identical.
Several contentions were urged before this
Court, but that which found favour with it was that the earlier order of detention
was either revoked or had expired with the result that unless the detention
pursuant to the Order dated June 25, 1972 is passed on fresh facts arising
after the expiry or revocation of the earlier order, it must be held to be
invalid, in support of this conclusion two decisions of this Court in Hadi
Bandhu Das v. District Magistrate, Cuttack(2) referred, to earlier, and Kshetra
Gogoi v. State of Assam(3) decided under s. 13(2) of the Preventive Detention
Act (IV of 1950) which is identical with s. 14(2) of the Act were referred to.
The learned Advocate for the respondent-State
has made strenuous attempt to distinguish Masood Alam's (1) case firstly,, on
the ground that since the petitioner was in jail at the time when the first
order was served on him and revoked, his subsequent release on bail by the
District & Sessions Judge, Gurdaspur, constituted a fresh fact as hip,
release was likely to enable the petitioner to continue his spying activities
for Pakistan Intelligence Service or to cross over to Pakistan for divulging
the intelligence collected by him concerning vital installations, Military
formations and Civil Defence 'Forcec to Pakistan authorities which would be
highly prejudicial to the security of the State. The argument of the
petitioner's Advocate that fresh fact or fact,, must be such as would provide a
nexus between the object of the order of detention and the grounds of
detention, was sought to be controverted by the State on the ground that the
Act made a difference, between the grounds and facts which are two different
connotation,, conveving different concepts. It was urged that while ground must
have a nexus.
(1) W.P.S. Ncs. 469 & 470 of 1972 d-cided
on January 11, 1973.
(2)  1 SCR 217 (3)  2 SCR 517 288
with the object of the order of detention, facts stated therein need not
necessarily have that nexus. We find it difficult to accept this distinction.
While it is true that in s. 8 of the Act as also in its other provisions ground
and facts are used in opposition to each other, they must be taken as referring
to two different things. The grounds are conclusions of fact or reasons which
have induced the detaining authority to pass the order of detention.
Sometimes these are referred to as basic
facts. Facts, however, constitute the evidence upon which the conclusions
justifying the detention are made. In State of Bombay v.
Atma Ram Sridhar Vaidya (1), it was
observed-"By their very nature the grounds are conclusions of facts and
not a complete detailed recital of all the facts. The conclusions drawn from
the available facts will show in which of the three categories of prejudicial
acts ,the suspected activity of the particular person is considered to fall.
These conclusions are the "grounds" and they must be supplied. No
-part of such "grounds" can be held back nor-can any more
"grounds" be added thereto. What must be supplied are the
"grounds" on which the order has been made and "nothing
less." The detenu, however, is not entitled to know the evidence, nor the
source of the information, but he must be furnished with sufficient particulars
or facts i.e. suffi- cient details to enable him to make out a case if he can,
for the consideration of the detaining authority. Also see Ram Krishan v. State
There may be facts which are not germane or
are not relevant to the grounds justifying the detention and when s. 14 refers
to fresh facts it does not refer to facts which are not relevant, but to such
fresh facts on which the detaining authority is satisfied that an order of detention
should be made. If the fresh facts cannot form the basis for a conclusion on
which the detention order can be made, then those facts are not fresh facts
which will justify the detaining authority to make an order of detention. If
the contention of the learned Advocate for the State that the release on bail
of the petitioner by the District & Sessions Judge, constitutes fresh facts
which would furnish an ,opportunity to the detenu to act in a manner prejudice
to the security ,of the State or the maintenance of public order, then the same
arguinent can be availed of for any subsequent detention on the same facts and
grounds after the detenu has been released on the expiry of the period for
which be was detained or after the earlier order of detention has been revoked,
because in both the cases, namely, where the Government has refused to confirm
the order of detention as well as on the expiry of the period for which the
detenu has been detained and the detention order has expired, the likelihood of
the detenu continuing to act in any manner prejudicial to the securitY of the
State etc. can be said to exist and those would furnish a cause for making a
fresh detention order. A fresh order of detention can only be made if fresh
grounds come into existence, after the expiry of revocation of the earlier
order of detention. No such fresh order could be made on the 'ground which
existed prior to the revocation or expiry of the earlier order of detention. In
order to prevent such a contingency Parliament has enacted s. 14 of the Act and
this Court dealing with such a contingency in Masood Alam's (supra) case
already referred to observed :
(1)  S. C.R. 167 at 178.
(2)  S. C. R. 708.
289 "It is to effectuate this
restriction on the maximum period and to ensure that it is not rendered
nugatory or ineffective by resorting to the camouflage of making a fresh order
operative soon after the expiry at the period of detention, as also to minimise
resort to detention orders that s. 14 restricts the detention of a person on
given set of facts to the original order and does not permit a fresh order to
be made oil the same grounds which were in existence when the original order
was made". We do not think that the release of the detenu on bail by the
Sessions Court would constitute fresh facts as would justify the impugned
detention order, nor is there any substance in the contention that since in the
first order of detention the security of the State and the maintenance of
public order were mentioned and in the second order merely the security of the
State was mentioned, they can be considered as fresh facts. Both the detention
orders are passed under s. 3 ( 1 ) (a) (ii).....which set out the prejudicial
acts under which the suspected actions of the detenu will fall and for which
the detention is made, It is immaterial whether the detaining authority is
satisfied that the grounds on which the detention is being made for preventing
the detenu from acting in any manner prejudicial to the security of the State
or the maintenance of public order, or for preventing him from acting in a
manner prejudicial to the security of the State alone, because in either case,
one of the objects is to prevent the detenu from acting in a manner prejudicial
to the security of the State. The variation in the enumeration of the
prejudicial acts have nothing to do with fresh facts.
There being no fresh facts on which the
impugned detention order is made, that order is invalid and the detention of
the petitioner cannot be sustained. In the view we have taken, it is not
necessary to deal with the other contentions. The petitioner is directed to be