Ghulam Nabi Zaki Vs. State of Jammu and
Kashmir [1969] INSC 302 (27 October 1969)
27/10/1969
ACT:
Jammu and Kashmir Preventive Detention Act
(13 of 1964) s.
14 (2) Second order of detention without
additional or fresh facts or material--Validity.
HEADNOTE:
The petitioner was arrested on November 9,
1968, by virtue of an order passed on August 23, 1968, under s. 3(1) (a) of the
Jammu and Kashmir Preventive Detention Act, 1964. On August 20, 1969, while the
petitioner was in detention, the order was revoked, and under s. 14(1) a fresh
order of detention was passed. The second detention order under s. 14(1) was
challenged in this Court.
HELD : The detenu was entitled to be
released, because, the second order of detention could not be passed without
there being additional or fresh material in the hands of the detaining
authority as required by s. 14(2). [36 E-F] In Hadbandu Das v. District
Magistrate, Cuttack, A.I.R. 1969 S.C. 43 followed in Kshetra Gogai v. State of
Assam, [1970] 2 S.C.R. '517, and Mohd. Shafi and Mohd. Yaqub v. State of Jammu
and Kashmir, W.P. No. 183/1969 dt. 17-10-1969, it has been held, interpreting
the similar s. 13(2) of the Preventive Detention Act, 1950, and s. 14(2) of the
Jammu and Kashmir Act, that once an order of revocation is made for whatever
reason, another order detaining the same person can only be passed if 'some
additional or fresh material is in the possession of the State Government on
which action can be based, because, a person who is entitled to his liberty can
only be put in a second jeopardy when there are additional or fresh facts
against him. The fresh detention order which was sustained in Jagdev Singh v.
State of Jammu and Kashmir, [1968] 1 S.C.R. 197 was a case under the Defence of
India Rules, where there is no section equivalent to s. 13(2) of the Preventive
Detention Act or s. 14(2) of the Jammu and Kashmir Act. [38 A-B, C-E, G-H]
ORIGINAL JURISDICTION : Writ Petitions No.
168 of 1969.
Petition under Art. 32 of the Constitution of
India for a writ in the nature of habeas corpus.
B. Dutta, for the petitioner.
S. K. Dholakia and R. N. Sachthey, for the
respondent.
The Judgment of the Court was delivered by
Hidayatullah, C.J. The petitioner Ghulam Nabi Zaki has been detained under s. 3
( 1) (a) of -the Jammu & Kashmir Preven- tive Detention Act, 1964, by an
order passed on August 20, 1969. He was originally arrested on November 9,
1968, under an order passed under the same section on August 23, 1968.
After the first order was passed, a second
order was passed by the 36 government on November 12, 1968, under s.8(2) read
with 13(1) (a)(1) of the Act, stating that in the interest of security of the
State, the grounds of detention could not be disclosed. Against the first
order, the writ petition No.
168 of 1969 was filed in this Court. On
September 6, 1969, the two orders of detention which had been passed against
the detenu were served on him with the counter-affidavit filed in the writ
petition. Previously, both the orders, that is to say, the order under s.3 and
the order under s. 8 (2), were not 'served on the petitioner. On August 20,
1969, the first two orders were revoked, and under s.14(1) of the Act, the same
day, a fresh order of detention was passed which is now being challenged in
these proceedings.
The same day, yet another order under s. 8
(2) read with s. 1 3 (1 ) (a) (1) was also passed but it is an admitted fact
that the orders this time too were not served upon the detenu although it is
alleged in one of later affidavits that the gist of those orders was orally
communicated to the detenu. The present petition has been filed to question the
second detention order and is based mainly on two points, namely, that the
second detention order could not be validly made except on some fresh material,
as contemplated by s.14(2) of the Detention Act, and, secondly, that the non-
service of the order of detention as well as the order under s.8(2) upon the
detenu is fatal to his continued detention.
In view of our decision on the first of the
contentions, we do not consider it necessary to examine, the second. In our
opinion, the detenu is entitled to his release, because the second order of
detention could not be passed without there being additional or fresh material
in the hands of the detaining authority, as contemplated by s.14(2) of the Act.
We give our reasons below.
The power to detain persons and to make
orders regarding them is contained in s.3 of the Jammu & Kashmir Preventive
Detention Act, 1964 (Act No. 13 of 1964). It enables the government, if
satisfied with respect to any person with a view to preventing him from acting
in certain -manners described in the section that it is necessary to detain
him, to make an order directing that such a person be detained.
A similar power is exercisable under sub.-s.2
by certain officers of the State. It is next provided that the grounds of the
order of detention must be disclosed to persons affected by the order. This
direction is contained in s.8(1) which says that when a person is detained in
pursuance of a detention order, the authority making the order shall as soon as
may be but not later than ten days of the date of detention, communicate to him
the grounds on which the order has been made, further giving him an opportunity
of making a representation. Sub-s. 2 of s. 8 says "Nothing in sub-section
(1) shall require the authority to disclose facts which it considers to be 37
against the public. interest to disclose." Sections 9 and 10 deal with the
constitution of and reference to the Advisory Boards, s. 1 1, with the
procedure of the Advisory Boards, and section 12, action upon the report of the
Advisory Board. We need not refer to those sections. Section 13 then lays down
that the maximum period for which any person may be detained in pursuance of
any detention order which has been confirmed under s.12, shall be' two years
from the date of detention. Sub.-s.(2) of that section is in the nature of a
proviso to the first sub-section we have quoted. It says that nothing contained
in section 13 shall affect the power of the government to revoke or modify the
detention order at any earlier time. This power, however, is subject to one
other provision and that is section 14 which may be quoted in extensor here. It
reads
14. Revocation of detention orders.-(1)
Without prejudice to the provisions of section 21 of the General Clauses Act,
Samvat 1977, a detention order may at any time be revoked or modified by the
Government, notwithstanding that the order has been made by any officer
mentioned in sub-section (2) of section 3.
(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 Government or an officer, as the case
may be, is satisfied that, such an order should be made." The first
sub-section is not germane to the matter here, but the second is. Relying upon
the second sub-section, the detenu claims that the order revoking the detention
on August 20, 1969, was followed the same day by another 'order detaining him,
and as he was in detention all the time, there could not be any fresh material
before the government for a second detention, as required by the second sub-
section referred to here. The State Government contends, on the other hand,
that the existence of fresh material is not a condition precedent to the
passing of a second order and that in any event the second order can be made
when the first order is withdrawn or revoked for a technical defect.
According to the learned counsel for the
State Government, the grounds of detention may be so serious that even if the
detenu is to be released because of a defective order, a second order may be
necessary to put him in detention immediately after his release.
The matter is not res Integra. In a number of
decisions of this Court -to which reference will be made presently, this point
has been considered and it has been held that once an order of revo- 38 cation
is made, another order detaining the same person can only be passed if some
additional or fresh material is in the possession of the State Government on
which action can be based. The first of these cases is Hadbandhu Das v. District
Magistrate, Cuttack and another(1). In that case, under almost identical
circumstances under section 13 (2) of the Preventive Detention Act, 1950, which
is similar to s.14(2) of the Jammu & Kashmir Act, it was held 'by this
Court "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 other words, the
revocation or expiry of the previous order cannot lead ipso facto to a revival
of the detention by the passing of a fresh order, because a person who is entitled
to his liberty can only be put in a second jeopardy when there are additional
or fresh facts against him. If the section had not spoken of the fresh facts,
the matter might have been different, because, then, the courts would have been
required to see whether there Was any curb upon the power of the government to
detain a person a second time after his release on the self-same material.
Indeed, an earlier case of this Court does exist in which such a view was taken
and we shall presently refer to it. The case from the All India Reporter to
which we have referred was a decision of the Constitution Bench. It was
followed in Kshetra Gogoi v. State of Assam(1) and Mohd. Shafi and Mohd. Yaqub
v. State of Jammu & Kashmir(1). In these two cases also, the view has been
affirmed that the enactment of s.14(2) of the Act or the corresponding section
13(2) of the Preventive Detention - Act, 1950, makes it incumbent upon the
Government to base the detention on some fresh facts and not the old facts on
which the detection was once ordered but the revocation of the order took
place. This view is binding upon us and applies in the present case.
As against this, reference was made to a
decision of this Court in Jagdev Singh v. State of Jammu & Kashmir("),
in which it is laid down that even after the revocation or expiry of the period
of first detention, a fresh order can be made on the same grounds on which the
first order proceeded, unless the' action can be said to be mala fide.
There was, however, no section equivalent to
S. 13 (2) of the Preventive Detention Act or S. 14 (2) of the Jammu &
Kashmir Act in the Defence of India Rules under which that detention had
proceeded. This is sufficient to distinguish the (1) A.I.R. 1969 S.C. 43.
(2) [1970] 2 S.C.R. 517.
(3) Writ Petition 183 of 1969, decided on
October 17, 1969.
(4) [1968] 1 S.C.R. 197.
39 earlier case. As pointed out in the All
India Reporter case, the inference is very compulsive that fresh facts must be
found for new orders otherwise once the old detention comes to an end either by
the expiry of the period of detention or by the cancellation of the order of
detention, a fresh detention cannot be ordered. Following, therefore, the
string of cases to which we have referred and which are indistinguishable from
the facts of the present case, we think the detention of the detenu cannot be
sustained. He is, therefore, ordered to be released forthwith unless required
in some other connection.
V.P.S.
Appeal allowed.
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