PETITIONER:
KSHETRA GOGOI
Vs.
RESPONDENT:
STATE OF ASSAM
DATE OF JUDGMENT:
19/09/1969
BENCH:
BHARGAVA, VISHISHTHA
BENCH:
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.
JUDGMENT:
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 peti-
519
tion. 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.
522