{"id":196610,"date":"1969-09-19T00:00:00","date_gmt":"1969-09-18T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/kshetra-gogoi-vs-state-of-assam-on-19-september-1969"},"modified":"2018-12-22T21:20:47","modified_gmt":"2018-12-22T15:50:47","slug":"kshetra-gogoi-vs-state-of-assam-on-19-september-1969","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/kshetra-gogoi-vs-state-of-assam-on-19-september-1969","title":{"rendered":"Kshetra Gogoi vs State Of Assam on 19 September, 1969"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Kshetra Gogoi vs State Of Assam on 19 September, 1969<\/div>\n
Equivalent citations: 1970 AIR 1664, \t\t 1970 SCR (2) 517<\/div>\n
Author: V Bhargava<\/div>\n
Bench: Bhargava, Vishishtha<\/div>\n
           PETITIONER:\nKSHETRA GOGOI\n\n\tVs.\n\nRESPONDENT:\nSTATE OF ASSAM\n\nDATE OF JUDGMENT:\n19\/09\/1969\n\nBENCH:\nBHARGAVA, VISHISHTHA\nBENCH:\nBHARGAVA, VISHISHTHA\nSHELAT, J.M.\nVAIDYIALINGAM, C.A.\nRAY, A.N.\n\nCITATION:\n 1970 AIR 1664\t\t  1970 SCR  (2) 517\n 1970 SCC  (1)\t40\n CITATOR INFO :\n F\t    1973 SC 897\t (7)\n RF\t    1973 SC2469\t (4)\n R\t    1989 SC2265\t (21)\n\n\nACT:\n    Preventive Detention Act, 1950, s. 13(2)--Fresh Order of\ndetention' after expiry of earlier order--Requirements.\n\n\n\nHEADNOTE:\n    Section  11-A(2)  of the Preventive Detention  Act\tlays\ndown in part that the maximum period of detention under s. 3\nshould\tbe  12 months and no more, and after the  expiry  of\nthat period, that order. of detention would lapse.  A  fresh\ndetention order under s. 13(2) can be made on the revocation\nor expiry of a previous detention order only in cases  where\nfresh  facts  have arisen after the date  of  revocation  or\nexpiry.\t  The petitioner, was put in detention in  pursuance\nof an order dated August 29, 1968.  He presented a  petition\nunder  Art. 32 of the Constitution for the issue of a  write\nof  habeas corpus, while this petition was pending,  another\norder  of  detention was issued on August 28, 196.9,  a\t day\nbefore\tthe  expiry of the previous order.  The\t grounds  of\ndetention  in  this latter order was identical\tto  that  of\nAugust\t28, 1968 excepting the charge that  the\t petitioner,\nthough\tin  preventive custody was  maintaining\t links\twith\ncertain named hostile persons through friends and  relatives\nand  that his liberty would jeopardise the security  of\t the\nState  and  public  order in  the  region.   The  petitioner\nchallenged   the  latter  order\t of  detention\t by   adding\nadditional grounds.\n    HELD.: The order of detention dated August 28, 1969\t was\nnot justified under s. 13(2) of the Act, being in  violation\nof  the provisions of the Act, and was invalid.\t Under\tsec.\n13(2)  what  is\t required is that fresh\t facts\tshould\thave\narisen.\t after the expiry of the previous detention.   Facts\narising during the period of detention, are, therefore,\t not\nrelevant  when applying the provisions of s. 13(2).  In\t the\npresent\t case,\tthe fresh order was passed on  28th  August,\n1969,  a day before the expiry, and it was obvious  that  no\nfresh facts could by that date arise and yet be held to have\narisen\tafter the date of expiry.  It is very  difficult  to\nappreciate how a person in preventive custody could continue\nto maintain links with his associates outside jail, who\t had\ngone  underground, even through his friends  and  relatives.\nIf  the petition was able to maintain such links,  it\tcast\na   sad reflection on the persons in charge of him while  he\nwas  in custody and, in any case, it would appear  that\t his\ndetention  could  serve no useful purpose.  Even  if  it  be\naccepted  that such links were maintained,  this  additional\nground\tmentioned  did not satisfy the\trequirements  of  s.\n13(2)  of the Act, because the only allegation was that\t the\nlinks  were  maintained\t during\t the  period  of  preventive\ndetention.\n\n\n\nJUDGMENT:\n<\/pre>\n
ORIGINAL JURISDICTION:Writ Petition No. 211 of 1969.
\n    Petition under Art. 32 of the Constitution of India\t for
\na writ in the nature of habeas corpus.\n<\/p>\n
Hardev Singh, for the petitioner,
\n Naunit Lal, for the respondent.\n<\/p>\n
518<\/span><\/p>\n
The Judgment of the Court was delivered by
\n    Bhargava,  J.   The petitioner in  this  petition  under
\nArticle\t 32  of the Constitution was arrested  and  detained
\nunder  an  order  made\tunder  section\t3(1)(a)(ii)  of\t the
\nPreventive  Detention Act, 1950 (hereinafter referred to  as
\n“the  Act”)  on 24th April, 1968. On 30th August,  1968,  he
\nfiled  a petition in the High Court of Assam under Art.\t 226
\nof  the Constitution for issue of a writ of  habeas  corpus.
\nThe  same  day\the  was released  by  the   Government\tand,
\naccording to him, without being set at liberty, he was again
\nput  in detention in pursuance of a fresh order\t dated\t29th
\nAugust,\t 1968 passed under s. 3(1)(a)(ii) of the  Act.\t The
\ngrounds\t of detention were also served on the same  day.  He
\nmade  his representation on 17th  September,  1968  and\t his
\ncase  was  referred to the Advisory Board also on  the\tsame
\ndate.  The report of the Advisory Board was received on 28th
\nOctober,  1968.\t  On  7th  November,   1968,  his  order  of
\ndetention  was confirmed by the Government on the  basis  of
\nthe  report of the Advisory Board.  This petition  was\tthen
\nreceived  in this Court from the petitioner in July,   1969.
\nchallenging  his  detention  trader  the  order\t dated\t29th
\nAugust,\t 1968.\t The petition came up for hearing  before  a
\nBench  of  this\t Court on 29th August,\t1969  when,  at\t the
\nrequest\t of  the counsel for the State of  Assam,  time\t was
\ngranted\t by the Court till 8th September, 1969 to  send\t for
\nfull material.\tMeanwhile, it appears that a fresh order for
\nhis detention under s. 3(1)(a)(ii) of the Act was issued  on
\n28th  August,\t1969  and  this\t order\twas  served  on\t the
\npetitioner  in\tDelhi  on  29th\t August,  1969,\t after\t the
\nadjournment  had been obtained from this Court.\t  Thereupon,
\nthe petitioner, on 1st September, 1969, filed an application
\nfor amendment of the writ petition and for adding additional
\nnew grounds so as to challenge the validity of his detention
\nunder  the  order dated 28th August, 1969.  The\t grounds  of
\ndetention  under  this\tnew order were also  served  on\t the
\npetitioner on 29th August, 1969.  When this petition came up
\nfor  hearing  before  us on 9th\t September,   1969,  learned
\ncounsel\t for the State of Assam stated that no material\t had
\nbeen  received\tfrom the Government and wanted\ttime  to  be
\ngranted\t to  meet the facts put forward in  the\t application
\ndated  1st  September,\t1969.  It appears  that,  though  an
\nofficer\t was  sent by the Government of Assam  to  Delhi  to
\nserve the order dated 28th August, 1969 on the detenu  which
\nhe  did on 29th August, 1969, no attempt was made to  obtain
\nthe material for which time had been obtained from the Court
\non 29th August, 1969.  If a fresh order had been passed\t and
\nhad  been served on the petitioner in supersensible  of\t the
\nprevious  order which was challenged in the  writ  petition,
\nthe State Government should have sent full material relating
\nto this order, which it became necessary for the  petitioner
\nto challenge by amending his writ peti-\n<\/p>\n
519<\/span><\/p>\n
tion.\tDetention  of  a person without trial,\teven  for  a
\nsingle day,, is a matter of great consequence and, hence, we
\ndid not consider that, in the circumstances mentioned above,
\nthere was any justification for granting further time to the
\nState Government to obtain material and file a reply to this
\napplication dated 1st September, 1969.\n<\/p>\n
    In\tview of the facts mentioned above, it is clear\tthat
\nthe’  validity of the order of detention dated 29th  August,
\n1968, which was first challenged in the petition, has become
\nimmaterial because the petitioner is now under detention  by
\nvirtue of the fresh order dated 28th August, 1969 served  on
\nhim  on 29th August,  1969.  In the counter-affidavit  filed
\nit  was stated that the first order of detention dated\t24th
\nApril, 1968 had automatically lapsed, because that order did
\nnot  receive the approval of the State Government within  12
\ndays as required by section 3(3) of the Act.  This admission
\nwould indicate that, after the expiry of those 12 days,\t the
\npetitioner’s detention was not justified by any valid  order
\npassed in law until the second detention order was served on
\nhim  on\t the  30th August, 1968\t after\treleasing  him\tfrom
\ncustody.  However, in the present writ petition, we are\t not
\nconcerned  with the effect of this procedure adopted by\t the
\nState  Government, because, even if it be assumed  that\t the
\nsecond\torder  of  detention  was  validly  served  on\t the
\npetitioner  on\t30th  August,  1968,  the  period  of\tthat
\ndetention  expired on 28th August,  1969 in view of  section
\n11-A  of  the Act which prescribes a maximum  period  of  12
\nmonths for detention under the Act on the basis of an  order
\npassed\tunder  s. 3 of the Act. On 29th August,\t  1969,\t the
\ndetention  under  the second order dated 29th  August,\t1968
\nhaving expired, the State Government passed this third order
\nof  detention and served it on the petitioner while  he\t was
\nstill  in  custody in Delhi.  The question  is\twhether\t the
\nfurther detention under this third order is valid.
\n    The\t provision contained in section 11-A(2) of  the\t Act
\nclearly\t lays down the intention of Parliament that  on\t the
\nbasis  of  grounds found to exist at one time,\tthe  maximum
\nperiod of detention under section 3 should be 12 months\t and
\nno  more.   On\tthe expiry of that  period,  that  order  of
\ndetention  would  lapse; but a fresh order of  detention  is
\npermitted to be passed under section 13(2) of the Act  which
\nis as follows :–\n<\/p>\n
\t\t  “13.\t(2)  The revocation or expiry  of  a
\n\t      detention order shall not bar the making of  a
\n\t      fresh detention order under section 3  against
\n\t      the same person in any case where fresh  facts
\n\t      have  arisen after the date of  revocation  or
\n\t      expiry on which the Central Government
\n\t      520<\/span>
\n\t      or  a State Government or an officer, as.\t the
\n\t      case  may\t be, is satisfied  that\t such  order
\n\t      should be made.”\n<\/p><\/blockquote>\n
“This  provision  clearly lays down that a  fresh  detention
\norder  can     be  made on the revocation  or  expiry  of  a
\nprevious  detention  order only in cases where\tfresh  facts
\nhave  arisen after the date of revocation or  expiry.\tThis
\nprinciple  was explained by this Court in Hadibandhu Das  v.
\nDistrict  Magistrate,  Cuttack and Another<\/a>(1) where  it\t was
\nheld :–\n<\/p>\n
\t\t  “On January 28, 1968, the State of  Orissa
\n\t      purported to revoke the first order and made a
\n\t      fresh  order. The validity of the fresh  order
\n\t      dated  January 28, 1968, made by the State  of
\n\t      Orissa  is  challenged on the ground  that  it
\n\t      violates\tthe  express provisions\t of  Section
\n\t      13(2)  of\t the Preventive Detention  Act.\t  In
\n\t      terms that subsection authorises the making of
\n\t      a\t fresh\tdetention  order  against  the\tsame
\n\t      person  against  whom the previous  order\t has
\n\t      been revoked or has expired in any case  where
\n\t      fresh  facts  have arisen after  the  date  of
\n\t      revocation  or expiry, on which the  detaining
\n\t      authority\t is  satisfied that  such  an  order
\n\t      should  be made.\tThe clearest implication  of
\n\t      Section  13(2)  is that  after  revocation  or
\n\t      expiry  of the previous order, no fresh  order
\n\t      may  issue on the grounds on which  the  order
\n\t      revoked  or  expired had been  made.   In\t the
\n\t      present  case,  the order dated  December\t 15,
\n\t      1967   passed  by\t the  District\t Magistrate,
\n\t      Cuttack was revoked on January  28,  1968, and
\n\t      soon thereafter a fresh order was served\tupon
\n\t      the  appellant.\tIt is not the  case  of\t the
\n\t      State  that any fresh facts which\t had  arisen
\n\t      after  the  date of revocation  on  which\t the
\n\t      State  Government was satisfied that an  order
\n\t      under Sec. 3(1)(a)(ii) may be made.  There was
\n\t      a\t fresh\torder, but it was not based  on\t any
\n\t      fresh facts.”\n<\/p><\/blockquote>\n
In  view  of this decision, we have to see whether,  in\t the
\npresent case, the requirements laid down by s. 13(2) of\t the
\nAct  for  making a fresh order were or were  not  satisfied.
\nThe  main  requirement is that the order must  be  made\t not
\nmerely\ton the past grounds, but no fresh facts\t which\thave
\narisen after the date of expiry.\n<\/p>\n
    In\tthe  present case, we have compared the\t grounds  of
\ndetention  served  in  pursuance of  the  order\t dated\t28th
\nAugust,\t 1969,\twith  the grounds of  detention\t which\twere
\nserved\t on  the  petitioner\t pursuance  of\tthe   second
\ndetention  order dated 29th  August, 1968, and we find\tthat
\nthe two are identical, except that two
\n(1) A.I.R. 1969 S.C. 43.\n<\/p>\n
521<\/span><\/p>\n
small paragraphs have been added when serving the grounds of
\ndetention  in  respect\tof the detention  order\t dated\t28th
\nAugust, 1969.  These paragraphs are as follows:\n<\/p>\n
\t\t    “That  though in preventive custody,  he
\n\t      has  been\t maintaining links  with  Shah\tSyed
\n\t      Hussain  and  other  associates,\t who\twent
\n\t      underground  in  Nagaland, through his friends
\n\t      and relatives.  Shah Syed Hussain and his gang
\n\t      since  received some arms and explosives\tfrom
\n\t      Naga  rebels for committing acts\tof  sabotage
\n\t      and   creating   large   scale   disturbances,
\n\t      particularly  in the plains areas along  Assam
\n\t      Nagaland border.\n<\/p><\/blockquote>\n
\t      That,   in  the  circumstances,\tShri  Khetra
\n\t      Gogoi’s  being  at large will  jeopardise\t the
\n\t      security\tof the State and the maintenance  of
\n\t      public order in this region.”\n<\/p><\/blockquote>\n
The  first one of these two paragraphs is the only one\tthat
\npurports  to mention some ground in addition to the  grounds
\nwhich were included amongst the grounds which were the basis
\nof  the\t order dated 29th August,  1968.  We have  found  it
\nvery  difficult\t to appreciate how a  person  in  preventive
\ncustody could continue to maintain links with his associates
\noutside\t jail  who  had gone underground  even\tthrough\t his
\nfriends\t and relatives.\t    of the (present) petitioner\t was
\nable  to maintain such links, it casts a sad  reflection  on
\nthe persons in charge of him while he was in custody and, in
\nany case, it would appear that his detention could serve  no
\nuseful\tpurpose.  It appears (to us) to be, in\tfact,\tvery
\ndoubtful whether any such contacts could possibly have\tbeen
\nmaintained.  However,  even  if\t we  accept that such  links
\nwere  maintained, this additional ground mentioned does\t not
\nsatisfy the requirements of s. 13(2) of the Act, because the
\nonly allegation is that the links were maintained during the
\nperiod of preventive detention.\n<\/p>\n
Under  s. 13(2) what is required is that fresh facts  should
\nhave  arisen  after the expiry of  the\tprevious  detention.
\nFacts arising during the period of detention are, therefore,
\nnot  relevant when applying the provisions of s. 13(2).\t  In
\nthe present case, the fresh order was passed on 28th August,
\n1969,  a  day before the expiry, and it is obvious  that  no
\nfresh facts could by that date arise and yet be held to have
\narisen after the date of expiry.\n<\/p>\n
    The order dated 28th August, 1969 was, therefore, not at
\nall justified under s. 13(2) of the Act and that order being
\nin violation of the provisions of the Act has to be held  to
\nbe  invalid,  so  that the detention  under  that  order  is
\nillegal.  The petition is allowed.  The petitioner shall  be
\nset at liberty forthwith.\n<\/p>\n
Y.P.\n<\/p>\n
\t\t\t\t  Petition allowed.\n<\/p>\n
522<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Kshetra Gogoi vs State Of Assam on 19 September, 1969 Equivalent citations: 1970 AIR 1664, 1970 SCR (2) 517 Author: V Bhargava Bench: Bhargava, Vishishtha 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-196610","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nKshetra Gogoi vs State Of Assam on 19 September, 1969 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/kshetra-gogoi-vs-state-of-assam-on-19-september-1969\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Kshetra Gogoi vs State Of Assam on 19 September, 1969 - 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