KSHETRA GOGOI versus STATE OF ASSAM

KSHETRA GOGOi

STATE OF ASSAM

September 19, 1969 (J. M. SHELAT, V. BHARGAVA, C. A. VAID!ALINGAM AND I. D. DuA, JJ.]

Preventive Detention Act, 1950, s. 13 (2)-Fresh Order of detentiow after expiry of earlier order-Requirements.

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 orde~ of detention would lapse. fresh detention order under s. 13(2) can be made on the revo-cation or expiry of previous det<:ntion order only in cases where fiesh facts have arisen after the date of revocation or expiry. The petitioner. was put in detention in pursuance of an order dated AuJ!US1 29, 1968. He· presented petition under Art. 32 of the Constitution for the is.roe of & [write ]detenlioa was issued [of ][habeas ][corpus, ]on [while this petition was pending, another order ]August 28, 1969, day before the expiry of the [of ]previous order. Ibe grounds of detention in this latter order was identical to that of August 28, 1968 excepting th~ 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 ol 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/ aftor 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). Jn the p<esen~ case, the fresh order was passed on 28th August, 1969, day before the expiry, and it was obvious that p 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 person in preventive custody Could continue to maintain links with bis associates outside jail, who had gone underground, even through his friends and rela-tives. If the petition was able to maintain such links, it cast sad !reflection on the persoos in charge of him while he was in custody an<J.,_ in any case, it would appear that his detention could serve no useful pur .. pose. Evell. if it be accepted that such links were maintained, this addi· tional groiilld ·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.

01uGINAL JURISDICTION : Writ Petition No. 211 of 1969.

Petition under Art. 32 of the Constitution of India for writ in the nature of habeas corpus.

Hardev Singh, for the petitioner.

Naunit Lal, for .the respondent.

The Judgment of the Court was delivered by

Bhargava, J. The petitioner in this petition under Article 3 2 of the Constitution was arrested and detained under an order made under section 3(l)(a)(ii) of the Preventive Detention Act, 1950 (hereinafter referred to as ''the Act") on 24th April, 1968. On 30th August, 1968, he filed petition in the High Court of Assam under Art. 226 of the Consfaution for issue of writ of habeas corpus. The same day he was released by the Gov-ernment and, according to him, without being set at liberty, he was again put in detention in pursuance of fresh order dated 29th August, 1968 passed under s. 3(1)(a)(ii) of the Acc. 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 rhe 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 under the order dated 29th August, 1968. The petition came up for hearing before Bench of this Court on 29rh 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, ir appears that 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 Courr. Thereupon, the petit':mer, 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 Augusr, 1969. The grounds of detention under this new order were also served on the petitioner on 29th August, 1969. When this peti-tion came up for hearing before us on 9rh September, 1969, learned counsel for the State of Assam stated that no material had been received from hte Government and wanted time to be granted to meet the facrs 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 Augusr, 1969 on the detenu which he did on 29th August, 1969, no attempt was made to obtain the material for which time had been obatined from the Court on 29th August, 1969. If fresh order had been passed and had been served on the petitioner in supers<!ssion 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 ne-cessary for the petitioner to challenge by amending his writ peti-

ti on. Detention of person without trial, even for single day r is a; matter of great consequence and, hence, we did not consi-der that, in the circumstances mentioned above, there was any justi.fication for granting further time to the State Government to obtain material and file reply to this app:;cation 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 immate-rial 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, 196~ had automa-tically 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 detentior. was not justi-D fied by any valid order passed in law until the second detention order was served on him on the 30th August, 1968 after releas-ing him from custody. However, in the present writ petitionr we are not concerned with the effect of this procedure adopted by the State Government, because, even if it t.e assumed that the second order of detentlon 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 wbi.ch prescribes maximum period of 12 months for detention under the Act on the basis of an order pa~sed under s. 3 of the Act. On 29th August, 1969, the detention under the Becond order dated 29th August, 1968 having expired, the State Government passed this third order of detention and served it on the peti-F tioner 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 deten-G tion under section 3 should be 12 months and no more. On the expiry of that period, that order of detention would lapse; but fresh order of detention is permitted to be passed under section 13(2) of the Act w':!ich is as follows :-·

"13. (2) The revocation or expiry of detention order shall not ~ar the making of ~ fresh detention order under section. 3 against the same person in any case where fresh facts have arisen after the date of re-vocation or expiry on which the Central Government

or State Government or an officer, as the case may be, is satisfied that such order should be made."

This provision clearly lays down that fresh detention order can be tnade on the revocation or expiry of previous detention order only in cases where fresh facts have arisen after t!he date of re-vocation or expiry. This principle was explained by this Court in Hadibandhu Das v. District Magistrate, Cuttack and Another(') where it was held :-

"On January 28, 1968, the State of Orissa pur-ported to revoke the first order and made 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 Detenrion Act. In terms that sub-section authorises the making of 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 revoca-tion or expiry, on which the detaining authority is satis-fied 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 Ma-gistrate, Cuttack was revoked on January 28, 1968, and soon thereafter 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 fresh order, but it was not based on any fresh facts."

In view of t!his decision, we ·have to see whether, in the present case, the requirements laid down by s. 13(2) of the Act for making fresh order were or were not satisfied. The main re-quirement 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 de~en­tion served in pursuance of the order dated 28th August, 1969, with the grounds of detention which were served on the pe!itioner in pun.uance of the second detention order. dated 29th August, 1968, and we find that the two are identical, except that two (]) A.I.R. 1969 s.c. 43.

small paragraphs have be~n 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 Hus-sain and his gang since received some arms and explo-sives from Naga rebels for committing acts of sabot-age and creating large scale disturbances, particularly in the plains areas along Assam Nagaland border. That, in the circumst;mces, 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 pur-ports 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 person in preventive custody could continue to maintain links with his associa~es outside jail who had gone underground even through his friends and relatives. If the (present) petitioner was able to maintain such links, it casts sad reflection on the persons in charge of him while he was in custody and, in any case, it would appear that his deten-tion 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, day b~fore 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.

Petition allowed.