Full Judgment Text
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PETITIONER:
GHULAM NABI ZAKI
Vs.
RESPONDENT:
STATE OF JAMMU AND KASHMIR
DATE OF JUDGMENT:
27/10/1969
BENCH:
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order was revoked, and under s. 14(1) a fresh order of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]
JUDGMENT:
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
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an order passed under the same section on August 23, 1968.
After the first order was passed, a second order was passed
by the
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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
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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
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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-
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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
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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.
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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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