Full Judgment Text
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PETITIONER:
P.L. LAKHANPAL
Vs.
RESPONDENT:
THE UNION OF INDIA AND ANOTHER
DATE OF JUDGMENT:
07/03/1967
BENCH:
SHELAT, J.M.
BENCH:
SHELAT, J.M.
HIDAYATULLAH, M.
MITTER, G.K.
CITATION:
1967 AIR 1507 1967 SCR (3) 114
CITATOR INFO :
R 1967 SC1797 (1,3,6,7,8)
APL 1968 SC 327 (1,2,3,4,7,8)
RF 1968 SC 765 (1,17)
E 1972 SC 689 (14)
R 1974 SC 87 (11)
ACT:
Defence of India Rules, 1962, Rules 30(1) (b) and 30A(9)-
Review of detention order--if quasi judicial
function--opportunity to detenu to make representation.
HEADNOTE:
The petitioner was arrested and detained by an order dated
December 10, 1965 under Rule 30(1)(b) of the Defence of
India Rules, 1962. On June 11, 1966, he was served with an
order of the Central Government under Rule 30A(9) to the
effect that after a review of the detention order, it had
been decided to continue his detention. Writ petitions
filed by the petitioner challenging these two orders on
various grounds were dismissed. On December 2, 1966, he was
served with another order under Rule 30A(9) stating that the
detention order had been further reviewed and upon such
review the Government had decided that the detention should
continue. The petitioner challenged this order by the
present writ petition on the ground, inter alia, that it was
passed in disregard of the duty of the Government to act
judicially, implicit in the power conferred on it under Rule
30A(9) to continue detention, both the function to review
and the decision thereon being judicial or quasi judicial.
It was contended on behalf of the respondent (i) that the
order of detention being a purely executive order, an order
of review under Rule 30A(9) of the very circumstances on
which the detention order was made and subsequent
circumstances would also be an executive order; and (ii)
that the impugned order was passed after considering various
materials against the petitioner.
HELD, allowing the petition : (i) The function entrusted to
the authority under Rule 30A(9), as distinguished from the
power under Rule 30(1)(b), is quasi-judicial and the
decision which it has to arrive at is a quasi-judicial
decision.
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To say that because a function is in its inception executive
in character,, it retains the executive character throughout
would not be correct. Besides, the function under Rule
30(1)(b) and that under Rule 30A(9) is not one and the same.
The former is completed -,is soon -as an order of detention
is made; the latter is independent of the former and is to
be exercised after detention has gone on for a period of six
months. Whereas the function under Rule 30(1)(b) is
executive, the one under Rule 30A(9) is quasi-judicial and
therefore in exercising it the rules of natural justice have
to be complied with. [123 D-F]
(ii) It was a admitted that the petitioner was not given any
opportunity of representing his case or to correct or
contradict the evidence on which the Government admittedly
relied before passing the order of December 2. 1966. There
was therefore a breach of principles of natural justice and
the order of continuation of detention was illegal -and must
be quashed. [123 F-G; 124 C-D]
Sadhu Singh v. Delhi Administration, [1966] 1 S.C.R. 243,
dissented from.
115
P.L. Lakhanpal v. The Union of India and Anr., [1967] 1
S.C.R. 433,P. L. Lakhanpal v. The Union of India and
another, [1966] Supp. S.C.R. 209, Board of Education v.
Rice, [1911] A.C. 182; Local Government Board v. Arlidge,
[1915] A.C. 120 at p. 132; Province of Bombay v. Kusaldas S.
Advani, [1950] S.C.R. 621, 725; Nagendra Nath Bora, v. The
Commissioner of Hills Division, [1958] S.C.R. 1240;
Radheshyam Khare v. The State of Madhya Pradesh, [1959]
S.C.R. 1440; Gullapalli Nageswara Rao v. Andhra Pradesh
State Road Transport Corporation, [1959] Supp. 1 S.C.R.
319; Shivji Nathubhai v. The Union of India, (1960] 2 S.C.R.
775; Board of High School and Intermediate Education, U.P.
v. Ghanshyam, [1962] Supp. 3 S.C.R. 36; and R. Johnson & Co.
(Builders) Ltd. v. Minister of Health, [1947] 2 All E.R.
395, referred to.
JUDGMENT:
ORIGINAL JURISDICTION : Writ Petition No. 258 of 1966.
Petition under Art. 32 of the Constitution of India for the
enforcement of the Fundamental Rights.
The petitioner appeared in person.
R. H. Dhebar, R. N. Sachthey, and S. S. Javali, for the
respondent.
The Judgment of the Court was delivered by
Shelat, J. The petitioner was arrested by an order dated
December 10, 1965 under Rule 30(1) (b) of the Defence of
India Rules, 1962 and was detained in Central Jail, Tehar,
New Delhi. On the 24th December, 1965, he filed writ
petition No. 47 of 1966 in this Court challenging his
detention, inter alia, on the grounds that ( 1 ) Rule 30 ( 1
) (b) was ultra vires s. 3 (2) (15) (i) of the Defence of
India Act, (2) that rule 23 of the Defence of India (Delhi
Detenues) Rules, 1964 gave him a right to make a
representation by providing review of the said detention
order and that his said right was disregarded by his having
been prevented from making such representation, (3) that the
said order was in breach of s. 44 of the Act, and (4) that
it was made in mala fide exercise of power. That petition
was dismissed on April 19, 1966. The petitioner was
thereafter served with an order dated June 11, 1966 passed
by the Central Government under Rule 30A(9) of the said
Rules. The said order, inter alia, stated that "the said
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detention order has been reviewed by the Central Government-
and upon such review the Central Government hereby decides
that Shri P. L. Lakhanpal-should continue to be detained
with a view to preventing him from acting in any manner pre-
judicial to the Defence of India and Civil Defence". The
petitioner filed Writ Petition No. 137 of 1966 challenging
the validity of the said original order of detention and the
order dated June 11, 1966. Rule 30A(9) provides as
follows:-
"Every detention order made by the Central
Government or the State Government shall be
reviewed at
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intervals of not more than six months by the
Government who made the order and upon such
review that Government shall decide whether
the order should be continued or cancelled".
That petition also was dismissed by judgement dated
September 21, 1966. It appears that the petitioner
thereafter addressed certain letters and sent
representations to the Home Ministry stating therein that he
was now clearly of the opinion that the demand for
plebiscite in Kashmir by Pakistan had become untenable as a
result of certain events having taken place, that the
Tashkent declaration had altered relations between Pakistan
and India that the said declaration and other events which
had since taken place had completely changed the complexion
of Pakistan’s stand on Kashmir and that he was also now of
the opinion that the application of some of the provisions
of the Indian Constitution to Kashmir was correct. He also
represented that there were more pressing problems in the
country requiring his attention than the question of Kashmir
and the relations between the two countries on that
question. By an order dated the 2nd December, 1966, the
Government of India directed the further detention of the
petitioner stating therein that "the said detention order
has been further reviewed by the Central Government and upon
such review the Central Government hereby decides that the
order for the detention of the said Shri P. L. Lakhanpal
should be continued". The present petition challenges the
validity of this order.
The petitioner contended
(i) that the said order is a mechanical and
casual order passed without taking into
consideration all the facts and circumstances
relevant under Rule 30(1) (b) and Rule 30A(9).
(ii) That it is passed in utter disregard of
the duty of the Government to act judicially,
implicit in the power conferred on it under
Rule 30A(9) to continue detention, both the
function to review and the decision thereon
being judicial or quasi-judicial.
(iii) That the said order is ultra vires S. 44
of the Act where under the Government is
required to decide whether detention is the
minimum action necessary on the facts and
circumstances of the case.
(iv) That the said order is mala fide and
illegal being contrary to the policy
’statements made on behalf of the Government
in Parliament from time to time to restrict
the operation of the Act and the Rules :
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(a) for purposes of defence only, and
(b) in border States; and
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(v) That the said order is mala fide as it
is motivated by punitive rather than
preventive considerations.
In reply to these contentions the counter-affidavit filed by
the Deputy Secretary in the Ministry of Home Affairs states
that between the 10th of December, 1965 and the 2nd of
December, 1966, the petitioner had made representations
either directly or through certain persons and had addressed
letters explaining his position, that on the basis of those
representations and letters and the report about his past
activities called for from the police and after considering
those materials the Central Government felt satisfied that
it the petitioner were to be released, he was likely to
resume his prejudicial activities and, therefore, his
detention should be continued. The affidavit further
alleged that at the time of the review of his case on
December 2, 1.966 "the said letters, papers, representations
and the report from the police were placed before the
Minister who had considered the same and he was satisfied
that it was necessary to continue the detention of the
petitioner". It also stated that it was not possible to-
disclose to the detenu the material on the basis of which
the Central Government came to the said conclusion, that the
order of detention was to prevent the petitioner from
indulging in prejudicial activities mentioned in Rule
30(1)(b) and that the apprehension of his indulging in
such activities would have to be judged and was judged from
representations made by him. It is thus clear from the
counter-affidavit that the detaining authority considered
(1) the representations and letters made and written by the
petitioner, (2) the report of the police authorities in
regard to the past activities of the petitioner (there being
no question of any present activities as he was in jail
since the 2nd of December, 1965) and (3) the events which
had since his detention taken place. According to the
Central Government, it came to the decision that
continuation of his detention was necessary as it was
satisfied that if he were to be released he would continue
the -same anti-national activities for which he was detained
and that his professions that there was a change in his view
was only a ruse to get himself released from detention.
Now, there is no doubt that under the Act as also under the
said Rules the Government is the special forum on whose
subjective satisfaction an order of detention for the
considerations set out in Rule 30 (1) (b) can be made and on
whose decision arrived ,it on the considerations and in the
manner -prescribed by Rule 30A(9) such detention can be
continued. However, as held in P. L. Lakhanpal v. The
Union of India and Anr., (1) there is a
(1) [1967] 1 S.C.R.433.
118
difference in the power to detain and the power to continue
such detention beyond a period of six months in that whereas
the former depends upon the subjective satisfaction of the
detaining authority, the latter has in express terms been
made dependent on the existence of facts and circumstances
necessitating such continuance. This Court held in that
petition :
"It follows that where the exercise of power
is not conditioned on a mere opinion or
satisfaction but on the existence of a set of
facts or circumstances that power can be
exercised where they exist. The authority in
such a case is required to exercise the power
in the manner and within the limits authorised
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by the Legislature. The existence, of such
facts which is the determinant for the
exercise of the power is demonstrable".
The Court further observed :-
"Unlike Rule 30(1) (b) the power to continue
the detention after review is not dependent on
the satisfaction of the Government. Rule 30A
postulates that ordinarily detention should
not be for more than six months unless found
necessary. It is for that reason that under
the Rules when the period of six months
expires the Government is enjoined upon to
decide whether it should be continued or
cancelled. Though the legislature has made
the Government the exclusive forum for such a
decision, its decision has to be founded on
facts and circumstances which make the
continuation necessary in order to prevent the
detenu acting in a manner prejudicial to the
matters set out therein. The substitution of
decision instead of satisfaction is a clear
indication that the criterion for continuing
the detention is the existence of those facts
and circumstances which necessitate it. It is
not unreasonable to think that the legislature
decided to confer power the exercise of which
was made dependent upon the subjective
satisfaction at the initial stage but where
continuation of detention was concerned, it
thought that there should be different con-
siderations. At that stage there would be
ample time and opportunity for the Government
to scrutinise the ,case fully and ascertain
whether facts and circumstances exist
demanding continuation and therefore
deliberately used the word ’decide’ instead of
the words ’is satisfied’. Therefore, where
such circumstances do not exist there would be
no necessity for continuation and yet if the
Government decides to continue the detention,
such a decision would be beyond the scope of
Rule 30A and would not be a decision within
the meaning of or under
119
that Rule. Cases may arise where
circumstances exist leading to the authority’s
satisfaction that a particular person should
be detained but those circumstances may not
exist at the time when the review is made. In
the latter case it is impossible to say that
the Government can still decide to continue
the detention nor is it possible to say that
it is the Government’s opinion or satisfaction
that such facts and circumstances exist which
is the criterion. The decision on a review
has to be arrived at from the facts and
circumstances which actually subsisted at the
time when the original order was made in the
light of subsequent developments and not
merely those existing at the time when the
order was made. In such a case the decision
can be challenged as one not within the scope
of or under the Rule and therefore un-
authorised or as one based on considerations
irrelevant to the power".
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The position resulting from this decision is that the
decision to continue detention has to be arrived at not
subjectively but on an objective standard, i.e. on a
decision on materials relevant to the purposes under Rule
30(1) (b) and Rule 30A(9) gathered by or placed before the
detaining authority which, according to that authority,
necessitates continuation. Though it is the detaining
authority which has to decide and its order is not subject
to appeal or revision by a court of law such an order is
liable to a challenge where either such facts and
circumstances do not exist or where it is made on the basis
of facts or circumstances not relevant or extraneous to the
said purposes.
On the contentions raised by the petitioner, the question
that falls for determination is whether the function
entrusted by Rule 30A(9) to the Government and its decision
thereunder are judicial or quasi-judicial. This question
was left open in the earlier judgment in P. L. Lakhanpal v.
The Union of India and Another(1) as the petitioner had then
not raised it.
As to what is a quasi-judicial as against an administrative
or ministerial function, it is no longer necessary to go in
any detailed search for the principles governing the
distinction between the two. Lord Loreburn, L. C. in Board
of Education v. Rice (2 ) stated, "Comparatively recent
statutes have extended, if they have not originated, the
practice of imposing upon departments or officers of State
the duty of deciding or determining the questions of various
kinds. In the present instance, as in many others, what
comes for determination is sometimes a matter to be settled
by discretion, involving no law. It will, I suppose,
usually be of an administrative kind; but sometimes it will
involve a matter of law
(1) [1966] Supp S.C.R. 209. (2) [1911] A.C. 182.
120
as well as a matter of fact, or even depend upon a matter of
law alone. In such cases the Board of Education will have
to ascertain the law and also to ascertain the facts. I do
not add that in doing either they must act in good faith and
fairly listen to both sides, for that is a duty lying upon
every one who decides anything. But I do not think that
they are bound to treat such a question as though it were a
trial .... They can obtain information in any way they think
best, always giving a fair opportunity to those who are
parties in the controversy for correcting or contradicting
any relevant statement prejudicial to their view". Similar
sentiments were also expressed by Lord Haldane in Local
Government Board v. Arlidge(1). The Lord Chancellor there
stated, "When the duty of deciding an appeal is imposed,
those whose duty it is to decide it must act judicially.
They must deal with the question referred to them without
bias, and they must give to each of the parties the
opportunity of adequately presenting the case made. The
decision must be come to in the spirit and with the sense of
responsibility of a tribunal whose duty it is to mete out
justice". The principles distinguishing a quasi-judicial
function from one which is ministerial were more precisely
set out by Das, J. (as he then was) in the Province of
Bombay v. Kusaldas S. Advani(2). He observed (1) where is a
lis, there is prima facie in the absence of anything in the
statute to the contrary the duty of the authority to act
judicially and the decision of the authority is a quasi-
judicial act; and (2) even if there is no lis inter-parties
and the contest between the party proposing to do the act
and the subject opposing it, the final determination of the
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authority will yet be a quasi-judicial act provided the
authority is required by the statute to act judicially. "In
other words, while the presence of two parties besides the
deciding authority will prima facie and in the absence of
any other factor impose upon the authority the duty to act
judicially, the absence of two such parties is not decisive
in taking the act of the authority out of the category of
quasi-judicial act if the authority is nevertheless required
by the statute to act judicially". These principles have
since been acted upon by this Court in subsequent decisions
such as Nagendra Nath Bora, v. The Commissioner of Hills
Division ( 3) Radheshyam Khare v. The State of Madhya
Pradesh (4), Gullapalli Nageswara Rao v. Andhra Pradesh
State Road Transport CorPoration(5) and Shivji Nathubhi v.
The Union of India (6). In Board of High School and
Intermediate Education, U.P. v. Ghanshvam (7) the question
again was whether the power entrusted to the Examination
Committee under s. 15 of U.P.
(1) [1915] A.C.120 at p.132. (2) [1950] S.C.R. 621, 725.
(3) (1958] S.C.R. 1240. (4) [1959] S.C.R. 1440.
(5) [1959] Supp. 1 S.C.R. 319.(6) (1960] 2 S.C.R. 775.
(7) [1962] Supp. 3 S.C.R. 36.
121
Intermediate Education Act, 1921 and Chapter VI, r. (1) of
the Regulations made thereunder was a quasi-judicial power.
Wanchoo, J., who spoke for the court said at page 43 as
follows :-
"Now it may be mentioned that the statute is
not likely to provide in so many words that
the authority passing the order is required to
act judicially; that can only be inferred from
the express provisions of the statute in the
first instance in each case and no one
circumstance alone will be determinative of
the question whether the authority set up by
the statute has the duty to act judicially or
not. The inference whether the authority
acting under a statute where it is silent has
the duty to act judicially will depend on the
express provisions of the statute read along
with the nature of the rights affected, the
manner of the disposal provided, the objective
criterion if any to be adopted, the effect of
the decision on the person affected and other
indicate afforded by the statute".
The Court there held that it was obvious that the Committee
when it proceeded to decide matters covered by r. 1(1) will
have to depend upon materials placed before it and before it
decided to award any penalty it had to come to an objective
determination on certain facts and this was the only manner
in which it could carry out the duties imposed on it. Even
though there was no lis in the present case in the sense
that there were not two contending parties before it the
Committee should hear the examine whose lives might be
seriously affected by its decision even subjecting them in
some cases to criminal prosecution on charges of
impersonation, fraud and perjury. Though, therefore, there
was nothing express one way or other in the act or the
Regulation casting a duty on the Committee to act
judicially, the manner of the disposal and the serious
effects of the decision of the Committee would lead to the
conclusion that a duty to act judicially was cast on the
Committee and the Committee when it acted under r. 1(1) was
acting quasi-judicially and the principles of natural
justice would apply to its proceedings.
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Let us now proceed to consider the nature of the function of
review and the decision thereon in the light of the
principles laid down in these decisions. There can hardly
be any doubt that in a case of the kind we have before us
there must always occur a dilemma or a conflict between the
claims on the one hand of personal liberty of an individual
and these of national interests on the other. Nevertheless,
it must be remembered that in such cases, the only remedy
that a person detained has lies in the procedural safeguards
that the legislature deliberately lays down. Where such
procedural safeguards have been fully and properly complied
with, the Court would have no power or would in any
L4SupCI/67-9
122
event be reluctant, even if it has, to interfere. That is
because of the consideration that national interest and
security should have a prior claim than even the personal
liberty of an individual who has acted or is likely to act
in a manner prejudicial to them. In such cases, however,
utmost care has to be taken to comply with such few
safeguards which the law justifying the loss of liberty
provides. That the impugned decision involves the right of
personal liberty, a more cherished right than that one
cannot conceive in our democratic State is obvious. It is
equally obvious that the manner in which the question of
continuation of detention enjoined upon by Rule 30A(9) has
to be determined is by applying the objective standard as
against the subjective opinion or the belief of the
detaining authority i.e. by weighing evidence brought before
or collected by such authority relevant to the purposes
under Rule 30(1) (b) and Rule 30A(9) and then coming to a
decision whether the order of detention needs continuation
or not. How can such an authority come to its decision
honestly and properly unless it is certain that the
materials before it are true and dependable. How is that
certainty to be derived unless the person concerned is given
an opportunity to correct or contradict such evidence either
by explanation or through other materials which he can place
before the authority. Keeping in mind the five factors laid
down in the case of The Board of High School and
Intermediate Education U.P. (1), the conclusion that we must
come to is that the function entrusted to the authority
under Rule 30A(9) as distinguished from the power under Rule
30(1) (b) is quasi-judicial and the- -decision which it has
to arrive at cannot be anything other than. a quasi-judicial
decision.
Mr. Dhebar, however, relied on the judgment of Shah, J. in
Sadhu Singh v. Delhi Administration ( 2 ) and especially the
observations therein that "if the order of detention is
purely executive and not open to review by the court, a
review of those very pircumstances on which the order was
made in the light of circumstances since the date of the
order cannot but be regarded as an executive order". The
question is: Does it follow that because the first order is
purely executive, the subsequent order is necessarily also
executive? While making the subsequent order, the authority
is called upon to decide whether further detention is
necessary for the purposes set out in the Rules. That
decision has to be arrived at, firstly, on the assessment of
the evidence placed before the authority and not on its
subjective satisfaction and secondly, in the light of the
facts which existed at the date of the original order and
the facts and circumstances which have occurred or developed
since then. It is well-recognised that a function or power
which in its inception is purely ministerial may some-
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(1) [1962] Supp. 3 S.C.R. 36.
(2) [1966] 1 S.C.R. 243.
123
times become quasi-judicial at a latter or some intermediate
stage during the course of its exercise. At the stage at
which it attains the nature of a quasi-judicial function,
the authority entrusted with that function has to comply
with the rules of natural justice and give an opportunity to
the party concerned of representing his case. An
illustration can be found in R. Johnson & Co. (Builders)
Ltd. v. Minister of Health(1), where Lord Greene, M.R. at p.
401 of the Report points out that the function entrusted to
the Minister there was of such a composite character. It
started as an administrative function but at the second
stage it was quasi-judicial where he had to consider the
objections of parties, that is, the objectors and the local
authority and then ended as an administrative function when
the Minister decided whether to confirm or not to confirm
the report of the local authority. Regarding the second
stage, he characterised that as a quasi-lis and the parties
i.e. objectors and the local authority as quasi-parties and
said that while that stage was pending statements made by or
obtained through either of the quasi-parties would have to
be disclosed to the other quasi-party.
To say therefore that because a function is in its inception
executive in character, it retains the executive character
throughout would not, with respect, be correct. Besides,
the function under Rule 30(1)(b) and that under Rule 30A(9)
is not one and the same. The former is completed as soon as
an order of detention is made; the latter is independent of
the former and is to be exercised after detention has -one
on for a period of six months. In our view, whereas the
function under Rule 30(1) (b) is executive, the one under
Rule 30A(9) is quasi-judicial and therefore in exercising it
the rules of natural justice have to be complied with.
It is admitted that the petitioner was not given any
opportunity of representing his case or to correct or
contradict the evidence on which the Government was going to
rely on and which it admittedly relied on. But Mr. Dhebar’s
contention was that if the power of decision under Rule
30A(9) were held to be quasi judicial in character a person
detained would be entitled to disclosure of the materials in
possession of the Government and on the basis of which the
order would be made, that such disclosure would not only be
prejudicial to the very purposes of the Act and the Rules
but also to national interest and, therefore, the legisla-
ture could not have intended such disclosure. The answer to
’his Contention is simple. In some cases, though such cases
would be few, such disclosure would perhaps be embarrassing
and, we will assume, detrimental to the larger interests of
the country. But the proper remedy against such a
consequence is not to deny
(1) [1947] 2 All R.395.
124
the elemental right of representing his case to the person
whose liberty is being deprived but by providing a rule
where under the authority in suitable cases can claim
privilege against such disclosure. Such a provision is in
fact provided for under Art. 22 of the Constitution under
the Prevention of Detention Act. where does not appear to be
any reason why such a rule cannot be made under the Defence
of India Act or the Rules made thereunder.
It may be that in the present case the Government had
materials before it which might justify the petitioner’s
detention. We do not know whether it had or not for the
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only thing that was said in the counter-affidavit was that
there were materials on the consideration of which the
Minister based his decision. If that be so, the proper
thing to do was to give a chance to the petitioner to
explain them. This not having been done the order of con-
tinuation of detention was illegal, it being in breach of
the principles of natural justice and has, therefore, to be
quashed.
In this view, it is not necessary to deal with the rest of
the contentions raised by the petitioner. The petition is
allowed. The order dated December 2, 1966 is quashed and
the petitioner is directed to be set free forthwith.
R. K. P. S. Petition allowed
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