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PETITIONER: HADIBANDHU DAS

       Vs.

RESPONDENT: DISTRICT MAGISTRATE, CUTTACK & ANR.

DATE OF JUDGMENT: 02/05/1968

BENCH: SHAH, J.C. BENCH: SHAH, J.C. RAMASWAMI, V. BHARGAVA, VISHISHTHA VAIDYIALINGAM, C.A. GROVER, A.N.

CITATION:  1969 AIR   43            1969 SCR  (1) 227  CITATOR INFO :  R          1970 SC 688  (3)  R          1970 SC1664  (3)  D          1972 SC1564  (6)  F          1973 SC 897  (7)  RF         1973 SC2469  (4)  F          1974 SC2151  (17)  R          1980 SC1751  (4)  F          1980 SC2129  (2)  R          1981 SC 728  (15,20)  R          1981 SC1153  (5,7)  R          1982 SC1500  (8)  R          1986 SC 687  (65)  R          1987 SC1192  (11)  RF         1989 SC1234  (7)  RF         1990 SC 605  (6,12)

ACT: Preventive  Detention  Act  4  of 1950,  ss.  7  and  13(2)- Requirements  of-Translation  of order and  grounds  thereof must   be   supplied  to  detenue  within   five   days   of detetition--Order under s. 13(2) after revocation of earlier order must be based on fresh facts-Necessity of  application of mind.

HEADNOTE: On  December  15,  1967 the  District  Magistrate,  Cuttack- served an order made in exercise of power under s. 3 (1) (a) (ii)  of the Preventive Detention Act, 1950  directing  that the  appellant be detained on various grounds.  On  December 19,  1967 the appellant filed a petition in the  High  Court challenging the order of detention on the grounds inter alia that  the  order and the grounds in support  thereof  served upon  the  appellant were written in  the  English  language which the appellant did not understand.  On January 18, 1968 the  District Magistrate supplied to the appellant an  Oriya translation  of the order and the grounds.  On  January  28, 1968  the  State of Orissa revoked the order  and  issued  a fresh  order of detention.  A translation of this  order  in Oriya  was  supplied  to  the  appellant.   Thereafter   the

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appellant submitted a supplementary petition challenging the validity  of  the order dated January 28,  1968.   The  High Court  of Orissa rejected the petition filed by  the  appel- lant.   Against that order, with certificate granted by  the High Court the appellant came to this Court. HELD  : (i) The order of the District Magistrate  passed  on December 15, 1967 ran into fourteen typed pages.  Mere  oral explanation  of  such  an  order  without  supplying  him  a translation  in  a script or language which  he  understood, amounted  to denial of the right of being  communicated  the grounds  and of being afforded the opportunity of  making  a representation against the order.  The order of the District Magistrate  not  having been followed up by  service  within five  days as provided by s. 7 (1) of the  communication  to him  of  the  grounds on which the order was  made  must  be deemed  to have become invalid and any subsequent  detention of the appellant was unauthorised. [231 F-H] Harikisan  v.  State of Maharashtra. & Ors.,  [1962]  Supp.1 S.C.R. 918, relied on. (ii) The  second order dated January 28, 1968 passed by  the State Government was not passed on any fresh facts which had arisen  after the date of revocation of the first order  and was  on that ground invalid.  There is nothing in  s.  13(2) which indicates that the expression ’revocation’ means  only revocation  of  an  order  which  is  otherwise  valid   and operative  :  ’apparently it includes  cancellation  of  all orders invalid as well -as valid. [233 F-H] The principle underlying s. 13(2) in its present form is the outcome  of  insistence  by Parliament  that  the  detaining authority  shall  fully apply its mind to  and  comply  with their  requirements  of the statute and of  insistence  upon refusal to countenance slipshod exercise of power. [234 E] 228 Basanta  Chandra  Ghose v. King Emperor  [1945]  F.C.R.  81, Naranjan  Singh Nathawaan v. State of Punjab, [1952]  S.C.R. 395,  and  Shibban Lal Saksena v. State of Uttar  Pradesh  & Ors. [1954] S.C.R. 418, referred to

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1216 of 1968. Appeal  from the judgment and order dated March 11, 1968  of the Orissa High Court in O.J.C. 454 of 1967. A.   S. R. Chari, Yinno Bhagat, and Ravinder Narain, for the appellant. Niren  De,  Solicitor-General, G. R. Rajagopala, and  R.  N. Sachthey, for the respondents. The Judgment of the Court was delivered by Shah  J.-By order pronounced on April 22, 1968, we  directed that the, order passed by the State of Orissa detaining  the appellant  under the Preventive Detention Act  be,  quashed. We proceed to record our reasons in support of our order. On  December  15,  1967, the  District  Magistrate,  Cuttack served  an order made in exercise of power under s. 3 ( 1  ) (a) (ii) of the Preventive Detention Act 4 of 1950 directing that  the appellant be detained on the grounds that  he--the appellant-was   acting  in  a  manner  prejudicial  to   the maintenance of public order by committing breaches of public peace, indulging in illicit business in Opium, Ganja, Bhang, country  liquor, riotous conduct, criminal intimidation  and assault  either by himself or through his relations,  agents and  associates  as set out in the order.  On  December  19, 1967  the appellant filed a petition in the Court of  Orissa

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challenging  the validity of the order of detention  on  the grounds,  inter alia, that the order and the grounds in  sup port  thereof served upon the appellant were written in  the English language which the appellant did not understand.  On January  18, 1968, the District Magistrate Cuttack  supplied to  the appellant an Oriya translation of the order and  the grounds.   On January 28, 1968, the State of Orissa  revoked the order and issued a fresh order that :               "Whereas the order of detention dated the 15th               December,   1967,   made   by   the   District               Magistrate,  Cuttack against  Shri  Hadibandhu               Das  son of late Ramchandra Das of  Manglabag,               town  Cuttack  has been revoked by  the  State               Government  on  account of defects  of  formal               nature by their order No. 396C dated the  28th               January, 1968.               And whereas the State Government are satisfied               with respect to the said Hadibandhu Das,  that               with a               229               view to prevent him from acting in any  manner               prejudicial  to  the  maintenance  of   public               order, it is necessary to detain him.               Now,  therefore,  in exercise  of  the  powers               conferred by Section 3 (1) (a) (ii) read  with               Section 4 (a) of the Preventive Detention Act,               1950,  the State Government do  hereby  direct               that  the said Hadibandhu Das be  detained  in               the  District  Jail at Cuttack  until  further               orders." A  translation  of that order in Oriya was supplied  to  the appellant. On February 8, 1968, the appellant submitted a supplementary petition  challenging  the  validity  of.  the  order  dated January  28,  1968.  The High Court of Orissa  rejected  the petition  filed by the appellant.  Against that  order  with certificate granted by the High Court, this appeal has  been preferred by the appellant. It is not necessary to set out and refer to large number  of grounds which were urged at the Bar in support of the appeal by counsel for the appellant, since in the view we take  the second  order dated January 28, 1968, was not passed on  any fresh facts which had arisen after the date of revocation of the  first  order, and -is on that account invalid,  and  an order releasing the appellant from custody must be made. The relevant provisions of the Preventive Detention Act 4 of 1950 may be set out:               S.    3(1)-"The  Central  Government  or   the               State Government may-               (a)   if satisfied with respect to any  person               that with a view to preventing him from acting               in any manner prejudicial to-               (i)   the  defence of India, the relations  of               India with foreign powers, or the security  of               India, or               (ii)  the   security  of  the  State  or   the               maintenance of public order, or               (iii) the   maintenance   of   supplies    and               services essential to the community, or               (b)               it  is  necessary  so to  do.  make  an  order               directing that such person be detained."               S.    7-"(1  )When  a person  is  detained  in               pursuance of a detention order, the  authority               making the order

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              SUP. C. I./68- 17               230               shall  as soon as may be, but not  later  than               five   days  from  the  date   of   detention,               communicate  to him the grounds on  which  the               order has been made, and shall afford him  the               earliest   opportunity  of  making  a   repre-               sentation against the order to the appropriate               Government.               (2)........... "Section 8 provides for the constitution of Advisory Boards, and by s. 9 the appropriate Government is enjoined to  place within  thirty  days from the date of  detention  under  the order before the Advisory Board constituted by it under S. 8 the  grounds  on  which  the order has  been  made  and  the representation,  if any, made by the person affected by  the order.   Section  1  0 _deals with  the  -procedure  of  the Advisory  Boards, and by S. 1 1 it is provided that  in  any case where the Advisory Board has reported that there is  in its opinion sufficient cause for the detention of a  person, the appropriate Government- may confirm the detention  order and continue the detention of the person concerned for  such period as it thinks fit, and in any case where the  Advisory Board  has  reported  that  there  is  in  its  opinion   no sufficient cause for the detention of the person  concerned, the appropriate Government shall revoke the detention  order and cause the person to be released forthwith.  Section  IIA provides that a person whose detention has been confirmed in pursuance of the detention order shall not be detained,  for a  period  exceeding  twelve  months.  By  S.  13  power  is conferred   upon  the  State  Government  and  the   Central Government to vacate the order of a subordinate officer made under sub-s. (2) of S. 3, and upon the Central Government to -revoke the order of a State Government. Sub-section (2) of S. 13 provides :               "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 ari sen after               the date of revocation or expiry on which  the               Central Government or a State Government or an               officer, as the case may be, is satisfied that               such an order should be made." It is true that on January 18, 1968, the District Magistrate on  further consideration served a translation in  Oriya  of the  order and the grounds upon the appellant, but that  was after expiry ,of five days as prescribed by S. 7 of the Act. This  Court  in Harikisan v. The State  of  Maharashtra  and others(") held that where a detenue is served with the order of detention and the grounds in English and the detenue does not  Know  English and his request for  translation  of  the grounds in a language which he (1)  (1962) Supp. 2 S.C.R. 918. 231 understood was refused on the ground that the order and  the grounds  had been orally translated to him at the time  when the  order  was served upon him", the guarantee  under  Art. 22(5) of the Constitution was violated and the detention  of the  datenue was illegal.  It was observed by this Court  at p. 924 :               ". . . . cl. (5) of Art. 22 requires that  the               grounds  of  his  detention  should  be   made               available  to the detenue as soon as  may  be,               and that the earliest opportunity of making  a

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             representation  against the Order should  also               be afforded to him.  In order that the detenue               should have that opportunity, it is not suffi-               cient  that he has been  physically  delivered               the means of -knowledge with which to make his               representation.   In  order that  the  detenue               should  be in a position effectively  to  make               his  representation  against  the  Order,   he               should  have  knowledge  of  the  grounds   of               detention,  which  are in the  nature  of  the               charge  against him setting out the  kinds  of               prejudicial   acts   which   the   authorities               attribute  to  him.   Communication,  in  this               context,  must, therefore, mean  imparting  to               the  detenue sufficient knowledge of  all  the               grounds  on  which the Order of  Detention  is               based.  In this case the grounds are  several,               and  are  based on numerous speeches  said  to               have  been  made by the appellant  himself  on               different   occasions  and  different   dates.                             Naturally,  therefore, any oral transl ation  or               explanation   given  by  the  police   officer               serving those on the detenue would not  amount               to  communication, in this context, must  mean               bringing   home  to  the   detenue   effective               knowledge  of the facts and  circumstances  on               which the Order of Detention is based." The grounds in support of the order served on the  appellant ran into fourteen typed pages and referred to his activities over a period of thirteen years, beside referring to a large number of court proceedings concerning him and other persons who   were  alleged  to  be  his  associates.    Mere   oral explanation  of  a  complicated order  of  the  nature  made against the appellant without supplying him the  translation in  script  and language which he understood would,  in  our judgment,   amount   to  denial  of  the  right   of   being communicated   the  grounds  and  of  being   afforded   the opportunity  of making a representation against  the  order. The  order  made  by the District  Magistrate,  Cuttack  not having  been  followed  up by service within  five  days  as provided  by  s’  7(1) of the communication to  him  of  the grounds  on which the order was made must be deemed to  have become invalid and any subsequent detention of the appellant was unauthorised. On January 28, 1968, the State of Orissa purported to revoke the first order and made a fresh order.  The validity of the 232 fresh  order dated January 28, 1968, made by the,  State  of Orissa  is  challenged on the ground that  it  violates  the express  provisions of s. 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 S. 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

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revocation  on which the State Government satisfied that  an order under s. 3 (1)(a) (ii) may be made.  There was a fresh order, but it was not based on any fresh facts. Counsel for the State of Orissa contended that the detaining authority is prevented from making a fresh order on the same grounds  on which the original order which had been  revoked was  made,  provided  the order revoked was  a  valid  order initially  and had not become illegal on account of  failure to comply with statutory provisions like s. 7 or s. 9 of the Preventive Detention Act.  Counsel says that the order which is  illegal  or  has become illegal is not  required  to  be revoked,  for it has no legal existence. and a formal  order of  revocation  of  a previous order  which  has  -no  legal existence  does not fall within the terms of S.  13(2).   He strongly relies in support of this argument upon s. 13(2) as it stood before it was amended by Act 61 of 1952 :               "The revocation of a detention order shall not               bar  the  making of a  fresh  detention  order               under section 3 against the same person." The phraseology of sub-s. (2) of s. 13 before it was amended was  explicit  :  there  was  no  bar  against  a  detaining authority making a fresh order of detention after revoking a previous  order  based  on the same or  other  grounds.   It contained  -no  implication that a fresh order may  be  made only if it was founded on fresh grounds. Counsel  also  relied in support of his  argument  Uoon  the decision  of the Federal Court in Basanta Chandra  Ghose  v. King  Emperor(1);  Naranjan Singh Nathawan v. The  State  of Pitnjab  (2);  Shibban  Lal Saksena v. The  State  of  Uttar Pradesh  and others(3).  In Basanta Chandra Ghose’s  case(1) an order was (1) [1945] F.C.R. 81.         (2)      [1952]S.C.R.395. (3)  [1954] S.C.R. 41 233 made under r. 26 of the Defence of India Rules on March  19, 1942.   The order was revoked on July 3, 1944, and  a  fresh order  for detention of the detenue was passed on that  very date under Ordinance III of 1944.  It was urged on behalf of the detenue that the authority was debarred, except on fresh grounds.,  from  passing a fresh order  of  detention  after cancellation  of an earlier order, and the High.  Court  was not  justified in presuming that fresh materials  must  have existed when the order of July 1944 was made.  Spens,  C.J., rejected  the contention.  He observed in dealing with  that ground               "It  may be that in cases in which it is  open                             to  the  Court to examine the validity   of  the               grounds  of detention a decision that  certain               alleged  grounds did no+. warrant a  detention               will  preclude further detention on  the  same               grounds.   But where the earlier order of  de-               tention  is  held defective merely  on  formal               (,rounds there is nothing to preclude a proper               order  of  detention being based on  the  pre-               existing  grounds  themselves,  especially  in               cases in which the sufficiency of the  arounds               is not examinable by the Courts." That  case arose from an order of detention under  Ordinance III of 1944. In  Two  latter judgments of this Court  in  Naranjan  Singh Nathawan’s  case(1)  and Shibban Lal  Saksena’s  case  (2  ) decided  under  the Preventive, Detention Act,  1950,it  was ruled that where the previous order was  revoked on  grounds of  irregularity in the order, the detaining  authority  was

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not  debarred from making a fresh order complying  with  the requirements of law in that behalf. Relying  upon  these cases the  Solicitor-General  contended that  it was settled law before s. 13(2) was amended by  Act 61  of  1952 that a detaining authority may  issue  a  fresh order  after revocation of an earlier order of detention  if the  previous  order was defective in point of form  or  had become  unenforceable  in consequence of failure  to  comply with  the statutory provisions of the Act, and that  by  the Amending  Act it was intended merely to affirm the  existing state  of  law,  and  not  to  enact  by  implication   that revocation of a defective or invalid order attracts the  bar imposed by s. 13(2).  There is, in. our judgment, nothing in the  language used by the Parliament which,  supports  that. contention.   The power of the detaining authority  must  be determined by reference to the language. used in the statute and  not  by  reference  to  any  predilections  about   the legislative  intent.  ’There is nothing in s. 1 3 (2)  which indicates  that,  the  expression  "revocation"  means  only revocation of an order which is otherwise valid and opera- ,(1) [1952] S.C.R. 395. (2) [1954] S.C.R. 418. 234 tive  : apparently it includes cancellation of  all  orders- invalid as well as valid.  The Act authorises the  executive to  put  severe restrictions upon the  personal  liberty  of citizens  without even the semblance of a trial,  and  makes the subjective satisfaction of an executive authority in the first instance the sole test of competent exercise of power. We  are not concerned with the wisdom of the  Parliament  in enacting  the  Act; or to  determine  whether  circumstances exist which necessitate the retention on the statute book of the Act which confers upon the executive extraordinary power of detention for long period without trial.  But we would be loath to attribute to the plain words used by the Parliament a restricted meaning so as to make the power more harsh  and its operation more stringent.  The word "revocation" is not, in  our  judgment, capable of  a  restricted  interpretation without  any  indication  by  the  Parliament  of  such   an intention. Negligence  or  inaptitude  of the  detaining  authority  in making  a defective order or in failing to comply  with  the mandatory provisions of the Act may in some cases enure  for the benefit of the detenue to which he is not entitled.  But it  must be remembered that the Act confers power to make  a serious  invasion  upon the liberty of the  citizen  by  the subjective determination of facts by an executive authority, and  the Parliament has provided several safeguards  against misuse  of the power.  The very fact that a defective  order has  been passed, or that it has become invalid  because  of default in strictly complying with the mandatory  provisions of the law bespeaks negligence on the part of the  detaining authority, and the principle underlying S. 13(2) is, in  our view,  the outcome of insistence by the Parliament that  the detaining authority shall fully apply its mind to and comply with the requirements of the statute and of insistence  upon refusal to countenance slipshod exercise of power. Without,  therefore, expressing any opinion on the  question whether the order passed by the State Government on  January 28,  1968,  was justified, we are of the view  that  it  was incompetent  by  virtue  of  sub-s. (2)  of  s.  13  of  the Preventive Detention Act, 1950. G.C. 235

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