http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5  

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 AIR 1664            1970 SCR  (2) 517  1970 SCC  (1)  40  CITATOR INFO :  F          1973 SC 897  (7)  RF         1973 SC2469  (4)  R          1989 SC2265  (21)

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

HEADNOTE:     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 order. of detention would lapse.  A  fresh detention order under s. 13(2) can be made on the revocation or expiry of a previous detention order only in cases  where fresh  facts  have arisen after the date  of  revocation  or expiry.   The petitioner, was put in detention in  pursuance of an order dated August 29, 1968.  He presented a  petition under  Art. 32 of the Constitution for the issue of a  write of  habeas corpus, while this petition was pending,  another order  of  detention was issued on August 28, 196.9,  a  day before  the  expiry of the previous order.  The  grounds  of detention  in  this latter order was identical  to  that  of August  28, 1968 excepting the 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 of 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.  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,  a day before the expiry, and it was obvious  that  no

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 5  

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 a person in preventive custody could continue to maintain links with his associates outside jail, who  had gone  underground, even through his friends  and  relatives. If  the petition was able to maintain such links,  it   cast a   sad reflection on the persons in charge of him while  he was  in custody and, in any case, it would appear  that  his detention  could  serve no useful purpose.  Even  if  it  be accepted  that such links were maintained,  this  additional ground  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.

JUDGMENT: ORIGINAL JURISDICTION:Writ Petition No. 211 of 1969.     Petition under Art. 32 of the Constitution of India  for a writ in the nature of habeas corpus. Hardev Singh, for the petitioner,  Naunit Lal, for the respondent. 518 The Judgment of the Court was delivered by     Bhargava,  J.   The petitioner in  this  petition  under Article  32  of the Constitution was arrested  and  detained under  an  order  made  under  section  3(1)(a)(ii)  of  the Preventive  Detention Act, 1950 (hereinafter referred to  as "the  Act")  on 24th April, 1968. On 30th August,  1968,  he filed  a petition in the High Court of Assam under Art.  226 of  the Constitution for issue of a writ of  habeas  corpus. The  same  day  he  was released  by  the   Government  and, according to him, without being set at liberty, he was again put  in detention in pursuance of a fresh order  dated  29th August,  1968 passed under s. 3(1)(a)(ii) of the  Act.   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 the 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  trader  the  order  dated  29th August,  1968.   The petition came up for hearing  before  a Bench  of  this  Court on 29th 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, it appears that a 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 Court.   Thereupon, the petitioner, 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 August, 1969.  The  grounds  of detention  under  this  new order were also  served  on  the petitioner on 29th August, 1969.  When this petition came up for  hearing  before  us on 9th  September,   1969,  learned counsel  for the State of Assam stated that no material  had been  received  from the Government and wanted  time  to  be granted  to  meet the facts put forward in  the  application dated  1st  September,  1969.  It appears  that,  though  an

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 5  

officer  was  sent by the Government of Assam  to  Delhi  to serve the order dated 28th August, 1969 on the detenu  which he  did on 29th August, 1969, no attempt was made to  obtain the material for which time had been obtained from the Court on 29th August, 1969.  If a fresh order had been passed  and had  been served on the petitioner in supersensible  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 necessary for the  petitioner to challenge by amending his writ peti- 519 tion.   Detention  of  a person without trial,  even  for  a single day,, is a matter of great consequence and, hence, we did not consider that, in the circumstances mentioned above, there was any justification for granting further time to the State Government to obtain material and file a reply to this application 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 immaterial 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, 1968 had automatically 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 detention was not justified by any valid  order passed in law until the second detention order was served on him  on  the  30th August, 1968  after  releasing  him  from custody.  However, in the present writ petition, we are  not concerned  with the effect of this procedure adopted by  the State  Government, because, even if it be assumed  that  the second  order  of  detention  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 which prescribes a maximum  period  of  12 months for detention under the Act on the basis of an  order passed  under  s. 3 of the Act. On 29th August,   1969,  the detention  under  the second order dated 29th  August,  1968 having expired, the State Government passed this third order of  detention and served it on the petitioner 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 detention under section 3 should be 12 months  and no  more.   On  the expiry of that  period,  that  order  of detention  would  lapse; but a fresh order of  detention  is permitted to be passed under section 13(2) of the Act  which is as follows :--                   "13.  (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 Central Government               520               or  a State Government or an officer, as.  the               case  may  be, is satisfied  that  such  order               should be made." "This  provision  clearly lays down that a  fresh  detention order  can     be  made on the revocation  or  expiry  of  a

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 5  

previous  detention  order only in cases where  fresh  facts have  arisen after the date of revocation or  expiry.   This principle  was explained by this Court in Hadibandhu Das  v. District  Magistrate,  Cuttack and Another(1) where  it  was held :--                   "On January 28, 1968, the State of  Orissa               purported to revoke the first order and made a               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 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               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   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 revocation  on  which  the               State  Government was satisfied that an  order               under Sec. 3(1)(a)(ii) may be made.  There was               a  fresh  order, but it was not based  on  any               fresh facts." In  view  of this decision, we have to see whether,  in  the present case, the requirements laid down by s. 13(2) of  the Act  for  making a fresh order were or were  not  satisfied. The  main  requirement 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 detention  served  in  pursuance of  the  order  dated  28th August,  1969,  with  the grounds of  detention  which  were served   on  the  petitioner     pursuance  of  the   second detention  order dated 29th  August, 1968, and we find  that the two are identical, except that two (1) A.I.R. 1969 S.C. 43. 521 small paragraphs have been 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 Hussain and his gang               since  received some arms and explosives  from               Naga  rebels for committing acts  of  sabotage               and   creating   large   scale   disturbances,               particularly  in the plains areas along  Assam               Nagaland border.               That,   in  the  circumstances,   Shri  Khetra               Gogoi’s  being  at large will  jeopardise  the               security  of the State and the maintenance  of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 5  

             public order in this region." The  first one of these two paragraphs is the only one  that purports  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 a  person  in  preventive custody could continue to maintain links with his associates outside  jail  who  had gone underground  even  through  his friends  and relatives.     of the (present) petitioner  was able  to maintain such links, it casts a sad  reflection  on the persons in charge of him while he was in custody and, in any case, it would appear that his detention 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,  a  day before 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. Y.P.                                   Petition allowed. 522