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PETITIONER: PRADIP KUMAR DAS & ORS.

       Vs.

RESPONDENT: STATE OF WEST BENGAL & ORS.

DATE OF JUDGMENT29/04/1974

BENCH: RAY, A.N. (CJ) BENCH: RAY, A.N. (CJ) MATHEW, KUTTYIL KURIEN ALAGIRISWAMI, A. GOSWAMI, P.K. SARKARIA, RANJIT SINGH

CITATION:  1974 AIR 2151            1975 SCR  (1) 321  1975 SCC  (3) 335  CITATOR INFO :  F          1974 SC2279  (5)

ACT: Maintenance  of Internal Security Act (26 of  1971)  s.  14- Release as a result of decision of this Court-Fresh order of detention on identical facts-If valid.

HEADNOTE: The  petitioners  were  detained under  the  Maintenance  of Internal Security Act, 1971, after they had been released as a  result  of  the decision of this Court  in  Shambhu  Nath Sarkar  v.  State of West Bengal [1974] 1 S.C.R. 1,  on  the same  grounds  as in the earlier orders of  detention.   The petitioners challenged the orders in petitions under Art. 32 on the ground of violation of S. 14 of the Act. Allowing the petitions, HELD  :  The  contention of the  respondent-state  that  the previous orders were illegal and that therefore the  release orders  did  not  amount  to  revocation  is  unsound.   The expression  ’revocation’ includes not only revocation of  an order which is otherwise valid and operative but also orders which  are  invalid.  The word means  annulling,  rescinding withdrawing.’  Further, the word ’expire’ means ’to come  to an  end, or to put an end to, or to terminate, or to  become void, or to become extinct.’ The orders of release show that the  Government  accepted  the position  that  the  previous orders came to end and released the petitioners.  Therefore, the orders of release were orders of revocation of the  pre- vious  orders  of  detention; and  the  previous  orders  of detention also expired when the respondent passed orders  of release.   Under S. 14 a detention order may be  revoked  or modified  at any time, and the revocation or expiry  of  the detention order shall not bar the making of a fresh order of detention  where fresh facts have arisen after the  date  of revocation  or expiry on which the Government  is  satisfied that such an order should be made.  But in the present case, the fresh orders of detention contained identical grounds as in  the earlier orders.  Therefore, the fresh orders are  in violation of S. 14. [3241H-325A, E-G; 326C-E]

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Haribandhu Das v. District Magistrate Cuttack & Anr.  [1969] 1 S.C.R. 227, Ujjal Mandal v. State of West Bengal, [1972] 3 S.C.R.  165,  Masood  Alam etc. v. Union  of  India  &  Ors. A.I.R.  1973 S.C. 897, Mrinal Roy v. State of West Bengal  & Ors. [1973] 2 S.C.C. 822 and Chotka Hembram v. State of West Bengal & Ors.  A.I.R. 1974 S.C. 432, referred to.

JUDGMENT: ORIGINAL JURISDICTION : Writ Petitions Nos. 961, 1339,  1622 etc. etc. of 1973. Petitions under Art. 32 of the Constitution of India. H.   C. Mittal. for the petitioner (in W.P. No. 961/73) D.   Gobardhun, for the petitioner (in W.P. No. 1339/73) Raghubir Malhotra, for the petitioner (in W.P. No. 1662/73) N.   K. Agarwal, for the petitioner (in W.P. No. 1636/73) M.   R. K. Pillia, for the petitioner (in W.P. No. 1656/73) Maya Krishnan, for the petitioner (in W.P. No. 1666/73) F.   S.  Nariman,  Addl.   Solicitor General  (in  W.P.  No. 1339/73) D. P. Chaudhury, (in W.P.   No.   961/73)   D.   N. Mukherjee  and S. C. Mazumdar, (in W.P. No. 1339/73), P.  K. Chakravorty, (in W.P. No. 1636/73) Dilip Sinha (in W.P. No. 1622/73)  and Sukumar Basu, for the respondents (in all  the W.PS.) 77Sup C. I./75 328 For the petitions : By an order dated 26-10-72, the District Magistrate,  made an order of detention under s.  3(1)  read with  s. 3(2). of the Maintenance of Internal Security  Act, 1971 (Act 26 of 1971.) After  the  judgment  of this Hon’ble Court  in  Sambu  Nath Sarkar’s  case, the petitioner was released But on the  very same  day. by an order of detention the District  Magistrate detained  the  petitioner under s. 3(1) read with  s.  3(2). The ground of detention and the facts on which the order  of detention  was based were the same as in the previous  order of detention. The  second order of detention comes within the mischief  of s.   14(2)  of  the  Act.  In  Haribandhu  Das   v.   Distt. Magistrate,  [1969] 1 S.C.R. 217 at 222 though this  Hon’ble Court  interpreted  the provisions of  Preventive  Detention Act,   1950,  the  ratio  of  the  said   decision   applies propriovigore  to  the  provisions  of  the  Maintenance  of Internal, Security Act, 1971, which are in pari materia with the provisions of the 1950 Act. In  this  case  also, the order of  detention  made  by  the Magistrate,  not  having been followed up by  the  order  of confirmation within three months, order dated 26-10-72  must be deemed to have become invalid.  That is to say the  order of detention has expired on 25-1-73.  It is admitted at page 6  of the affidavit in opposition that no fresh  facts  have arisen,  since  the release of the  petitioner.   Therefore, there  is no justification for the fresh order of  detention on  the same ground and on the same facts.   Therefore,  the second  order  of detention is illegal on the  reasoning  in Masood  Alam’s case, A.I.R. 1973 S.C. 897 (899), and  A.I.R. 1973 S.C. 2469. For  respondent no. 1 : (1) The earlier purported  detention order  was  ab  initio  void.  This is  the  effect  of  the judgment of this Court in Sambhunath Sarkar’s  case [1973] 1 S.C.C. 856. (2)  The  order of release was in fact and law not an  order of  revocation.  If the original order was non-est it  could not  be revoked.  It was just an order of release  expressed

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in terms of Art. 166 of the Constitution. (3)  Except  in  the  case  of revocation  or  expiry  of  a detention  order made under s.3, a fresh detention order  on the  same grounds is not precluded.  For S. 14(2) to  apply, there  must  be in legal and factual existence  a  detention order under s.3. (4)  If  a  detention order is not duly made under  s.3,  it does  not  preclude the passing of a detention  order  under that section even on the same grounds. In  the present case having regard to the decision  of  this Hon’ble  Court  in Shambhu Nath Sarkar’s case there  was  no detention order legally made under s. 3. The  law declared in Shambhu Nath Sarkar had to be  complied with  by  the  State in cases where  detention  orders  were passed  under  section  3 prior to the  declaration  of  the invalidity  of section 17A of the Act.  As in  Shambhu  Nath Sarkar’s  case,  so also in the present case  the  order  of detention  was  duly passed under section 3  and  all  steps requisite under the Act were complied with.  In view however of  the law declared by this Hon’ble Court in  Shambhu  Nath Sarkar  the Government of West Bengal released  the  present petitioner  from  detention.   This could not  and  did  not amount to a revocation of the detention order of 27th March, 1972.   In the present case there was neither  a  revocation nor  an  expiry of the detention order.  A  detention  order expires  when  the time specified in it comes to an  end  or when  necessary  steps under the Act are not  complied  with within  the  time mentioned therein.  A detention  order  is revoked  when it is either expressly cancelled or  withdrawn or when from the facts and circumstances it is clear that by necessary  implication  this must be so.  A  mere  order  of release of a detenu from detention does not necessarily lead to that consequence-for instance see section 15 of the  Act. In  the  present  case the detention order  could  not  have expired  and  did not in fact expire as  the  various  steps mentioned   in  the  Act  were  complied  within  the   time specified.   There was no revocation either, because in  the first place, there was no order of revocation and  Secondly, the  facts  and circumstances mentioned above  clearly  show that the Government did not revoke or purport to revoke 329 the  order  of  detention already passed  but  released  the detenu  from  detention  only because of the  order  of  the Supreme Court in Shambhu Nath Sarkar’s case. (6)  Under  he  law declared under the judgment  in  Shambhu Nath  Sarkar’s case detention orders passed at a  time  when section  17A  wag  on  the  statute  book  and  before   the declaration  of  invalidity  by the Court  were  illegal  or became  illegal,  even  though all  provisions  of  the  Act regarding  detention were duly complied  with.   Accordingly the  release  in  the present case  was  also  justified  in account  of  the  declaration of illegality  by  the  Court. There  was  no  invalidity on the making  of  the  order  of detention  in  the  present  case,  nor  any  negligence  or ineptitude  as  in Hari Bandhu Dass v.  District  Magistrate Cuttack  [1969],  1 S.C.R. 227.  In that case  in  fact  the order of detention had expired for non-communication of  the grounds in vernacular language to the detenu. (7)  In each of the cases cited by the other side there  was a revocation or expiry   of the order of detention by reason of non-compliance with the provisions of the Act     itself. None  of them related to or arose out of a provision of  the act  declared  to  be unconstitutional as  in  Shambhu  Nath Sarkar’s case. (a)  Hari  Bandhu v. District Magistrate, Cuttack  [1968]  1

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S.C.R. 227. The detention order was revoked because of the formal defect in  complying  with the Act. translation of the  grounds  in Oriya were not furnished, (b)  Ujjal  Mandal v. State of West Bengal [1972]  3  S.C.R. 165- This  was a case of expiry because of want  of  confirmation within three months from the date of the detention order. (c) Masood Alam v. Union of India A.I.R. 1973 S.C.R. 897. This  was  a  case  of release  because  of  non-receipt  of approval by the State Government within the requisite  time- therefore treated as an expiry. (d)  Chotka Hembram v. State of West Bengal A.I.R. 1974 S.C. 432 (March) para 8 of that judgment, which in effect is  the basis  of  judgment,  assumes that  the  maximum  period  of detention  is 12 months which is erroneous.  In paragraph  6 of  the  judgment  the  order of release  in  the  case  was presumed  to be an order of revocation and no  argument  was advanced to the contrary. (e)  Har  jas  v.  State of Punjab  A.I.R.  1973  S.C.  2469 (November) This  was  also a case of expiry because the order  was  not approved. (f)  77CWN  1002-This  decision  is  under  appeal  to  this Hon’ble Court. it is submitted that the decision which  runs counter to the arguments urged on behalf of the State in the present   matter  is  erroneous.   It  does  not   correctly interpret  Shambhu Nath Sarkar’s case or ’the effect of  the constitutional  invalidity of section 17A on  the  detention order in that case. The Judgment of the Court was delivered by- RAY,  C.J: This Court on 22 April, 1974 passed an order  for release of the detenus.  The reasons were to be given later. The reasons are as follows: In Writ Petition No. 961 of 1973 the petitioner was detained pursuant  to an order of detention dated 15  January,  1972. He was released by the State Government pursuant to an order dated  23 April, 1973.  On 25 April, 1973 there was  another order of detention.  The petitioner was detained pursuant to that order. In  Writ  Petition  No.  1339 of  1973  the  petitioner  was detained pursuant to, an order of detention dated 27  March, 1972.   He was released by the State Government pursuant  to an order dated 24 April, 1973.  He was detained again  under an order dated 26 April, 1973. In Writ Petition No. 1622 of 1973 thepetitioner       was detained under an order dated 6 November, 1972.The  State Government released the petitioner on 28 April, 1973.He was  detained  again pursuant to an order  dated  26  April, 1973. In  Writ  Petition  No.  1636 of  1973  the  petitioner  was detained pursuant to an order of detention dated 11 January, 1972.  He was released by the State Government on 27  April, 1973  pursuant to an order of release.  The  petitioner  was detained again on 27 April, 1973. pursuant to an order dated 24 April, 1973. In  Writ  Petition  No. 1656 of  1,973  the  petitioner  was detained putsuant to an order of detention dated 7  January, 1973.   He was released by the State Government pursuant  to an order dated 23 April, 1973.  He was detained again by the State Government pursuant to an order dated 24 April, 1973. In  Writ  Petition  No.  1666 of  1973  the  petitioner  was detained  pursuant to an order dated 26 October,  1972.   He was released by the State Government on 28 April, 1973.   He was  detained again on 28 April, 1973 pursuant to  an  order

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dated 26 April, 1973. The   common  feature  in  all  these  cases  is  that   the petitioners were released by the State Government after  the decision  of  this Court in Sambhu Nath Sarkar v.  State  of West Bengal (1973) 1 S.C.C. 856, 4The  judgment  in  Sambhu Nath  Sarkar  case  (supra) was given by this  Court  on  19 April, 1973. The  petitioners  challenged the orders of  detention  after their  release.   The  grounds of  challenge  are  two-fold. First, the orders of release of the petitioners amounted  to and were orders of revocation or expiry of earlier detention orders.   Second,  the  State  was  not  competent  to  pass subsequent orders of detention on the same facts and grounds as in the earlier orders of detention. The  contentions  of  the State were  these  The  orders  of release were made by the, State pursuant to the decision  of this  Court in Sambhu Nath Sarkar case (supra).   The  State had  not  option but to order release only  because  of  the decision  in Sambhu Nath Sarkar case (supra).   The  earlier detention  orders  because of the decision  in  Sambhu  Nath Sarkar case (supra) could not be said to be orders with  the authority  of  law.   Therefore,  the  orders  of  detention subsequent  to their release were new orders on fresh  facts and had no relation to the previous orders. The  Maintenance of Internal Security Act, 1971  hereinafter referred  to  as  the  Act  confers  power  on  the  Central Government or the State Government to make orders  detaining persons  as mentioned in section 3 of the Act.  The  present petitions  turn  on  the interpretation  of  the  provisions contained in section 14 of the Act.  Broadly stated, section 14  of the Act provides that a detention order may,  at  any time, be revoked or modified and the revocation or expiry of the  detention  order shall not bar the making  of  a  fresh detention order where fresh facts have arisen after the date of revocation or expiry on which 3 3 1 the  Central Government or a State Government  is  satisfied that such in order should be made. This  Court  in Sambhu Nath Sarkar case (supra)  held  that’ section 17A of the Act which was introduced in 1971 did  not satisfy  the  requirements  of  Article  22(7)  (a)  of  the Constitution.  Section 17A of the Act was held to offend the provisions of the Constitution.  The petitioner was released in that case. This  Court in Sambhu Nath Sarkar case (supra) did  not  ex- press any opinion on the question whether the maximum period of  detention which was prescribed by section 13 of the  Act as amended in 1971 was valid.  The provisions of section  13 as  amended  were that the prevention could  be  for  twelve months from the date of detention or until the expiry of the Defence of India Act whichever is later, This Court in Fagu Shaw etc. v. State of’ West Bengal A.I.R. 1974  S.C.  613 held that the maximum  period  of  detention fixed with reference to the duration of an emergency is  the maximum  period fixed by Parliament in accordance  with  the provisions of the Constitution. The orders of release indicate that the State Government put the  orders  of detention out of the way.   The  petitioners could   not  be  released  if  the  detention  orders   were considered  by  the  State Government to  be  authority  for detention.   The  orders  of  release  also  show  that  the Government did not, approve of the orders of detention.  The release  orders further establish that the State  Government found that the orders of detention were not effective. The  contention  of the State that the  previous  orders  of

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detention were non-est is insupportable.  The stark  reality of the, detention of the petitioners cannot be effaced.   It is  apparent that the orders of detention after the  release contain  identical  grounds  as in  the  earlier  orders  of detention.  The subsequent orders of detention are not based on fresh facts after the orders of release. There can be no casuistry with the orders of release.  These orders  of  release amount to revocation of  the  orders  of detention.   The contention of the State that  the  previous orders were illegal and therefore the release orders did not amount  to revocation is utterly unsound. if,  according  to the  State,  the previous orders were illegal it  cannot  be denied  that  the petitioners were in  fact  detained.   The expression  "  revocation" has been held by  this  Court  in Haribandhu  Das  v. District Magistrate  Cuttack  &  Anr.(3) (1969)  1  S.C.R. 227 to include not only revocation  of  an order which is otherwise valid and operative but also orders which  are  invalid.  Revocation means cancellation  of  the previous orders. In  four recent decisions of this Court in Ujjal  Mandal  v. State  of West Bengal (1972) 3 S.C.R. 165; Masood Alam  etc. v.  Union of India & Ors.  A.I.R. 1973 S.C. 897; Mrinal  Roy v.  State  of  West Bengal & Ors. (1973) 2  S.C.C.  822  and Chotka Hembram v. State of 3 32 West  Bengal  &  Ors.   A.I.R.  1974  S.C.  432  this  Court considered  the  meaning of ’revocation’  or  ’expiry’.   In Ujjal  Mandal  case (supra) the order of detention  was  not confirmed  before the expiry of three months.   This  Court, therefore,  held  that  non  confirmation  would  amount  to revocation  of  the  earlier order.   In  Masood  Alam  case (supra)  the  orders  of  release were  held  to  amount  to revocation or expiry of the earlier orders of detention.  In Mrinal Ray case (supra) the orders of release were construed by  this Court to amount to revocation of  previous  orders. In  Chotka  Hembram  case  (supra)  the  orders  of  release consequent  on  the decision of this Court  in  Sambhu  Nath Sarkar  case (supra) were held to be revocation of the  pre- vious orders of detention. The   word   "revocation"   means   annulling,   rescinding, withdrawing.   In  the facts and circumstances of  the  case orders  of release cancelling orders of detention amount  to revocation of orders of detention.  The word "expire"  means to come to an end or to put an end to, Or to terminate or to become  void, or to become extinct.  The orders  of  release show that the Government accepted the position that the pre- vious  orders  terminated  and  came  to  an  end  and   the petitioners were released. For  these reasons we hold that the orders of  release  were revocation  of  the  previous  orders  of  detention.    The previous   orders  of  detention  also  expired   when   the Government  passed orders of release.  The second orders  of detention  are in violation of the provisions of section  14 of the Act. V.P.S.                          Petitions allowed. 333