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PETITIONER: CHOTKA HEMBRAM

       Vs.

RESPONDENT: STATE OF WEST BENGAL AND ORS.

DATE OF JUDGMENT29/08/1973

BENCH: KHANNA, HANS RAJ BENCH: KHANNA, HANS RAJ ALAGIRISWAMI, A.

CITATION:  1974 AIR  432            1974 SCR  (1) 563  1974 SCC  (3) 401  CITATOR INFO :  F          1974 SC1155  (3)  F          1974 SC1796  (3)  R          1974 SC2151  (18)  D          1989 SC1234  (10)

ACT: Maintenance of Internal Security Act, 1971 (Act 26 of  1971) Sections 13 and 14(2)-Order of detention set aside by Court- Fresh  order of detention on same facts is  invalid-Violates ss. 13 and 14(2).

HEADNOTE: An order for the detention of the petitioner was made  under sub-section (2) of section 3 of the Maintenance of  Internal Security  Act, 1971 by the District Magistrate,  Burdwan  on July  3,  1972.   A writ petition  against  that  order  was allowed by this Court by judgment dated April 19, 1973.   In pursuance  of this judgment the petitioner was  released  on April  28,  1973.   Two  days  before  the  release  of  the petitioner  the District Magistrate of Burdwan made a  fresh detention  order under s. 3 of the Act for the detention  of the petitioner and based that order on the same grounds upon which the earlier order for the detention of the  petitioner had been based.  Allowing  the  petition tinder Art. 32  against  the  fresh order of detention, HELD  : From the provisions of s. 14(2) of the Act it  would follow  that if an order for the detention of a  person  had been   made  under  the  Act  and  that  order  was   either subsequently  revoked or the period for which the  detention order  was made has expired, the said order would not  stand in  the way of, the making of a fresh order under section  3 of  the  Act against the same person provided,  fresh  facts arise  after the date of the said revocation or expiry.   If no fresh facts come into being after the date of  revocation or  expiry  as  may  warrant  the  making  of  an  order  of detention.  the requisite condition precedent to the  making of  the subsequent order would be non-existent and it  would not  be permissible to make a subsequent order of  detention under section 3 of the Act. In  the present case, perusal of the grounds  of.  detention made it manifest, that they related to incidents which  took

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place  at  a  time prior to the revocation  of  the  earlier detention order dated, July 3. 1972.  In fact they  related, to  incidents which took place prior to the making  of  that order.   As  such those incidents could  not  provide  valid grounds  for  the making of the subsequent  detention  order dated April 26, 1973. [565 B-F] The  impugment order was also violative of s. 13 of the  Act which provides that the maximum period for which any  person may  be retained in pursuance of any detention order.  which has been confirmed under s. 12. shall be 12 months from  the date of detention.  If for the same acts. repeated orders of detention can be made, the effect would he that for the same acts  a detenu would be liable to be detained. for a  period of more than 12 months.  This would run counter to the whole scheme of the Act. [566A] Masood  Alain  v.  Union  of India,  A.LR.  1973  S.C.  897, applied.

JUDGMENT: ORIGINAL JURISDICTION : Writ Petition No. 841 of 1973. Under  Article  32  of the Constitution for a  Writ  in  the nature of habeas corpus. B.   Datta, for the appellant. M.   M. Kshatriya and G. S. Chatterjee, for the respondents. 564 The Judgment of the Court was delivered by KHANNA,  J.   This  is a petition under Article  32  of  the Constitution of India by Chotka Hembram for the issuance  of a writ of habeas corpus. An order for the detention of the petitioner was made  under subsection  2  of section 3 of the Maintenance  of  Internal Security Act, 1971 (Act 26 of 1971) (hereinafter referred to as  the Act), by the District Magistrate of Burdwan on  July 3,   1972.   The  petitioner  by  means  of  this   petition challenged  the  validity  of the aforesaid  order  for  his detention.   From the reply filed on behalf of the State  of West Bengal it would appear that the petitioner was released on April 28, 1973 and a fresh order for the detention of the petitioner  was  made  on April 26,  1973  by  the  District Magistrate  of  Burdwan during the pendency of  the  present petition-  The  present petition, it may be mentioned, was  sent  from jail,   by  the  petitioner  on  February  22,  1973.    The petitioner  is now being detained in pursuance of the  fresh order of detention dated April 26, 1973.  It is the validity of this later order of detention which is now being assailed before us on behalf of the petitioner. After  hearing  Mr. Datta, who has argued  the  case  amicus curiae,  and  Mr. Kshtriya on behalf of the  State  of  West Bengal,  we  are  of  the view  that  the  validity  of  the detention  order dated April 26, 1973 cannot  be  sustained. The  grounds  of  detention  on  the  basis  of  which   the petitioner  was  ordered  to be  detained  by  the  District Magistrate on July 3, 1972 were as under :               "(1)  On  8-11-71 at about  12.30  hours,  you               along  with your associates viz.  Kartick  Pal               and  others belonging to CPI(ML), being  armed               with  lethal weapons like daggers, tangi  etc.               attacked Karunamcy Pal (Congress-R) of  Daora-               danga,   P.S.  Bhatar,  Distt.   Burdwan   and               stabbed  him  to death near his house  with  a               view  to promoting the cause of the  party  to               which  you belong as he refused to join  hands

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             with you.  Your act created a general sense of               insecurity  and deterred the residents of  the               locality from following their normal avocation               of  life for a considerable period  after  the               incident.               (2)On 14-1-72 at about 17.35 hours, you  along               with  your  associates viz.  Kartick  Pal  and               others belonging to CPI (ML) being armed  with               gun attacked Ram Krishan Sarkar by barricading               the roads with pillars and shot at him from an               unlicensed  gun  with a view  to  annihilating               them  to  promote the cause of  the  party  to               which  you belong, As a result, Constable  721               Rajaram  Jadav  received  gun  shot  injuries.               Your act created a general sense of insecurity               and  deterred  the residents of  the  locality               from follow in their normal avocations of life               for a considerable period after the incident." Precisely,  these are the very grounds on account  of  which the  fresh  order of detention for the petitioner  has  been made on April 26, 1973. 565 According  to sub-section (2) of section 14 of the Act  "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  or State Government or an officer, as  the  case may be, is satisfied that such an order should be made’ " It would, therefore, follow that if an order for the  detention of  a person had been made under the Act and that order  was either  subsequently  revoked or the period  for  which  the detention  order was made has expired, the said order  would not  stand  in  the way of the making of a  fresh  order  of detention under section 3 of the Act against the same person provided  fresh  facts  arise after the  date  of  the  said revocation  or  expiry.  If no fresh facts come  into  being after  the date of revocation or expiry as may  warrant  the making  of  an order of detention, the  requisite  condition precedent  to  the making of the subsequent order  would  be non-existent  and  it  would not be permissible  to  make  a subsequent  order of detention under section 3 of  the  Act. The order for the detention of the petitioner in the present case  made on July 3, 1972 was revoked when this Court  give its  judgment in the case of Sambhu Nath Sarkar v. State  of West  Bengal W.P. 266 of 1972 decided on April 19,  1973(1). The  petitioner was accordingly released on April 28,  1973. Two  days before the release of the petitioner the  District Magistrate of Burdwan made a fresh order under section 3  of the  Act for the detention of the petitioner and based  that order upon the same grounds upon which the earlier order for the detention of the petitioner had been based.  Perusal  of the grounds of detention makes it manifest that they  relate to  incidents  which  took  place at a  time  prior  to  the revocation  of  the, earlier detention order dated  July  3, 1972;  in fact they relate, as they must in the very  nature of things, to incidents which took place prior to the making of  that order.  As such, those incidents could not  provide valid  grounds  for the making of the  subsequent  detention order dated April 26 , 1973. The  provisions of sub-section (2) of section 14 of the  Act were considered by this Court in the case of Masood Alam  v. Union  of  India(2) and it was observed that "the  power  of preventive  detention being an extraordinary power  intended to    be   exercised   only   in   extraordinary    emergent

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circumstances, the legislative scheme of sections 13 and  14 of the Act suggest that the detaining authority is  expected to  know and to take into account all the  existing  grounds and  make one order of detention which must not go beyond  a maximum period fixed.  In the present case it is not  urged, and  indeed  it  is not possible to urge,,  that  after  the actual expiry of the original order of detention made by the District  Magistrate, which could only last for 12  days  in the  absence  of its approval by the State  Government,  any fresh  facts could arise for sustaining the fresh  order  of detention."  This Court, in the circumstances,  quashed  the order of detention. (1) [1973] 1 S. C. C. 856 ( 2)  A. 1. R. [1973] 8. C. 897. 566 The  matter  can  also  be looked  at  from  another  angle. Section  13 of the Act provides that the maximum period  for which  any  person  may be detained  in,  pursuance  of  any detention order, which has been confirmed under section  12, shall  be  12  months from the date of  detention.   It  is, therefore, plain that the maximum period for which a  person can  be  detained on account of specified  acts  should  not exceed  12 months.  If for the same acts repeated orders  of detention  can be .made, the, effect would be that  for  the same  acts  a detenu would be liable to be  detained  for  a period of more than 12 months.  The making of, a subsequent, order  of detention in, respect of the same acts, for  which an earlier order of detention was made, would run counter to the entire scheme of the Act.  It; would, also set at naught the  restriction which is imposed by section 13 of the  Act, relating  to the maximum period. for which a person  can  be detained, in pursuance of a detention ,order. In our opinion, the order of detention which was made by the District  Magistrate,  on  April 26,  1973  contravenes  the provisions  of both section 13 and section 14 of  the,  Act. We, accordingly, accept the petition, quash the fresh  order of,  detention  dated  April 26, 1973 and  direct  that  the petitioner be set at liberty forthwith. G.C. Petition granted. 567