P. K. Das v. State of West Bengal

327 A PRADIP KUMAR DAS & ORS. v. STA TE OF WES·T BENGAL & ORS. _April_ 29, 1974 [A. N. RAY, C.J., K. K. MATHEW, A. ALAGIRISWAM!, P. K. GOSWAMI B AND R. S. SARKARIA, JJ.] _Maintc1wnce_ _of_ _Internal Security_ _Act_ (26 _of_ 1971) s. _14-Release_ _as_ _a result_ _of_ _decision_ _of_ _this_ _Court-Fresh_ _order_ _of_ _detention_ _011_ _identical_ _facts-If_ _valid._ The petitioners were detained under the Maintenance of Internal Security Act, 1971, <ifter they had been rc'.eased as a result of the decision of this Court in _Shan1bhu_ _Nath Sarkar_ v. _State_ _of_ _West Bengal_ [19741 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 we1e illega1 and that therefore the release orders did not amount to revocation is un· sound. 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 ;;ome to an end, or to put an end to, or to terminate, or to becom:.: void, or to become extinct.' The orders of release show that the Government accepted th~ position that the Previous orders came to end and released the peti· tioners. 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 det2ntion order may be revoked or modified at any ti1ne, 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 '\Yhich 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 order~. There· fore. the fresh orders are in violation of s. 14. [324l{-325A, E-G; 326C-E] _Harihandftu_ _Das_ v. _District Magi.st.rate_ _Cuttack_ _&_ _Anr._ [196CJ1 l S.C.H .. 227, _Ujjal_ ¥and~! v. __State_ _of_ _West_ _Benga(,_ [1972] 3 S.C.R. 165, _M(lsovd_ _Alan-1_ _etc._ v. _l)111on_ _OT_ _India_ & _Ors._ A.LR. 1973 S.C. 897, _Mrinal_ _Rov_ v. _State_ _of_ _West_ _Bengal_ _&_ _Ors._ [1973] 2 S.C.C. 822 and _Chotka_ _Hembran1_ v. _·state_ _of_ _West_ Ben~ _gal_ & _Ors._ A.LR. 1974 S.C. 432, referred to. 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) _Ragl1ubir_ _Malhotra,_ for the petitioner (in W.P. No. 1662/73) iV. _K._ _ARarwal,_ 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) ##### • \ ' ### • c D E F G H .F. _S._ _f>/arinian,_ _Addi._ _Solicitor Genera!_ (in W.P. No. 1339/73) _D. _P._ _C'haudhury,_ (1n W.:.P. No. 961/73) _D._ _N._ _Jvfukher1t:e_ and _S._ C. _Afa"Z.111n:iar,_ (in W.P. No. 1339/ 13), _P._ _K. Chakravorty,_ (in W.P. No. 1636/73) _Dilip_ _Sinha_ (in W.P. No. 1622/73) and _S1tk11n1nr_ _Basu,_ for the respondents {in all the W.PS.) -177Sup C. 1.;75 328 SUPREME COURT REPORTS [1975] l S.C.R. _For the petition_s:_ By an order dated 26-10-72, the District Magistrate, made A 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 bv an order of detention the District Magistrate detained the petitioner under s. '3(i) read withs. 3(2). The ground of detention and the facts on which the order of detention was based were t~e same as in the previous order of detention. The second order of detention comes within the mischief of s. 14(2) of the Act. Jn _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 app}jes _propriovigvre_ to the provisions of the Maintenance of Internal Security Act, 1971, which are in _pari nzateria_ with 1he 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-inopposition that no fresh facts have arisen, since the release of the petitioner. Therefore, there is no justifica·tion for the fresh order of detention on the same ground and on the same facts. Therefore, the second order of detenfron is illegal on the reasoning in _Masood_ _Alam's_ _case,_ A.LR. 1973 S.C. 897 (899), and A.J.R. 1973 S.C. 2469. B c #### ., _J-_ _For respondent_ _no._ 1 : (1) The earlier purported detention order was D _ah_ _initio_ void. This is the effect of the judgment of this Court in _Sambhunat!t_ _Sarkar's case_ [1973] 1 S.C.C. 856. (2) The order of release was in fact and law not an order of revocation. ff the original order was _non-est_ it could not be revoked. It was just an order of release expressed in ierms of Art. 166 of the Constitution. (3) Except in the case of revocation or expiry of a detention order n1ade under s.3, a fresh detention order on the same grounds is not precluded. For E 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 _Sha1nbhu_ _Nath_ _Sarkar's case_ there was no detention order legally made under s.3. The law declared in _Sha111bhu_ _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 _Sf1a1nhhu_ _Nath Sarkar's_ case, so also in the present case the order of detention was duly passed under section 3 and a11 steps requisite under the Act were complied with. Jn 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 ihe 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 tin1e 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. Jn 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 comp 1 ied within the tim~ specified. There was no revocation either, because in the first place, there was no order of revocati0n "nd '-'econdlv. the facts and circumstances mention<>d above clearly show that the Governrilent did not revoke or purport to revoke F G H A B c D _E_ F P, K. DAS _V._ WEST BENGAL _(Ray,_ C. _J.)_ 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 the law declared under the judgment in _Shambhu Nath Sarkar's_ case detention orders passed at a time when section 17 A was on the statute book and before the declaration o~ 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 on account of the declaration of illegality by the Court. There was no invalidity in the making of the order o[ detention in the present case, nor any negligence or ineptitude as in _Hari_ _Bandhu_ _Dass_ v. _District Magistrate_ _Cuttack_ [19691 1 S.C.R. 227. In that case in fact the order of detention .had expired for noncommunication of the grounds in vernacular Janguage to the detenu. (7) [n 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 unconsitutional as in _Shan1bhu Nath Sarkar's_ case. (a) _Hari_ _Bandhu_ v. _District Magistrate,_ _Cuttack_ [1968] 1 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 Manda/_ v. _State_ _of_ _West Bengal_ [1972l 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.LR. 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 Hembra1n_ v. _State_ _of_ _West Bengal_ A.LR. 1974 S.C. 432 (:ri..Iarch) 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 appea:J 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 _Shambfiu Nath Sarkar's_ case or the effect of the constitutional invalidity of section 17 A 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 release of the detenus. The reoasons were to be given later. reasons are as follows: for The ## '" G 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 ff 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. 330 SUPREME COURT REPORTS (1975] 1 S.C.R:. In Writ Petition No. 1622 of 1973 the petitioner was det'ained A 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 aa order of detention dated 11 January, 1972. He v.-as - · re.Jeased by the State Government on 27 April, 1973 pursuant to an B 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 1973 the petitioner was detained pursuant 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 detai_ned again by the State Government pursuant to C 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 dated 26 April, 1973. The common feature in all these cases is that the petitioners were D released by the State Government after the decision of this Court in _Sambhu Nath Sarkar_ v. _State of West Bengal_ (1973) I S.C.C. 856, The 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 E 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 w-.re these. The orders of release were made by thei State pursuant t3 the decision of this Court in F _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. G . 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 i~ section 14 of th~ Act. Broadly stated, section 14 of the Act provides that a detention order. may, at any **H** time be revoked or modified and the revocation or explfy of the de tention order shall not bar the making of a fresh detention order where fresh facts have arisen after the date of revocatim or expiry on which **w** / A B c **D** E F P. K. DAS _V._ WEST BENGAL _(Ray, C._ J.) 331 the Central Government or a State Government is satisfied that such an 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 re.qurrements of Article 22(7) (a) of the Constitution. Section 17A o! 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 express any opmron 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 ef 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 Consti**tution.** 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 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. Thelsubsequent orders of detention are not based on fresh facts after the orders of release. G 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. It •accordino to the State, the previous orders were illegal it cannot be d~nied that the petitioners were in fact detained. The expression "revocation" has been held by this Court in _Haribandhu Das_ v. _Dis-_ _trict 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. Revoeoation means cancellation of the previous orders. ###### . ' "' In four recent decisions of this Court in _Ujjal Manda/_ V· _State_ _of_ **H** _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 Ben-_ _gal_ & _Ors._ (1973) 2 S.C.C. 822 and _Chotka Hembram v. State_ _of_ 332 SUPREME COURT REPORTS (1975) J S.C.R. _West Bengal_ & _Ors._ **A.LR.** 1974 S.C. 432 this Court considered the **A** meaning of 'revocation' or 'expiry'. In _Ujjal Manda/_ 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) **JJ.** 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 _Sam-_ _bhu Nath Sarkar_ case (supra) were held to be revocation of the previous orders of detention. The word "revocation" means annulling, rescinding, withdrawing. C In the facts and circumstances of the case orders of rele-ase 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 previous orders terminated and came to an end and the petitioners were released. I> 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. E V.P.S. _Petitions allowed._ #