BABLU HEMBRAM Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) A common question of law arises, on similar facts, in each of the eleven Habeas Corpus petitions which have to be allowed as a result of the judgment of the Constitution Bench of this Court in Pradip Kumar Das v. State of West Bengal, W. P. 961 of 1973, etc. D/- 29-4-1974 = (reported in AIR 1974 SC 2151).

(2.) The hearing of the petitions now before me was adjourned to await the judgment of the Constitution Bench which has held that, in view of the provisions of Section 14, sub-section (2) of the Maintenance of Internal Security Act, 1971 (hereinafter referred to as 'the Act') a second detention order cannot be made without fresh facts after a revocation or expiry of the first detention order. The question considered by the Constitution Bench was whether a revocation of an order by the detaining authorities made because of the decision of this Court in Writ Petition No. 266 of 1972 - Shambhu Nath Sarkar v. State of West Bengal. (1973) 1 SCC 856 = (AIR 1973 SC 1425), on the assumption that the revoked detention order was void or "non est", prevents the passing of another detention order on the same facts. It has held that it does. It rejected the contention that the term "revocation", as used in Section 14, sub-section (2) of the Act, would not cover a case where a previous detention order was only "revoked" formally but was substantially and actually treated as "non est", by the detaining authorities. It was not prepared to countenance "casuistry" in such cases involving claims to personal liberty. What is prima facie a "revocation" whatever may be the grounds for it, does not cease to be one merely because the detaining authorities realised that the revoked order was contrary to provisions of law. Section 14, sub-section (2) of the Act, does not restrict the ambit of revocations to those made on any particular grounds. An order, even if treated as "non est" which was given actual effect, had been actually "revoked". This was enough. It was, according to the Constitution Bench, a revocation in fact of a detention order actually passed, irrespective of the validity of the detention order in the eye of law or the reasons for the revocation which were immaterial. The mere fact that the first detention order could, in the eye of law, be held to be "non est" would not, on the view taken by the Constitution Bench, prevent it from being an order which was actually "revoked" within the meaning of that term as used in Section 14, sub-section (2) of the Act. This provision of law, on the view adopted by the Constitution Bench, deals with the actual passing of detention orders and their actual revocation or expiry and not with their legal validity. We are only concerned with the legal consequences of certain facts in existence and not with a fictitious assumption, wiping out actual facts, made after determining the legal validity of the actual facts of a detention order passed, enforced, and then revoked. This interpretation of S. 14 (2) of the Act is binding upon me. I will, therefore, state only the relevant facts, which entitle the petitioner in each case to regain his personal liberty.

(3.) In Bablu Hembram v. The State of West Bengal, (Writ Petition No. 1466 of 1973), the petitioner was detained under an order passed by the District Magistrate, Burdwan, on 3-7-1972, which was revoked on 28-4-1973 (sic). The petitioner was again detained, without fresh grounds by a detention order dated 26-4-1973 which is hereby quashed.