KSHETRA GOGOI Vs. STATE OF ASSAM

JUDGEMENT

(1.) The petitioner in this petition under Art. 32 of the Constitution was arrested and detained under an order made under S. 3 (1) (a) (ii) of the Preventive Detention Act, 1950 (hereinafter referred to as "the Act") on 24th April, 1968. On the 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 Section 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 under the order dated 29th August, 1968. The petition came up for hearing before a Bench of this Court on 29th Aug., 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 Section 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 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 supersession 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 petition. 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.

(2.) 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 Section 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.

(3.) 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:-