BALA DATT Vs. STATE

JUDGEMENT

(1.) BY this petition, the petitioner Bala Datt seeks to challenge his order of detention passed by District Magistrate, Jammu, on 1st of May, 1978 u/s 8 of the Jammu and Kashmir Public Safety Act, 1978 (hereinafter the Act) and subsequently confirmed by the Government of Jammu and Kashmir on 26th of June, 1978 after the Advisory Board had approved the detention. The challenge has been thrown on number of grounds but it is not necessary to mention all those grounds as the detention can be held illegal on the ground that the period of detention already undergone by the petitioner has exceeded the maximum provided u/s 18 of the act,

(2.) THE maximum period for which a person may be detained cannot exceed 12 months as laid down in Sec. 18 of the Act. This is of course subject to the condition that the initial order of detention has been confirmed by the Government pursuant to the report of the Advisory Board u/s 17 of the Act. Sec. 18 pre -supposes that where an order of detention has been made by an officer mentioned in Sub -section (2) of Sec. 8, it has been approved by the Government within 12 days from the date the order was made as provided by Subsection (4) of section 8. Section 19 in a way operates as a proviso to Section 18. For ready reference Sec. 19 may be reproduced as below : "19. Revocation of detention order; - (1) Without prejudice to the provisions of Section 21 of the General Clauses Act, Samvat 1977, a detention order may at any time be revoked or modified by the Government, notwithstanding that the order has been made by any officer mentioned in sub -section (2) of Section 8. (2) There shall be no bar to making of a fresh order of detention against a person on the same facts as an earlier order of detention made against such person in any case where - (i) the earlier order of detention or its continuance is not legal on account of any technical defect, or (ii) the earlier order of detention has been revoked by reason of any apprehension, or for avoiding any challenge that such order or its continuance is not legal on account of any technical defect : Provided that in computing the maximum period for which a person against whom such fresh order of detention has been issued may be detained, the period during which such person was under detention under the earlier order of detention shall be excluded." Sub -section (1) of Sec. 19 gives unfettered powers to the Government to either revoke or modify the same at any time during which the order remains in force. Sub -section (2) empowers the detaining authority to make a fresh order of detention against a person on the same facts provided the earlier existing order or its continuance is illegal on account oi technical defect or the earlier order has been revoked by reason of any actual or even threatened challenge to its legality arising out of any technical defect. Unless, therefore, one of the aforesaid conditions is satisfied no fresh order of detention can be made against a person on the same facts on which the earlier one has been made. Proviso to Sub -section (2) further lays down that in computing the period of further detention in terms of Sec. 18 the period undergone under the earlier order shall be excluded. The proviso on its plain language governs Subjection (2) and not Sub -Section (1) of Sec. 19 for if it is construed to govern Sub -sec. (1) as well then the detaining authority may perpetuate the detention of a person indefinitely by revoking its earlier order and passing a fresh order of detention irrespective of the nature of the grounds of either revocation or detention. This interpretation would obviously render Section 18 nugatory. No shelter can, therefore, be taken under the proviso to enlarge the period of detention unless at least one of the two conditions mentioned in clause (i) and (ii) of Sub -section (2) is satisfied. The detaining authority in order to take shelter under the proviso to Sub -section (2) shall have to satisfy the court that circumstances contemplated by either Clause (i) or Cl. (ii) did exist. Mere ipse dixit of the detaining authority will not do. In the instant case, according to the respondents showing the petitioner was for the first time detained on 11 -2 -1978. This order was revoked on 1 -5 -1978 and fresh order of detention served upon the petitioner on the very same day. If the earlier order of detention was not revoked on account of any technical defect as contemplated by Sub -section (2) then the proviso to the said Sub -section will not be attracted and the total period of detention shall not exceed 12 months, which under Section 18 shall have to be reckoned from the day the petitioner was for the first time placed under detention. The petitioners detention after 10 -2 -1979 would be thus clearly illegal. There is nothing in the replies file by the respondents or in the affidavit supporting the same that the earlier order of detention was revoked on 1 -5 -1978 or that the subsequent order of detention was passed on 1 -5 -1978 because the earlier order of detention suffered from a technical defect effecting the legality of the order or the detention in consequence thereof. No such indication is available either from the order of revocation or from the order of detention dated 1 -5 -1978. In the absence of any such proof it is not possible to apply the proviso and reckon the period of 12 months from 1 -5 -1978. Viewed thus, the detention of the petitioner from 11 -2 -1979 onwards was clearly illegal.

(3.) IN the result the petition is allowed, and the respondents are directed to set the petitioner at liberty forthwith.