CHOTKA HEMBRAM versus STATE OF WEST BENGAL AND ORS.

J.-This is a petition under Article 32 of the Constitu· tion of India by Chotka Hembram for the issuance of a writ of habeas corpus. ·,

p. 564, margin A

An order for the detention' of the petitioner was made under subsection 2 of section 3 of the Mainienance of Internal Security Act, 1971 (Act 26 of 1971). (hereinafter referred to as the Act), by the District Magistrate of Burdwan on July J, 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, 1.973 and a fresh order for the detention of the petitioner was made on April 26, 1973 by the District Magistrate of Burdwan during the pen_!lency of the present petition·

p. 564, margin A

The present petition, it may be mentioned, was sent from jail 'by the petitioner on February 22, 1973. The petitioner is now being detained ill 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.

p. 564, margin C

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 Distric! Magistrate on July 3, 1972 were as under : ·

p. 564, margin C

"(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 Daoradanga, P.S. Bhatar, Dist!. Burdwan and siabbed 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 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.

p. 564, margin D

(2) On 14-1-72 at about 17-35 hours, you along with your associates viz. Kartici, 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 Ja,dav received gun shot injuries .. Your act.created a general sense of insecurity and deterred the· residents of the locality from following their normal avocations d life for a considerable period

p. 564, margin F

after the incident."

p. 564, margin G

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.

p. 564, margin H

·(Khanna, /.) 565-

p. 565

According.to sub-section (2) of section 14 of the Act "the revoc.ation or expiry of a detention order shall not b!\r the making of a fresh "detention order under section 3 against the same person in any case where fresh facts have a:risen after the date of revocation or expiry on which the Central Governinent 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 itand 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. Ii 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; )ll'esent 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( 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 whibh took place prior to the making of that order. As such, those incidents could not )ll'Ovide valid grounds for the making of the subsequent detention order dated April 26, 1973.

p. 565

The provisions of sub-section (2) of section 14 of the Act were consideie<l by this Court in the case of Mosood. Alam v. Union of India(") and it was observed that "the power of preventive detention being an extraordinary power intended to be exercised only in extra· ordinary em er gent 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 o\1gmal 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 oould arise for sustaining the fresh order of detention." This Court in the circumstances, quashed the order of detention. ' (IJ IS. t2r I. .c.

p. 565, margin E

The matter can also be looked at from another angle. Section 13 ()f the Act provides that the maximum period for whic!:. any person may be ddllined in pursuanc;e of any detention order, which ha been confull:led under seqion 12, shall be 12 months from the date of detention. It is, therefore, plain that the maximum period for which a petsQll can be detained on account of specified acts should not exceed 12 lllonths. 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 liaNe to be detained.Jor a period of more than 12 months. The making of .a subsequent order of detention in respect of the sallie acti, for which an earlier order of detention was made, would run <XJUDter to the entire scheme of the Act. It would also set at n1l.llght the re&triction 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.

p. 566, margin A

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, a~t the petition, quash the fresh order of detention dated April 26, 1973 and direct that the petitioner be set at liberty forthwith.

p. 566, margin C

Petitipn granted.

p. 566, margin C