# GHULAM NABI ZAKI v. STATE OF JAMMU AND KASHMIR

- **Citation:** [1970] 3 S.C.R. 35
- **Court:** Supreme Court of India
- **Decided:** 1969-10-27
- **Case number:** Writ Petitions No. 168 of 1969
- **Bench:** M. HrnAYATULLAH, V. Ramaswami
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ghulam-nabi-zaki-v-state-of-jammu-and-kashmir-5002
- **Pages:** 5

## Headnote

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la111111u and Kashmir Preventive Detention Act (13 of 1964) s. 14(2)-
Second order of detention without additional or fresh facts or materialValidity.
T~e petitioner was arrested on November 9, 1968, by virtue of an
order, passed on August 23, 1968, under s. 3(1)(a) of the Jammu and
Kashmir Preventive Detention Act, 1964.
On Augast 20, 1969, while
the. p~titioner was in detention, the order was revoked, and under s. 14(1)
a fresh order of detention Wa.§ passed. The second detention order under
s. 14(1 I was challenged in this Court.
HELD : The detenu was entitled to be released, because, the second
order ·of detention could not be passed without there being additional or
fresh material in the hands of the detaining authority as required by s.
14(2). [36 E-F]
Jn f{adbandu Das v. District Magistrate, Cu(tcck, A.I.R. 1969 S.C. 43
followed in Kshetra Gogoi v. State of Assam,
[1970] 2 S.C.R.
517,
and Mohd. Shafi and Mohd. Yaqub v. State of Jammu and Kashmir,
W.P. No. 183/1969 dt. 17-10-1969, it has been. held, interpreting
the
similar s, 13 (2) of the Preventive
Detention Act, 1950, and s. 14(2)
of the Jammu ·and Ka&hmir
Act, that
once an order of revocation
is made for whatever reason, another order detaining the same person can
only be' passed if ·some additional or fresh material is in the possession of
the State Government on which action can be based, because, a person
who is entitled to his liberty can only be put in a second jeopardy when
there ~re additional or fresh facts against him. The fresh detention order
which \\·as sustained
in Jagdev Singh v. State of Jammu and Kashmir,
[1968] I S.C.R. 197 was a case under the Defence of India Rules, where
there is 'no section equivalent to s. 13(2) of the Preventive Detention Act
or s. 14(2) of the Jammu an.d Kashmir Act. [38 A-B, C-E, G-H]
ORIGINAL JURISDICTION : Writ Petitions No. 168 of 1969.
Petition under Art. 32 of the Constitution of India for a writ
in the ~ature of habeas corpus.
B. Dutta, for the petitioner.
S. K. Dho/akia and R. N. Sachthcy, for the respondent.

## Text

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GHULAM NABI ZAKI
v.
STATE OF JAMMU AND KASHMIR
October 27, 1969
B
[M. HrnAYATULLAH, C.J. AND V. RAMASWAMI, J.J
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la111111u and Kashmir Preventive Detention Act (13 of 1964) s. 14(2)-
Second order of detention without additional or fresh facts or materialValidity.
T~e petitioner was arrested on November 9, 1968, by virtue of an
order, passed on August 23, 1968, under s. 3(1)(a) of the Jammu and
Kashmir Preventive Detention Act, 1964.
On Augast 20, 1969, while
the. p~titioner was in detention, the order was revoked, and under s. 14(1)
a fresh order of detention Wa.§ passed. The second detention order under
s. 14(1 I was challenged in this Court.
HELD : The detenu was entitled to be released, because, the second
order ·of detention could not be passed without there being additional or
fresh material in the hands of the detaining authority as required by s.
14(2). [36 E-F]
Jn f{adbandu Das v. District Magistrate, Cu(tcck, A.I.R. 1969 S.C. 43
followed in Kshetra Gogoi v. State of Assam,
[1970] 2 S.C.R.
517,
and Mohd. Shafi and Mohd. Yaqub v. State of Jammu and Kashmir,
W.P. No. 183/1969 dt. 17-10-1969, it has been. held, interpreting
the
similar s, 13 (2) of the Preventive
Detention Act, 1950, and s. 14(2)
of the Jammu ·and Ka&hmir
Act, that
once an order of revocation
is made for whatever reason, another order detaining the same person can
only be' passed if ·some additional or fresh material is in the possession of
the State Government on which action can be based, because, a person
who is entitled to his liberty can only be put in a second jeopardy when
there ~re additional or fresh facts against him. The fresh detention order
which \\·as sustained
in Jagdev Singh v. State of Jammu and Kashmir,
[1968] I S.C.R. 197 was a case under the Defence of India Rules, where
there is 'no section equivalent to s. 13(2) of the Preventive Detention Act
or s. 14(2) of the Jammu an.d Kashmir Act. [38 A-B, C-E, G-H]
ORIGINAL JURISDICTION : Writ Petitions No. 168 of 1969.
Petition under Art. 32 of the Constitution of India for a writ
in the ~ature of habeas corpus.
B. Dutta, for the petitioner.
S. K. Dho/akia and R. N. Sachthcy, for the respondent.
The Judgment of the Court was delivered by
Hidllyatullah, C.J.
The petitioner Ghulam Nabi Zaki has
been detflined under s. 3(l){a) of the Jammu & Kashmir Preventive Detention Act, 1964, by an order passed on August 20,
1969. He was originally arrested on November 9, 1968, under
an order: passed under the same section on August 23, 1968.
After the first order was passed, a second order was passed by the
36
SUPREME COURT REPORTS
(1970] 3 S.C.R.
government on November 12, 1968, under s.8(2) read with
s. 13 ( 1)(a)(1) of the Act, stating that in the interest of security
of the State, the grounds of detention could not be disclosed.
Against the first order, the writ petition No. 168 of 1969 was
filed in this Court. On September 6, 1969, the two orders of
detention which had been passed against the detenu were served
on him with the counter-affidavit filed in the writ petition.
Previously, both the orders, that is to say, the order under s.3 and
the order under s.8(2), were not served on the petitioner.
On
August 20, 1969, the first two orders were revoked, and under
s.14( 1) of the Act, the same day, a fresh order of detention was
passed which is now being challenged in these proceedings.
The
same day, yet another order under s. 8 (2) read with s. 13 ( 1) (a)
( 1) was also passed but it is an admitted fact that the orders this
time too were not served upon the detenu although it is alleged in
one of later affidavits that the gist of those orders was orally communicated to the detenu.
The present petition has been filed to
question the second detention order and is based mainly on two
points, namely, that the second detention order could not be validly
made except on some fresh material, as contemplated by s.14(2)
of the Detention Act, and, secondly, that the non-service of the
order of detention as well as the order under s.8 (2) upon the
detenu is fatal to his continued detention.
In view of our decision on the first of the contentions, we do
not consider it necessary to examine the second. In our opinion.
the detenu is entitled to his release, because the second order of
detention could not be passed without there being additional or
fresh material in the hands of the detaining authority, as contemplated by s.14(2) of the Act.
We give our reasons below.
The power to detain persons and to make orders regarding
them is contained in s.3 of the Jammu & Kashmir Preventive
Detention Act, 1964 (Act No. 13 of
1964).
It enables the
government, if satisfied with respect to any person with a view to
preventing him from acting in certain manners described in
th~
section that it is necessary to detain him, to make an order directing that such a person be detained.
A similar power is exercisable under sub.-s.2 by certain officers of the State.
It is next
provided that the grounds of the order of detention must be disclosed to persons affected by the order.
This direction is contained in s.8 ( 1) which says that when a person is detained in
pursuance of a detention order, the authority making the order
shall as soon as may be b.ut not later than ten days of the date of
detention, communicate to him the grounds on which the order
has been made, further giving him an opportunity of making a
representation. Sub-s. ·2 of s. 8 says "Nothing in sub-section ( 1)
shall require the authority to disclose facts which it considers to be
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G, N. ZAKI v. J. & K. STATE (Hidayatullah, C.l.)
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against the public interest to disclose."
Sections 9 and 10 deal
with lhe constitution of and ref~rence to the Advisory. Boards, s.~ 1,
with lhe procedure of the Advisory Boards, and section 12, actmn
upon the report of the Advisory Board.
We need not ref~r to
those. sections.
Section 13 then lays down that the maxunum
period for which any person may be detained in pursuance of any
detention order which has been confirmed under s.12, shall be two
years from the date of detention.
Sub.-s.(2) of that section is in
the nature of a proviso to the first sub-section we have quoted. It
says that nothing contained in section 13 shall affect the power of
the government to revoke or modify the detention order at any
earlier time.
This power, however, is subject to one other provision and that is section 14 which may be quoted in extenso here.
It reads:
"14. Revocation of detention orders.-(!) Without
prejudice to the provisions of section 21 of the General
Clauses Act, Sam vat 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 3.
(2) The revocation or expiry of a detention order
shall not bar the making of a fresh detention order under
section 3 against the same person in any case where
11resh facts have arisen after the date of revocation or
expiry on which the Government or an officer, as the
case may be, is satisfied that such an order should be
made."
The first sub-section is not germane to the matter here, but ·the
second is.
Relying upon the second sub-section, the detenu
claims1 that the order revoking the detention on August 20, 1969,
was followed the same day by another order detaining him, and as
he was in detention all the time, there could not be any fresh
material before the government for a second detention, as required by the second sub-section referred to here.
The State Government contends, on the other hand, that the existence of fresh
materijil is not a condition precedent to the passing of a second
order and that in any event the second order can be made when
the first order is withdrawn or revoked for a
technical defect.
Acconling to the learned counsel for the State Government, the
grounds of detention may be so serious that even if the detenu is
to be released because of a defective order, a second order may be
necessary to put him in detention immediately after his release.
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The matter is not res integra. In a nwnber of decisions of
this Court to which reference will be made presently, this point has
been considered and it has been held that once an order of revo-
38
SUPREME COURT REPORTS
(1970] 3 S.C.R.
cation is made, another order detaining the same person can only
be passed if some additional or fresh material is in the possession
of the State Government on which action can be based.
The first
of these cases is Hadbandhu Das v. District Magistrate, Cuttack
and another(').
In that case, under almost identical
circumstances under section 13(2) of the Preventive Detention Act, 1950,
which is similar to s.14 ( 2) of the Jammu & Kashmir Act, it was
held by this Court :
"The clearest implication of Sec,tion 13 ( 2) is that
after revocation or expiry of the previous order, no fresh
order may issue on the grounds on which the order
revoked or expired had been made."
In other words, the revocation or expiry of the previous order
cannot lead ipso facto to a revival of the detention by the passing
of a fresh order, because a person who is entitled to his liberty can
only be put in a second jeopardy when there are additional or
fresh facts against him. If the section had not spoken of t4e
fresh facts, the matter might have been different, because, then,
the courts would have been required to see whether there was any
curb upon the power of the government to detain a person a
second time after his release on the self-same material.
Indeed,
an earlier case of this Court does exist in which such a view was
taken and we shall presently refer to it.
The case from the All
India Reporter to which we have referred was a decision of the
Constitution Bench.
It was followed in Kshetra Gogoi \'. Siate
of Assam(2 ) and Mohd. Shafi and Mohd. Yaqub v. State of
Jammu & Kashmir( 8 ). In these two cases also, the view has
been affirmed that the enactment of s.14(2) of the Act or the
corresponding section 13(2) of the Preventive Detention Act,
1950, makes it incumbent upon the Government to base the detention on some fresh facts and not the old facts on which the dete.1tion was once ordered but the revocation of the order took place.
This view is binding upon us and applies in the present case.
As against tliis, reference was made to a decision of this Court
in Jagdev Singh v. State of Jammu & Kashmir('), in which it is
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laid down that even after the revocation or expiry of the perio1l of
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first detention, a fresh order can be made on the same grounds on
which the first order proceeded, unless the action can be said to
be mala fide.
There was, however, no section equivalent ta
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s.13(2) of the Preventive Detention Act or s.14(2) of the Jammu
& Kashmir Act in the Defence of India Rules under which that
detention had proceeded.· This is sWlicient to distinguish the
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(1) A.LR. 1969 S.C. 43.
(2) [1970] 2 S.C.R. 517.
(3) Writ Petition 183 of 1969, d<"cided on Oc'ober 17, 1969.
(4) (1968] 1 S.C.R. 197.
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G. N. ZAKI v. J. &·K. STATE (Hidayatul/ah, C.J.)
39
earlier case.
As pointed out in the All India Reporter case, the
inference is very compulsive that fresh facts must be found for
new orders otherwise once the old detention comes to an end
eithet by the expiry of the period of detention or by the cancellation i>f the order of detention, a fresh detention cannot be
ordered. Following, therefore, the string of cases to which we
have referred and which are indistinguishable from the facts of the
prese$t case, we think the detention of the detenu cannot be sustained.
He is, therefore, ordered to be released forthwith unless
required in some other connection.
V.P.Sl
Appeal allowed.