# HADIBANDHU DAS v. DISTRICT MAGISTRATE, CUTTACK & ANR

- **Citation:** [1969] 1 S.C.R. 227
- **Court:** Supreme Court of India
- **Decided:** 1968-05-02
- **Case number:** Civil Appeal No. 1210 of 1968
- **Bench:** J.C. Shah, V. Ramaswami, V. Bhargava, C. A. Vaidiaungam, A. N. Grover
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/hadibandhu-das-v-district-magistrate-cuttack-anr-4384
- **Pages:** 8

## Headnote

Preventive Detention Act 4 of 1950, ss. 7 and 13 (2)-Rcquirements
of-Translatio1l of order and grounds thereof 1nust b,e supplied to det~nue
lVithin five days of detention-Order under s. 13(2) after revocation of
earlier order 11111st be based on fresh facts-N!?cessity of application of
111ind.
On December 15, 1967 the District Magistrate, Cuttack
served an
order made in exercise of power under s. 3 (I )(a) (ii) of the Preventive
Detention Act, 1950 directing that the appe.Jlant be detained on various
grounds. ·on December 19, 1967 the appellant filed a petition in the
High Court challenging the order of detention on the grounds inter alia
that the order and the grounds. in support thereat served upon the ap~
pclJant were written in the English language which the appellant did
not understand.
On January 18, 1968 the District Magistrate supplied
to the appellant an Oriya translation of the order and the grounds. On
January 28, 1968 the State of Orissa re\1lked the order and issued a
fresh order of detention. A translation of this order in Oriya \\'as supplied to the appellant. Thereafter
the appe!lan.t
submitted a supplementary petition chal1enging the validity of the order dated
JanuarY 28.
1968. The High Court of Orissa rejected the petition filed by the appellant.
Against that order, with certificate .granted by the High Court the
appe1Jant came to this Court.
HELD : (i) The order of the District Ma.gistrate passed on December 15. 1967 ran into fourteen typed pages.
Mere oral explanation of
such. an order \Vithout supplying him a translation in a script or language which he understood, amountc<l to denial of the right of being communicated the grounds and of being afforded the opportunity of making
a representation against the order.
The order of the District ~fagistrate
11\lt having been followed up by service within five days as provided by
s. 7 ( 1 ) of the communication to him of the grounds on. which the order
Vi'as made must be deemed to have becon1~ invalid an<l anv subseQuent
detention of the appellant was unauthorised. [231 F-H]
·
Harikisan v. State of Maharashtra & Ors.,
[1962.] Supp.
2 S.C.R.
918, relied on..
(ii) The second order dated January 28, 1968 passed by the State
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Government was not passed on any fresh facts which had arisen after
the date of revocation of the first orde.r and was on that ground invalid.
There is nothing in s. 13 (2) which indicates that the expression 'revocation' nieans only revocation of an order which is othetwise valid and
operative : apparently it includes cancellation of all orders invalid as well
1S valid. [233 F-H]
The principle underlying s. 13(2) in its oresent form is the outcome
H
of insistence by Par1iament that the detaining authority shaII fully apply
its mind to and comply with tbei requirements of the statute and of insistence .upcn refusal to countenance slipshod exercise of power. [234 El
228
St.:PRl'.~E COURT REPORTS
I I 969] I S.C.R.
. Ba.sail/a Chandra Ghose v. King Emperor, 11945] F.C.R. 81, Naranian
A
Singh Nathawan v. Staie of Punjab, [1952] S.C.R. 395, and Shibban Lal
Sai<sena v. S:ate of l!trar Pradesh & Ors. [1954] S.C.R. 418, referred to.

## Text

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HADIBANDHU DAS
v.
DISTRICT MAGISTRATE, CUTTACK & ANR.
May 2, 1968
(J.C. SHAH, V. RAMASWAMI, V. BHARGAVA, C. A. VAIDIAUNGAM
AND A. N. GROVER, JJ.]
Preventive Detention Act 4 of 1950, ss. 7 and 13 (2)-Rcquirements
of-Translatio1l of order and grounds thereof 1nust b,e supplied to det~nue
lVithin five days of detention-Order under s. 13(2) after revocation of
earlier order 11111st be based on fresh facts-N!?cessity of application of
111ind.
On December 15, 1967 the District Magistrate, Cuttack
served an
order made in exercise of power under s. 3 (I )(a) (ii) of the Preventive
Detention Act, 1950 directing that the appe.Jlant be detained on various
grounds. ·on December 19, 1967 the appellant filed a petition in the
High Court challenging the order of detention on the grounds inter alia
that the order and the grounds. in support thereat served upon the ap~
pclJant were written in the English language which the appellant did
not understand.
On January 18, 1968 the District Magistrate supplied
to the appellant an Oriya translation of the order and the grounds. On
January 28, 1968 the State of Orissa re\1lked the order and issued a
fresh order of detention. A translation of this order in Oriya \\'as supplied to the appellant. Thereafter
the appe!lan.t
submitted a supplementary petition chal1enging the validity of the order dated
JanuarY 28.
1968. The High Court of Orissa rejected the petition filed by the appellant.
Against that order, with certificate .granted by the High Court the
appe1Jant came to this Court.
HELD : (i) The order of the District Ma.gistrate passed on December 15. 1967 ran into fourteen typed pages.
Mere oral explanation of
such. an order \Vithout supplying him a translation in a script or language which he understood, amountc<l to denial of the right of being communicated the grounds and of being afforded the opportunity of making
a representation against the order.
The order of the District ~fagistrate
11\lt having been followed up by service within five days as provided by
s. 7 ( 1 ) of the communication to him of the grounds on. which the order
Vi'as made must be deemed to have becon1~ invalid an<l anv subseQuent
detention of the appellant was unauthorised. [231 F-H]
·
Harikisan v. State of Maharashtra & Ors.,
[1962.] Supp.
2 S.C.R.
918, relied on..
(ii) The second order dated January 28, 1968 passed by the State
G
Government was not passed on any fresh facts which had arisen after
the date of revocation of the first orde.r and was on that ground invalid.
There is nothing in s. 13 (2) which indicates that the expression 'revocation' nieans only revocation of an order which is othetwise valid and
operative : apparently it includes cancellation of all orders invalid as well
1S valid. [233 F-H]
The principle underlying s. 13(2) in its oresent form is the outcome
H
of insistence by Par1iament that the detaining authority shaII fully apply
its mind to and comply with tbei requirements of the statute and of insistence .upcn refusal to countenance slipshod exercise of power. [234 El
228
St.:PRl'.~E COURT REPORTS
I I 969] I S.C.R.
. Ba.sail/a Chandra Ghose v. King Emperor, 11945] F.C.R. 81, Naranian
A
Singh Nathawan v. Staie of Punjab, [1952] S.C.R. 395, and Shibban Lal
Sai<sena v. S:ate of l!trar Pradesh & Ors. [1954] S.C.R. 418, referred to.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1210 of
1968.
Appeal from the judgment and order dated March 11, 1968
B
of the Orissa High Coun in OJ .c. 454 of 1967.
A. S. R. Chari, Vinno Bhagat, and Ravinder Narain, for the
appellant.
Niren De, Solicitor.General, G. R. Rajagopala, and R. N.
SachJhey, for the respondents.
The Judgment of the Coun was delivered by
Shah, J.-By order pronounced on April 22, 1968, we directed that the order passed by the State of Orissa detaining
U1e
appellant under the Preventive Detention Act be quashed. We
proceed to record our reasons in suppon of our order.
On December 15, 1967, the District Magistrate,
Cuttack,
served an order made in exercise of power under s. 3(1)(a)(ii)
of the Preventive Detention Act 4 of 1950 directing that the
appellant be detained on the grounds that he--ilic appcllantwas acting in a manner prejudicial to ilie maintenance of public
order by committing breaches of public peace, indulging in illicit
business in Opium, Ganja, Bhang, country liquor. riotous conduct, criminal intimidation and assault
either by himseU
or
through his relations. agents and associates as set out in the order.
On December 19, 1967 the appellant filed a petition in the High
Court of Orissa challenging the validity of the order of detention
on the grounds, imer alia, that the order and the grounds in support thereof served upon the appellant were written in the English
language which the appellant did not understand.
On January
18, 1968, the District Magistrate, Cuttack supplied to the appellant an Oriya translation of the order and the grounds. On January 28, 1968, the State of Orissa revoked the order and issued a
fresh order that :
"Whereas the order of detention
dated the
15th
December, 1967. made by the District Magistrate,
Cuttack against Shri Hadibandhu Das son of late Ramchandra Das of Manglabag, town Cuttack has been
revoked by the State Government on account of defects
of fonnal nature by their order No. 396C dated the 28th
January, 1968.
And whereas the State Government are satisfied
with respect to the said Hadibandhu Das, that with a
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HAD! BANDHU V. DIST. MAGISTRATE (Shah, J.)
22S>
view to prevent him from acting in any manner prejudicial to the maintenance of public order, it is necessary
to detain him.
Now, therefore, in exercise of the powers conferred
by Section 3(1)(a)(ii) read with Section 4(a) of the
Preventive Detention Act, 1950, the State
Government do hereby direct that the said Hadibandhu Das be
detained in the District Jail at Cuttack until
further
orders."
A translation of that order in Oriya was supplied to the appellant.
On Febrnary 8, 1968, the appellant submitted a snpplemenC
tary petition challenging the validity of the order dated January
28, 1968. The High Conrt Conrt of Orissa rejected the petition
...
filed by the appellant. Against that order with certificate granted
by the High Conrt, this appeal has been preferred by the appellant.
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It is not necessary to set ont and refer to large number of
grounds which were nrged at the Bar in support of the appeal
by counsel for the appellant, since in the view we take the second
order dated January 28, 1968, was not passed on any fresh facts.
which had arisen after the date of revocation of the first order,
and is on that account invalid, and an order releasing the appellant from custody must be made.
Tue relevant provisions of the Preventive Detention Act 4
of 1950 may be set ont :
S. 3 ( 1 )-"The Central Government or the State
Government may-
( a) if satisfied with respect to any person that with a
view to preventing him from acting .in any manner prejudicial to-
(i) the defence of India, the relations of India
with foreign powers, or the security of
India, or
(ii) the security of the State or the maintenance of public order, or
(iii) the maintenance of snovlies and
services
essential to the commnmty, or
(b)
it is necessary so to do, make an order directin<> that
H
snch person be detained."
"
S. 7-" ( 1) When a person is detained in pnrsnance
of a detention order, the authority making the order
lOSup. C. f.(68~ 17
:230
SUPREME COURT REPORTS
[1969] I S.C.R.
shall as soon as may be, but not later than five days
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from the date of deiention, communicate to him the
grounds on which the order has been made, and shall
afford him the earliest opporlunity of making a representation against the order 10 the appropriate Government.
(2)
"
Section 8 provides for the constitution of Advisory Boards, and
by s. 9 the appropriate Government is enjoined to place within
thiny days from the date of detention under the order before the
Advisory Board constituted by it under s. 8 the grounds on which
the order has been made and the represen'ation, if any, made
by the person affected by the order. Section I 0 deals with the
procedure of the Advisory Boards, and by s. 11 it is provided that
in any case where the Advisory Board has reported that there is
in its opinion sufficient cause for the detention of a person, the
appropriate Government may confinn the detention order and
-continue the detention of ihe person concerned for such period
35 it thinks fit, and in any case where the Advisory Board has roported that there is in its opinion no sufficient cause for the detention of the person concerned, the appropriate Government shall
revoke the detention order and cause the person to be released
forthwith.
Section 11 A Provirles th •t a oerson whose detention
has been confirmed in pursuance of the detention order shall not
be detained, for a period exceeding twelve months.
By s. 13
power is conferred upon the State Government and the Central
Government to vacate the order of a subordinate officer made
under sub-s. (2) of s. 3, and upon the Central Government to
revoke the order of a State Government.
Sub-section (2) of s. 13 provides:
"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
fresh facts have arisen after the date of revocation or
expiry on which the Central Government or a State
Government or an officer. as the case may be, is satisfied that such an order should be made."
It is true that on January 18, 1968, the District Magistrate on
further consideration served a translation in Oriya of the order
and the grounds upon the appellant, but that was after expiry
of five days as prescnbed by s. 7 of the · Act. This Coun in
Harik1:<an v. The State of Maharashtra and others(') held that
where a detenue is served with the order of detention and the
grounds in English and the detenue does not know English and
bis reqmist for translation of the grounds in a language which he
(J) [1962) Supp. 2 S.C.R. 918.
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HAD! BANDHU V. DIST. MAGISTRATE (Shah, J.)
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understood was refused on the ground that the order and the
grounds had been orally translated to him at the time when the
order was served upon him", the guarantee under Art. 22(5) of
the Constitution was violated and the detention of the detenue
was illegal. It was observed by this Court at p. 924 : .
". . . . cl. ( 5) of Art. 22 requires that the grounds
of his detention should be made available
to the
detenue as soon as may be, and that the earliest opportunity of making a representation 'against the Order
should also be afforded to him. In order that the
detenue should have that opportunity, it is not sufficient that he has been physically delivered the means
of knowledge with which to make his representation. In·
order that the detenue should be in a position effectively to make his representation against the Order, ·he ·
should have knowledge of the grounds of detention, ·
which are in the nature of the charge against him setting
out the kinds of prejudicial acts which the authorities·
attribute to him.
Communication, in this
context,
must, therefore, mean imparting to the detenue sufficient knowledge of all the grounds on which the Order .
of Detention is based. In this case the grounds are
several, and are based on numerous speeches said to
have been made by the appellant himself on different
occasions and different dates.
Naturally,
therefore;
any oral translatiom or explanation given
by
the
police officer serving those on the detenue would not
amount to communication, in this context, must mean
bringing home to the detenue effective knowledge of
the facts and circumstances on which the Order of
Detention is based."
. The grounds in support of the order served on the appellant
ran into fourteen typed pages and referred to his activities over
a period of thirteen years, beside referring to a large number of
court proceedings concerning him and other persons who were
alleged to be his associates. Mere oral explanation of a complicated order of the nature made against the appellant
without
supplying him the translation. in script and language . which he
understood would, in our judgment, amount to
denial of the
right of bein_g communicated the grounds and of being afforded
the opportunity of making a representation against the · order.
The order made by the District Magistrate, Cuttack, ·not having
been followed up by service within five days as· provided by s.
7 (1) of the communication to him of the grounds on wh'ch the
order was made must ·be deemed to have become invalid 'and
any subsequent detention of the appellant was unauthorired.
On January 28, 1968, the State of Orissa purported to revoke the first order and made a fresh order. The validity of the
232
SuPRF.ME COURT REPORTS
[l 969] I S.C.R.
fresh order dated January 28, 1968, made by the State of Orissa
is challenged on the ground that it violates the express provisions
of s. 13 (2) of the Preventive Detention Act. In terms that subsection authorises the making o[ a fresh detention order against
the same person against whom the previous order has been revoked or has expired, in any case where fresh facts have arisen
after the date of revocation or expiry, on which the detaining
authority is satisfied that such an order should be made.
The
clearest implication of s. 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
the
present case the order dated December 15, 1967, passed by the
District Magistrate, Cuttack, was revoked on January 28. ! 968.
and soon thereafter a fresh order was served upon the appellant.
It is not the case of the State that anv fresh facts which had arisen
after the date of revocation on which the State Government w::i1
satisfied that an order under s. 3( l) (a)( ii) may he made. There
was a fresh order, but it was not ba.sed on any fresh facts.
Counsel for the State ·of OrissJ contended that the detaining
authority is prevented from makin~ a fresh order on the same
grounds on· which the original order which had been revoked
was made, provided the order revoked was a valid order initially
and bad not become illegal on account of failure to comply with
statutory provisions like s. 7 or s. 9 of the Pre"entivc Dc'.cntion
Act. Counsel says that the order which is illegal or has become
illegal is not required to he revoked. for it has no legal existence.
and a formal order of revocation of a previous order which has
no legal existence docs not fall wi!hin the tcm1s of s. 13 (2). He
strongly relies in support of this argument upon s. 13 (2) as it
stood before it was amended by Act 61 of 1952 :
'"The revocation of a detention order shall not har
the making of a fresh detention order under section '.1
against the same person."
The phraseology of sub-s. (2) of s. 13 before it was
amended
was explicit : there was no bar against a detaining authority making a fresh order of detention after revoking a previous order
based on the same or other grounds.
Tt contained no implication
that a fresh order may be made only if it was founded on fresh
grounds.
Counsel also relied in support of his argument upon the decision of the Federal Court in Rasanta Chandra Ghose v.
King
Emperor('); Naranjan Singh Nathawan v. The State of P•mjab('): Shibban Lal Saksenn v. Tiu• State of U11ar Prades'1 ancl
others('). Jn Basanta Chandra Ghose'.< case (1) an
order was
(!) [t945] f.C.R. SI.
(C\
[19\~J S.CR. J9;.
(J) [19541 S.C.R. 41 S.
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HAD! BANDHU V. DIST. MAGISTRATE (Shah, J.)
233
made under r. 26 of the Defence of India Rules on March 19,
1942. The order was revoked on July 3, 1944, and a fresh
order for detention of the detenue was passed on that very date
under Ordinance Ill of 1944.
It was urged on behalf of the
detenue that the authority was debarred, except on fresh grounds,
from passing a fresh order of detention after cancellation of an
earlier order, and the High Court was not justified in presuming
that fresh materials must have existed when the order of July
1944 was made.
Spcns, C.J.,
rejected the
contention.
He
observed in dealing with that gr9und :
"It may be that in cases in which it is open to the
Court to examine the validity of the grounds of detention a decision that certain alleged grounds
did
not
warrant a detention will preclude further detention on
the same grounds.
But where the earlier order of de·
tention is held defective merely on formal
grounds
th.ere is nothing to preclude a proper order of detention
being based on the pre-existing grounds themselves, especially in cases in which the sufficiency of the grounds
is not examinable by the Courts."
That case arose from an order of detention under Ordinance Ill
of 1944.
In two latter judgments of this Court in Naranjan
Singh
Nathawan's case(') and Shibban Lal Saksena's case(2 ) decided '
under the Preventive Detention Act, 1950, it was ruled that where
the previous order was revoked on grounds of irregularity in the
order, the detaining authority was not debarred from making a
fresh order complying with the requirements of law in that
behalf.
Relying upon these cases the Solicitor-General contended that
it was settled law before s. 13(2) was amended by Act 61 of
1952 that a detaining authority may issue a fresh order aft.er
revocation of an earlier order of detention if the previous order
was defective in point of form or had become unenforceable in
consequence of failure to comply with the statutory provisions
of the Act, and that by the Amending Act it was int.ended merely
to affirm the existing state of law, and not to enact by implication
that revocation of a defective or invalid order attracts the bar im·
posed by s. 13(2). There is, in our judgment, nothing in th.e
language used by the Parliament which supports that contention.
The power of the detaining authority must be determined
by
reference to the language used in the statute and not by reference
fo any predilections about the legislative intent. There is nothing
in s. l 3 (2) which indicates that the expression "revocation" means
only revocation of an order which is otherwise valid and opera·
lll [1952] S.C.R. 395.
(2) [!954] S.C.R. 418.
234
SUPREME COURT REPORTS
[1969] 1 s.c.R.
tive
apparently it includes cancellation of all orders-invalid
as well as valid. The Act authorises the executive to put severe
restrictions upon the personal liberty of citizens without ev.:n the
semblance of a trial, and makes the subjective satisfaction of :m
executive authority in the first instance the sole test of competent
exercise of power.
We are not concerned with the wisdom of
the Parliament in enacting the Act; or to determine whether circumstances exist which necessitate the retention on the statute
book of the Act which confers upon the executive extraordinary
power of detention for Jong period without trial. But we would
. be loath to attribute to the plain words used by the Parliament a
restricted meaning so as to make the power more harsh and its
operation more stringent. The word "revocation" is not, in our
judgment, capable of a restricted interpretation without any indication by the Parliament of such an intention.
Negligence or inaptitude of the detaining authority in making
a defective order or in failirig to comply with the mandatory provisions of the Act may in some cases enure for the benefit of the
detenue to which he is not entitled. But it must be remembered
that the Act confers power to make a serious invasion upon the
liberty of the citizen by the subjective determination of facts by
an executive authority, and the Parliament has provided several
safeguards against misuse of the power. The very fact that a
defective order has been passed, or that it has become invalid
because of default in strictly complying with the mandatory provisions of the law bespeaks negligence on the pan of the detaining authority, and the principle underlying s.
13 (2) is, in our
view, the outcome of insistence hy the Parliament that the detaining authority shall fully apply its mind to and comply with the
requirements of the statute and of insistence upon
refusal
to
countenance slipshod exercise of power.
Without, therefore, expressing any opinion on the question
whether the order passed by the State Government on January
28, 1968, was justified, we are of the view that it was incompetent.
by virtue of sub-s. (2) of s. 13 of the Preventive Detention Act,
1950.
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