# KSHETRA GOGOi v. STATE OF ASSAM

- **Citation:** [1970] 2 S.C.R. 517
- **Court:** Supreme Court of India
- **Decided:** 1969-09-19
- **Case number:** Writ Petition No. 211 of 1969
- **Bench:** J. M. Shelat, V. Bhargava, C. A. Vaid!Alingam, I. D. DuA
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/kshetra-gogoi-v-state-of-assam-4855
- **Pages:** 5

## Headnote

Preventive Detention Act, 1950, s. 13 (2)-Fresh Order of detentiow
after expiry of earlier order-Requirements.
Section 11-A(2) of the Preventive Detention Act lays down in part
C that the maximum period of detention under s. 3 should be 12 months and
no more, and after the expiry of that period, that orde~ of detention would
lapse. A fresh detention order under s. 13(2) can be made on the revocation or expiry of a previous det<:ntion order only in cases where fiesh
facts have arisen after the date of revocation or expiry. The petitioner.
was put in detention in pursuance of an order dated AuJ!US1 29, 1968. He·
presented a petition under Art. 32 of the Constitution for the is.roe of &
D write of habeas corpus, while this petition was pending, another order of
detenlioa was issued on August 28, 1969, a day before the expiry of the
previous order.
Ibe grounds of detention in this latter order was identical
to that of August 28, 1968 excepting th~ charge that the petitioner, though.
in preventive custody was maintaining links with certain named hostile
persons through friends and relatives and that his liberty would jeopardisethe security of the State and public order in the region. The petitioner·
challenged the latter order of detention by adding additional grounds.
HELD : The order ol detention dated August 28, 1969 was not justified
under s. 13(2) of the Act, being in violation of the provisions of the Act.
and was invalid.
Under sec. 13(2) what is required is that fresh facts
should have arisen/ aftor the expiry of the previous detention. Facts arising
during the period of detention, are, therefore, not relevant when applying
the provisions of s, 13(2). Jn the p<esen~ case, the fresh order was passed
on 28th August, 1969, a day before the expiry, and it was obvious that
p
no fresh facts could by that date arise and yet be held to have arisen after
the date of expiry.
It is very difficult to appreciate how a person in
preventive custody Could continue to maintain links with bis associates
outside jail, who had gone underground, even through his friends and relatives. If the petition was able to maintain such links,
it cast a sad
!reflection on the persoos in charge of him while he was in custody an<J.,_
in any case, it would appear that his detention could serve no useful pur ..
pose.
Evell. if it be accepted that such links were maintained, this addi·
G tional groiilld ·mentioned did not satisfy the requirements of s. 13(2) of
the Act, because the only allegation .was that the links were maintained
during the period of preventive detention.
01uGINAL JURISDICTION : Writ Petition No. 211 of 1969.
Petition under Art. 32 of the Constitution of India for a writ
H in the nature of habeas corpus.
Hardev Singh, for the petitioner.
Naunit Lal, for .the respondent.
518
SUPREME COURT REPORTS
[1970] 2 S.C.R.

## Text

A
KSHETRA GOGOi
v.
STATE OF ASSAM
September 19, 1969
517
B
(J. M. SHELAT, V. BHARGAVA, C. A. VAID!ALINGAM AND
I. D. DuA, JJ.]
Preventive Detention Act, 1950, s. 13 (2)-Fresh Order of detentiow
after expiry of earlier order-Requirements.
Section 11-A(2) of the Preventive Detention Act lays down in part
C that the maximum period of detention under s. 3 should be 12 months and
no more, and after the expiry of that period, that orde~ of detention would
lapse. A fresh detention order under s. 13(2) can be made on the revocation or expiry of a previous det<:ntion order only in cases where fiesh
facts have arisen after the date of revocation or expiry. The petitioner.
was put in detention in pursuance of an order dated AuJ!US1 29, 1968. He·
presented a petition under Art. 32 of the Constitution for the is.roe of &
D write of habeas corpus, while this petition was pending, another order of
detenlioa was issued on August 28, 1969, a day before the expiry of the
previous order.
Ibe grounds of detention in this latter order was identical
to that of August 28, 1968 excepting th~ charge that the petitioner, though.
in preventive custody was maintaining links with certain named hostile
persons through friends and relatives and that his liberty would jeopardisethe security of the State and public order in the region. The petitioner·
challenged the latter order of detention by adding additional grounds.
HELD : The order ol detention dated August 28, 1969 was not justified
under s. 13(2) of the Act, being in violation of the provisions of the Act.
and was invalid.
Under sec. 13(2) what is required is that fresh facts
should have arisen/ aftor the expiry of the previous detention. Facts arising
during the period of detention, are, therefore, not relevant when applying
the provisions of s, 13(2). Jn the p<esen~ case, the fresh order was passed
on 28th August, 1969, a day before the expiry, and it was obvious that
p
no fresh facts could by that date arise and yet be held to have arisen after
the date of expiry.
It is very difficult to appreciate how a person in
preventive custody Could continue to maintain links with bis associates
outside jail, who had gone underground, even through his friends and relatives. If the petition was able to maintain such links,
it cast a sad
!reflection on the persoos in charge of him while he was in custody an<J.,_
in any case, it would appear that his detention could serve no useful pur ..
pose.
Evell. if it be accepted that such links were maintained, this addi·
G tional groiilld ·mentioned did not satisfy the requirements of s. 13(2) of
the Act, because the only allegation .was that the links were maintained
during the period of preventive detention.
01uGINAL JURISDICTION : Writ Petition No. 211 of 1969.
Petition under Art. 32 of the Constitution of India for a writ
H in the nature of habeas corpus.
Hardev Singh, for the petitioner.
Naunit Lal, for .the respondent.
518
SUPREME COURT REPORTS
[1970] 2 S.C.R.
The Judgment of the Court was delivered by
Bhargava, J.
The petitioner in this petition under Article
3 2 of the Constitution was arrested and detained under an order
made under section 3(l)(a)(ii) of the Preventive Detention Act,
1950 (hereinafter referred to as ''the Act") on 24th April, 1968.
On 30th August, 1968, he filed a petition in the High Court
of Assam under Art. 226 of the Consfaution 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 s. 3(1)(a)(ii) of the Acc.
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 rhe 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 29rh August,
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, ir appears that a fresh order for
his detention under s. 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 Courr.
Thereupon, the petit':mer, 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 Augusr,
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 9rh September, 1969,
learned counsel for the State of Assam stated that no material
had been received from hte Government and wanted time to be
granted to meet the facrs 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 Augusr, 1969 on the detenu which he did on 29th
August, 1969, no attempt was made to obtain the material for
which time had been obatined from the Court on 29th August,
1969. If a fresh order had been passed and had been served
on the petitioner in supers<!ssion 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 petiA
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KSHETRA GOGOi v. ASSAM (Bhargava, J.)
519
ti on.
Detention of a person without trial, even for a single day r
is a; matter of great consequence and, hence, we did not consider that, in the circumstances mentioned above, there was any
justi.fication for granting further time to the State Government
to obtain material and file a reply to this app:;cation dated 1st
September, 1969.
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,
196~ 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 detentior. 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 petitionr
we are not concerned with the effect of this procedure adopted
by the State Government, because, even if it t.e assumed that
the second order of detentlon 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 wbi.ch
prescribes a maximum period of 12 months for detention under
the Act on the basis of an order pa~sed under s. 3 of the Act.
On 29th August, 1969, the detention under the Becond 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.
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 w':!ich is as follows :-·
"13. (2) The revocation or expiry of a detention
order shall not ~ar the making of ~ 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
'520
SUPREME COURT RErORTS
(1970] 2 S.C.R.
or a State Government or an officer, as the case may be,
is satisfied that such order should be made."
This provision clearly lays down that a fresh detention order can
be tnade on the revocation or expiry of a previous detention order
only in cases where fresh facts have arisen after t!he date of revocation or expiry.
This principle was explained by this Court
in Hadibandhu Das v. District Magistrate, Cuttack and Another(')
where it was held :-
"On January 28, 1968, the State of Orissa purported to revoke the first order and made a fresh order.
The validity of the fresh order dated January 28, 1968,
made by the State of Orissa is challenged on the ground
that it violates the express provisions of Section 13(2)
of the Preventive Detenrion Act.
In terms that subsection authorises the making of 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 Section 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, 1968,
and soon thereafter a fresh order was served upon the
appellant. It is not the case of the State that any fresh
facts which had arisen after the date of revocation on
which the State Government was satisfied that an order
under Sec. 3(1)(a)(ii) may be made.
There was a fresh
order, but it was not based on any fresh facts."
In view of t!his decision, we ·have to see whether, in the present
case, the requirements laid down by s. 13(2) of the Act for
making a fresh order were or were not satisfied. The main requirement is that the order must be made not merely on the past
grounds, but no fresh facts which have arisen after the date of
expiry.
In the present case, we have compared the grounds of de~en
tion served in pursuance of the order dated 28th August, 1969,
with the grounds of detention which were served on the pe!itioner
in pun.uance of the second detention order. dated 29th August,
1968, and we find that the two are identical, except that two
(]) A.I.R. 1969 s.c. 43.
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KSHETRA GOGOi v. ASSAM (Bhargava, J.)
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small paragraphs have be~n added when serving the grounds of
detention in respect of the detention order dated 28th August, ·
1969. These paragraphs are as follows :
"That though in preventive custody, he has been
maintaining links with Shah Syed Hussain and other
associates,
who went underground in Nagaland,
through his friends and relatives.
Shah Syed Hussain and his gang since received some arms and explosives from Naga rebels for committing acts of sabotage and creating large scale disturbances, particularly
in the plains areas along Assam Nagaland border.
That, in the circumst;mces, Shri Khetra Gogoi's
being at large will jeopardise the security of the State
and the maintenance of public order in this region."
The first one of these two paragraphs is the only one that purports to mention some ground in addition to the grounds which
were included amongst the grounds which were the basis of the
order dated 29th August,
1968. We have found it very
difficult to appreciate how a person in preventive custody could
continue to maintain links with his associa~es outside jail who
had gone underground even through his friends and relatives.
If the (present) petitioner was able to maintain such links, it
casts a sad reflection on the persons in charge of him while he
was in custody and, in any case, it would appear that his detention could serve no useful purpose.
It appears (to us) to be, in
fact,
very doubtful whether any such contacts could possibly
have been maintained. However, even if we accept that
such links were maintained, this additional ground mentioned
does not satisfy the requirements of s. 13(2) of the Act, because
the only allegation is that the links were maintained during the
period of preventive detention.
Under s. 13(2) what is required is that fresh facts should have
arisen after the expiry of the previous detention. Facts arising
during the period of detention are, therefore, not relevant when
applying the provisions of s. 13(2). In the present case, the
fresh order was passed on 28th August, 1969, a day b~fore the
expiry, and it is obvious that no fresh facts could by that date
arise and yet be held to have arisen after the date of expiry.
The order dated 28th August, 1969 was, therefore, not at
all justified under s. 13(2) of the Act and that order being in
violation of the provisions of the Act has to be held to be invalid,
so that the detention under that order is illegal.
The petition is"
allowed.
The petitioner shall be set at liberty forthwith.
Y.P.
Petition allowed.