# MASOOD ALAM ETC v. UNION OF INDIA & ORS

- **Citation:** [1973] 3 S.C.R. 268
- **Court:** Supreme Court of India
- **Decided:** 1972-12-20
- **Case number:** Writ Petitions Nos. 469 and 470 of 1972
- **Bench:** A. Alag!Riswami, I. D. Dua, C. A. Vaidialingam
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/masood-alam-etc-v-union-of-india-ors-5814
- **Pages:** 17

## Headnote

Mr.inll!nance of Internal Security
Act, 1971
Section 3(1), Section
14(2)- -"Fresh facts"-Whether fre!;/z detention can be orde.red without
fresh facts after revocation of expiry of the earlier order-Mala (ides--
Whether detention order under Maintenance of /ntlvnal
Security
Act
mc..lafides,
if
ohjectionable
activities
attract
preventive
provisions
(Chapter Vil/)
of the Cr. P. C. also-Whether second detention Order
rendered mala fide by the fact that the order was serl'ed when the detenu
was already in jail.
The detenu was arrested on June 15. 1972 under section 3(l)(a)(i)
a;nd (ii) of the Maintenance of Internal Security Act, 1971. The order
was issued on the same' date on which he was arrested under sections
107/117/151 of the Cr. P. C.
The order was to expire on the
26th
June, 1972 as the same was not approved under s. 3(3) by the Gove'rn·
ment.
On 25-6-1972, a fresh order of detention was passed which was
served on the detenu on 26·6·1972 \.Vh'ile in jail.
The secqnd order
did not mention any fresh grounds of detentions. Both the detention
order were challenged on the grounds (i) that no fresh facts were disclosed for the fresh detention as required by s. 14(2)
of
act
and
(iii) that the orders were nuJa fide. Granting the wTit of habeas corpus
and directing the release of the petitioner.
HELD : The second detention order was made without alleging any
fresh f-acts after the expiry of the first Ord.er.
The power of preventive
detention
is
an
extraordinary
power
intended
to
be
exercised
~n extraordinary emergent circumstances. The
legislative
scheme of
ss. 13 and 14 of the Act suggest· that the detaining authority is expected to know n.nd to take into account all the exising grounds and make
one order of detention which must not go beyond the periOd fixed and
fix the maximum period of detention upto 12 months from the date
of detention.
It is to effectuate this restriction on. the maximum period
and to ensure that it is not rendered nugatory or ineffective by resorting to camouflage Of making a fresh order operative soon after
the
expiry of the period of detention, and also to
mi:11imise
t~ resort
to detention orders, that s. i4 restricts the detention of a. person on
given set of facts to the original order and does 1101 pe"rmit
a
fresh
order to be made on the same grounds which were in existence whe.n
the original order \Vas made. [276H~277D]
Manubhusan Roy Prodhan v. State of West Bengal, W.P. No. 252
of 1972 dated 31·10-1972, relied on.
Sampat Prakash v. State of J, & K .. [1969] 3 S. C. R.
574, distinguished.
.\
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If the grounds are relevant and germane to the
object
of
the
Mainten<i;Tl'Ce of Internal Security Act, then merely because the obj,ection·
able activities covered thereby also attract the provisions <>f Chapter VIII
H
of the Cr. P.C., the preventive det~ntion cannot for that reason alone
be considered to be ma/a fide provided the authority conce.med iJ satisfied of the necessity of the detention as contemplated by the Act. [273C]
A
ID
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MASOOD ALAM "· UNION (Dua, J.)
Sahib Singh Dugga'· v. Union of lndfo,
[1966]
1 S.C. R.
MohGmmed Salem Khan v. C. C. Bose, A.LR.
1972 S.C.
Boriahan Gorey v. State of West Bengal, A.LR. 1972
S.C.
relied on.
269
313,
2256,
2256,
Merely because a person concerned has been served with a fresh deten~
tion order while in custody, that service can.not invalidate the order of
dete;ntion.
Although the past conduct, activities and antecedent history
should be pfoximate in point of time and should have rational con~c
tion with the necessity for detention, what period
of
past
activity
should be considered is withi~ the discretion of the detaint:rrg authority.
[275C-H]
Ujagar Singh v. State of Punjab, [1952] S.C.R. 757, Makhan Singh
Tarsikka v. State of Pwijab, A.LR. 1964 S.C. 1120 and Rameshwar
S/;aw v. District Magistrate Burdwan, (1964] 4 S.C.R. 921, referred to.
Hadibandhu Das v. The District Magistrate, Cuttack, [1969] I S.C.R.
227 and Kshetra Gogoi v. State of Assam, [1

## Text

_Characters 0–39,983 of 42,501. This is a partial read: ask again with offset=39983 for what follows._

268
MASOOD ALAM ETC.
v.
UNION OF INDIA & ORS.
January I I, 1973
[A. ALAG!RISWAMI, I. D. DUA AND C. A. VAIDIALINGAM, JJ;]
Mr.inll!nance of Internal Security
Act, 1971
Section 3(1), Section
14(2)- -"Fresh facts"-Whether fre!;/z detention can be orde.red without
fresh facts after revocation of expiry of the earlier order-Mala (ides--
Whether detention order under Maintenance of /ntlvnal
Security
Act
mc..lafides,
if
ohjectionable
activities
attract
preventive
provisions
(Chapter Vil/)
of the Cr. P. C. also-Whether second detention Order
rendered mala fide by the fact that the order was serl'ed when the detenu
was already in jail.
The detenu was arrested on June 15. 1972 under section 3(l)(a)(i)
a;nd (ii) of the Maintenance of Internal Security Act, 1971. The order
was issued on the same' date on which he was arrested under sections
107/117/151 of the Cr. P. C.
The order was to expire on the
26th
June, 1972 as the same was not approved under s. 3(3) by the Gove'rn·
ment.
On 25-6-1972, a fresh order of detention was passed which was
served on the detenu on 26·6·1972 \.Vh'ile in jail.
The secqnd order
did not mention any fresh grounds of detentions. Both the detention
order were challenged on the grounds (i) that no fresh facts were disclosed for the fresh detention as required by s. 14(2)
of
act
and
(iii) that the orders were nuJa fide. Granting the wTit of habeas corpus
and directing the release of the petitioner.
HELD : The second detention order was made without alleging any
fresh f-acts after the expiry of the first Ord.er.
The power of preventive
detention
is
an
extraordinary
power
intended
to
be
exercised
~n extraordinary emergent circumstances. The
legislative
scheme of
ss. 13 and 14 of the Act suggest· that the detaining authority is expected to know n.nd to take into account all the exising grounds and make
one order of detention which must not go beyond the periOd fixed and
fix the maximum period of detention upto 12 months from the date
of detention.
It is to effectuate this restriction on. the maximum period
and to ensure that it is not rendered nugatory or ineffective by resorting to camouflage Of making a fresh order operative soon after
the
expiry of the period of detention, and also to
mi:11imise
t~ resort
to detention orders, that s. i4 restricts the detention of a. person on
given set of facts to the original order and does 1101 pe"rmit
a
fresh
order to be made on the same grounds which were in existence whe.n
the original order \Vas made. [276H~277D]
Manubhusan Roy Prodhan v. State of West Bengal, W.P. No. 252
of 1972 dated 31·10-1972, relied on.
Sampat Prakash v. State of J, & K .. [1969] 3 S. C. R.
574, distinguished.
.\
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F
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If the grounds are relevant and germane to the
object
of
the
Mainten<i;Tl'Ce of Internal Security Act, then merely because the obj,ection·
able activities covered thereby also attract the provisions <>f Chapter VIII
H
of the Cr. P.C., the preventive det~ntion cannot for that reason alone
be considered to be ma/a fide provided the authority conce.med iJ satisfied of the necessity of the detention as contemplated by the Act. [273C]
A
ID
E
F
G
IH
MASOOD ALAM "· UNION (Dua, J.)
Sahib Singh Dugga'· v. Union of lndfo,
[1966]
1 S.C. R.
MohGmmed Salem Khan v. C. C. Bose, A.LR.
1972 S.C.
Boriahan Gorey v. State of West Bengal, A.LR. 1972
S.C.
relied on.
269
313,
2256,
2256,
Merely because a person concerned has been served with a fresh deten~
tion order while in custody, that service can.not invalidate the order of
dete;ntion.
Although the past conduct, activities and antecedent history
should be pfoximate in point of time and should have rational con~c
tion with the necessity for detention, what period
of
past
activity
should be considered is withi~ the discretion of the detaint:rrg authority.
[275C-H]
Ujagar Singh v. State of Punjab, [1952] S.C.R. 757, Makhan Singh
Tarsikka v. State of Pwijab, A.LR. 1964 S.C. 1120 and Rameshwar
S/;aw v. District Magistrate Burdwan, (1964] 4 S.C.R. 921, referred to.
Hadibandhu Das v. The District Magistrate, Cuttack, [1969] I S.C.R.
227 and Kshetra Gogoi v. State of Assam, [1970] 2 S.C.R. 517, held
inapplicable.
ORIGINAL JURISDICTION : Writ Petitions Nos. 469 and 470 of
1972.
Petitions under Article 32 of the Constitution of India for the
enforcement of fundamental rights.
Bashir Ahmadi, K. L. Hathi, Manzar VI-Islam and P. C. Kapur,
for the petitioners.
B. D. Sharma and R. N. Sachthey, for respondent No. I.
D. P. Uniya/ and 0. P. Rana, for respondents Nos. 2 to 6
(in W.P. · No. 469) and for
respondent Nos.
223 (in W.P.
No. 470).
The Judgment of the Court was delivered by
DuA, J. These two petitions under Art. 32 of the Constitution
for writs in the nature of habeas corpus (Masood Alam v. Union
of India & ors. W.P. no. 469 of 1972 and Abdul Bari Kairanvi
v. Union of India W.P. No. 470 of 1972), have been heard
together and are being disposed of by a common judgment.
Writ Petition No. 469 of 1972 :
In writ petition no. 469 of 1972 we made a short order on
December 20, 1972 directing the release of Masood Alam unless
he was required in some other case, reserving our reasons for
his release to be given later. We now proceed to deal with the
arguments advanced on his behalf and give our reasons for our
decision.
Masood Alam, detenu-petitioner, was arrested on June 15,
1972 pursuant to an order of detention dated June 14, 1972.
No copy of that order is produced on the record. It is, however,
not disputed that the said order was made by the District Magis-
:trate under s. 3(1)(a)(i) and (ii) of the Maintenance oflntemal
270
SUPREME COURT REPORTS
[1973] 3 s.c.R.
Security Act, 1971 (Act no. 26 of 1971) (hereinafter called the
Act). The grounds of detention signed by the District Magistrate,
Aligarh were served on the petitioner on June 17, 1972, pursuant
to s. 8 of the Act. Those grounds read :-
"( 1) That you have been exciting communal feelings amongst Muslims and feeling of disaffection towards the Government of India and of hatred to other
communities.
You have also been advocating use of
force by Muslims in India to secure withdrawal of the
,1,.M.U. (Amendment)
Bill, 1971-now an Act.
rhc>e actions, which are a threat to security of the State
ii!icl the maintenance of public order, find support from
the following instances :-
(i) that you are organiser at Aligarh of Youth
Majlis a para-military organisation which imparts training to Muslims in the use of lathi,
5WOrds and knives, etc. You are member of Al
Jehad, an international Islami~ movement. You
are Naib Ami.r Ala Youth Majlis, U.P.
(ii) You went to participate in Youth Majlis training camp at Varanasi. You were trained in the
use of knife and demonstrated the same at
a function of the Youth Majlis held in Mohalla
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Tantanpara, Aligarh.
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(iii) You participated in a meeting addressed by
Shri Afaq Ahmed, Organiser, Youth Majlis,
U.P.
(iv) On 12-7-1971 you stressed upon members of
Youth Majlis to organise branches of Youth
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Majlis in each Mohalla. You went to Allahabad
to participate in the Youth Majlis Camp organis~d there from 23 to 26-6-71 and were made
:!'\· 1b Ala, U.P.
( v) You attended the meeting held at your residence on 29-10-71 wherein training programme
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of Youth Majlis in use of knife and aiming by
air gun was discussed.
(vi) You attended a private meeting of Muslim
Majlis on 11-1-1971 at the residence of Dr.
Hanif in Mohalla Rasalganj, Aligarh. You disclosed there that the Youth Majlis was fully
prepared to meet any situation on communal
basis and pleaded for funds for Youth Majlis.
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MASOOD ALAM v. UNION (Dua, J.)
2. That you have extra territorial loyalties and are,
therefore, a threat to security of. India which is evidenced from the following instances :-
(a) You visited Pakistan and returned from there
on 29-4-1971 and participated in a meeting
addressed by Shri Afaq Ahmad, Organiser Youth
Majlis, U.P. In this meeting you disclosed that
you had developed many contacts in Pakistan
and that people there had given you enough
money for the help of Muslims in Aligarh.
(b) You on 16-7-1971 along with Abdul Bari
Qairanvi and Mohammad Obed were noticed
criticising Government of India's policy towards
Bangla Desh and accused Government of India
and Indian Press of carrying on a false propaganda.
(c) You attended a meeting on 20-10-1971 held at
your residence wherein Abdul Bari Qairanvi
asked the volunteers to remain vigilant and preparC$1 in view of lndo-Pak armies facing each
other to meet the situation which might result
therefrom. . ... "
271
The Government, it appears, did not accord its approval of the
petitioner's detention as reqliired by s. 3 ( 3) of the Act. According
&o para 22 of the Writ Petition, the contents of which are not
<:ontroverted, as expressly· stated in para 12 of the counter affidavit, on June 26, 1972 at about 12 noon the following order was
.served on the petitioner :-
"Sub : Release under Maintenance . of internal
Security Act on 25-6-1972 at 23.50 hrs. under D.M.
Aligarh Order dated 25-6-1972.
You are hereby informed that you are released on
25-6-1972 at 23.50 hrs. vide D.M.
Aligarh Order
dated 25-6-1972 on account of non-receipt of approval
from State Government but you were detained in Jail
as under trial under Rules 107/117, Cr. P.C. You may
inform your relations or lawyer if you want to arrange
your bail.
Sd/-
Superintendent,
Distt. Jail, Aligarh."
A fresh order of detention was. a!So passed on June 25, 1972.
This order was made by the Governor of U.P. under s. 3(1) of
272
SUPREME COURT REPORTS
[1973} 3 S.C.R.
the Act and was served on the petitioner on June 26, 1972 at
about 3.30 p.m. It reads :
"Whereas the Governor of U ttar Pradesh is satisfied
with respect to Sri Masood Alam son of late Sri Baboo
Ayoob resident of Mohalla Bani Israilan, Aligarh City,
that with a view to preventing him from acting in any
manner prejudicial to the security of the State and the
maintenance of public order, it is
necessarv so to
order:-
·
NOW THEREFORE, in exercise of the powers
conferred by sub-section ( l) of section 3 of the Maintenance of .Internal Security Act,. 1971
(no. 26 of
1971), the Governor is hereby pleased to direct that
the said Sri Masood Alam shall be detained under subclause (ii) of clause (a) of sl!b-section ( l) of subsection ( 3) of the said Act in the District Jail, Aligarht
in the custody of the Superintendent of the said Jail.
By order of the Governor.
Sd/-
R. K. KAUL
Special Secretary".
On behalf of the petitioner both the afor~said orders of detention are assailed before us.
The first contention pressed by Mr.
Bashir Ahmad, appearing for the. petitjpner relates to the earlier
order of detention. He has tried to assail that order with the
object of showing ma/a fides of the detaining authority in making
the second order. In this connection it is noteworthy that according to the return of the '"state of Uttar Pradesh as averred in para
27(r) of the counter-affidavit of Shri R. K. Kaul, Special Secretary, "the petitioner was arrested on 15th June 1972 u~ section 107/117/151, Cr. P.C. and the order of detention was a:lsO'
served on him by the District Magistrate on the same date. Orders
for his release were issued by the District Magistrate under the
Maintenance of Internal Security Act but he continned to be in
Jail under the above sections of the Cr. P.C." The order of
release mentioned in this para has reference to the order dated
fone 25, 1972 when the petitioner was supposed to have been
relea~ed from his detention because of non-approval of his defeil"
lion by the State Government.
Mr. Bashir AJ!mad the counsel
for the detenu has contended that the grounds of detention dated•.
June 17, 1972 served on the petitioner under s. 8 of the Act only
suggest a threat to the security of the State and the mainienance
of public order and that this does not mean that the petitioner
was likely to act in the near future in a marmer prejudicial to the
security of State and maintenance of public order. This conten~
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MASOOD ALAM v. UNION (Dua,/.)
27 3
t.ion ignores para 3 of the grounds. in which it is clearly stated that
the District Magistrate was satisfied that the petitioner was likely
to act in a manner prejudicial to the secunty of India, security of
the State and maintenance of public order and that with a view
to preventing him from so acting, it was necessary to detain him.
The submission that the use of the word 'likely' in this para only
brings the petitioner's case within the purview of the provisions of
Chapter VIII (Security Proceedings) of the Criminal Procedure
Code thereby justifying only proceedings under s. 107 of the Code
and that an order of detention in such circumstances is an abuse
and misuse of the provisions of the Act has only to be stated to
be rejected. If. the grounds are relevant and germane to the object
of the Act then merely because the objectionable activities covered
thereby also attract the provisions of Ch. VIII, Cr. P.C. the preventive detention cann.ot for that reason alone be considered to
be mala fide provided the authority concerned is satisfied of the
necessity of the detention as contemplated l)y the Act : see Sahib
Singh Duggal v. Union of lndia(1), Mo!tammad Salem Khan v.
C. C. Bose(')
and Borjahan Gorey v.
The State of West
Bengal(').
The jurisdiction of preventive detention sometimes
described as jurisdiction of suspicion depends on subjective satisfaction of the detaining authority. It is designed to prevent the
mischief from being committed by depriving its suspected author
of the necessary facility for carrying out his nefarious purpose.
This jurisdiction is thus essentially different from that of judicial
trials fer the commission of offences and also from preventive
security proceedings in criminal courts. both of which proceed
on obiective consideration of the necessary facts for judicial determination by courts of law and justice functioning according to the
prescribed procedure. Merely because such jurisdiction of courts
can also be validly invoked does not by itself exclude the jurisdiction of preventive detention under the Act. The earlier order.
therefore, cannot be described to be either illegal or mala fide on
this ground. Although the petitioner's present detention is founded ·on the order dated June 25. 1972 the earlier order was challenged with the sole object Of showing that the oresent detention
is also mala fide because the authorifies are determined to keep the
petitioner in custody irrespective of the existence or non-existence
of valid grounds. We are not impressed by this submission and
are unable to hold that the circumstances in which the earlier
order was made in any way suggest ma/a [ides on the part ef the
detaining authority in making the second order.
Regarding the second order also it has been suggested that
there is no imminent likelihood of the petitioner acting in a prejudicial manner and that his detention is thus an abuse or misuse
(I) !1966] I S.C.R. 313.
(2) A.T,R. 1972 S.C. 1760.
(3) A.I.R. 1972 S.C. 2256.
274
SUPREME COURT REPORTS
[1973] 3 s.c.11..
of the power of detention conferred by the Act. The scheme of
our Constitution with respect to the fundamental right of personal
liberty and the protecnon guaranteed against arrest and detention
of the individual is intended to be real and effective, says the
counsel, and adds that preventive detention of a person for any
reason short of imminent likelihood of his acting in a prejudicial
manner must be considered to be an invasion of this right. Our
constitution undoubtedly guarantees various freedoms and personal liberty to all persons in our Republic. But the constitutional
guarantee of such freedoms and liberty is not meant to be abused
and misused so as to endanger and threaten the very foundation of
the pattern of our free society in which the guaranteed democratic
freedoms and personal liberty are designed to grow and flourish.
The larger interests of our multireligious nation as a whole and
the cause of preserving and securing to every person the guaranteed freedoms peremptorily demand reasonable restrictions on the
prejudicial activities of individuals which undoubtedly jeopardise
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the rightful freedoms of the rest of the society. These restrictions
within the constitutional limits have to be truly effective. If the
detaining authority is of opinion on grounds which are germane · D
and relevant, that it is necessary to detain a person from acting
prejudicially as contemplated by s. 3 of the Act then it is not for
this Court to consider objectively how imminent is the likelihood
of the detenu indulging in these activities.
This submission is thus
unaceeptable.
The next point urged is that the petitioner had been served
with the order of detention dated June 25, 1972 when he was in
jail and that such service is invalid rendering the petitioner's
detention void. This submission is generally unacceptable. There
is no legal bar in serving an order of detention on a person who is
in jail custody if he is likely to be released soon thereafter and
there is relevant material on which the deiruning authority is satisfied that if free, the person concerned is likely to indulge in activities prejudicial to the security of the State or maintenance of public
order. The decision in Makhan Singh Tarsikka v. State of
Punjab(') does not lay down the broad proposition canv~sed.
In that case which dealt with the Defence of India Rules it was
observed that r. 30(1)(b) of these Rules postulates an order only
where it is shown that but for the imposition of the detention, the
person concerned would be able to carry out prejudicial activity
of the character specified in r. 30(1). On plain construction of
that sub-rule it was held that an order permitted by it could be
served on a person who would be free otherwise to carry out his
prejudicial activities and such a freedom could not be predicated
of Makhan Singh Tarsikka, petitioner in that case.
It is noteworthy that the Court after referring with approval to its earlier
(I) A.l.R. 1964 S.C. 1120.
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MASOOD ALAM V. UNION (Dua, J.)
215
decision in Rameshwar Shaw v. District Magistrate, Burdwan(')
observed:
"'Besides when a person is in jail custody and criminal proceedings are pending against him, the appropriate authority may in a given case take the view that
the criminal proceedings may end very soon and may
terminate in his acquittal. In such a case it would be
open to the appropriate authority to make an order of
detention if the requisite conditions of the rule or the
section are specified and served on the person concerned
if and after he is acquitted in the said criminal proceedings".
No doubt, this decision does suggest that the order of detention
can be served on the person concerned if and after he is acquitted
in the said criminal proceedings but in our view merely because
the person concerned has been served while in custody when it is
expected that he would soon be released that service cannot invalidate the order of detention.
The real hurdle in making an
order of detention against a person already in custody is based
on the view that is futile to keep a person in dual custody under
two· different orders but this objection cannot hold good if the
earlier custody is without doubt likely to cease very soon and the
detention order is made merely with the object of rendering it
operative when the previous custody is about to cease.
It has also
been pointed out that the grounds relate to a period more than
a year prior to the order of detention. This according to the submission also renders the order ma/a fide.
In our opinion, this
contention is without merit. It has to be borne in mind that it is
always the past conduct, activities or the antecedent history of a
person which the detaining authority takes into account in malcing a detention order. No doubt the past conduct, activities or
antecedent history should ordinarily be proximate in point of time
and should have a rational connection with the conclusion that
the detention of the person is necessary but it is for the detaining
authority who has to arrive at a subjective satisfaction in considering the past activities and coming to his conclusion if on the
the basis of those activities he is satisfied that the activities of the
person concerned are such that he is likely to indulge in prejudicial activities necessitating his detention. As observed in Ujjagar
Singh v. State of Punjab (2) it is largely from prior events or past
conduct and antecedent history of a person showing tendencies
or inclinations of a person concerned that an inference can be
drawn whether he is likely even in the future to act in a manner
!lrejudicial to the public order. If the authority is satisfied that
in view of the past conduct of the person there is need for deten-
(J) [1964) 4 S.C.R. 921.
(2) [1952] S.C.R. 7s;.
276
SUPREME COURT REPORTS
[1973] 3 S.C.R.
tion then it could not be said that the order of detention is not
justified.
The next point raised on behalf of the petitioner is that the
earlier order of detention was either revoked or had expired with
the result that unless the present detention pursuant to the order
dated June 25, 1972 is passed on fresh facts arising after the
expiry or revocation of the earlier order it nrnst be held to be
invalid.
Jn support of this submission reliance has been placed
on s. 14 0f the Act which reads :
.. 1.\(1) Without prejudice to the provisions of section 21 of the General Clauses Act, 1897 a detention
order may, at any time, be revoked or modified-
( a) notwithstanding that the order has been made
by an officer mentioned in sub-section (2) of
section 3 by the State Government to
which
that officer is subordinate or by the Central
Government.
( b) notwithstanding that the order has been made
by a State Government, by the Central Government.
(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 fresh f1,1cts 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 Qrder should be made".
Support has also been sought from Hadibandh11 Das v. The DisB
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trict _Magistrate, Cuttack(') which was a case under the PrevenF
tive Detention Act (IV of 1950).
The language of s. 13(2) of
that Act is identical with ~hat of s.
14(2) reproduced above.
This decision was followed in Kshetra Gogoi v. State of Assam(2 )
also a case under Act 4 of 1950. In our opinion, this submission
does possess merit and deserves to be accepted. Section 14 speaks
of revocation or expiry of a detention
order.
The
principle
underlying this section has its roots in the vital importance attached to the fundamental right of personal liberty guaranteed by our
Constitution. The Act fixes the maximum period of detention to
be 12 · months from the date of the detention with the proviso
that. the appropriate Government can revoke or modify the detention order at any earlier time : s. 13. It is to effectuate this reS:-
triction on the maximum period and to ensure that it is not
rendered nugatory or ineffective by resorting to the camouflage of
(I) [1%9] I S.C.R. 227.
(2) [1970] 2 S.C.R. ~17.
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making a fresh order operative soon after the expiry of the periodc .
of detention, as also to minimise resort to detention orders that s.
14 restricts the detention of a person on given set of facts to the
original order and does not permit a fresl:l order to be made on.
the same grounds which were in existence when the original order
was made.
The power of preventive detention being an extra-·
ordinary power intended to be exercised only in extraordinary .
emergent circumstances the legislative scheme of ss. 13 and 14 ·
of the Act suggests 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 the maximull!l
period fixed. In the present case it is not urged and indeed it isnot possible to urge that after the actual expiry of the original·
order of detention made by the District Magistrate which could
only last for 12 days in the absence of its approval by the StateGovernment, any fresh facts could arise for sustaining the fresh·
order of detention. The submission on behalf of the State that
the petitioner's activities are so highly communal and prone to
encourage violent communal activities that it was considered.
abso!lltely necessary to detain him in the interest of security of the·.
State and maintenance of public order cannot prevail in face of·
the statutory restrictions and the guaranteed constitutional .right·
which is available to all persons. The rule of law reigns supremein this' Republic and no person on the soil of free India can be·
deprived of his personal liberty without the authority of law. As
observed by this Court in Manu Bhusha11 Roy Prodha11 v. State·
of West Bengal(~) :
/
" .... The Act encroaches on the highly cherished
right of personal liberty by conferring on the executive
extraordinary power to detain persons without trial by
' '
coming to subjective decisions. The detaining authority
in exercising this power must act strictly within the limitations this Act places on its power so that the guarantet:
of personal liberty is not imperilled beyond what the
Constitution and the law strictly provide. The limited
right of redress conferred on the detenu under the law
deserves to be construed with permissible liberality with
the provisions of the Act and the constitutional
guarantee."
'•
On behalf of the respondent reference was also made to Sampaf
Prakash v. State of Jammu & Kashmir (2 ) dealing with detention
tinder J. & K. Preventive Detention Act (J. & K. Act 13 of
1964). Though in that Act there is a similar provision [s·. 14-
(2) of that Act] in the judgment there is no reference to that
section and it appears that no question similar to the one raised
(!) W.I. No. 252of1972 decided on October 31, 1972.
(2) [1969] 3 S.C.R. 574.
:278
'SUPREME COURT ll.EPOll.TS
[1973] 3 s.c.a..
before us was urged and adjudicated upon there. We have, there·
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fore, no option but to order the petitioner's release which we did
on December 20, 1972. As the detention order is being quashed
on this ground we do not consider it necessary to express any
opinion on the point that the detention order is vitiated because
some of the grounds on which it is based, though not of unessen·
.tial nature, are vague.
B
Writ Petition No. 470 of 1972 :
Abdul Bari Kairanvi, petitioner in this writ petition, an associate of Masood Alam (Petitioner in W.P. No. 469 of 1972) both
in the Youth Majlis and Muslim Majlis, was arrested on June 3,
1972 when he had organised in the City of Aligarh a procession
in defiance of the order issued under s. 144, Cr. P.C. The general
atmosphere of communal tension prevailing in that city ultimately
culminated in the unfortunate communal riots on June 5, 1972.
The arrest was made unlier s. 188, l.P.C. and he was actually
produced before the Additional District Magistrate on the very
day of his arrest. On June 14, 1972 an order was made by the
District Magistrate for the petitioner's detention under s. 3 ( f) (a)·
( i) and (ii) of the Act as amended by the Defence of India Act
42 of 1971. The grounds of his detention which were duly serv·
ed on him under s. 8 of the Act read as under :-
"!. That you are a member of the Executive of the
Muslim Majlis. You are also an active member of
Youth Majlis.
The Youth Majlis is being trained in
the use of lathis, swords and knives as a fully militant
organisation. You contribute and raise funds to illegally'
arm the organisation. You visited Pakistan in November, 1971 for arranging the transfer of funds collected
by Shri Masood Alam in Pakistan to A!igarh for use by
Youth Majlis for training volunteers in the use of arms
and knives etc.
You collected Rs. 700 for Youth
Majlis from Varanasi, Pratapgarh and other places.
2. That you have extra territorial loyalties and are
therefore a threat to security of India which is evident
from the following instances:-
(a) That you on 1-4-1971 · listened to
Pakistan
Radio and propagated Pak policy
towards
Bangla Desh among the Muslims.
You also
propagated that India engineered the trouble.
(b) On 19-10-71 you participated in private meeting
of commanders of Youth Majlis wherein you
delivered a shon speech that India and Pakistan
army were facing each other on the border and
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MASOOD ALAM v. UNION (Dua, J.)
there was a great panic on the Indian side of the
border. You also advised the commanders of
the Youth Majlis to remain vigilant and prepared for any situation that might develop as a
result of clash between India and Pakistan
forces. You criticised India for allegedly meddling into the private affairs of Pakistan. You
pointed out to them that Bengalees had been
taught a lesson and the Hindus in India would
also share a similar fate if Pakistan forces invaded.
You accused police and army of
favouring Hindus and stressed upon the commanders of Youth Majlis to remam prepared.
( c) That you visited Pakistan in November, 1971
and returned from there on 30-11-1971 and'
propagated that concentration of Pak army in
Lahore sector was quite heavy and that real war
would be fought in the sector.
(d) That you on 10-12-1971 briefed volunteers of'
Y9uth Majlis that local Jan Sangh workers weretrying to tease the Muslims by making unbecoming remarks against Pakistan.
3. That you have been exciting communal feelings
among the Muslims in India and contributing to the
communal disturbances in the Aligarh City which ill'
evident from the following instances :-
(a) That you on 15-10-71 attended the Executive
Committee meeting of Youth Majlis at Jama
Masjid Upor Kot, Aligarh where you demanded
that A.M.U. (Amendment) Bill should guarantee minority character of the University.
(b) That you on 10-3-1972 in your speech in a
gathering of about one thousand Muslims at
Jama Masjid in Upor Kot Aligarh City alleged
that the enemies of Islam had a tradition to
make efforts to wipe out Islamic religion and
culture and at the present time also these enemies of Islam were trying to become aggressive.
You warned that in case the Muslims culture
was Wiped out the Muslims will also be exterminated. You alleged that there was systematic
attempt to abolish Urdu.
You exhorted the
Muslims to be united and firm.
(c) That on 19-5-1972 after a me~ting at Jama
Masjid Upor Kot, Aligarh you distributed a
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SUPREME COURT REPORTS
[1973] 3 S.C.R.
pamphlet captioned "Muslim University ki mot
ka Akhiri marhela. Ek Jan aur ek Awazbankar
usko bachyiye" issued in your name and the
names of Dr. Ahsan Ahmad and others. In the
meeting in your short speech you pointed out
that action, if delayed, would fail to achieve any
result even by any amount of sacrifice of bloodshed.
You also
remarked "Hamari kom
hamesha se talwar key saye me pali hai" and as
such no sacrifice was too grave for
this
occasion.
( d) That on 25-5-72 along with Dr. Ahsan Ahmad
attended a meeting of about 25 persons at the
residence of Abdul Jalil where Dr.· Ahsan
Ahmad briefed the participants on the agitation, formation of action Committee and collec- ·
tion of funds in connection with the agitation
against A.M.U. (Amendment) Bill, 1972.
· 4. In view of . the above-mentioned grounds I am
·satisfied that you are likely to act in a manner prejudicial to the security of India, security of State and maintenance of public order and with a view to preventing
you from acting in a manner prejudicial to the security
-
of India, security of State and maintenance of public
order it is necessary to detain you."
His detention was duly reported to the State Government on June
18, 1972 and the State Government gave its approval on June 25,
1972 which was duly reported to the Government of India on
June 29, 1972. His case was sent to the Advisory Board on July
13, 1972 and the Board conveyed its decision on August 18/21,
1972. His detention was confirmed on August 30, 1972. The
petitioner had made his representation on July
15/24, 1972
-through the District Magistrate who forwarded it to the Govern:
ment on July 29, 1972. The Government considered the repre- .
sentation on August 2; 1972 and the decision of the Government
was duly conveyed to rum on August 5, 1972.
According to the petitioner's counsel Mr. Bashir Ahmed, the
grounds on which the petitioner's detention has been ordered are
'irrelevant and, therefore, the detention is void. Emphasis is laid
·on the submission that the Youth ·Majlis and the Muslim Majlis
are both organisations which do not advocate communal conflict
or disharmony and the object of both of· them is social service
of the society. It is added that the Youth Majlis is a purely social
organisation which is dedicated to the cause of the oppressed and
the depressed and its membership is open to all persons irrespective of their community or religious cree<l.
In support of this
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MASOOD ALAM V. UNION (011<1, J,)
281
A
contention the counsel sought to refer to the printed constilut~on
of the organisation in Urdu which was not permfi1lted, not bemg
on the record and not being relevant to the limited scope of enquiry in the present proceedings.
In our opinion none of the
grounds on which the petitioner's .detention has been ordered can
be said to be irrelevant. The facts stated in the grounds have to
n
be accepted as correct and it is not open to this Court to enquire
• into' their truth like a court of appeal. Writ proceedings cannot
be treated as an appeal in disguise. And then it has to be borne
in mind that it was in November, 1971 that the petitioner is said
to have gone to Pakistan (it is asserted in the grounds that he
visited Pakistan in November, 1971, and collected funds in that
C
country for the purpose of carrying on the activities of the Youth·
· Majlis in India), and he returned on November 30, 1971, just
three ,days before the actual war between India and Pakistan
began.
Judicial notice under s. 57 of the Indian Evidence Act
can be taken of the fact that the war between India and Pakistan
actually began on December 3, 1971 lasting for about a fortnight.
The petitioner has admitted his visit to Pakistan in November,
D
1971, the reason given by him being that he had gone there to see
his ailing relations without mentioning either their names and\
addresses or the relationship.
According to the grounds, the
petitioner has extra-territorial loyalties manifested by his antiIndian and pro-Pakistan activities and also by inciting
communal feelings amongst the Muslims during the period of tension
E
and conflict between India and Pakistan on the question of Bangla
Desh.
The grounds further disclose, inter alia, (i) that the Youth
.Majlis engages in training Muslims in India in the use of Jathis,
swords and knives, and (ii) that the petitioner advised the commanders of the Youth Majlis in October, 1971 to be vigilant and
remain prepared for any situation that might develop as a result
'F
of clash between India and Pakistan forces, at the same time
. suggesting invasion of India by Pakistan forces. An atteinp( has
undoubtedly been made on behalf of the petitioner to show that
the grounds on which the District Magistrate felt satisfied are non- ·
existent but as observed earlier it is not open to this Court to
review and over-ride the subjective opinion of the District Magistrate by going into the truth or otherwise of the facts acceoted by
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him .. The facts contained in the grounds reproduced earlier seem
to us to be clearly relevant for the pur_pose of forming an opinion
that thev endanger both maintenance of oublic order and security
of the State. It is undeniable that hostility amongst the citizens ,
founded on differences in re!igiou·s .faiths is a deadly poison for
healthy existence and progress of a secular, egalitarian society like
JI
ours. And when violence is advocated ind iniected in such hostility, it is idle to suggest that such activities cannot fall within
the i_nischief designed to be prevented by the Act. In our country
patriotism is not communal or religious and the Constitution
282
SUPREME COURT REPORTS
[1973] 3 S.C.R.
guarantees equal freedom to all religious faiths without recognis·
ing the superior status of any particular religion. There is absolutely no discrimination on the basis of religion and indeed in this
Repubtlic every citizen irrespective of his religious faith can aspire
to the highest office, if otherwise qualified. Here people professing
numerous different religious faiths and ideologies live in perfect
harmony with equal rights guaranteed by the Constitution. Articles
25 to 281 and Art. 30 in Part III accord to the Right to Freedom
of Religion and the Right of Minorities to Establish and Administer
Educational Institutions, the status of fundamental rights which
can be enforced in the highest courts in this country by appropriate means. Whenever, therefore, an attempt is made to disturb
the peaceful, tolerant and harmonious life of the society by appealing to or inciting and in.flaming religious passions and prejudices
and bly fanning morbid fanaticism it must necessarily tend to disturb the even tempo of the life of the society as a whole thereby
prejudicially threateninJ!. the maintenance of public order. When·
such a climate in communal disharmony is engendered for stimulating anti-Indian and pro-Pakistan feelings during the period of
extreme tension between the two countries then it must also tend
to seriously prejudice the maintenance of security of the State.
Our attention has 11,een drawn to the pamphlet Annexure A to the
writ petition for the purpose of fortifying the argument thl!t the
agitation with respect to othe Muslim University a!t Aligarh in which
the petitioner had undeniably taken part was a non-violent movement. We do not think it is possible on 'the basis of this document
to decline to accept the opinion of the District Magistrate who had
sufficient material about the activities of the petitioner and of the
organisations to which he himself professes to belong. This pamphlet which merely announced a meeting to be held on May 22,
1972 is, therefore, of little consequence.
The contention that the petitioner is a Muslim theologist highly
qualified in Muslim theology, assuming it to be true, is also unhelpfol to the petitioner as the impugned order is J!lade on the
basis of his activities which are considered clearly prejudicial to
the maintenance of pub[ic order and security of State, His learning
as a 'theologist is wholly immaterial. It neither places him above
the law nor does it displace or detract from the opinion of the
District Magistrate with respect to his activities and their effect.
On the contrary it has to be borne in mind that when a person professing to be learned in religious theology encourages defiance of
law in the name of religion then ignorant and credulous people
are more likely 'lO be misled and swayed by religious passions and
sentiments.
Such activities naturally have greater potentiality for
prejμdicially threatening the maintenance of puJ:>lic order.
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MASOOD ALAM v. UNION (Dua, J.)
283
According to the writ petition the petitioner is an active member of the Muslim Majlis and also a member of the Youth. Majlis.
He was arrested while defying the order promulgated under s. 144,
Cr. P.C. This had been preceded by the various prejudicial activities in the month of May, 1972 as stated in the gr2unds of detention and was followed two days later Ly communal clashes.