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N. Venkat Ramani and ors. Vs. the State of Andhra Pradesh and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAndhra Pradesh High Court
Decided On
Judge
Reported in1977CriLJ1060
AppellantN. Venkat Ramani and ors.
RespondentThe State of Andhra Pradesh and anr.
Excerpt:
- all india services act, 1951.sections 8 & 11 & a.p. buildings (lease, rent and eviction) control rules, 1961, rule 5: [v.v.s. rao, g. yethirajulu & g. bhavani prasad, jj] refusal by landlord to receive rent - deposit of rent in court - held, a tenant has the option to take recourse to section 8 in case of refusal or evasion by landlord to receive rent and if landlord were to not name a bank or refuse even the money order of rent, the tenant can deposit the rent in accordance with sub-rules (1) to (3) of rule 5. the notice to person entitled to rent and proper maintenance of accounts of such deposits under sub-rules (4) and (5) of rule 5 are solely dependent on compliance with sub-rule (3) by the tenant. the payment or deposit of rent under section 11 read with sub-rule (6) of rule 5.....alladi kuppuswami j. (for himself and on behalf of a.v. krishna rao, j.) 1. the first petitioner in w.p. no. 5527/75 was arrested on 25-6-1975 and detained under the provisions of the maintenance of internal security act (referred to in the judgment as misa). similarly the other petitioners in this petition and the petitioners in w.p. nos. 5676 and 6125 of 1975 were also arrested on different dates which are not relevant for the purpose of this writ petition. the respondent, namely, the state of andhra pradesh, revoked the orders of detention on 16-8-1975 and passed fresh detention orders on the same day. the petitioners and several other persons similarly placed as the petitioners filed a batch of writ petitions, w.p. 4679 of 1975 etc. questioning the validity of the orders of detention.....
Judgment:

Alladi Kuppuswami J. (For himself and on behalf of A.V. Krishna Rao, J.)

1. The first petitioner in W.P. No. 5527/75 was arrested on 25-6-1975 and detained under the provisions of the Maintenance of Internal Security Act (referred to in the judgment as MISA). Similarly the other petitioners in this petition and the petitioners in W.P. Nos. 5676 and 6125 of 1975 were also arrested on different dates which are not relevant for the purpose of this writ petition. The respondent, namely, the State of Andhra Pradesh, revoked the orders of detention on 16-8-1975 and passed fresh detention orders On the same day. The petitioners and several other persons similarly placed as the petitioners filed a batch of writ petitions, W.P. 4679 of 1975 etc. questioning the validity of the orders of detention dated 16-8-1975. These petitions were heard by Kondaiah and Madhavarao, JJ. By their judgment dated 9-10-1975 (reported in 1976-1 Andh WR 194) they held that the orders of detention are invalid and quashed the orders and the petitioners among others were directed to be set at liberty forthwith in the court itself. In those writ petitions several contentions were raised. The learned judges, however, dealt with only one of them, namely, that as the report to the State Government by the Central Government under Section 8(3) of MISA was not sent and as the provision was mandatory, the orders of detention were invalid. Under the said provision when an order is made of approved by the State Government, the State Government shall within seven days report the fact to the Central Government together with the grounds on which the order has been made and such other particulars as in the opinion of the State Government have a bearing on the matter. In the cases before the learned Judges, a copy of the order of detention had been sent to the State Government by the Central Government and therefore it was contended there was compliance with Section 3(3), at any rate, there was a substantial compliance with the provisions of that Section. This contention was rejected, The learned Judges held that what was sent was not a report within the meaning of Section 3(3) of the Act.

2. The above order directing the petitioners to be set at liberty was passed by this Court on 9-10-1975. But immediately thereafter, on 10-10-1975 two orders were passed in each case. By the first order the detention order dated 16-8-1975 was revoked and by the second an order of detention was passed in which it was recited that with a view to prevent the petitioner from acting in a manner prejudicial to the maintenance of public order and also with a view to effectively deal with the emergency in respect of which proclamations under Clause (1) of Article 352 of the Constitution were issued on 3-12-1971 and 25-6-1975, the petitioner was directed to be detained under Section 3(ii)(a)(i) read with Section 16-A of the Act. The petitioners filed this writ petition contending that the order of the revocation and the fresh order of detention are invalid and illegal. Apart from the contentions on the merits that they had not committed any acts or were about to commit acts which justified their being-detained under the provisions of the MISA they contended that the first respondent had no power to pass a fresh order of detention, as such an order could be passed under Section 14(2) only when there was a revocation of a prior detention order; that as the High Court had quashed the prior order of detention dated 16-8-1975 there was no order in existence to be revoked and the purported order dated 10-10-1975 revoking the earlier order cannot be considered to be a valid order of revocation within the meaning of Section 14(1) of the Act. A similar contention had been raised in a batch of writ petitions, Nos. 5119 of 1975 etc. (Andh Pra) before Madhaya Reddy and Punnayya JJ. As there was difference of opinion between the two Judges on this question, the matter was referred to a third Judge, Sambasivarao, J. who took the view that the State or the detaining authority was not competent to make a fresh order of detention under Section 14(2) or any other provision of the MISA when the earlier order of detention was quashed by the High Court on the technical ground that the State Government had failed to submit a report as required by Section 16-A (7) read with Section 3(3) of the Act. When the present writ petitions came up for hearing before Chennakesav Reddy and Madhusudan Rao, JJ., the decision of Sambasiva Rao, J, was relied on by the petitioners. Their Lordships however felt that the cases should be decided by a larger Bench. After referring to the relevant provisions of MISA and the judgment of Madhava Reddy and Punnayya, JJ., and of Sambasiva Rao, J. and some judgment of the Supreme Court, they observed that there appeared to be obscurity of judicial authority on the true scope of Section 14(2) of MISA. Sri Kannabhiran, learned Counsel for the petitioners also raised before them the contention that Section 16-A (9) of the Act was invalid and ultra vires. In the circumstances the learned Judges directed that the writ petitions in their entirety should be heard and decided by a larger Bench and also directed that notice should be given to the Advocate General in the matter. These writ petitions were accordingly posted before us.

3. The petitioner in W.P. No. 5448 of 1975 was arrested on 26-6-1975 at 5 a.m. and detained. The grounds of detention were served on the petitioner on 30-6-1975 as required by Section 8 of the Act as it stood at that time. The detention order was subsequently revoked on 16-8-1975 and a fresh order of detention was made. The petitioner was not one of the petitioners who challenged the fresh order of detention in this Court in the batch of writ petitions heard by Kondaiah and Madhavarao, JJ. Nevertheless having regard to their judgment holding that the orders of detention passed on 16-8-1975 were invalid as no report was sent to the Central Government as required by Section 3(3) of the Act, the Government apparently felt that it is necessary to revoke the order of detention dated 16-8-1975 in the case of the petitioner also, as well as several other detenus as in all these orders no report had been sent to the Central Government, They therefore, passed an order of revocation and also passed a fresh order of detention on 10-10-1975 In the order of revocation, however, in the case of petitioner in W.P. No. 5448 of 1975 it is stated that the order of detention dated 26-6-1975 was revoked. The petitioner filed this writ petition challenging the order of the detention dated 10-10-1975. One of the contentions raised was that after the order of detention dated 26-6-1975 was made, the grounds of detention were served on the petitioner. These grounds were either vague or were irrelevant. Hence the order of detention dated 26-6-1975 was invalid and when a fresh order of detention was made on 10-10-1975 it must be taken that order was passed on the same grounds as the order of detention dated 26-6-1975 and as the said grounds were vague and irrelevant, the order of detention dated 10-10-1975 was also liable to be set aside for the same reason. In W.P. No. 5556 and 5765 of 1975 (Andh Pra) a Division Bench consisting of Chinnappa Reddy and Jeevan Reddy had rejected a similar contention advanced by the petitioners therein in similar circumstances. In their view, under Section 16-A (9) of the Act a statutory privilege was conferred upon the Government from disclosing the grounds of detention. The Court therefore cannot guess as to what those grounds may be and examine the validity of the latest detention order on the basis of the grounds furnished when the first order of detention was made. But a different view was taken by a Division Bench consisting of Madhava Reddy and Punnayya JJ. in W.P. Nos. 5119 of 1975 batch (Andh Pra). When the writ petition 5448/75 came up for hearing before a Bench consisting of Chinnappa Reddy and Madhava Reddy, JJ. they felt that in view of the apparent conflict it was desirable that the case may be heard by a Full Bench. Perhaps, because other contentions were also raised by the petitioners they considered it desirable that the entire case should be heard by a Full Bench. This writ petition was accordingly posted before us.

4. W.P. No. 5404 of 1975 came up for hearing before Sambasiva Rao and Lakshmaiah JJ. One of the questions raised was regarding the validity of Section 16-A (9) of MISA. As it was pointed out to them that this was one of the questions referred by the Division Bench consisting of Chennakesav Reddy and Madhusudan Rao JJ. in W.P. No. 5527 of 1975 etc. they directed that this matter also should be posted before a Full Bench and hence this writ petition was also heard by us along with the other writ petitions.

5. Before dealing with the several contentions raised in these writ petitions it is convenient to note the relevant provisions of MISA as it was enacted in 1971. Under Section 3 it was provided that the Central Government or the State Government may, 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 supplies and services essential to the community, it is necessary so to do make an order directing that such person be detained. Section 8 provided that the grounds of order of detention are to be disclosed to the persons detained within five days ordinarily and in exceptional circumstances within fifteen days from the date of detention. The detenu was given an opportunity to make a representation against the order to the appropriate Government. Section 8(2) provided that nothing in Sub-section (1) shall require the authority to disclose facts which it considers to be against the public interest. Under Section 10, within 30 days from the date of detention the grounds and the representation of the detenu were to be placed before the Advisory Board constituted under Section 9. Under Section 11 the Advisory Board after considering the representation and hearing the detenu if he so desired has to submit its report to the Government within ten weeks from the date of detention whether or not there was sufficient cause for the detention of the person concerned. If it was of the opinion that there was sufficient cause, the detention may be confirmed by the Government. If not, the Government shall revoke the detention order. Under Section 13 it was provided that maximum period of detention shall be 12 months from the date of detention or until the expiry of the Defence of. India Act, 1971 whichever is later, Section 14 provided that 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. Under Section 14. (2) it was provided that the revocation or expiry of a detention order shall not bar the making of a fresh detention order where fresh facts have arisen after the date of revocation order of which the appropriate Government is satisfied that such an order should be made. MISA was amended repeatedly by successive ordinances. Under the first amendment ordinance of 10-7-1975 Section 14(2) was substituted by the following provision.

The revocation of a detention order shall not bar the making of another detention order under Section 3 against the same person.' This was again amended by the fourth amendment ordinance. Under that ordinance, Section 14(2) was amended as follows:

The Expiry or revocation of a detention order (hereinafter in this sub-section referred to as the earlier detention order) shall not bar the making of another detention order (hereinafter in this sub-section referred to as the subsequent detention order) under Section 3 against the same person:Provided that in a case where no fresh facts have arisen after the expiry or revocation of the earlier detention order made against such person, the maximum period for which such person may be detained in pursuance of the subsequent detention order shall, in no case extend beyond a period of twelve months from the date of detention under the earlier detention order or until the expiry of the Defence and Internal Security of India Act, 1971, whichever is later.

6. By the first ordinance a provision, Section 16-A was introduced in view of the proclamation of emergency issued under Article 352(1) on the 3rd day of December 1971, and the proclamation issued on 25th June, 1975. Under that provision it was provided that the case of every person should be reviewed within 15 days for the purpose of determining whether the detention of such person is necessary for dealing effectively with the emergency in respect of which the proclamations have been issued and on such review if the appropriate Government is satisfied that it is necessary to detain such person for effectively dealing with the emergency the Government may make a declaration to that effect and communicate a copy of the declaration to the person concerned. The question whether the detention continues to be necessary for effectively dealing with the emergency shall be considered by the appropriate Government within 4 months from the date of such declaration and thereafter at intervals not exceeding four months and if. upon such re-consxderatiqn it appears to the appropriate Government, the detention of person is no longer necessary for effectively dealing with the emergency the Government may revoke the declaration.

7. By the second amendment ordinance it was provided that Sections 8 to 12 of the Act will not apply to a case where there has been a declaration by the Government under Section 16-A (2). By the third amendment ordinance Section 16-A was amended by introducing inter alia Sub-sections (8) and (9). In particular Section 16-A (9) provided:

(9) Notwithstanding anything contained in any other law or any rule having the force of law:

(a) the grounds on which an order of detention is made under Sub-section (1) of Section 3 against any person in respect of whom a declaration is made under Sub-section (2) or Sub-section (3) and any information or materials on which such grounds or a declaration under Sub-section (2) or a declaration or confirmation under subsection (3) or the non-revocation under Sub-section (4) of a declaration are based, shall be treated as confidential and shall be deemed to refer to matters of State and to be against the public interest to disclose and save as otherwise provided in this Act, no one shall communicate or disclose any such ground, information or material or any document containing such ground, information or material;

(b) no person against whom an order of detention is made under Sub-section (1) of Section 3 shall be entitled to the communication or disclosure of any such ground, information or material as is referred to in Clause (a) or the production to him of any document containing such ground, information or material.

One of the contentions raised in the writ petition by Sri Kannabiran, learned Counsel for the petitioners in some of the Writ Petitions was that Section 16-A (9) is ultra vires. It was however brought to our notice that a similar contention among others was raised in cases which were argued recently before the Supreme Court and the Supreme Court has reserved judgment in those cases. We therefore felt that it is desirable to. await the judgment of the Supreme Court so that we may be guided by that judgment. As however, other contentions were raised and the petitioners were under detention, we felt that if it was possible to decide any of the petitions without reference to the validity of Section 16-A (9) it may be done and so we heard arguments on those aspects. For the present we proceed on the footing that Section 16-A (9) is valid and consider whether the petitions could be allowed even on that footing. If, however, we come to the conclusion that it is not possible to allow the petitions on the basis of contentions other than those relating to the vires of Section 16-A (9), we will hear the petitioners further on the validity of Section 16-A (9). The Advocates on both sides and the petitioners who appeared in person were agreeable to this course.

8. It is convenient to consider the writ petitions Nos. 5527, 5676, 6125 of 1975 in the first instance where the prior detention Orders of the petitioners were quashed by the High Court and fresh orders of detention were made. The following are the contentions of the petitioners in those cases:

1. On a proper interpretation of Section 14(2) there can be a fresh order of detention only where the previous order has expired or has been revoked. When an order of detention has been quashed by the High Court there is no order of detention at all in existence and hence there cannot be any question of revocation of a detention order. It cannot also be said that there is 'expiry' of the order within Section 14(2) in such circumstances. Therefore, no fresh order of detention can be passed.

2. In any event a fresh order of detention can be passed only if fresh facts have arisen after the expiry, or revocation of the earlier order of detention. In this case as the previous order of detention was quashed on the 9th October and it was immediately followed by the fresh order of detention, it cannot be imagined there were and could be any fresh facts arising after the expiry or revocation of the earlier detention order.

We have no hesitation in holding that there is no substance in the second contention. The first part of Section 14(2) states that the expiry or revocation of detention order shall not bar the making of another detention order under Section 3 against the same person. The proviso says that where no fresh facts have arisen after the expiry or revocation of the earlier order, the maximum period for which such person may be detained in pursuance of the subsequent detention order shall in no case extend beyond a period of twelve mouths from the date of detention under the earlier detention order or until the expiry of the Defence and Internal Security of India Act, 1971 whichever is later. The proviso clearly provides for a maximum period of detention where no fresh facts have arisen after the expiry or revocation of the earlier detention. In our view this clearly pre-supposes that it is permissible for the authorities to make a fresh detention order even where no fresh facts have arisen after the expiry of revocation of the earlier detention order. The only limitation placed is with regard to the maximum period for which such person may be detained. If the fresh detention order cannot be made at all except on fresh facts the proviso will be meaningless. It was argued by Sri Lakshminarayana that if on a proper interpretation of the main section it is found that a fresh detention order cannot be made except on fresh facts, the proviso cannot enlarge the power contained in the main section. There cannot be any quarrel with this proposition. But in our view there is nothing in the main section which restricts the right of the authorities to make a fresh detention order only in a case where fresh facts have arisen after the expiry or revocation of the earlier order.

9. We shall now consider the first contention which was; more seriously pressed before us. The question is whether it could be said that there is an expiry or revocation of the detention order in this case. Before Sambasiva Rao, J. who heard the writ petition No. 5119/75 etc. batch on difference of opinion between Madhava Reddy and Punnayya JJ., it seems to have been argued that there was a revocation by reason of the judgment of this Court quashing the order. This view is also expressed by the Rajasthan High Court in Hanuman Sahai v. State of Rajasthan 1975 Crl. LJ 973. Sambasiva Rao J. held that the order of the High Court quashing the order of detention cannot be construed as revocation within the meaning of the section. We agree with this view. The revocation contemplated under Section 14(2) is revocation by the Government. Section 14(2) has to be read with Section 14(1) which says that a detention order may be revoked or modified by the State Government or by the Central Government as the case may be, The revocation order contemplated under Section 14(1) is an order made by the State Government or the Central Government. The expression 'revocation' in Section 14(2) is also to be understood in the same manner. It cannot therefore be contended that the order of the High Court quashing the detention order amounts to revocation within the meaning of Section 14(2). The learned Advocate General found it difficult to sustain the argument that the quashing of the order itself amounts to revocation.

10. It was however pointed out on behalf of the Government that apart from the order of the High Court, a fresh order of revocation was passed by the Government in each of these cases. The petitioners however contend that once an order of detention is quashed it is not in existence in the eye of law and unless and until there is an order of detention in existence there is nothing to revoke and the purported order of revocation Is in law no order of revocation at all. It was further submitted on behalf of the Government that the sole ground on which the High Court quashed the previous order was that a report was not sent to the Government as required by Section 3(3). When the period within which such report had to be sent was over, the order of detention 'expired.' The High Court's quashing the order of detention only amounts to saying that the order of detention was no longer in force after the period for sending the report was over. We find considerable force in the contention that there was an expiry of the previous order of detention. The expression 'expiry' means die (of law patent true etc.) become void, reach its term (of title etc.) become extinct (vide Concise Oxford Dictionary). In the present case, no report was sent to the Central Government as required by Section 3(4) of the Act within seven days. At the end of seven days the detention order therefore ceased to have any legal force or existence, or in other words, expired. It was sought to be contended that the expression 'expiry' in Section 14(2) will only refer to the expiry of the detention order after the maxinium period fixed under Section 13 namely, 12 months from the date of detention order or until the expiry of the Defence of India Act, 1971 whichever is later. We do not see any reason why 'expiry' should be limited only to the expiry of the order under Section 13. There are several modes of expiry contemplated under the Act for instance under Section 3(3) the officer making the detention order shall report the fact to the State Government together with the grounds and other particulars and no such order shall remain in force for more than twelve days after the making thereof unless in the meantime it has been approved by the State Government. Under this section if the order is not approved by the State Govt. the order expires after the period of twelve days. In Masood Alam v. Union of India : 1973CriLJ627 the Supreme Court had to deal with a case where a detention order was made on the 14th June. 1972 but the Government did not accord its approval. On 26th June, 1972 another order was passed stating that the detenu was released on account of non-receipt of approval, but a fresh order of detention was passed. It was no doubt held that having regard to the provisions of Section 14(2) as it stood at that time, the subsequent order of detention was invalid as no fresh facts could arise in the circumstances of the case. But the point to be noticed for the purpose of the present discussion is that the Supreme Court regarded the previous order of detention as having 'expired' at the end of twelve days prescribed in the absence of approval by the State Government. They observed:

In the present case it is urged and indeed it is not possible to urge that after the actual expiry of the original order of detention made by the District Magistrate, which could only last twelve days in the absence of its approval by the State Government any fresh facts could arise for sustaining the fresh order of detention.' (the underlining is ours)

11. Does the fact that the High Court quashed the order of detention on the ground that the report was not sent within the period prescribed make any difference? In our view it does not. It is no doubt true that the High Court quashed the order of detention and directed the release of the detenus. But it did so because it found that there was no valid order of detention in existence after the period of seven days prescribed for submission of the report which was not done. In other words, the conclusion of the High Court was that the detention order had expired and any further detention was illegal; mere fact that the High Court quashed the order in those circumstances does not affect the position that the order had expired. The position becomes clearer if we consider by way of illustration the case where the maximum period of detention prescribed under Section 13 is over. Suppose the person is detained even after the expiry of that period and approaches the court for releasing him and the Court directs him to be released on the ground that he cannot be detained after the maximum period of detention, could it be said that merely because the High Court in those circumstances directs release, the previous order of detention had not expired? We do not see any difference in principle between expiry after the period of detention and expiry during that period for non-compliance with the requirements of the Act. We therefore agree with the contention that the previous detention order had expired when the report was not submitted within the time prescribed and the order of the High Court directing the release of the petitioner did not make any difference in the position that there was an expiry of the order. We are therefore of the view that Section 14(2) is applicable to the case and the expiry did not bar the making of a fresh detention order.

12. In this view it is not really necessary to go into the further question whether there is also a 'revocation' within the meaning of Section 14(2) of the Act. But as this was the main point that was urged before Madhava Reddy and Punnayya JJ., and thereafter before Sambasiva Rao, J., as also before other benches in the various writ petitions, we consider it desirable to indicate our views on this question also. As has already been noticed, there are express orders of revocation by the Government in these petitions. But it is argued that as already the High Court had quashed the previous orders of detention, there were no orders of detention in existence for being revoked and there cannot be a revocation of a non-existent order. In other words, it was argued that the purported orders of revocation have to be ignored. In our view this contention also cannot be accepted having regard to the decision of the Supreme Court in Hadibandhu Das v. Dist. Magistrate, Cuttack : 1969CriLJ274 , Dealing with Section 13(2) of the Preventive Detention Act, 1950, the Supreme Court observed as follows:

There is nothing in Section 13(2) which indicates that the expression 'revocation' means only revocation of an order which is otherwise valid and operative; apparently it includes cancellation of all orders invalid as well as valid.

13. In the present case the order of detention becomes invalid as soon as seven days' period prescribed for sending the report expired. On and after that date the requirements of the Act were not complied with. Therefore the order of detention became invalid. Still, in view of the above decision it has to be held that it was open to the Government to. revoke the invalid order and pass a fresh order of detention. In Pradip Kumar v. State of W.B. : 1974CriLJ1476 the Supreme Court had to consider the case of petitioners who were all released by the State Government after the decision of the Supreme Court in Sambhu Nath Sarkar v. State of West Bengal : [1974]1SCR1 because that decision applied to petitioners. Thereafter another order of detention was passed against the petitioners based on identical grounds as in the earlier order of detention. In view of Section 14(2) of the Act as it stood, the Supreme Court held that the subsequent orders of detention were In violation of the provisions of Section 14 as there were no fresh facts. It was sought to be contended by the State Government that the previous orders Were illegal and therefore the orders of release did not amount to revocation. This contention was rejected. Following the decision in Hadibandhu Das v. Dist. Magistrate 1969 Cri LJ 274 (SC) (supra) it was held that the word 'revocation' would include not only revocation of an order which is otherwise valid and operative but also orders which are invalid. Revocation means cancellation of the previous orders. Four previous decisions which considered the expression 'revocation' or 'expiry' were also referred. In one of them it was held that non-confirmation before the expiry of three months would amount to revocation. In others the mere orders of release by the Government were held to amount to revocation. After referring to these decisions it was observed-

The word 'revocation' means annulling, rescinding, withdrawing. In the facts and circumstances of the case orders of release cancelling orders of detention amount to revocation of orders of detention. The word 'expire' means to come to an end or to put an end to, or to terminate or to become void or to become extinct The orders of release show that the Government accepted the position that the previous orders terminated and came to an end and the petitioners were released.

In view of this decision it has to be held that even though the previous orders were invalid or expired by not sending the report, it was open to the Government to revoke the order of detention. There is therefore, a 'revocation' within the meaning of Section 14(2) of the Act. Here again, the distinction that is sought to be made is that the High Court had quashed the previous order and therefore there could not be any revocation of the previous order of detention. This distinction found favour with Madhava Reddy J. and Sambasiva Rao, J. We are however unable to agree. We do not see how the quashing of the order of detention by this Court makes any difference. For the same reason which we gave while discussing the question of 'expiry' we are of the view that notwithstanding the quashing of the order by the High Court, the original order of detention could be revoked by the Govt.

14. If the contention of the petitioner is to be accepted it would follow that in a case where the original order expired or was invalid or became invalid, if the detenu approached the court and had it quashed by an order of this Court it would not be permissible for the Government to pass a fresh order of detention. If on the other hand, another detenu who was under detention under identical circumstances failed to approach the court, the same order could be revoked by the Government and therefore a fresh order of detention could be passed. We are disinclined to accept the contention which would lead to such an anomalous situation.

15. It was contended on behalf of the petitioners that if a fresh order of detention could be passed even where the High Court quashed the previous Order, it has necessarily to be held that even if the High Court had quashed it on merits holding that there were no grounds at all for detention or that tine grounds were irrelevant or vague or that the detention had been made mala fide etc. as there is no difference between the two cases of quashing on merits and quashing on a technical ground. We are not inclined to agree with the contention that quashing of an order on technical grounds is in the same position as the quashing of an order on merits. In the first case, when a fresh order of detention is passed, the Government is only taking note of the defect which is pointed out by the High Court and is passing a fresh order of detention setting right the defect in the order. In that case the subsequent detention order does not in any sense violate the order of the High Court. On the other hand, it gives respect to it and removes the defect which is pointed out by the High Court. In the case of an order which has been quashed on merits, if a fresh detention order is passed on the same grounds, the subsequent order again violates the order of the High Court and thus encroaches upon the judicial power. As has been pointed out by the Supreme Court in State of Tamil Nadu v. M. Rayappa : AIR1971SC231 even by legislation it is not permissible to overrule or set aside the decision of a High Court. This applies with greater force in the case of an executive order. The learned Advocate General therefore, did not seriously argue and rightly in our view that even in a case where the High Court quashed the previous order of detention on merits, it is open to the Government to revoke the previous order and pass a fresh detention order on the same grounds.

16. We may now briefly refer to some of the important decisions referred to in this connection. In Basanta Chandra v. Emperor AIR 1945 FC 18 : 46 Cri LJ 559 it was held that where the earlier order of detention is held defective merely on formal grounds there is nothing to preclude a proper order of detention being passed on the pre-existing grounds themselves, especially in cases in which the sufficiency of the grounds is not examinable by the Court. The order of detention in that case was made under Rule 26 of the Defence of India Rules. The Federal Court observed:

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 detention is held defective merely on formal grounds there is nothing to preclude a proper order 01 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.

It is true that in that case there was no order of the court quashing the previous order of detention and the subsequent order was passed even while the proceedings challenging the previous order were pending. But the use of the expression 'held defective' (underlined by us) would seem to indicate that even if that had been found defective by a Court, the Federal Court was of the view that there was nothing to preclude a proper order of detention being passed on pre-existing grounds, provided that the previous order was held defective merely on formal grounds. This decision was followed by the Supreme Court in Naranjan Singh v. State of Punjab : 1952CriLJ656 where it was concerned with Section 13 of the Preventive Detention Act which corresponds to Section 14 of MISA. They reiterated the principles laid down in Basanta Chandra v. Emperor AIR 1945 FC 18 : 46 Cri LJ 559 namely, where an earlier order of detention is held defective merely on formal grounds there is nothing to preclude a proper order of detention being passed on pre-existing grounds. In Jagdev Singh, v. State of J. and K : 1968CriLJ387 which was a case under Rule 30 and Rule 30-A of the Defence of India Rules, 1962 the original detention order became illegal by reason of the non-compliance with Rule 30-A which provided for review of the detention orders to be made at an interval of not more than six months. It was held that a fresh order of detention could be passed on the same facts, subject to the condition that the fresh order was not vitiated by mala fides. It was pointed out that if the Government resorts to the device of passing a series of fresh orders after every six months and thus continues the detention to circumvent Rule 30-A. the Government would certainly be acting mala fide. Such an order would be liable to be struck down not on the ground that the Government had no power to pass it, but on the ground that it is a mala fide exercise of the power. It was further observed that-

If the Government had power to pass a fresh order of detention on the same facts in case where an earlier order or its continuance fails for any defect, we cannot see why the Government cannot pass such fresh order curing that defect.

Reference may also be made to a decision of the Court of appeal in England which was followed in Basanta Chandra v. Emperor supra. In that case R. v. Home Secretary (1942) 1 All ER 373 the appellant was detained in June 1940 under an order made in pursuance of the powers given by the Defence (General) Regulations, 1939 Regn. 18-B but was released by order of the Court on the ground that the detention order did not comply with the requirement of the regulation. He was rearrested on June 6, 1941. It was held that the first detention was illegal in that the pre-requisites of a lawful detention had not been complied with. It was argued that a person who was released from custody on a writ of Habeas Corpus cannot be subjected to a second detention for the same cause. Rejecting this cqntention it was observed that the first detention was illegal in that, the prerequisites of lawful detention had not been complied with. In the case of the second detention, those pre-requisites were complied with and the detention was lawful. The decision in the first case was not upon the ground that the order was one which the authority had no power in law to make. It was held that there was nothing in principle to justify the view that a fresh detention order could not be made in the circumstances. It is to be noticed that this was a case where the court had directed release on the ground that the previous detention order was vitiated by a Formal defect. It was still held that a fresh detention order could not be made. This decision had been followed by the Federal Court and subsequently by the Supremo Court. It is therefore, clear that merely because the High Court quashes the detention order on technical grounds, there is nothing in principle which precludes the fresh detention order being made during the defect. The court of appeal itself made a distinction between a case where a court had set aside the order of detention on the merits and the case where it set aside on the ground of formal defect and this principle has been accepted by the Federal Court and the Supreme Court. We are therefore, of the view that it is open to the Government to revoke an order even though it has been set aside by the High Court on technical grounds and such a revocation within the meaning of Section 14(2) of the Act.

17. The fresh orders of detention passed in W.P. Nos. 5527, 5576 and 5125/75 cannot be challenged on the ground that they are not permitted by the proviso to Section 14(2) of the Act

18. The learned Advocate-General and the Public Prosecutor also contended that apart from Section 14(2) there is power under Section 3 of MISA read with Section 14 of the General Clauses Act to cancel orders of detention and pass fresh orders from time to time. He drew our attention also to the language of Section 14(2) in which it is stated that the expiry or revocation of a detention order shall not bar the making of another detention order under Section 3 (underlining ours). He submitted that from this language it is clear that even a fresh order referred to in Section 14(2) is a detention order made under Section 3. That apart Section 14(2) is negative in terms, It Only says that the expiry or revocation of a detention order does not bar the making of another detention order, It does not confer a power to pass a fresh detention order. That power is to be found only in Section 3, and read with Section 14 of the General Clauses Act it is open to the Government to pass fresh orders of detention from time to time based on the same facts. On the other hand the case of the detenus is that the power to pass a fresh order in a case where the previous order expires or is revoked can be found only in Section 14(2) and the conditions of that section have to be satisfied. This contention found favour with Madhava Reddy, J. as well as Sambasiva Rao, J. We are inclined to agree with the contention. It is true that Section 14(2) is in negative terms and the fresh detention order is also referred to as one under Section 3, but there cannot be any doubt that but for Section 14(2) there is no power to pass a fresh order of detention on the expiry or revocation of a previous order. If Section 3 itself confers such a power there was no need to have Section 14(2) at all. The very fact that Section 14(2) was enacted by the legislature shows that it was intended that the power to pass fresh order of detention in the case of expiry or revocation of a previous Order has to be found only under that Section. A perusal of the various decisions dealing with Section 13(2) of the Preventive Detention Act and Section 14(2) of MISA clearly shows that in every case the Supreme Court proceeded on the footing that the power to pass fresh order of detention has to be spelt from Section 13(2) of the Preventive Detention Act or Section 14(2) of MISA as the case may be. It is however unnecessary for us to consider this question further as we have already held that even applying Section 14(2) there has been expiry or revocation within the meaning of Section 14(2) so as to enable the Government to pass a fresh order of detention.

19. In this view it will become necessary for us to consider the further contention raised by Sri Kannabhiran that it is open to this Court to satisfy itself whether when making the fresh order of detention the Government had sufficient material to justify the detention and Section 16-A (9) which precludes the disclosure of the grounds, information or material on which the detention order is founded is ultra vires the Constitution. But as we have already observed that matter is under consideration of the Supreme Court which has reserved judgment. We adjourn the writ petitions 5527, 5875, 6125 of 1975 to await the judgment of the Supreme Court so that the arguments' regarding the validity of Section 16-A (9) can be considered in the light of that judgment.

W.P. No. 5448 of 1975:

20. The facts relating to this writ petition, namely, W.P. No. 5448 of 1975 have already been set out in detail. Mr. Ramamurthy, the detenu who is an advocate appeared in person and raised the following contentions:

1. He was served the grounds of detention on 28-6-1975 when he was detained on 26-6-1975 at 5 a.m. Some of these grounds are vague and some are irrelevant and therefore that order was illegal. As he was throughout in detention from 26-6-1975 the fresh order of detention ultimately made on 10-10-1975 must be taken as having been passed on the same grounds as the order of detention dated 26-6-1975 and it would therefore follow that the order of detention dated 10-10-1975 must also be set aside.

2. Under Section 16-A (3) of the Act the State Government shall consider whether the detention of such a person under the Act is necessary for dealing effectively with the emergency and if on such consideration it is satisfied that it is necessary to detain such person for effectively dealing with the emergency it may make a declaration to that effect. The State Government should first consider whether it is necessary to detain the petitioner for dealing effectively with the emergency and then it must be satisfied that it is necessary to do so. The impugned order of detention is not a speaking order. It does not show that the Government has either consideied that the detention was necessary or that it was satisfied and hence the requirements of Section 16-A (3) are not complied with.

(3) The order was passed mechanically without the Government applying its mind.

{4) The order is vitiated by mala fides.

(5) The order is not in conformity with Section 3 read with Section 16-A as the order is passed by the Governor whereas the satisfaction is said to be of the Government. On a true interpretation of these sections the authority who is to be satisfied and the authority who is to pass the order must be one and the same.

(6) The order of detention refers to the emergency of 25th June, 1975. In fact, there was no declaration of emergency on the 25th June, 1975. The declaration was only on 26th June, 1975 after 6 a.m. by which time the petitioner was arrested and detained. Hence, it cannot be said that the Government has considered or was satisfied that the detention of the petitioner was necessary for dealing effectively with the emergency.

21. Before dealing with the first contention it is convenient to consider contentions 2 to 6.

Contention No. 2:

22. We do not see any substance in this contention. In the additional counter affidavit filed by the Joint Secretary to the Government (Political), it is stated that the State Government considered it necessary to issue the fresh detention order as the potentiality of his prejudicial activity against the maintenance of public order still continues to exist. The entire prejudicial material was placed before the Chief Minister who was satisfied with respect to the petitioner. We have no reason not to accept this counter affidavit by the Joint Secretary who says that all the files concerning the detenu have to come to him at every stage of the case at the Government level, including review, confirmation, consideration or re-consideration, revocation or passing of fresh orders of detention and they are circulated by him to the Chief Secretary and the Chief Minister who is in charge of the concerned portfolio. Under the rules of Business made under Article 166 of the Constitution the satisfaction of the Chief Minister has to be taken to be the satisfaction of the Government It was argued by Mr. Ramamurthy that the additional counter affidavit by the Joint Secretary cannot be looked into as it was not filed in this case. We have no hesitation in rejecting this submission as this counter-affidavit was a common counter affidavit filed in a number of writ petitions in view of the prior observations of this Court that the counter affidavit of the Assistant Secretary is not sufficient.

Contention No. 3:

23. We cannot also agree with the contention that the order was passed mechanically and that the Government did not apply its mind at all. That there was no application of the mind is sought to be inferred from the fact that orders in regard to. nearly 400 detenus were passed on the same date within a period of few hours. From this circumstance alone it is not possible to infer that the Government has not applied its mind as it is not impossible with the considerable assistance which the Government has at its command to consider cases of 400 detenus in the course of a day or a few hours.

24. Much comment was made on the fact that the order of revocation dated 9-10-1975 stated that it revoked the order of detention dated 26-6-1975 which had already been revoked by the order dated 16-8-1975. It was argued that the order should have revoked the previous order of detention, namely, that of 16-8-1975 instead of earlier order dated 26-6-1975 which had already been revoked. This showed that the order was passed mechanically without the Government applying its mind. In the additional counter filed by the Joint Secretary it was stated that this was due to clerical error and then having apprised of this clerical error the first respondent by his order dated 1-3-1976 amended the revocation order dated 10-10-1975 by substituting the proper order of revocation. It is no doubt true that the amendment is made during the pendency of the writ petition, but we have no reason to disbelieve the statement made in the counter affidavit that this was a bona fide clerical error.

Contention 4 : 'Mala fides'.

25. It is admitted that the Chief Minister has no personal mala fides against the petitioner. But it is argued that the speeches made by the petitioner and his criticisms annoyed the 'Ruling Congress' which was in power and members of that party persuaded him to pass the impugned order. There is no evidence to show that the Chief Minister was in any way influenced by the 'Ruling Congress' or by any consideration other than his being satisfied that it was necessary to detain the petitioner with a view to prevent him from acting in any manner prejudicial to the security of the State or maintenance of public order etc. or that any consideration other than that his detention was necessary for dealing effectively with the emergency weighed with him in making the order under Section 16-A. It was further contended that as his previous order of detention was made on 9-6-1975 the question whether his detention continues to be necessary for effectively dealing with the emergency had to be re-cousidered within four months from the date of declaration, that is, on or before 9-11-1975 and the fresh order of detention was made in order to circumvent this provision. We do not think there is any force in this contention, as the order of detention dated 26-6-1975 in respect of which the declaration was made on 9-6-1975 was revoked as early as 16-8-1975 and a fresh order was made long before 9-11-1975 when it fell to be reconsidered.

Contention 5:

26. The contention that as the order is expressed to be in the name of the Governor and the satisfaction is that of the Government, the provisions of Section 3 read with Section 16-A are not complied, is without substance. Under Article 166 of the Constitution executive action is taken in the name of the Governor, but nonetheless the order is that of the Government. It cannot therefore be seriously contended that the person who passed the order of detention is different from the person who was to satisfy. This contention has been repelled by two of the Division Benches which had to consider this point, and we entirely agree with them.

Contention 6:

27. It is argued that the order of detention refers to declaration of emergency of 25-6-1975, but in fact, there was no declaration of emergency on that day, the declaration having been made by the President sometime after 6 a.m. To substantiate this, several documents have been produced. In the Decean Chronicle' dated 26-6-1975 it was stated that the President proclaimed emergency under Article 352 of the Constitution after a hurriedly summoned meeting of the Union Cabinet at Prime Minister's residence at 6 a.m. It was also mentioned that the Prime Minister had made a broadcast to the nation immediately after proclamation and that was in the morning. The Madras Edition of the Hindu and the Vijayawada edition of the Indian Express also carried news to the same effect. Reference was also made to the speech of the Congress President Barooh at the AICC Session where he referred to the emergency of 26th instant. This speech was made in the presence of the Prime Minister. The Prime Minister's son, Sanjay Gandhi in an interview to the Illustrated Weekly also referred to the emergency of the 26th. From those, it is argued that the proclamation of emergency was sometime after 6 a.m. on the 26th June. This contention however cannot be accepted in view of the Gazette notification produced which shows that the President made the proclamation on the 25th June. It is argued that in order to make it appear that the proclamation was made on the 25th it was so recited in the gazette even-though it was made on the 26th. There is no foundation for such an argument, It is true that in several speeches emergency is referred to as having been come into effect on 26th June, 1975. But the mere fact that some persons holding however high a position of responsibility it may be referred to the emergency as the emergency of 26th June, 1975 cannot affect the true position as evidenced by the Gazette in which it is clearly stated that the proclamation was made on the 25th June, 1975.

28. The learned Central Government counsel sought to contend that it is not even open to the petitioner to contend that the proclamation of emergency was made On the 26th and not on the 25th. He relied on Article 352(5)(b) of the Constitution introduced by the 38th amendment and contended that the validity of proclamation of emergency cannot be questioned. We have no hesitation in holding that Article 352(5)(b) of the Constitution has no application. Article 352(5)(b) says that neither the Supreme Court nor any other court shall have jurisdiction to entertain any question on any ground regarding the validity of the proclamation. The petitioner has not questioned the validity of the proclamation. He is seeking to satisfy the court that the proclamation of emergency Was made on the 26th and not on the 25th. We do not see anything in Article 352(5)(b) which would preclude him from doing so. But as we have already observed, in view of the clear evidence afforded by the Gazette, we have to hold that the proclamation was made by the President on the 25th instant. This contention therefore fails.

Contention 1:

29. Turning now to the main contention namely, contention 1, we have already noted that when the petitioner was detained, the grounds of detention were served on him. It is argued that some of these grounds are vague and some are irrelevant and hence the order of detention dated 26-6-1975 is illegal and as the impugned order dated 10-10-1975 must be taken to be on the same grounds, the subsequent order also is not justified. It is thus seen that there are two steps in the argument. Firstly that the grounds of detention of the order dated 10-10-1975 must be taken to be the same as those of 25-6-1975. Secondly, as some of these grounds are vague or irrelevant or have no nexus with the question of maintenance of public order etc. the order of detention dated 25-6-1975 is bad and the order dated 10-10-1975 based on the came grounds is equally bad.

30. It was argued on behalf of the Government that it is not open to the court to consider what the grounds of detention of the subsequent order are. as such enquiry is foreclosed by reason of Section 16-A (9) of the Act. Reliance was placed on the decision in W.P. Nos. 5556 and 5765 of 1975 (Andh Pra), where it was held that the Court was prevented from looking at the ground of detention by reason of Section 16-A (9) of the Maintenance of Internal Security Act It was held in that decision that the Court could not make a guess as to what those grounds may be and proceed to consider the. validity of detention on the assumption that the grounds were the same as the grounds' of the earlier order of detention. It was therefore held that the court could not examine the latest detention order or the basis of the grounds furnished when the first order of detention was made. In order to appreciate this contention it is relevant to consider closely the provisions of Section 16-A (9) which is in the following terms:

16-A (9) : Notwithstanding anything contained in any other law or any rule having the force of law:

(a) the grounds on which an order of detention is made under Sub-section (1) of Section 3 against any person in respect of whom a declaration is made under Sub-section (2) or Sub-section (3), end any information or materials on which such grounds or a declaration under Sub-section (2) or a declaration or confirmation under subsection (3) or the non-revocation under subsection (4) of a declaration are based, shall be treated as confidential and shall be deemed to refer to matters of state and to be against the public interest to disclose and save as otherwise provided in this act, no one shall communicate or disclose any such ground, information or material or any document containing such ground, information ox material;

(b) no person against whom an order of detention is made under Sub-section (1) of Section 3 shall be entitled to the communication or disclosure of any such ground, information or material as is referred to in clause (a) or the production to hint of any document containing such ground, Information or material. On a careful analysis of this section it is seen that it lays down the following:

(1) The grounds of detention and any information or material on which a detention or declaration is made shall be treated as con. fidential.

(2) They shall be deemed to refer to matters of state and to be against the public interest to disclose.

(3) No one shall communicate or disclose any such ground, information or material or any document containing such ground, information or material.

(4) The detenu shall not be entitled to the communication or disclosure of grounds of detention or information or material or the production of any document containing such grounds of detention, information or material. While the section prohibits disclosure of grounds, information etc. it does not prevent the court from looking into the grounds and considering them if they happen to be before the Court. In this case the grounds of detention on 26-6-1975 were served on the detenu when it was the duty of the Government to serve them on hint according to the provisions of the Act at that time. The detenu is not asking for their disclosure. The detenu was in possession of those grounds as of right and he is placing them before us. We do not find anything in Section 16-A (9) which prevents the court from looking into the grounds which were already disclosed in accordance with the provisions of the Act to the detenu. The Act does not place an embargo on the detenu from placing the grounds which were validly served on him at a time when the provisions of the Act required that they should be so served.

31. In this view it is unnecessary for us to consider the further contention that Section 16-A (9) does not interfere with the right of the High Court under Article 226 of the Constitution to call for all the records relating to the order of detention including the grounds of detention, a contention which found favour with Madhava Reddy & Punnayya, JJ. in W.P. No. 5119/75 etc, (AP). We do not also wish to express an opinion on that question as to a certain extent, it is connected with the submission regarding the vires of Section 16-A (9) of the Act consideration of which we have reserved till we have the advantage of looking into the Judgment of the Supreme Court in case in which it had reserved Judgment.

32. The next step in the argument of the detenu is that it has to be taken in the circumstances of the case that the grounds of detention on 10-10-1975 are the same as that on 25-6-1975. In this case it is not denied that ever since 26-6-1975 the detenu has been throughout in jail. It is not therefore unreasonable for the court to infer that the grounds of detention are the same as the grounds of detention that were served when the order dated 26-6-1975 was made. Here, again there is nothing in Section 16-A (9) which prevents the court from drawing that inference. We do not agree with Chmnappa Reddy and Jeevan Reddy JJ. that the Court will in drawing that inference be making a guess as to what the grounds may be (vide decision in W.P. No. 5536/75 and W.P. 5765 of 1975 (Andh Pra).

33. A Division Bench of this Court consisting of Chennakesav Reddy and Madhusudan Rad, JJ. held in W.P. 5827/75 etc, (Andh Pra) that when the order of detention is. revoked the grounds supplied along with the detention order stood totally wiped out and these grounds are no more available to the aggrieved parity for assailing their relevancy. We are not inclined to agree. The mere fact that the detention order of 26-6-1876 was revoked does not mean that the grounds stood wiped out. The grounds of detention order still remain even though the detention order may have been revoked and if a fresh detention order is passed, it is a reasonable inference to draw that the petitioner was detained on the same grounds, as there could not be any other grounds in view of the fact that the detenu was in detention throughout! It is not the case of the Government that out of the previous grounds, valid grounds alone were taken into account while making the fresh order of detention or certain other grounds were available even at the time when the first order off detention was made, which were not mentioned at that time, but they weighed with the authorities while making the present order of detention. Even in the counter-affidavit it is stated that the fresh order of detention was passed only because the previous order of detention was found defective in view of the decision of this Court in W.P. 4679 of 1975 batch (reported in 1976-1 Andh WR 194), It is not stated that apart from the grounds mentioned in the earlier order there were other grounds which weighed with the Government in passing the fresh order of detention. All that is stated is that the grounds served on the petitioner when the detention order dated 26-6-1976 was passed cannot be presumed to be grounds for the order made on 10-10-1975.

34. It was argued that as the operation of Sections 8 to 12 of the Act is suspended, there is no necessity to communicate the grounds of detention to the detenu, the detenu has no opportunity to make any representations and there is no provision lor consideration of the representation by an advisory board or submission of report by that Board. In those circumstances it was argued that since the very object of stating the grounds of detention is to enable the detenu to make a representation to the Board which has to consider it and make its report and such a right is suspended, it follows that the grounds of detention cannot be looked into, We are unable to see any force in this contention. It may be that operation of Sections 8 to 12 is suspended, but Section 3 remains in force. When the essential requisite of Section 3 is that the Government must be satisfied that the detention is necessary with a view to prevent the detenu from acting in any manner prejudicial to the security of the State or maintenance of pubbo order etc. the right of the Court to consider whether there was any material to arrive at that decision and in the absence of such material the detention order is invalid, is not in any way affected by the suspension of the operation of Sections 8 to 12.

35. To sum up, Section 16-A (9) does not stand in the way of the court from looking into the grounds of detention which were served on the detenu when the order of detention was made on 26-6-1975 and inferring that the grounds of detention order dated 10-10-1975 are the same as those grounds. In view of the fact that the detenu was throughout in detention such an inference can properly be made. In this connection reference may be made to the decision of the Supreme Court in Massod Alam v. Union of India 1973 Cri LJ 627 (SC); where it was observed in similar circumstances that it is not possible to urge that actually after the expiry of the original order of detention any fresh facts could arise for sustaining the fresh order of detention. It would follow that the validity of the Order of detention dated 19-10-1975 also has to be Judged with reference to the grounds of the order dated! 26-6-1975.

36. It has now to be seen whether any of the grounds of detention are either vague or irrelevant or have no nexus with the maintenance of public order etc. as is urged by the petitioner. Those grounds start with a preamble which deals with the activities of some organisation which have conspired to overthrow the legally elected Government by resort to secret activities and violent methods. It is stated that they have been preaching and organising violence and inciting people to take to arms and wage war against the Government. At the end of the preamble it is stall-fed that instances have come to light which Are detailed in the grounds given below when the petitioner advocated overthrowing by violence the Government established by law and promoting and propagating disloyalty and disaffection towards the Government among the members of the public, police and armed forces and thereby conducted himself in a manner prejudicial to the maintenance of public order.

37. At the end of ground 1 it is stated that the petitioner advocated 'Bihar type movement' in Andhra Pradesh also. It is contended that this statement is vague and has no relation to the maintenance of public order or security of State etc, as also the further statement that he called upon the people to lend their full support to bring in total revolution as envisaged by Sri Jaya Frakash Narayan, This was repeated again in the end of ground No. 2. In ground No. 4 it is stated that at a public meeting he criticised Smt. Indira Gandhi for not stepping down from office after the judicial pronouncement of the High Court It was contended that this ground is totally irrelevant as the fact that ha criticised Smt. Indira Gandhi for not stepping down from office 'after the decision of the High Court has nothing to do with the maintenance of public order. As a citizen it is stated, he was entitled to advocate any person to respect the decision of the High Court. Another ground was that the petitioner strongly advocated removal of Congress rule from power. It was argued that there was no nexus between this ground and the order of detention. It was therefore, submitted that the order of detention dated 26-6-1975 was not Justified and as the impugned order dated 10-10-1975 must be taken to be on the same grounds, the subsequent order also is not justified.

38. There have been innumerable decisions of the Supreme Court and the various High Courts in India including the High Court of Andhra Pradesh under Section 3 of MISA or under similar provisions of other enactments like the Prevention of Detention Act, Defence of India Rules etc. It is necessary to consider the main view of the recent decision of the Supreme Court in Khudiram Das V. State of W.B. : [1975]2SCR832 where there is a detailed exposition of the law on the subject. It was held that tho subjective satisfaction of the detaining authority is not wholly immune from Judicial reviewability. The courts have by judicial decisions carved out an area, limited though it be, within which the validity of the subjective satisfaction can be subjected to judicial scrutiny. The courts can always examine whether the requisite satisfaction is arrived at by the authority, if it is not, the condition precedent to the exercise of the power would not be fulfilled and the exercise of the power would be bad. There are several reasons given in judicial decisions for saying that no subjective satisfaction is arrived at by the authority. The following are some of the instances given by the Supreme Court:

1. Where the authority has not applied its mind at all.

2. Where the power is exercised dishonestly or for an improper purpose, i.e. a purpose not contemplated by the statute, or where the order is passed mala fide.

3. Where the satisfaction is not the satisfaction of the authority itself.

4. Where the satisfaction is based upon the application of a wrong test on misconstruction of a statute.

5. Where the satisfaction is granted on materials which are not of rationally probative value, or materials which are not relevant to the subject matter of the enquiry or extraneous to the scope and purpose of the statute, where the satisfaction is arbitrary, vague and fanciful.

39. It was also pointed out that there is nothing like an unfettered discretion immune from judicial review. Keeping these principles in mind it has to be seen whether the order of detention is vitiated. In this connection it is also to be remembered that in a series of decisions it has been held that if the order of detention is founded on distinct and separate grounds, if any one of the grounds is vague Or irrelevant or cannot stand for any of the above reasons, the entire order must fail. The satisfaction of the detaining authority being subjective it is impossible to predict whether the order would have been passed in the absence of the unsustainable grounds. It is sufficient to refer for this proposition to the recent decision of the Supreme Court in Ram Bahadur v. State of Bihar : 1975CriLJ269 .

40. Let us now consider the grounds of detentions served on the petitioner. In ground No. 1 it is stated that the petitioner attended a secret meeting of all opposition parties. In the said meeting discussions were held to extend full support to the movement launched by Jayaprakask Narayan. On the same day at a public meeting the petitioner condemned the Government for not lifting emergency and for not repealing Maintenance of Internal Security Act, Defence of India Rules and Preventive Deteation Act He advocated Bihar type movement in Andhra Pradesh also and called upon the people to lend their full suppert to bring in total revolution as envisaged by Jayaprakash Narayan.

41. It is contended that there is nothing in this ground which is relevant for the purpose of considering whether the detention of the petitioner is necessary for the maintenance of public order or security of the State. The expression 'Bihar type agitation' is vague and further it does not by itself connote any violence nor would it relate to the maintenance of public order. Similarly, the advocacy of total revolution also does not imply that public order should not be maintained or that it would in any way affect the security of the State. According to the petitioner, the total revolution which he advocated was a peaceful revolution and total revolution is not inconsistent with revolution by peaceful means. We are inclined to agree. This ground by itself does not appear to us to have any bearing on the maintenance of public order. In Ram Bahadur v. State of Bihar 1975 Cri LJ 269 (SC) (supra) it was held that the expression Gujarat type of agitation' was a phrase of vague and uncertain import. It could not be said the decision to support such an agitation meant a clarion call to violence, It was observed that if the charge be that the petitioner had preached violence, the grounds of detention must say so and such a serious accusation ought not to be left to mere speculation. The expression 'Bihar type of agitation In our view is similar to the expression 'Gujarat type of agitation' considered by the Supreme Court in the above case. In Bhutnath v. State W.B. : 1974CriLJ690 it was stated in the grounds among other things that the petitioner had developed a spirit of lawlessness and aptitude for anti-social activities. The Supreme Court observed that the spirit of lawlessness land anti-social activities 'were neither here nor there vis-a-vis Section 8.'

42. Ground No. 2 also Is subject to the same criticism as it was only stated therein that in the meeting which the petitioner attended, decisions were taken to form a committee to start 'Bihar type of agitation' and also for total revolution.

43. In ground No. 3 it was stated that the petitioner condemned the attitude of the Prime Minister for not stepping down front the office after the judgment of the Allahabad High Court, Ground No. 4 is practically to the same effect. It was argued that this ground is totally irrelevant in considering whether the detention was necessary for the maintenance of public order or not It was submitted that it is open to every citizen to ask any person to respect the decision of the High Court It was also contended that the further statement in ground No. 4 that he advocated removal of the Congress rule is also Irrelevant as it is the right of any citizen in a democracy who Is not satisfied with a particular government to exhort people to see that the Government is removed from power. Whatever may be the validity of these sub-missions if the parts of the above ground stood alone, we are of the view that the first part of grounds Nos. 3 and 4 which are referred to above cannot be considered in isolation. The last part of ground 3 stated that the petitioner incited people to resort to violent agitation in case the Prime Minister did not step down from the Office. Similarly the last part of ground 4 said that the petitioner appealed to the Government employees and the police to Join hands with the public defying orders of the Government Each of the grounds 3 and 4 must be read as a whole. The first part of each of these grounds cannot be taken in isolation, As the last part of each of the grounds says that the petitioner incited people to resort to violent agitation in case the Prime Minister did not step down from office, and that the petitioner appealed to the Government employees and the police to Join hands with the public defying orders of the Govt. if the grounds are read as a whole it cannot be said that the grounds are not relevant or have no nexus to (he criteria laid down in Section 8 of the Act But as we are of the view that ground Nos. 1 and a have no such nexus we have to hold, in view of the various decisions of the Supreme Court and of this Court, that the entire order of detention is vitiated.

44. Sri Bheemaraju contended firstly, that the decisions of the Supreme Court prior to the recent amendment of MISA are no longer relevant in the context of the recent amendments to MISA, He submitted that the main reason for holding that a detention is invalid if the grounds of detention are vague or irrelevant, is that it is not possible for a detenu to make an effective representation against the order of detention. Now that under the amendments, the right to make a representation is taken away, it is submitted that the reason behind the decisions of the Supreme Court has disappeared. This submission may have some force in so far as the Supreme Court held that the grounds should not be vague, for in that case, the detenu will not be in a position to make effective representation. But In regard to the grounds which are not relevant or which have no nexus to the criteria laid down in Section 3, we do not see how the amendments to MISA will in any way affect the ratio behind the decisions of the Supreme Court Even today, Section 8 has not been amended and it is still necessary for the court to consider whether the authority has been satisfied that the detention is necessary for the maintenance of public order or for the security of State etc. and in order to arrive at this conclusion this Court has stilt the duty to consider whether such satisfaction is based upon relevant material having nexus to the criteria laid down in Section 3.

45. The next contention of the learned Public Prosecutor was that in the light of these amendments the decisions of the Supreme Court which held that even if some of the grounds are irrelevant, the entire detention order has to be set aside should no longer hold the field. Here again we are unable to see how the amendments make a difference in the law laid down by the Supreme Court The reason for holding that even if some of the grounds are vague or irrelevant, the entire detention order has to be set aside is that the satisfaction of the detaining authority is subjective and it would be impossible to predict whether the order would have been passed in the absence of the grounds which are vague or irrelevant, This reasoning is not in any affected by the recent Amendments.

46. For the reasons above stated we hold that the order of detention dated 10-10-1975 deserves to be set aside and the petitioner is directed to be released forthwith.

47. In the case of the writ petitioner In W.P. No. 5404 of 1975 in ground No. 1 there is no reference to any matter which has relation to the maintenance of public order at all or threatening the security of the State. There is no reference to any activity involving violence, Though the other grounds cannot be assailed as being irrelevant or having no nexus to the criteria laid down in Section 3, as ground No. 1 is vitiated this order also has to be set aside. It was also admitted that the position of this petitioner is identical with that of the petitioner in W.P. No. 5448 of 1975 and both the writ petitions were clubbed and heard together. The petitioner in this writ petition is also directed to be released forthwith, Advocate's fee Rs. 250/- in each writ petition.

Ramachandra Raju, J.

48. While Agreeing with the conclusions arrived at by my learned brother Kuppuswarni J. I would like to add a few lines on the contention raised by the learned Advocate General and the Public Prosecutor, that apart from Section 14(2) there is power under Section 3 of MISA. read with Section 14 of the General Clauses Act to pass fresh orders of detention. I think the view expressed by my learned brother, that but for Section 14(2) there is no power to pass a fresh order of detention on the same facts or grounds on the expiry or revocation of an order of detention made earlier on those facts or grounds, requires some clarification. That view expressed in such general terms may lead to an inference that the same facts or grounds which formed the basis of an earlier order of detention cannot be invoked at any time in future for forming the basis of another order of detention if it becomes so necessary having regard to the circumstances then prevailing. For passing a detention order the past conduct or antecedent history of a person can be taken into account and as observed by the Supreme Court in Ujagar Singh v. State of Punjab : [1952]1SCR756 that as a matter of fact it is largely from prior events showing the tendencies or inclinations of the man that an inference could be drawn whether he is likely even in the future to act in a manner prejudicially. Therefore when a person was once detained on the basis of his acting in a prejudicial manner after expiry or revocation of that order, at some future date if a situation again arises for taking preventive action and the authority concerned is satisfied that the detention of that person is necessary on the basis of his past conduct with a view to prevent him from acting again in any prejudicial manner, there is no reason why the same facts or grounds which formed the basis of his previous detention cannot also form the basis of the subsequent detention. If the authority is satisfied that the original grounds or facts are still available and there is need for detention on that basis, in such circumstances I do not think Section 14(2) can be a bar and I think independent of that provision there is power under Section 3 of MISA to pass an order of detention. I am unable to agree that but for Section 14(2) there is no power to pass a fresh order of detention if it is to be meant at any time in future on the same grounds or facts of the earlier detention order under any circumstances. It Is true, it may be argued that if Section 3 itself confers such a power, there was no need to have Section 14(2) at all.

49. I think Section 14(2) is Intended for cases where after revocation or expiry of an earlier order of detention a further detention, becomes necessary with regard to the same! situation in which the earlier order was passed. In the proviso to Section 14(2) when it is stated that ''provided where no fresh facts have arisen,' I think it means no fresh facts have arisen either with regard to the activities of the detenu or with regard to the matters mentioned in Section 3(1)(a). Otherwise there would be an anomalous position because if a person is detained once on account of his certain prejudicial activities and that order of detention is either revoked or has expired, at any rate it cannot continue for more than twelve months in view of Section 13 of MISA he cannot be detained at any time in future on the basis of his past conduct or antecedent history having regard to the same facts even if the authority concerned is satisfied that the potentiality of his prejudicial activity still continued to exist and his detention is necessary in a given situation existing at the future time. That it would not have been the intention of the Parliament in enacting Section 14(2) because it is only on the past conduct or antecedent history of a person, the concerned authority has to consider the desirability of detaining him in a given situation at a given time.


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