1. These two cases were heard together with Cr. Misc. 12/05 and OJC. 58/66 (Shivaji Patnaik v. State of Orissa), OJC. 69/66 (Purnachandra Badajena Panda versus Slate Government of Orissa) and Cr. Misc. 19/66 and OJC 81/66 (D. Bhubanmohan Patnaik v. State of Orissa). Same points of law have been canvassed in all these cases. There is no difference on facts excepting that the order of detention was passed on 14 January, 1966 in the case of the petitioner and Sibaji Patnaik and on the 20th January 1966 in the case of others. Relevant facts and law would be examined in this case and the conclusions reached herein would govern the results of other cases.
2. The relevant facts may be narrated in chronological order:
1.29-12-64The petitioner was detain-ed under Rule 30 (1)(b) of the Defence of India Rules, 1962 (hereinafter referred to as the Rules) by the following order
Government of Orissa,
BhubaneswarSpecial Section. Order No.8585/C,
the 29th December, 1964. Whereas the State Gov-ernment is satisfied that with a view to preventing SriLaxman Patnaik, son of Jagmohon Patnaik village Olasingh, Khurda Dt. Puri, fromacting in any manner prejudicial to the Defence of India and Civil Defence,the public safety, the maintenance of public order, India's rela-tions with foreign powers, the maintenance of peace-ful conditions in any part of India or the efficient conduct of military opera-tions, it is necessary so to do, the Governor of Orissa in exercise of the powers conferred by Rule 30 (1) (b) of the Defence of India Rules 1962, is pleas-ed to direct that the said Sri Laxman Patnaik shall be detained until further orders.
By the order of the Governor.
Sd. B. Venkataraman
Secretary to Government.' By similar orders, almost identical in terms, eleven others including D. Bhubanmohan Pat-naik, Sibaji I'atnaik Purna Chandra Bada Jena, Ramesh Chandra Panda and one Jagannath Misra (who filed writ Pelition No. 97/65 in the Supreme Court) were kept under detenlion.
2.7-12-65The Supreme Court directed Jagannath Misra to be released forthwith Mating in the order that reasons would follow.
3.21-12-65The State Government reviewed its order dated 29-12-64 and decided that the detention order should continue. The review order was passed to the following effect: -
ORDER Government of Orissa.
Bhubaneswar.Special Section. No. 7371/C.
Dated the 21-12-65. Whereas Laxman Patnaik of Vil. Olasing Khurda Dist. Puri detained under Cl. (b) of Sub-rule (1) of Rule 30 of the Defence of India Rules, 1962 in pursuance of the deten-tion order made by the Government of Orissa, in the Home Department, Special Section No. 8585 dated 29-12-64.
And whereas the State Government have further reviewed the said detention order as required by sub-rules (3) and (9) of Rule 30-A of the said Rules.
Now, therefore, in ex-ercise of the powers con-ferred by sub-rule (9) of Rule 30-A of the said rules, the State Govern-ment, upon such further review, do hereby decide that the said detention order should be continued.
By order of the Governor
Sd. V. Natarajan
Secretary to Government'.4.5-1-66Criminal Misc. 2 of 1968 was fled by the pelitioner challenging the validity of the detention order dated 29-12-64. It was admitted for hearing on 10-1-66.
5.14-1-66The State Government cancelled the order of detention dated 20-12-64 by the following order:
Government of Orissa.
Bhubaneswar.Special Section. No. 188/C
the 14th January, 1966. Whereas the order of detention passed against Shri Jagannath Misra has been held to be defective by the Supreme Court of India in - Jagannath Misra v. State of Orissa on certain formal grounds and
Whereas the order of detention passed against Shri Laxman Patnaik is defective on the same grounds.
Now therefore, in ex-ercise of the powers con-ferred by Cl. (b) of sub-rule (10) of Rule 30-A of the Defence of India Rules, 1962 the State Gov eminent do hereby cancel the detenlion order made by the Government of Orissa in the Home Department, Special Sec-tion No. 8585/C, dated 29-12-64 in respect of Sri Laxman Patnaik.
By the order of Governor.
Sd. V. Natarajan
Secretary to Government.6. On the same day a fresh order of detention was passed on the following terms:
Government of Orissa
BhulaneswarSpecial Section. No. 189/C
the 14 January, 1966. Whereas the State Gov-ernment arc satisfied with respect to Shri Laxman Patnaik S/0 Jagmohan Patnaik - village Ola singh P. S. Khurda, Dis-trict Puri that with a view to preventing him from acting in any manner pre.judical to the defence of India and Civil Defence, the public safety, the maintenance of public order, and the mainten-ance of peaceful condi-tions in Orissa, it is neces-sary to detain him:
Now, therefore, in ex-ercise of the powers con-ferred by Cl. (b) of sub-rule (1) of Rule 30 of the Defence of India Rules 1962, read with sub-r. (4) of the said rule the State Government do hereby direct that the said Shri Laxman Patnaik shall he detained until further Orders at Cuttack Jail.
By order of the Governor
Sd. V. Natarajan
Secretary to Government.7.19-1-66O J C 21/68 was filed by the petitioner challeng-ing the validitv of the detention order dated 14-1-66.
This is how Cr. Misc. 2/66 and O. J. C. 21/66 are being heard together.
The first order of detention dated 29-12-64 will be hereinafter referr-ed to as the 'first order' and the second order of detention dated 14-1-66 'the second order' or 'the impugned order'.
3. Mr. Palit advanced three contentions:
(i) The Second order has been passed in a casual and cavalier manner and the satisfaction of the State Government was not reached after application of the mind to the facts of the case.
(ii.) The impugned order of detention lacks bona fide and good faith.
(iii) The petitioner was served with the impugned order of detention while he was lying ill in the hospital. Service of an order of detention while the petitioner was already in custody amounts to double detention and is contrary to law.
4. Facts on which emphasis has been put by Mr. Palit in elaborating his first contention may be noticed. In the first order, the State Government was satisfied that there were materials against the petitioner to indicate his activities prejudicial to 6 items, such as (i) Defence of India and Civil Defence (ii) Public Safety, (iii) Maintenance of Public Order, (iv) India's relations with foreign powers (v) Maintenance of peaceful condition in any part of India; and (vi) Efficient conduct of Military operations.
In November, 1964, Home Minister Shri Nilamani Routrai filed an affidavit in the Supreme Court in Jagannath Misra's case that he was satisfied about the existence of two grounds regarding his (Misra's) activities prejudicial to (i) Defence of India (ii) Maintenance of Public Order. In the review of detention order dated 21-12-65 under Rule 30-A, the State Government was satisfied as to the existence of the very six grounds referred to in the first order.
The Second order shows that the satisfaction of the State Govt. was confined to four grounds. These were to prevent him (the petitioner) from acting in any manner prejudicial to (i) Defence of India and Civil Defence; (ii) Public Safety (iii) Maintenance of public order and (iv) Maintenance of peaceful conditions in Orissa.
5. It would thus be apparent that the satisfaction of the State Government was reached on the basis of the very materials which existed before the passing of the first order. Mr. Palit accordingly argued that the State Government was not sure of its mind and that the alteration and shifting of the grounds from time to time were indicative of the absence of real satisfaction as envisaged in law, and, AS such, the satisfaction has been reached in a casual and cavalier manner. Detention without trial is a serious encroachment of individual liberty. As the satisfaction was not reached by careful application of mind, the impugned order is invalid.
6. To appreciate the aforesaid contention, it is necessary to deal with the conclusion of the Supreme Court in Jagannath Misra's case. The Supreme Court deals with the validity of an order of detention passed against Jagannath Misra on December 29, 1964, which was similar in terms with the first order. After taking into consideration the contents of that detention order and affidavit of Home Minister, their Lordships declared the detention order to be invalid. Emphasis was laid on the discrepancy existing between the terms of the detention order mentioning the six grounds and the affidavit of the Home Minister referring only to two out of them, which obviously showed that the Home Minister did not apply his mind to the facts of that case before passing the detention order. Their Lordships reinforced their conclusion by the fact that besides the two grounds mentioned in the affidavit, some other grounds, not specifically mentioned, were referred to under the word 'etc'. Moreover, the various grounds referred to in the detention order were not joined by the conjunctive 'and' but were separated by the disjunctive 'or'. The intrinsic evidence and the extraneous circumstances in that case indicated that the mind of the detaining authority was not carefully applied to the facts of the case. Their Lordships observed;
'The authority ordering detention should act with a full sense of responsibility keeping in mind on the one hand the interests of the country in the present emergency and on the other hand the importance of the liberty of the citizen in a democratic society .. .. .. .. .. If
it appears that it did not apply its mind properly before making the order of detention, the order in question would not be an order under the Rules and the person detained would be entitled to release'.
It would thus be seen that the Supreme Court quashed the detention order in case of Jagannath Misra not because there were no materials for the satisfaction of the concerned authority but because the manner in which the satisfaction of the detaining authority was reached was casual and not in accordance with law. This aspect of the decision of the Supreme Court must be borne in mind to appreciate the circumstance in which the second order was passed. By 21-12-65 when the State Government reviewed the first order, it has not received the judgment of the Supreme Court in Jagannath Misra's case. As would appear from the affidavit of the State Government, in para 11 in O. J. C. 81 of 1966, it received a copy of the said judgment on 31-12-65. By then the review order of 21-12-65 had been passed. After receipt of the said judgment, the State Government realised that the first order, similar in terms to that of Jagannath Misra, could not be legally sustained and it has to be cancelled. The affidavit of the State Government is that the second order was passed on its being satisfied by careful application of the mind to the pre-existing materials.
7. Two important questions arise for consideration at this stage.
(i) Has the State Government jurisdiction to examine afresh and rely upon the pre-existing materials for its satisfaction and to pass a fresh order of detention?
(ii) Is the fresh order open to attack of bad faith of mala fides on the part of the detaining authority, merely because the satisfaction is based on pre-existing materials.?
8. Both the points are interrelated. The identical question cropped up in AIR 1945 FC 18, Basant Chandra Ghose v. Emperor. Ghose was arrested on 27-3-42 by an order dated 19-3-42 under Rule 26 of the Defence of India Rules, Ordinance III of 1944 was promulgated on 15th January 1944. Despite the new ordinance, the application of Ghose under Section 491, Cr. P. C., filed on 28-4-43, was directed on 23-5-44 by the Federal Court to be heard by the Patna High Court. On 3-7-44 the Governor of Bihar passed two orders. By the first he cancelled the order of detention dated 19-3-42 and by the second, he directed detention of Ghose. On these facts, it was contended before the Federal Court that once the order of 19-3-42 had been cancelled, there was no power to pass a fresh order of detention except on fresh materials. This argument was rejected. Their Lordships 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 of detention being based on pre-existing grounds themselves specially in a case in which the sufficiency of the grounds is not examinable by the Courts.
This dictum was approved in AIR 1952 SC 106, Naranjan Singh v. State of Punjab (1) and AIR 1964 SC 334, Rameswar Shaw v. District Magistrate, Burdwan.
In AIR 1951 Bom 161, In re S. V. Ghate a Division Bench consisting of Chagla, C. J, and Ganjendragadkar, J. observed as follows:
'It is said that if the materials are with regard to activities in some distant past, then these materials cannot possibly furnish a ground for the necessity for detaining a person in order that he should not indulge in any prejudicial activity. Now it would be very difficult to lay down at what point of time a particular activity of a particular person ceases to furnish any connection with the subsequent order directing him to be detained, and we refuse to express any opinion that necessarily a period of two years would lead the Court to come to the conclusion that there could be no connection whatever between the activities of a detained person two years prior to the making of the order and the apprehension felt by the detaining authority. But there can be no doubt as the order is made on 26-2-1950, and it is that order which is put forward in support of the detention of the petitioners, the satisfaction must be arrived at the date when the order was made .. .. .. .. .. .. The detaining authority must examine the materials afresh, and although the past activities of the detenu may afford a ground for detention to the detaining authority examining the materials, he must review those past activities in the context of time at which he is making the order. The past activities must be related to the situation existing a t the moment when the detaining authority makes the order, because it is necessary to emphasise again, the satisfaction which the law requires is the satisfaction of the detaining authority making the order at the time when the order is made.
Same is the view taken in AIR 1964 SC 334. In paragraph 10 of the judgment, their Lordships observed;
It would for instance, be irrational to take into account the conduct of the person which took place 10 years before the date of his detention and say that even though after the said incident took place nothing is known against the person indicating his tendency to act in a prejudicial manner, even so on the strength of the said incident which is 10 years old, the authority is satisfied that his detention is necessary. In other words, where an authority is acting bona fide and considering the question as to whether a person should be detained, he would naturally expect that the evidence on which the said conclusion is ultimately going to rest must be evidence of his past conduct or antecedent history which reasonably and rationally justified the conclusion that if the said person is not detained, he may indulge in prejudicial activities. We ought to add that it is both inexpedient an undesirable to lay down any inflexible test. The question about the validity of the satisfaction of the authority will have to be considered on the facts of each case.
The matter has been forcefully expressed in (1942) 1 All ER 373, R. v. Home Secretary which was noticed by the Federal Court thus--
The argument presented to us was based on the proposition that a person who has been released from custody on a writ of habeas corpus, cannot be subjected to second detention for the same cause. This argument is, in our opinion, misconceived. The first detention of lie appellant was illegal in that the prerequisites of a lawful detention had not been complied with. In the case of the present detention, those pre-requisites have been complied with and the detention is lawful. The decision of the first case was not upon the ground that the real order made by the Home Secretary was one which he had no power in law to make--indeed, any such decision would, in view of Liversidge's case and Green's case, have been wrong in law--but upon the ground that the terms of that order had not been communicated to the appellant in such a way as to enable him to make his representations to the Home Secretary. There is nothing in principle or in authority to justify the view that the result of the earlier proceedings can assist the appellant in any way.
9. The correct legal position may be summarised thus:
(i) The satisfaction of the detaining authority is subjective and is not justiciable. The subjective satisfaction cannot be examined by the objective tests. The reasonableness of the satisfaction and the adequacy of the materials on which it is based cannot be scrutinised by a Court of law.
(ii) The past conduct and antecedent history of the detenu furnish the materials far the subjective satisfaction. Those must be proximate in point of time and should have a rational nexus with the conclusion of the detaining authority that the detention is necessary.
(iii) The materials before the detaining authority must be examined by him carefully and bona fide before the satisfaction is reached.
(iv) If the detaining authority acts bona fide and in a careful manner, nothing precludes him to pass a fresh order of detention on the pre-existing materials, provided it is proximate in point of time and has a rational nexus to the necessity of detention.
(v) Mala fides or bad faith cannot be attributed to the detaining authority merely because its satisfaction is based on pre-existing materials.
10. Applying the aforesaid tests to the facts of this case, the position is quite clear that the State Government rightly cancelled the first order in view of the Supreme Court decision. There are no materials to show that the impugned order has not been passed in a careful manner and that the satisfaction was reached in a casual and or cavalier manner. The detaining authority had jurisdiction to pass a fresh order on the pre-existing materials.
11. The second contention is that the impugned order lacks bona fides and good faith. Where a person who has been deprived of his liberty challenges the detention by a petition for habeas corpus, it is for the detaining authority to show that the detention was in exercise of a valid legal power. Once that is shown, it is for the detenu to show that the power had been exercised mala fide or improperly, 1917 AC 260, R. v. Halliday. 'Bad faith' in the context of Article 21 of the Constitution and under the rules means malice in law. In other words, if a wrong or injury on a person is inflicted in contravention of law, bad faith is established even though it may be without malicious intention. In AIR 1958 SC 163, Puranlal v. Union of India, mala fide was construed to mean the passing of an order for an ulterior purpose other than those mentioned in detention order. In AIR 1964 SC 381, Makhan Singh v. State of Punjab, their Lordships observed that it was hardly necessary to emphasise that the exercise of a power mala fide is wholly outside the scope of the Act conferring the power and can always be successfully challenged. A mere mention that the detention is mala fide would not be enough. The detenu will have to prove the mala fide.
In the light of the aforesaid tests, it falls to he determined whether in this case there is lack of good faith and existence of mala fide and whether the petitioner has established them.
12. As to lack of good faith and bona fides identical facts as dealt with already were relied upon. The affidavit of the State Government shows that it passed the order. State Government means the Home Minister. No materials have been brought into record to show that the order was passed with ulterior motive. The impugned order is attacked as being passed to circumvent the Supreme Court decision. In fact, the Supreme Court decision contains nothing which requires circumvention, It merely declared that the manner in which the satisfaction of the detaining authority was reached was not one under the Rules. With such a dictum it was open to the State Government to re-examine the pre-existing materials even in the case of Jagannath Misra and to pass a fresh order of detention. That would not amount to whittling down the Supreme Court decision.
It was contended by Mr. Palit that the assertion of the petitioner in para 15 to 18 regarding existence of bad faith and mala fide has not been denied by the State Government, The State filed a counter in Cr. Misc. 2 of 1960 and prayed that it may be treated as a counter in O. J. C. 21/66. This was mainly because the O. J. C. was filed against the impugned order and both the matters were to be quickly heard. Mr. Advocate General stated that the allegations in both involved no question of fact and required no contradiction that they involved only question of argument. We cannot part with the case without making an observation that State should have filed a counter challenging the allegations of lack of good faith, whether they involve questions of law or fact, and that the learned Advocate General should not have short-circuited the matter by making a prayer that the counter affidavit in the Criminal miscellaneous case should he treated as the affidavit in the O. J. C. We are, however, satisfied that the averments of the petitioner make out no case of mala fides or bad faith and the facts stated were merely by way of argument. There is no proof of bad faith.
13. The last contention is regarding double detention. There was no valid detention of the petitioner on 14-11-06 after the cancellation order was passed. If the impugned order had not been passed, the petitioner was bound to be released after the order of cancellation was passed on that day. If the detaining authority, on examination of the pre-existing materials was satisfied, before the impugned order was passed, that detention was necessary to prevent the prejudicial activities likely to be indulged in by the petitioner, there is no question of double detention. AIR 1964 SC 1123 (1120?). It was urged by Mr. Palit that the petitioner was a patient in the S. C. B. Medical College Hospital at the time when the impugned order was served on him and that the fact that service is said to have been made in Jail, though he was in the hospital, shows that the detaining authority had applied its, mind casually to the matter. I find no substance in it. Even while the petitioner was in hospital, he, was in custody guarded by sentries. Transfer of the petitioner to the hospital does not mean that he was not in detention.
14. All the contentions fail. The writ application and the Misc. case are dismissed.
15. I agree.