Criminal Writ Prtn. No.99 of 1991

11th March, 1991

Respondent Counsel: S.G. Page, Public Prosecutor (for Nos. 1 to 3), R. M. Agarwal with A. S. Khan (for No.4), .

Cases Cited:
1987 Cri LJ 1784 (All) [Para 5]
(1986) 1 Bom CR 319 : 1986 Cri LJ (Main) 93 [Para 5]
1985 Cri LJ 796 : AIR 1985 SC 581 (Rel. on) [Para 5]
1982 Cri LJ 2357 : AIR 1982 SC 1543 [Para 6]

JUDGMENT

S. W. PURANIK, J.:-The petitioner herein is the detenu who was earlier detained under the National Security Act by an order dated 13th July 1990 issued by the 1st respondent. The petitioner had challenged the said order of detention vide Criminal Writ Petition No. 936 of 1990. During the pendency of the said petition for final hearing, the State of Maharashtra passed an order on 14th January 1991 revoking the said order of detention of the petitioner detenu (vide Annexure 'A' to this petition). Before the detenu was released from detention, a fresh order of detention dated 15th January 1991 (vide Annexure 'b' to this petition) was issued by the 1st respondent and served upon the detenu in the jail. The grounds of the second order of detention are at Annexure 'D' to this petition.

2. The petitioner's earlier writ petition No. 936 of 1990 was allowed to be withdrawn on his request and he challenged the order of his redetention vide this Writ Petition.

3. Shri Shirish Gupte, learned Counsel appearing for the petitioner, has challenged the order of the petitioner's redetention on several grounds and mainly on the ground of non-application of mind by the detaining authority and non-communication of grounds and vital material to the detenu. The other grounds of challenge include a submission that the State Government having revoked the earlier order of detention passed by the detaining authority, the detaining authority who works under the State Government cannot issue an order of redetention.

4. Shri S. G. Page, learned Public Prosecutor appearing for the State Government and the detaining authority, as well as Shri R.M. Agarwal. learned Counsel for Union of India, were heard. Upon consideration of the submissions of both the parties, we find that the present Petition can be disposed of on the first ground of non-communication of vital material to the detenu in the grounds of detention.

5. Shri S. G. Page, learned Public Prosecutor, relied on the cases of Anirudha v. District Magistrate, Allahabad, 1987 Cri LJ 1784, decided by the Division Bench of the Allahabad High Court; Abdul Rahiman Rahimkhan v. Shri D. S. Soman, Commr. of Police, Criminal Writ Petn No. 644 of 1985 decided by the Division Bench of this Court on 14th/ 15th October 1985;*Avtar Singh v. State of Jammu and Kashmir, AIR 1985 SC 581: (1985 Cri LJ 796) and Merugu Satynarayana v. State of Andhra Pradesh, AIR 1982 SC 1543: (1982 Cri LJ 1257), Shri Page contended on the basis of the aforestated ruling that even if the fact of earlier detention and its revocation is not expressly stated in the grounds of detention, it is enough if the awareness of the detaining authority of the fact of earlier detention and its revocation is explained in the affidavit-in-reply to the Petition.

6. We are unable to agree with this view inasmuch as this awareness of the detaining authority comes for the first time before the Court by way of reply-affidavit, but it remains uncommunicated to the detenu under detention. In our opinion, this fact is so vital that it must be communicated to the detenu contemporaneously with the order of detention. It is only when this fact is communicated to the detenu that the second order of detention amounts to an order of redetention on the same facts. In fact amongst the cases relied upon by the learned Public Prosecution, the case of Avtar Single v. State of J. and K., AIR 1985 SC 581: (1985 Cri LJ 796), is the only case of re-detention and it is observed therein that it is necessary to communicate to the detenu the order of earlier detention, its revocation and the necessity of re-detention.

7. A perusal of the grounds of detention in the present case shows that there is no mention of the fact that the detenu was earlier detained in July 1990 and that he continued to be under detention till the fresh order of detention dated 15th January 1991 was passed. It also does not make any reference to the fact that the earlier detention order was revoked by the State Government on one ground or the other. The entire reading of the grounds of detention no doubt makes it clear that the second order of detention is based on the same facts on which the. earlier order of detention was based. Yet it does not appear from the order that it is an order of redetention but appears to be an order of fresh detention.

8. Since these facts are not disputed, namely, that the petitioner was in detention earlier on the same facts as the present detention and that the earlier order of detention was revoked, undisputably the fresh order of detention is an order of redetention for which the period of detention would be computed from the date of the first detention order dated 13th July 1990. If that be so, the present order of detention is an order of re-detention under the proviso to S. 14(2) of the National Security Act. In that case, the fact that the detenu was in detention under the earlier order of detention on the same facts and the fact that the earlier order of detention was revoked by the State Government for technical reasons, are vital material which ought to have been communicated to the detenu. The detaining authority ought to be subjectively satisfied to the effect that redetention of the detenu is necessary despite his having been in custody for some substantial period under earlier order of detention. Recording of this compelling necessity is also missing and remains un-communicated to the detenu. It is only after communicating this ground of earlier detention and its revocation that the detenu will come to know that the second order of his detention is an order of re-detention on the same facts under the proviso to S. 14(2) of the National Security Act. The non-communication of this vital material to the detenu, therefore, vitiates the subjective satisfaction of the detaining

authority inasmuch as the present order of detention has been passed in a casual and cavalier manner. In the present case, such is the case and we have no hesitation to hold that the present order of re-detention of the detenu stands vitiated.

9. In the view we have taken, therefore, this Petition succeeds and is allowed. The order of detention dated 15th January 1991 passed against the petitioner-detenu is hereby quashed and set aside. Rule is made absolute. The petitioner-detenu be released forthwith, if not otherwise required.

10. Shri S. G. Page requested for leave to appeal to the Supreme Court. We do not find that any substantial question of law of public importance is raised in this Petition since the same is based on the well-established principles of non-application of mind and of non-communication of vital material. Leave refused.

Petition Allowed