Holding

A fresh detention order cannot be based on, or take into account, the grounds of a prior order that has been quashed; fresh facts are indispensable and the new order is invalid if the earlier grounds are considered.

Summary

The petitioner was detained under the Gujarat Prevention of Anti‑Social Activities Act, 1985 on the basis of alleged boot‑legging activities. An earlier detention order dated 2 January 1987 had been quashed by the Gujarat High Court. A fresh detention order dated 21 October 1988 was issued, but the detaining authority admitted that it had taken into account the grounds of the earlier, now‑quashed order while forming its subjective satisfaction. The Supreme Court held that when a prior detention order is set aside, its grounds cannot be used to justify a subsequent order; fresh facts are required and the authority’s reliance on the nullified grounds vitiated the new order. Consequently, the petition under Article 32 was allowed and the 1988 detention order was quashed, directing the petitioner’s release.

Issues considered

Whether a subsequent preventive detention order can be made after the earlier order has been revoked or quashed without fresh facts.
Whether the detaining authority may consider the grounds of a quashed earlier detention order while forming the requisite subjective satisfaction for a fresh detention order under the Gujarat Prevention of Anti‑Social Activities Act.

Legislation cited

Gujarat Prevention of Anti-Social Activities Act, 1985s. 11, s. 15, s. 3

Subjects

preventive detentionsuccessive detention ordersArticle 22(4) of the ConstitutionArticle 32 petitionfresh facts requirementquashing of detention ordersubjective satisfaction

Judgment

A
CHHAGAN BAGW AN KAHAR )
v.
N.L. KALNA & ORS.

MARCH 16, 1989

B [B.C. RAY AND S. RATNAVEL PANDIAN, JJ.)

Gujarat Prevention of Anti-Social Activities Act, 19/j5: Sections 3
and 15-Expiry or revocation of an earlier detention order-No bar for
making a subsequent detention order-Necessity for fresh facts for pas-
1
sing subsequent detention order.
,..
c With a view to preventing the petitioner detenu from acting in any
manner prejudicial to the maintenance of public order, an order of ~
detention was passed against him by the Comissioner of Police, Surat
City, under section 3(2) of the Gujarat Prevention of Anti-social
Activities Act, 1985. The grounds of detention referred to the detenn's
D criminal activities connected ·with bootlegging on a large scale and in an
organised manner, and the several cases registered and pending against
him on that account. The detenu's representations were dismissed by
the Isl respondent and the State Government.

It was contended on behalf of the petitioner that the Detaining . - +
E Authority for drawing his requisite subjective satisfaction had taken
into consideration the previous grounds of detention which were the
subject matter of a Special Criminal Application before the Gujarat ;.'
High Court, and the High Court had quashed the order of detention
impugned in that case. On the other hand, it was contended on behalf of
the respondents that the earlier proceeding was considered only to a )<:. '('
F limited purpose of taking note of the detenu's continued involvement in .
bootlegging activities. ,~
Allowing the writ petition, and quashing the detention order it
was,

G HELD: (l) Even if the order of detention comes to an end either
by revocation or by expiry of the period of detention there must be fresh
facts for passing a subsequent order. [580 I

Ghulam Nambi Zaki v. State of Jammu & Kashmir, [1970) 3 SCR
35; Hadibandhu Das v. District Magistrate, Cuttack & Anr., [196~) I
H SCR 227; Har las Dev Singh v. State of Punjab, [1974) I SCR 281 and
52
C.B. KAHAR v. N.L. KALNA 53

J Chotka Hembram v. State of West Bengal, [1974] 3 SCC 401, referred A
to.

(2) A fortiori when a detention order is quashed by the Court issu-
ing a high prerogative writ like habeas corpus or certiorari, the grounds
of the said order should not be taken into consideration either as a
B
whole or in part even alongwith the fresh grounds of detention for draw-
ing the requisite subjective satisfaction to pass a fresh order because
once the Court strikes down an earlier order by issuing a rule it nullities
the entire order. [58D-E]

Ibrahim Bachu Bafan v. State of Gujarat, [1985] 2 SCC 24,
followed. c
--f- (3) It is imperative therefore to read down section 15 of the Act
which provides for the making of successive orders of detention so as to
bring it in conformity with Article 22(4) of the Constitution. l59C I
D
Abdul Latif Abdul Wahab Sheikh v. B.K. Iha & Anr., [1987] 2
sec 22 followed.
(4) In the present case, no doubt, the order of detention contains
fresh facts. In addition, the detaining authority has taken into con-
sideration the earlier grounds of detention which grounds had been
nullitied by the High Court by issuing a prerogative writ of habeas E
corpus. A copy of the earlier grounds of detention was also one of
the documents furnished to the detenu which confirms the fact that
the detaining authority has considered the earlier grounds of detention
alongwith other documents for drawing his requisite subjective satisfac-
X ti on for passing the detention order. The order of detention is vitiated
F
on that ground, and is therefore liable to be set aside. [58F, G; 59F-G I
·~
ORIGINAL JURISDICTION: Writ Petition (Criminal) No. 61
of 1989.

(Under Article 32 of the Constitution of India.)
G
·1. V.V. Vaze, M.K. Pandit and P.H. Parekh for the Petitioner.

P.S. Poti, M.N. Shroff and Mrs. H. Wahi for the Respondents.

The Judgment of the Court was delivered by
H
54 SUPREME COURT REPORTS [1989] 2 S.C.R.

A S. RATNA VEL PANDIAN, J. This petition under Article 32 of .t
the Constitution of lndia is filed by the petitioner, the detenu herein,
challenging the legality and validity of the order of detention dated
21.10.1988 passed by the detaining authority (the Commissioner of
Police, Surat City) clamping upon the detenu the above said order of
detention under Sub-section (2) of Section 3 of the Gujarat Prevention
B of Anti-social Activities Act, 1985 (hereinafter referred to as the 'Act')
on the ground that he on consideration of the materials placed before r
him was satisfied that it Wl\S necessary to make the said order with a ._,\
view to preventing the detenu from acting in any manner prejudicial to
the maintenance of public order in the area of Nanpura Machhiwad
falling under the jurisdiction of Athwa Lines Police Station, Surat City
and directed the detenu to be detained in Sabarrnati Central Prison,
c Ahmedabad under the conditions specified in the Gujarat Prevention
of Anti-Social Activities Order, 1985. In pursuance of the impugned -t'
order the detenu has been detained in the aforesaid prison.

The second respondent, the State of Gujarat, approved the
D impugned order on 26.10.1988 and confirmed the same on 13.12.1988.
The detenu submitted his representation dated 15.12.1988 which was
received by the 1st respondent on 19.12.1988 on which date itself the
same was rejected. The copy of the reJfresentation sent to the second
respondent was rejected on 21.12.1988.

E It is stated in the grounds of' detention that the detenu was ille-
gally keeping in possession the country liquor and openly selling the
same at the corner of Nanpura, Machhiwad, Masjid Wali Gali,
Bhandariwad and conducting a den (Adda) and that he had been
arrested in 1988 for offences under the Bombay Prohibition Act in
respect of which number of caces were registered which cases are still
F pending trial as disclosed in Annexure I. It is further stated that the
detenu had engaged 10 persons whose names are given in paragraph 2
of the grounds of detention, to accelerate his bootlegging activities and
those hired persons who were conducting den (Adda) 1mdei the·
instructions and guidance of the detenu had been arrested in 1988 in 19
different cases under the Bombay Prohibitio)l Act'from the detenu's
G Adda during police raids of which 8 cases are pending trial and the
remaining eleven are under investigation, the details of which are
.y
given in Annexure II attached to the grounds of detention. On the
above materials and the statements of witnesses placed before him, the
detaining authority had satisfied himself that the abovementioned
bootlegging activities of the detenu in a large scale in an organised
H manner were seriously detrimental to the public health and were likely
C.B. KAHAR v. N.L. KALNA (PANDIAN, J.J 55

J. to endanger public health and consequently passed this impuged order
A
of detention. Hence this writ petition.

Mr. V. V. Vaze, learned counsel appearing on behalf of the
petitioner, detenu raised several contentions assailing the legality and
validity of the order of detention one of which being that the detaining
.,. authority for drawing his requisite subjective satisfaction to clamp this
order of detention upon the petitioner/detenu had taken into con-
B

). sideration the previous grounds of detention which was the subject
. matter of Special Criminal Application No. 46 of 1987 before the High
Court of Gujarat. Since we are inclined to dispose of this Writ Petition
on this ground alone we are not traversing on other grounds. Admit-
tedly, the Commissioner of Police, Surat City passed an Order of
detention. Under Section 3(2) of the Act on 2.1.1987 in No. PCB/
c
"1' PASA/1/87 on the ground that between 1984 to 1986 there were 19
cases filed against the detenu under the Bombay Prohibition Act of
which 16 were pending in Court and three others under investigation
when this previous order was passed. The petitioner filed Special
Criminal Application No. 46 of 1987 before the.High Court of Gujarat D
at Ahmedabad challenging the validity of the said order. The High
Court by its judgment dated 3.8.1987 quashed tl)e earlier impugned
order of detention and directed the release of the detenu forthwith. A
._'y· copy of the High court order is annexed to the Writ Petition as An-
nexure 'D'. The detaining authority in this case had made a reference
about the previous order in the impugned grounds of detention which E
reads thus:
-.:.
"You are associated with bootlegging activity for a long
time, therefore, under order number PCB/PASA/1-1987
dated 2.1.87 you were ordered to be detained under PASA
~- and were kept in Baroda Central Jail. But you filed a peti- F
~ tion against this order of detention in the High Court by
Special Criminal Misc. Application No. 46/1987, Afkr this
petition was heard on 3.8.87, the Hon'ble High Court
quashed the detention order and released you from deten-
tion. The proceedings taken against you have had no effect
on you and after you were released from the detention, you G
r have continued your activity."

The. detenu, presumably based on the above statement, has
stated in his writ petition that the present order of detention is
clamped upon him since the earlier order passed on 2.1.1987 had been
quashed and set aside. The detaining authority in attempting to reply H
56 SUPREME COURT REPORTS 11989) 2 S.C.R.

to the allegations made in paragraph no. 6 of the Writ Petition,
A
wherein it is averred "The petitioner states that in some of the cases,
the petitioner is acquitted and in none of the cases the petitioner is
convicted till today", has made the following statement in paragraph 9
of his counter:

B "It is submitted that the present detaining authority took
into consideration the previous grounds of detention also to
establish that the petitioner was engaged in bootlegging
activities since long."

Now on this above statement it has been streneously urged that
since the detaining authority for drawing his subjective satisfaction had
c taken into consideration all the previous grounds of detention,
namely, the earlier grounds of detention passed on 2. 1.1987 which had
been subsequently quashed by the High Court the present detention
order is liable to be set aside. According to learned counsel for the
petitioner, once the previous grounds of detention had been quashed
D on its merit, then the detaining authority has no justification to tak~
into consideration the earlier grounds of detention for passing this
present detention order which should have been based only on the
fresh grounds that were available subsequent to the quashing of the
previous detention order. In support of this statement several de-
cisions were relied on about. which we make reference presently.
E Firstly, the attention of the Court was drawn to Ghulam Nambi Zakiv.
State of Jammu and Kashmir, [1970] 3 SCR 35 wherein the State con-
tended that the existence of fresh material is not a condition precedent
for passing the second order and that in any event, the second order
can be made when the first order is withdrawn or revoked for technical
defect. Hidayatullah, C.J. speaking for the bench repelled that conten-
F tion holding thus:

"The matter is not res integra. In a number of decisions of
this Court to which reference will be made presently, this
point has been considered and it has been held that once an
order of revocation is made, another order detaining the
G same person can only be passed if some additional or fresh . {
material is in possession of the State Government on which
action can be ba>ed."

Then referring to the decision of the Constitution Bench in
Hadibandhu Das v. District Magistrate, Cuttack and Another, [1969] 1
H SCR 227, the learned Chief Justice observed:
C.B. KAHAR v. N.L. KALNA [PANDIAN, J.] 57

). "In other words, the revocation or expiry of the previous
A
order cannot lead ipso facto to a revival of the detention by
the passing of a fresh order, because a person who is
entitled to his liberty can only be put in a second jeopardy
when there are additional or fresh facts against him."

Ultimately, he concluded: B
l'
j "As pointed out in the All India Reporter case (Hadi-
bandhu Das case) the inference is very compulsive that
fresh facts must be found for new orders otherwise once the
... old detention comes to an end either by the expiry of the
period of detention or by the cancellation of the order of
detention, a fresh detention cannot be ordered."
c
1 In Har las Dev Singh v. State of Punjab & Ors., [1974] 1 SCR
281, this Court while examining a similar question with regard to vali-
dity of second detention order passed under Section 14(2) of the
Maintenance of Internal Security Act (Act 26 of 1971) on identical D
grounds of the earlier order expressed its view:

"In these circumstances after the date on which the order
cease to be in force, unless fresh facts have arisen on the
_\.. basis of which the Central Government or State Govern-
ment or an Officer, as the case may be, was satisfied that E
such an order should be made, the subsequent detention on
,.;. the very same grounds would be invalid."

The learned counsel also cited for the same principle of law, the
decision in Chotka Hembram v. State of West Bengal & Ors., [1974] 3
"\ SCC401. F
~ Those decisions mentioned albeit are cases wherein the first
detention order ceased to be either by revocation or by expiry of the
period of detention. What would be the legal implications and ultimate
effect of quashing an order of detention by the High Court in exercise
of its jurisdiction llfider Article 226 of the Constitution of India this G
--.. . Court in Ibrahim Bachu Bafan v. State of Gujarat & Ors., [1985] 2 SCC
25, made the following rule:

" ..... When the High Court exercises jurisdiction under
Article 226 of the Constitution it does not make an order of
revocation. By issuing a high prerogative writ like habeas H
58 SUPREME COURT REPORTS [1989] 2 S.C.R.

corpus or certiorari it quashes the order impugned before it ),
A
and by declaring the order to he void and striking down the
same it nullifies the order. The ultimate effect of cancellation
of an order by revocation and quashing of the same in
exercise of the high prerogative jurisdiction vested in the
High Court may be the same but the manner in which the
B situation is obtained is patently different and while one
process is covered by Section 11(1) of the Act, the other is
not known to the statute and is exercised by an authority
beyond the purview of sub-section(!) of Section 11 of the
Act. It is, therefore, our clear opinion that in a situation
where the order of detention has been quashed by the High
Court, sub-section (2) of Section 11 is not applicable and
c the detaining authority is not entitled to make another or-
der under Section 3 of the Act on the same grounds."

It emerges from the above authoritative judicial pronounce-
ments that even if the order of detention comes to an end either by
D revocation or by expiry of the period of detention there must be fresh
facts of passing a subsequent order. A fortiori when a detention order is
quashed by the Court issuing a high prerorgative writ like habeas
corpus or certiorari the grounds of the said order should not be taken
into consideration either as a whole or in part even alongwith the fresh
grounds of detention for drawing the requisite subjective satisfaction
E to pass a fresh order because once the Court strikes down an earlier
order by issuing rule it nullifies the entire order.

In the present case, no doubt, the order of detention contains
fresh facts. In addition to that the detaining authority has referred to
the earlier detention order and the judgment of the High Court quash-
F ing it, presumably for the purpose of showing that the detenu in spite
of earlier detention order was continuing his bootlegging activities.
But what the detaining authority says clearly in paragraph 9 of his
affidavit in reply is that he took into consideration the previous
grounds of detention also for his conclusion that the detenu 'was
engaged in bootlegging activities since long'. In other words the
G detaining authority has taken into consideration the earlier grounds of
detention which grounds had been nullified by the High Court in
Special Criminal Application No. 46 of 1987 by issuing a prerogative
writ of habeas corpus.

Under Section 15 of the Act, the expiry or revocation of an
H earlier detention order is not a bar for making a subsequent detention
C.B. KAHAR v. N.L. KALNA IPANDIAN, J.] 59
' ), order under Section 3 against the same person. The proviso annexed to A
that Section states that in a case where no fresh facts have arisen after
expiry or revocation of an earlier 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 the
period of 12 months from the date of detention under the earlier order.
Chinnappa Reddy, J. in Abdul Latif Abdul Wahab Sheikh v. B.K. Jha B
\ and Another, [1987] 2 SCC 22 = 1987 2 SCR 203 speaking for the bench
j of this Court while dealing with Section 15 of the Act observed:
"It, therefore, becomes imperative to read down Section
15 of the Gujarat Prevention of Anti-Social Activities Act,
1985 which provides for the making of successive orders of
detention so as to bring it in conformity with Article 22(4) C
of the Constitution. If there is to be a collision between
·-y.
Article 22(4) of the Constitution and Section 15 of the Act,
Section 15 has to yield. But by reading down the provision,
the collision may be avoided and Section 15 may be
sustained." D
Mr. Poli has sought to explain the statement of the detaining
authority made in his counter saying that the earlier proceeding was
considered only to a limited purpose of taking note of the detenu's
continued involvement of bootlegging activities; but the entire
grounds otearlier detention as they were, were not considered. We are
unable to accept this explanation because the detaining authority, in E
the counter, in clear terms had expressed that he considered the earlier
grounds of detention also. Incidently, it was brought to our notice that
a copy of the earlier grounds of detention was also one of the docu-
ments furnished to the detenu in the present case which confirms the
fact that the detaining authority has considered the earlier grounds of
detention along with other documents for drawing his requisite subjec- F
tive satisfaction for passing this impugned order. In other words, the
earlier grounds of detention dated 2.1.1987, quashed by the High
Court was one of the material documents considered by the detaining
authority in drawing his subjective satisfaction. Therefore, we hold
that this order of detention is vitiated on the ground that the detaining
authority has taken into consideration the grounds of earlier detention G.
order alongwith other materials for passing this impugned order.
Hence, the order is liable to be set aside. Accordingly, we quash the
detention order on this ground and direct that the detenu be set at
liberty forthwith if his detention is not required for any other case.

Petition allowed. H
R.S.S.