Nitin Gunwantrai Shah v. Mahendra Prasad — 1992 DIGILAW 178 (BOM)

JUDGMENT S.W. Puranik, J. - By this Writ Petition, the petitioner has challenged the detention order dated 11th November 1991 issued by the Joint Secretary to the Government of India, Ministry of Finance, New Delhi. This petition came up for hearing before us on 18th December 1991 and the arguments were over on 19th December 1991. Since the Courts were closing for Christmas vacation, we passed the operative part of the order on 19th December 1991 which is reproduced below: "Heard Mr. Ram Jethmalani for Petitioner; Mrs. Desai for Respondents Nos. 1 and 2 and Mr. S.G. Page, P.P. for Respondent No. 3. For reasons to follow the impugned order of detention is quashed and set aside. The detenu be released forthwith, if not otherwise required." Following are the reasons : 2. The petitioner in this case was detained by an earlier order of detention dated 18th September 1991 under section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. The Petitioner filed this petition against the said order of detention challenging the same. This Petition came to be admitted and Rule was issued on 14th October 1991 and made returnable on 13th November 1991. It was during the pendency of this Petition that the impugned detention order dated 18th September 1991 came to be revoked on 11th November 1991 and immediately on the same day a fresh order of detention dated 11th November 1991 was issued against the petitioner. 3. The petitioner immediately sought leave to amend the Petition and leave was granted. By the said amendment, the fresh order of detention dated 11th November 1991 is challenged by the petitioner. 4. The first detention order dated 18th September 1991 which was revoked on 11th November 1991 by the Under Secretary to the Government of India, Ministry of Finance, was on the ground that "And whereas documents were not supplied inadvertently alongwith the grounds of detention, it has been considered necessary to revoke the aforesaid order of detention;" to quote the words in the order. 5. Perusal of the first order of detention dated 18th September 1991, the order of revocation dated 11th November 1991 and the re-detention order dated 11th November 1991, clearly demonstrates that the second order of detention is based on the same facts which were the grounds of the first order of detention. 5. Perusal of the first order of detention dated 18th September 1991, the order of revocation dated 11th November 1991 and the re-detention order dated 11th November 1991, clearly demonstrates that the second order of detention is based on the same facts which were the grounds of the first order of detention. Admittedly, the only reason for revocation was that the relevant documents were not supplied alongwith the first order of detention through inadvertence. 6. Shri Ram Jethmalani, learned Counsel appearing for the petitioner, assailed the second order of detention dated 11th November 1991 on various grounds. He also cited voluminous case law on the subject right from the time of the evolution of law of preventive detention. His main two submissions were that (i) re-detention can be ordered only if it is possible to comply with the legal requirements of the first detention; and (ii) re-detention order cannot be issued at all. We need not go through the citations and the, submissions on the first point raised. However, this Petition can be disposed of on the second submission itself. 7. Shri Jethmalani urged that issuance of re-detention order on the same facts as in the first order of detention is totally bad in law as held by the Supreme Court. That the second order of detention is based on the same set of facts as was available at the time of the issuance of the first order of detention is clear from the fresh grounds of detention wherein the detaining authority has stated : "The grounds on which you were detained earlier are still available and that 1 am satisfied that there is still need for your detention on its basis and I have now issued the instant order of detention on the same grounds." Shri Jethmalani cited Masood Alam v. Union of India1, Har Jas v. State of Punjab2, Chotka Hembram v. State of West Bengal3 and Abdul Latif Abdul Wahab Sheikh v. B.K. Jha4. He also placed reliance on C.B. Kahar v. N.L. Kalna5, wherein the Supreme Court while considering the same points as are agitated in this case observed in paragraph 12 of the judgment as under: "It emerges from the above authoritative judicial pronouncements that 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." 8. Smt. Desai, learned Counsel appearing for respondents Nos. 1 and 2, has in her submissions countered the submissions made on behalf of the petitioner and contended that the detaining authority is empowered to revoke an order of detention and issue a fresh order of detention (vide the provisions of section 11 of COFEPOSA Act). She stated that in order to curb the smuggling activity in India and for the purposes of conservation and augmentation of foreign exchange, the Executive can only resort to the provisions of COFEPOSA Act and if there is any technical defect in the issuance of an order of detention, the detaining authority has the power to revoke the same and issue an order of re-detention on the same set of facts. She also contended that even on the same set of facts an order of detention can be reissued. She relied on the decisions of the Supreme Court reported in Naranian Singh Nathawan v. The State of Punjab6; Ujagar Singh v. The State of Punjab7, Jagdev Singh v. State of Jammu and Kashmir8, Mohd. Mustaffa v. Union of India and others9; and an unreported judgment of the Division Bench of this Court in Deepak Rama Umbrajkar v. The Commissioner of Police Greater Bombay and others10 (Coram: M.L. Dudhat and R.G. Sindhakar, JJ.). She submitted, placing reliance on the Division Bench ruling in the unreported judgment pf this Court supra; that the present Division Bench being a co-ordinate Bench cannot take any other view. In the said judgment, the Division Bench of this Court has confirmed the order of second detention on the same set of facts. 9. She submitted, placing reliance on the Division Bench ruling in the unreported judgment pf this Court supra; that the present Division Bench being a co-ordinate Bench cannot take any other view. In the said judgment, the Division Bench of this Court has confirmed the order of second detention on the same set of facts. 9. With the assistance of the learned Counsel, we have gone through the judgment of the Division Bench in Criminal Writ Petition No. 342 of 1991, and we find that the only points raised in the said Writ Petition were that the second order of detention is mala fide (para 4); that it is based on non-application of mind to the facts (para 7); that no proper satisfaction was formulated (para 12); that revocation order having been issued by the State Government, the fresh order of detention could not be passed by the subordinate authority (paras 15 to 20); and that in successive orders of detention the time duration as per statute must be followed. This clearly shows that no submissions or arguments were made or advanced to the effect that a second order of detention cannot be issued on the same set of facts. 10. The learned Judges of the Division Bench of this Court in the above judgment had, on going through the order of detention, felt that the second order of detention was not issued on any ma/afides but only to correct some formal defect. The reasoning of the Division Bench in the said ruling is stated in paragraph 18 of its judgment : " We have already pointed out as to how in order to avoid the technical difficulty in the earlier detention order dated 17.8.1990 due to the defective notifications dated 19th July 1990 and 25th October 1990, respondent No. 2 was required to revoke the earlier detention order. Therefore, from the facts of this case it is clear that the revocation order was not on merits but only to remove the technical error in the earlier notification " 11. Shri S.G. Page, learned Public Prosecutor appearing for respondent No. 3, supported the submissions of Mrs. Desai and submitted that there is no valid ground to set aside the second order of detention. 12. Shri S.G. Page, learned Public Prosecutor appearing for respondent No. 3, supported the submissions of Mrs. Desai and submitted that there is no valid ground to set aside the second order of detention. 12. Having carefully considered the several judgments cited before us by both the sides and the rival contentions urged before us, we are of the view that no fresh order of detention can be passed against a person on the same set of facts and it is impermissible to issue a second order of detention unless it is based on fresh facts. The law laid down by the Supreme Court in the case of C.B. Kahar v. N L. Kalna cited supra states that 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 of detention. 13. The unreported judgment cited by Mr. Desai of the Division Bench of this Court in the case of Deepak Rama Umbrajkar v. The Commissioner of Police. Greater Bombay and others (supra) is of no help to the respondents. It can easily be distinguished on the points urged and the view expressed by the Court therein. At any rate, the second detention was made permissible on the basis that the first order of detention suffered from a technical error. On the other hand, in the instant case before us, it is an admitted position that the documents on the basis of which the grounds of detention were formulated were not furnished to the detenu. Thus, the first order of detention suffered from the vice of non-supply of the documents to the detenu affecting the right of effective representation of the detenu and the detention order was, therefore, vitiated. The said error in not furnishing the documents to the detenu cannot be said to be technical error but a material flow going to the root of the order itself. In the ordinary course, the first order of detention would have been voided by this Court on this short point. Such a void order is sought to be corrected by issue of a fresh detention order by recourse to section 11 of the COFEPOSA Act, which, in our opinion, is not permissible unless there are other additional facts available to the detaining authority. Such a void order is sought to be corrected by issue of a fresh detention order by recourse to section 11 of the COFEPOSA Act, which, in our opinion, is not permissible unless there are other additional facts available to the detaining authority. It must be noted that the first order of detention dated 18th September 1991 was served on the detenu on 28th September 1991 and the detenu was placed in preventive custody without trial. His liberty was curtailed by an order of detention which was not valid in accordance with law. His challenge to the said order of detention was entertained on 14th October 1991 and Rule was made returnable on 13th November 1991. It was only two days before the date of hearing and realising the blunder committed that the detaining authority issued the order of revocation of the first order of detention and issued the order of re-detention of the detenu. For more than 1-1/2 months, liberty of the petitioner-detenu was curtailed without any authority of law and without any trial. Such lapse on the part of the detaining authority cannot be allowed to be corrected by issue of re-detention order. We have no hesitation, therefore, to conclude that the impugned order of re-detention dated 11th November 1991 is bad in law and is liable to be quashed and set aside. 14. In the result, the Petition is allowed. The impugned order of re-detention dated 11th November 1991 is quashed and set aside. The petitioner-detenu be released forthwith, if not otherwise required. Rule is made absolute accordingly. Petition allowed. 1. A.I.R. 1973 S.C. 897. 2. A.I.R. 1973 S.C. 2460. 3. A.I.R. 1974 S.C. 432. 4. A.I.R. 1987 S.C. 725. 5. A.I.R. 1989 S.C. 1234. 6. 1952 Supreme Court Reports 395. 7. 1952 S.C.R. 756. 8. A.I.R. 1968 S.C. 327. 9. 1987 (1) Crimes 582 (Delhi H.C.). 10. Writ Pet. No. 342 of 1991 Decided on 12.8.1991 (Distinguished).