Case Note & Summary
The Supreme Court of India considered two writ petitions under Article 32 of the Constitution seeking writs of habeas corpus against preventive detention orders made under the Maintenance of Internal Security Act, 1971. The main detenu, Masood Alam, was initially detained by an order of the District Magistrate, Aligarh dated June 14, 1972 under Section 3(1)(a)(i) and (ii) of the Act. He was arrested on June 15, 1972, and grounds of detention were served on June 17, 1972, detailing alleged communal incitement, training in paramilitary activities through Youth Majlis, and extra-territorial loyalties. The State Government did not accord approval to this detention as required by Section 3(3) of the Act, and consequently the petitioner was released from detention under MISA on June 26, 1972, but continued in jail under Sections 107/117/151 of the Code of Criminal Procedure. Meanwhile, a fresh detention order was passed on June 25, 1972 by the Governor of Uttar Pradesh under Section 3(1) of the Act and served on the petitioner on June 26, 1972 while he was in jail. This second order did not mention any fresh grounds of detention. The petitioner challenged both orders on grounds that no fresh facts were disclosed for the second detention as required by Section 14(2) of the Act, and that the orders were mala fide. The Court considered whether a fresh detention order could be made without fresh facts after the expiry or revocation of the earlier order, whether overlapping of the alleged activities with Chapter VIII of the Criminal Procedure Code rendered the detention mala fide, and whether service of the second order while the detenu was already in custody invalidated it. The petitioner argued that the first order was mala fide because the grounds only indicated likelihood of breach of public order, attracting Chapter VIII CrPC and not MISA, and that the second order was invalid for absence of fresh facts. The State contended that the grounds were relevant and germane to the object of the Act and that mere overlap with Chapter VIII did not vitiate the detention; it also argued that service while in custody did not invalidate the order. The Court held that the power of preventive detention is an extraordinary power to be exercised in extraordinary emergent circumstances, and Sections 13 and 14 of the Act restrict detention on a given set of facts to the original order to prevent circumvention of the maximum period of twelve months. The second detention order was made without alleging any fresh facts after the expiry of the first order, and was therefore invalid. The Court rejected the mala fide argument based solely on Chapter VIII overlap, relying on Sahib Singh Duggal v. Union of India, Mohammed Salem Khan v. C. C. Bose, and Borjahan Gorey v. State of West Bengal. It also held that service of a fresh detention order while the detenu was in custody did not invalidate the order, though past conduct must be proximate and rationally connected to the necessity for detention. Accordingly, the writ of habeas corpus was granted and the petitioner was directed to be released unless required in any other case.
Headnote
A) Preventive Detention - Fresh Detention Order - Section 14(2) of Maintenance of Internal Security Act, 1971 - Requirement of Fresh Facts - Second detention order passed without alleging any fresh facts after expiry/revocation of first order is invalid; legislative scheme of Sections 13 and 14 of the Act restricts detention on a given set of facts to the original order and does not permit a fresh order on same grounds which were in existence at time of original order, to prevent circumvention of maximum period of 12 months. Held that fresh facts are necessary; second order invalid. (Paras not mentioned) B) Mala Fides - Preventive Detention vis-a-vis Chapter VIII CrPC - Objectionable activities also attracting security proceedings under Chapter VIII of Code of Criminal Procedure - Merely because grounds indicate likelihood of acting prejudicially to public order and also attract Chapter VIII CrPC, preventive detention cannot be considered mala fide if grounds are relevant and germane to object of MISA and detaining authority is satisfied of necessity. Held not mala fide. (Paras not mentioned) C) Preventive Detention - Service on Person in Custody - Validity of Fresh Order While Detenu in Jail - Service of fresh detention order when detenu already in custody does not invalidate the order; past conduct and antecedent history should be proximate in point of time and have rational connection with necessity for detention but what period of past activity to consider is within discretion of detaining authority. Held service in custody not invalid. (Paras not mentioned) D) Writ of Habeas Corpus - Release - Article 32 of Constitution of India - In view of invalid second detention order, writ of habeas corpus granted and petitioner directed to be released unless required in any other case. Held release ordered. (Paras not mentioned)
Issue of Consideration
Whether a fresh detention order can be passed without fresh facts after revocation or expiry of an earlier order under Section 14(2) of Maintenance of Internal Security Act, 1971; whether detention order is mala fide if objectionable activities also attract preventive provisions of Chapter VIII of Criminal Procedure Code; whether second detention order rendered mala fide because served when detenu was already in jail
Final Decision
Writ petition allowed; petitioner Masood Alam directed to be released unless required in any other case; second detention order held invalid for lack of fresh facts under Section 14(2) of MISA; first order not held mala fide; service while in jail not invalid.
Law Points
- Preventive detention is extraordinary power to be exercised in extraordinary emergent circumstances
- Sections 13 and 14 of Maintenance of Internal Security Act
- 1971 restrict detention on given set of facts to original order to prevent circumvention of maximum period
- a fresh order of detention cannot be made on same grounds without fresh facts after expiry or revocation of earlier order
- mere overlap of objectionable activities with Chapter VIII of Code of Criminal Procedure does not render preventive detention mala fide if grounds are relevant and detaining authority is satisfied
- service of fresh detention order while detenu already in custody does not invalidate the order
- past conduct must be proximate and rationally connected to necessity for detention but period considered is within detaining authority's discretion
