LexGHULAM NABI ZAKI versus STATE OF JAMMU AND KASHMIR
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A
GHULAM NABI ZAKI
v.
STATE OF JAMMU AND KASHMIR
October 27, 1969
B
[M. HrnAYATULLAH, C.J. AND V. RAMASWAMI, J.J
c
D
E
F
G
H
la111111u and Kashmir Preventive Detention Act (13 of 1964) s. 14(2)-
Second order of detention without additional or fresh facts or material-
Validity.
T~e petitioner was arrested on November 9, 1968, by virtue of an
order, passed on August 23, 1968, under s. 3(1)(a) of the Jammu and
Kashmir Preventive Detention Act, 1964.
On Augast 20, 1969, while
the. p~titioner was in detention, the order was revoked, and under s. 14(1)
a fresh order of detention Wa.§ passed. The second detention order under
s. 14(1 I was challenged in this Court.
HELD : The detenu was entitled to be released, because, the second
order ·of detention could not be passed without there being additional or
fresh material in the hands of the detaining authority as required by s.
14(2). [36 E-F]
Jn f{adbandu Das v. District Magistrate, Cu(tcck, A.I.R. 1969 S.C. 43
followed in Kshetra Gogoi v. State of Assam,
[1970] 2 S.C.R.
517,
and Mohd. Shafi and Mohd. Yaqub v. State of Jammu and Kashmir,
W.P. No. 183/1969 dt. 17-10-1969, it has been. held, interpreting
the
similar s, 13 (2) of the Preventive
Detention Act, 1950, and s. 14(2)
of the Jammu ·and Ka&hmir
Act, that
once an order of revocation
is made for whatever reason, another order detaining the same person can
only be' passed if ·some additional or fresh material is in the possession of
the State Government on which action can be based, because, a person
who is entitled to his liberty can only be put in a second jeopardy when
there ~re additional or fresh facts against him. The fresh detention order
which \\·as sustained
in Jagdev Singh v. State of Jammu and Kashmir,
[1968] I S.C.R. 197 was a case under the Defence of India Rules, where
there is 'no section equivalent to s. 13(2) of the Preventive Detention Act
or s. 14(2) of the Jammu an.d Kashmir Act. [38 A-B, C-E, G-H]
ORIGINAL JURISDICTION : Writ Petitions No. 168 of 1969.
Petition under Art. 32 of the Constitution of India for a writ
in the ~ature of habeas corpus.
B. Dutta, for the petitioner.
S. K. Dho/akia and R. N. Sachthcy, for the respondent.
The Judgment of the Court was delivered by
Hidllyatullah, C.J.
The petitioner Ghulam Nabi Zaki has
been detflined under s. 3(l){a) of the Jammu & Kashmir Preven-
tive Detention Act, 1964, by an order passed on August 20,
1969. He was originally arrested on November 9, 1968, under
an order: passed under the same section on August 23, 1968.
After the first order was passed, a second order was passed by the
36
SUPREME COURT REPORTS
(1970] 3 S.C.R.
government on November 12, 1968, under s.8(2) read with
s. 13 ( 1)(a)(1) of the Act, stating that in the interest of security
of the State, the grounds of detention could not be disclosed.
Against the first order, the writ petition No. 168 of 1969 was
filed in this Court. On September 6, 1969, the two orders of
detention which had been passed against the detenu were served
on him with the counter-affidavit filed in the writ petition.
Pre-
viously, both the orders, that is to say, the order under s.3 and
the order under s.8(2), were not served on the petitioner.
On
August 20, 1969, the first two orders were revoked, and under
s.14( 1) of the Act, the same day, a fresh order of detention was
passed which is now being challenged in these proceedings.
The
same day, yet another order under s. 8 (2) read with s. 13 ( 1) (a)
( 1) was also passed but it is an admitted fact that the orders this
time too were not served upon the detenu although it is alleged in
one of later affidavits that the gist of those orders was orally com-
municated to the detenu.
The present petition has been filed to
question the second detention order and is based mainly on two
points, namely, that the second detention order could not be validly
made except on some fresh material, as contemplated by s.14(2)
of the Detention Act, and, secondly, that the non-service of the
order of detention as well as the order under s.8 (2) upon the
detenu is fatal to his continued detention.
In view of our decision on the first of the contentions, we do
not consider it necessary to examine the second. In our opinion.
the detenu is entitled to his release, because the second order of
detention could not be passed without there being additional or
fresh material in the hands of the detaining authoritExcerpt shown. Read the full judgment & AI analysis in Lexace.