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Judgment
V. Dhanapalan, J.—The detenus along with five others have been detained by the District Magistrate/District Collector, Kancheepuram, the
second respondent herein on the ground that they have indulged in the act of burning a passenger bus bearing Registration No. TN-23-N-2296
near Dhamal Village, Kancheepuram Taluk. In order to prevent them from further indulging in such activities, which are prejudicial to the security
of the State and maintenance of public peace, tranquility and public order, the detaining authority/the second respondent herein has passed
detention orders against the detenus, namely, Mari and Palani in proceedings Nos. M1.D.O. No. 84/2013, dated 12.5.2013 and M1. D.O. No.
85/2013, dated 13.5.2013 respectively, u/s 3(2) of the National Security Act, 1980, (hereinafter referred to as ''the Act''). Thereafter, the detenus
made representations to the Advisory Board on 18.6.2013 and the Advisory Board in turn has opined that there is sufficient cause for detention of
the detenus in its order dated 19.6.2013. Subsequently, the validity of orders of detention was questioned by the petitioner in HCP. Nos. 832 and
877 of 2013. Simultaneously, on behalf of the detenus, their advocate has sent representations dated 20.5.2013 to the Government of India
assailing the detention orders on the grounds; (i) it has been passed due to political pressure and to wreak vengeance, without application of mind
and without following normal law; (ii) no cause for preventive arrest has been shown; (iii) the detenus have no antecedents and they are innocent
and therefore, the detention orders are illegal. Based on the representations sent on behalf of the detenus, the Central Government/third respondent
herein called for particulars from the detaining authority.
The detaining authority, after considering the representations of the detenus, sent para-wise remarks stating (i) on consideration of all the
materials placed before him, he has passed the orders of detention under the National Security Act; (ii) there is no political enmity as alleged by the
detenus in their representations; (iii) since the detenus involved in adverse cases and ground case and created panic among the public, in order to
prevent them from indulging in any further activities, which are prejudicial to the maintenance of the security of the State, maintenance of essential
services to community, maintenance of public peace, tranquility and public order, the detention orders came to be passed; (iv) the detaining
authority on consideration of the relevant materials and after arriving at the subjective satisfaction has passed the detention orders with clear
application of mind; and (v) there is no infirmity crept in the proceedings and the detention orders are legally valid and prayed for rejection of the
representations.
Thereafter, the matter was placed before the Under Secretary to the Government of India and the said authority, after going through the material
on record, including the orders of detention and grounds for the same and the representations of the detenus, has ultimately come to the conclusion
to revoke the detention orders passed by the second respondent u/s 14(1) of the Act and the same has been communicated by telegram in Ref. F.
No. II/15027/6/2013-NSA, dated 21.6.2013, informing the second respondent that the detention orders dated 12.5.2013 and 13.5.2013 have
been revoked and the detenus should be released forthwith. Reference may be made to the telegraphic communication dated 21.6.2013, which
reads as under:
Reference representation of Shri Paarthiban and Shri D.K. Nedunchezheyan on behalf of the detenu Thiru. Mari, s/o. Thiru. Murugesan, against
the order of detention passed by the District Magistrate, Kancheepuram on 12.5.2013 under the National Security Act, 1980. After careful
consideration of the representation, the Central Government is pleased to revoke u/s 14(1) of the National Security Act, 1980, the detention order
issued against the detenue. The detenue may be released forthwith from the jail unless he is required to be kept in jail for any other case. He may
be tried in the cases registered under the normal law of the land. The Central Government may also be intimated by return signal of the compliance
of the above order or the position otherwise.
However, the detaining authority has passed subsequent detention orders on 25.6.2013, with a view to prevent the detenus from acting in any
manner prejudicial to the maintenance of Security of the State, maintenance of essential services of community, maintenance of public peace,
tranquility and public order, u/s 3(2) r/w Section 14(2) of the National Security Act, read with the order issued by the Government of Tamil Nadu
in DO. Ms. No. 384 Public Law and Order (F) Department, dated 18.4.2013 u/s 3(3) r/w Section 14(2) of the said Act.
The said orders of detention have been challenged by the mother and wife of the detenus respectively on various grounds, namely, the orders of
detention are bad, as there is no compelling necessity to pass such orders; the detaining authority has no power to pass such orders based on an
incident that took place before the revocation order was passed on the same set of acts; there is no real possibility of the detenus coming out on
bail; the authorities have to show materials that they have followed the statutory conditions imposed under the said Act, at the time of passing the
detention orders; and the vernacular version of the documents relied upon, namely, remand order, bail petition and the bail orders were not
furnished to the detenus even on demand.
Mr. A.R.L. Sundaresan, learned Senior Counsel appearing for the petitioner in HCP. No. 1197 of 2013, would strenuously contend that the
detaining authority has no authority in law to pass the subsequent order of detention by resort to proviso to Section 14(2) of the Act. He
contended that when the Central Government has considered the representation of the detenu and revoked the detention order, even before it was
communicated to the detaining authority, without consideration of the reasons for such revocation, the subsequent detention order has been passed
on 25.6.2013 and therefore, the detention order is vitiated in law. He also pointed out that the revocation order is dated 21.6.2013 and it has been
served on the detenu on 26.6.2013 and there are no compelling circumstances for the second respondent to come to the conclusion to pass the
subsequent detention order even before the decision of the Central Government revoking the earlier detention order reaches him and therefore, the
subsequent detention order cannot be sustained, as it has been passed with total non application of mind and maliciously.
7.1. Mr. V. Paarthiban, learned counsel appearing for the petitioner in HCP. No. 1196 of 2013, would assail the order of detention by contending
that when there is no time stipulated in the scheme of the Act for communicating the revocation order, the detaining authority has whimsically
passed the subsequent detention order without any new set of facts and materials. To bolster the said argument, he placed reliance on the following
decisions:
(i) The Supreme Court in Sabir Ahmed Vs. Union of India (UOI), ], while dealing with provisions of the Conservation of Foreign Exchange and
Prevention of Smuggling Activities Act, 1974, observed as under:
12...It is intended to be an additional check or safeguard against the improper exercise of its power of detention by the detaining authority or the
State Government. If this statutory safeguard is to retain its meaning and efficacy, the Central Government must discharge its supervisory
responsibility with constant vigilance and watchful care. The report received u/s 3, or any communication or petition received from the detenu must
be considered with reasonable expedition. What is reasonable expedition is a question depending on the circumstances of the particular case. No
hard and fast rule as to the measure of reasonable time can be laid down. But it certainly does not cover the delay due to negligence, callous
inaction, avoidable red-tapism and unduly protracted procrastination.
(ii) The Supreme Court in Ghulam Nabi Zaki Vs. State of Jammu and Kashmir, , while dealing with a provision under Jammu and Kashmir
Preventive Detention Act, 1964, observed as under:
The first sub-section in not germane to the matter here, but the second is. Relying upon the second sub-section, the detenu claims that the order
revoking the detention on August 20, 1969, was followed the same day by another order detaining him, and as he was in detention all the time,
there could not be any fresh material before the Government for a second detention, as required by the second sub-section referred to here. The
State Government contends, on the other hand, that the existence of fresh material is not a condition precedent to the passing of a second order
and that in any event, the second order can be made when the first order is withdrawn or revoked for a technical defect. According to the learned
Counsel for the State Government, the grounds of detention may be so serious that even if the detenu is to be released because of a defective
order, a second order may be necessary to put him in detention immediately after his release. 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 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. The first of these cases is Harbandhu Das v. District Magistrate, Cuttack1. In that case, under
almost identical circumstances u/s 13(2) of the Preventive Detention Act, 1950, which is similar to Section 14(2) of the Jammu & Kashmir Act, it
was held by this Court:
The clearest implication of Section 13(2) is that after revocation or expiry of the previous order, no fresh order may issue on the grounds on which
the order revoked or expired had been made. In other words, the revocation or expiry of the previous order cannot lead ipso facto to a revival of
the detention by the passing of 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. If the section had not spoken of the fresh facts, the matter might have been different, because, then, the courts
would have been required to see whether there was any curb upon the power of the Government to detain a person second time after his release
on the self-same material. Indeed, an earlier case of this Court does exist in which such a view was taken and we shall presently refer to it. The
case from the All India Reporter to which we have referred was a decision of the Constitution Bench. It was followed in Kshetra Gogoi v. State of
Assam [1980(2) SCR 517] and Mohd. Shafi and Mohd. Yaqub v. State of Jammu & Kashmir [Writ Petition 183 of 1969, decided on October
17, 1969]. In these two cases also, the view has been affirmed that the enactment of Section 14(2) of the Act or the corresponding Section 13(2)
of the Preventive Detention Act, 1950, makes it incumbent upon the Government to base the detention on some fresh facts and not old facts on
which the detention was once ordered but the revocation of the order took place. This view is binding upon us and applies in the present case.
(iii) In Chhagan Bhagwan Kahar Vs. N.L. Kalna and Others, , the Supreme Court while dealing with Sections 3(2) and 15 of the Gujarat
Prevention of Anti-Social Activities Act, 1985, categorically held 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. The Supreme Court, after referring to a catena of
decisions on this point, held 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. A fortiori when a detention order is quashed by the court
issuing a high prerogative 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 along with the fresh grounds of detention for drawing the requisite subjective satisfaction to pass a fresh order because once
the court strikes down an earlier order by issuing rule it nullifies the entire order.
7.2. He further contended that the vernacular version of the bail order relied on by the detaining authority has not been furnished to the detenu even
on demand. He argued that when the Central Government has arrived at a subjective satisfaction to revoke the detention order, the detaining
authority ought not to have passed the subsequent detention order, which defeats the very object of Article 22(5) of the Constitution.
8.1. Mr. A.L. Somayaji, learned Advocate General appearing for the State, would contend that the power of passing the subsequent detention
order u/s 14(1) of the Act, is comprehensive. He contended that the detaining authority is empowered to pass a subsequent detention order even
in a case where no fresh facts have arisen after the expiry or revocation of the earlier detention order made against such person, and the maximum
period for which such person may be detained in pursuance of the subsequent detention order shall, in no case, extend beyond the expiry of a
period of twelve months from the date of detention prescribed under the earlier detention order.
8.2. The learned Advocate General relies on the decision of the Andhra Pradesh High Court in N. Venkat Ramani and Others Vs. The State of
Andhra Pradesh and Another, in support of his contention that the State Government has power to pass a subsequent detention order even without
fresh facts. In the said decision, while dealing with the Maintenance of Internal Security Act, the Full Bench observed as under:-
We have no hesitation in holding that there is no substance in the second contention. The first part of S. 14(2) states that the expiry or revocation
of detention order shall not bar the making of another detention order under S. 3 against the same person. The proviso says that where no fresh
facts have arisen after the expiry or revocation of the earlier order, the maximum period for which such person may be detained in pursuance of the
subsequent detention order shall in no case extend beyond a period of twelve months from the date of detention under the earlier detention order
or until the expiry of the Defence and Internal Security of India Act, 1971 whichever is later. The proviso clearly provides for a maximum period of
detention where no fresh facts have arisen after the expiry or revocation of the earlier detention. In our view this clearly pre-supposes that it is
permissible for the authorities to make a fresh detention order even where no fresh facts have arisen after the expiry of revocation of the earlier
detention order. The only limitation placed is with regard to the maximum period for which such person may be detained. If the fresh detention
order cannot be made at all except on fresh facts the proviso will be meaningless...
8.3. The learned Advocate General has pointed out that the Central Government has passed the revocation orders on 21.6.2013 without assigning
any reasons for such revocation and such orders have not been communicated to the second respondent on the date of passing the impugned
detention orders and therefore, there is no legal impediment in detaining the detenus by the subsequent detention orders.
8.4. Relying on the decision of the Madhya Pradesh High Court in State of Madhya Pradesh and Another Vs. Union of India (UOI) and Another,
the learned Advocate General would make a plea that any authority who passes an order, either administrative or quasi-judicial one, should give
reasons, as reason is the heartbeat of every decision of the authority. Only reasons give clarity to an order or otherwise, the order will be lifeless.
As the Central Government has not communicated the said orders of revocation, there is no fault on the part of the detaining authority to pass the
subsequent detention orders.
9.1. Mr. P. Wilson, learned Additional Solicitor General of India, would vehemently contend that the Central Government have taken into account
the totality of the circumstances; the material information; and the representations of the detenus; and the particulars placed by the detaining
authority, and on subjective satisfaction ordered revocation of the detention orders passed by the second respondent u/s 14(1) of the Act and such
a conclusion arrived at by the third respondent has been sent to the second respondent on 21.6.2013 and it was served on them and therefore, the
third respondent being a supervisory authority has got every power to invoke jurisdiction and they have rightly exercised the power conferred on
them and therefore, the decision of revoking the orders of detention is in no way contrary to the established law and the principles laid down.
9.2. The learned Additional Solicitor General further contended that only if the earlier orders of detention were revoked on technical grounds and
not on subjective satisfaction, it is open to the detaining authority to pass the subsequent orders of detention. But, in the case on hand, the third
respondent based on the materials was satisfied that the orders of detention passed by the detaining authority should be revoked and such decision
was not taken merely on technicalities and therefore, the State Government cannot pass subsequent detention orders under proviso to Section
14(2) of the Act.
9.3. The learned Additional Solicitor General relied on the following decisions in support of his contentions:
(i) The Supreme Court in Sabir Ahmed Vs. Union of India (UOI), has held as follows:
In Tara Chand case, the order of detention was passed by the Government of Rajasthan, and the detenu had addressed a representation to the
President, who forwarded it to the Finance Ministry of the Union Government for necessary action. It was common ground that the representation
was not considered by the Union of India, nor was any order passed on it. On these facts, Murtaza Fazal Ali, J., speaking for the Court, held that
Section 11(1) of the COFEPOSA clearly enjoins that the Central Government may revoke or modify an order passed by the State Government....
Once a representation is made to the Central Government, it is duty-bound to consider the same in order to exercise its discretion either in
rejecting or accepting it. If there is inordinate delay in considering the representation that would clearly amount to violation of the provisions of
Article 22(5) so as to render the detention unconstitutional and void.
The ratio of Tara Chand case 2 was followed in Shyam Ambalal Siroya case 1 wherein a stand similar to the one before us was taken by the
Central Government in the counter-affidavit filed on its behalf. The stand taken was that the detention order was not vitiated merely because the
Central Government had not considered the representation of the detenu made to it for revocation of the detention u/s 11 of the COFEPOSA. The
court rejected this contention with this observation: (SCC pp. 348, 349, para 6)
The power of the Central Government to revoke the order of detention implies that the detenu can make a representation for exercise of that
power. Any petition for revocation of an order of detention should be dealt with reasonable expedition.... It may be permissible for the Central
Government to take reasonable time for disposing any revocation petition. But it would not be justified in ignoring the representation for revocation
of the detention as a statutory duty is cast upon the Central Government. It is necessary that the government should apply its mind and either
revoke the order of detention or dismiss the petition, declining to order for revocation.
In that case, the representation addressed to the Central Government was not forwarded to the Central Government and, as such, was left
unattended for nearly four months.
(ii) The Supreme Court in State of Uttar Pradesh Vs. Zavad Zama Khan, has held as follows:
In Sabir Ahmed v. Union of India, the Court held that non-consideration by the Central Government of a representation for revocation made by
the detenu u/s 11 of the COFEPOSA Act made the continued detention to be bad, following the decision in Shyam Ambalal Siroya case. It was
however observed that the power conferred by Section 11 on the Central Government was a supervisory power and it was intended to be an
additional check or safeguard against the improper exercise of its power of detention by the detaining authority or the State Government. See also
Smt. Raziya Umar Bakshi Vs. Union of India and Others, Tara Chand Vs. State of Rajasthan and Others, and Tara Chand Vs. State of Rajasthan
and Others, .
(iii) The Supreme Court in A.C. Razia Vs. Government of Kerala and Others, , has held as follows:
Having regard to the federal structure of our Constitution, the Central Government exercises its supervisory power only while considering a
report in terms of Section 3(2) of the Act although the power of detention is concurrent. The expression at any time is significant in terms whereof
the Central Government can exercise its power at different times, that is to say, if and when an occasion arises therefore. The right of a detenu to
make representation is a fundamental right under Article 22 of the Constitution; whereas the forums therefore are provided under the statute
involved for issuing the order of detention.
(iv) This Court in Rajan Vs. State of Tamil Nadu and Union of India (UOI), has held as follows:
Section 14 of the Act is without prejudice to Section 21 of the General Clauses Act. Hence, the power to rescind vested in the authority
making the order of detention by Section 21 of the General Clauses Act is saved and not taken away. Thus, an officer of the State Government or
a Central Government who had passed an order of detention, on receipt of a representation, if convinced that the order needed revocation he was
entitled to do so, u/s 21 of the General Clauses Act for, he has no such entitlement u/s 14 of the Act. If the State Government had passed an order
of detention and later decided to revoke it, whether upon receipt of a representation from the detenu or otherwise, it would be legitimate to do so
u/s 21 of the General Clauses Act. Further, if the Central Government decides to revoke any order passed by the State Government or its officer,
it can do so only under Clause (b) of Section 14(11) of the Act and not u/s 21 of the General Clauses Act.
The object of Section 3(5) of the Act read with Section 14(1) of the Act, is to confer supervisory jurisdiction on the Central Government. This
jurisdiction extends to keeping a watch, to ensure that the action that had been taken was within limits of law and that of the authority which had
initiated action. The power u/s 14(1) of the Act, has to be exercised by the Central Government, if and when necessary in appropriate cases. By
such interference, the orders of detention can be revoked or modified at any time...
In all these writ petitions, the detenus had not forwarded any representations to the Central Government, seeking revocation of the order of
detention, u/s 14 of the Act. It is under these circumstances, that Mr. B. Kumar contends, that irrespective of a representation being preferred by
the detenu, since the mode of exercise of power u/s 14 of the Act cannot be different, the State Government ought to have forwarded to the
Central Government along with the grounds, perception of material. Several pages of the documents supplied to the detenus were in Tamil and if
English translations of those documents had not been forwarded to Central Government by State Government, along with its report, the Central
Government would have been disabled from acquainting itself, with full facts, for exercise of power u/s 14. The power u/s 14 is relatable to Article
22(5) of the Constitution and if that be so, there must be fullest consideration. He chose to rely upon the judgment of the Supreme Court in Amir
Shad Khan and another Vs. L. Hmingliana and others, to substantiate his contention, that Section 14(1) was intended to satisfy the requirements of
the later part of Article 22(5) of the Constitution, and provided enforcement of right to make effective representation. In that case, the detenu in his
representation had stated thus:
I would also like to request you that the copies of these representations be sent to the State and Central Governments for their kind consideration,
in view of the above facts so as to revoke and or set aside my order of detention and order the release forthwith.
It was not disputed, that the representation was considered and rejected by the State Government. However, the representation was not
forwarded to the Central Government and hence the Central Government had no occasion to consider it, for revocation of the detention order.
Therefore, seeking the writ jurisdiction of the Bombay High Court, a writ was instituted. Bombay High Court while dismissing the writ petition held
that the order of detention was not vitiated, on the ground of the detaining authority as well as the State Government, in not having forwarded the
report of the detenu to the Central Government. The Bombay High Court further held, that the detenu had failed to follow the clear and specific
instructions given in the grounds of detention regarding the manner and mode of address to various authorities. Therefore, he could not be allowed
to reap the benefit of his own default.
The Apex Court held, in that context, that the power of revocation conferred by Section 11 of the COFEPOSA has a nexus with the right of
representation conferred on the detenu by Article 22(5) and, therefore, the State Government, when requested to forward a copy of he
representation to the Central Government, was under an obligation to do so. The Supreme Court took note of the fact, that a person placed under
detention had certain handicaps and if a request for forwarding his representation to the Central Government was made to the State Government,
after taking out copies thereof, it would be a denial of his right to represent to the Central Government, if the detaining authority as well as the State
Government refused to accede to his request and omit to forward his representation. Such a technical and rigid view should not be taken by the
concerned authorities, in matters of personal liberty where a person is kept in preventive detention, without trial. Detenus may or may not be in a
position to prepare more than one copy of the representation. When request forwarding was made, it would not be just and fair to refuse to do so.
In such a context it was observed, that Section 8(f) of COFEPOSA Act satisfied the requirement under Article 22(4) while Section 11 of the act
satisfied the requirement of the later part of Article 22(5) of the Constitution. The Apex Court was clearly dealing with the hyper-technical stand
taken by the State Government. It was in total disregard of the right conferred on the detenu under Article 22(5) of the Constitution read with
Section 11 of the Act. If, in fact, the detenus had made representations to the Central Government u/s 14 of the Act, for revocation, and such
representations had not been disposed of with reasonable expedition, we would not have hesitated to hold, that the Central Government, which
had an inherent duty coupled with a discretion u/s 14, had not chosen to exercise it, leading to a grave procedural lacuna. The Supreme Court
stated in Amir Shad Khan''s case, that the purpose of the provision u/s 3(1) of COFEPOSA Act corresponding to Section 3(5) of the National
Security Act, was clearly to enable the Central Government to keep an eye on the exercise of power u/s 3(1) by the State Government or its
officer.
...
We are of the opinion, that supervisory jurisdiction contemplated u/s 14 of the Act read with Section 3(5) of the Act, is intended to facilitate
interference in suitable cases, where the impugned order of detention had been passed (a) without jurisdiction or in excess of it; (b) in violation of
procedure or disregard of principles of natural justice, (c) total neglect of proper precautions; (d) error apparent on the face of the record and (e)
similar such circumstances. This list is not exhaustive, but only indicative. While the Central Government exercises its jurisdiction, on a report u/s
3(5) of the Act, the cause if any, for revocation or modification, must appear ex facie, and it is not as though re-weighing of the entire material is
contemplated. In other words, this provision is only to curb acts of flagrant abuse of power by exercising authority, violation of principles of natural
justice etc., As stated earlier, this power u/s 14(1) of the Act may give a procedural facility to the detenu to plead for revocation, but he will not
have a right, u/s 3(5) of the Act, as the one contemplated u/s 8. Though supervisory power cannot be invoked as a matter of right, the supervisory
power is an additional check or safe-guard. If a representation is made by detenu, invoking the provisions of Section 14 of the Act, non-
consideration within a reasonable time frame, may enure in favour of the detenu. But when such power, is stated to have been exercised, on receipt
of report u/s 3(5) of the Act, when there is nothing to suspect or doubt proper exercise of such power, the detenus will not have any in-built right,
without placing proper material, to challenge the specific stand taken by the Respondents, of the proper discharge of the duty coupled with
discretion, u/s 14 of the Act.
Heard Mr. A.R.L. Sundaresan, learned senior counsel for the petitioner in HCP. No. 1197 of 2013, Mr. V. Paarthiban, learned counsel for
the petitioner in HCP. No. 1196 of 2013, Mr. A.L. Somayaji, learned Advocate General, assisted by Mr. S. Shanmughavelayutham, learned
Public Prosecutor for respondents 1 and 2 and Mr. P. Wilson, learned Additional Solicitor General of India, assisted by Mr. A.S. Vijayaraghavan,
SCGSC for the third respondent.
Before proceeding further, it is worthwhile to refer the following provisions of law for our consideration:
(i) Article 22 of the Constitution of India;
Protection against arrest and detention in certain cases.
(1)...
(2) Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of
such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained
in custody beyond the said period without the authority of a magistrate.
(3) Nothing in clauses (1) and (2) shall apply
(a) to any person who for the time being is an enemy alien; or
(b) to any person who is arrested or detained under any law providing for preventive detention.
(4) No law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless-
(a) An Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court has reported
before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention:
Provided that nothing in this sub-clause shall authorise the detention of any person beyond the maximum period prescribed by any law made by
Parliament under sub-clause (b) of clause (7); or
(b) Such person is detained in accordance with the provisions of any law made by Parliament under sub-clauses (a) and (b) of clause (7).
(5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order
shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity
of making a representation against the order.
(ii) Relevant provisions of the National Security Act, 1980, read as follows:
Section 3: Power to make orders detaining certain persons:-(1) The Central Government or the State Government may-
(a) if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the defence of India, the
relations of India with foreign powers, or the security of India, or
(b) if satisfied with respect to any foreigner that with a view to regulating his continued presence in India or with a view to making arrangements for
his expulsion from India, it is necessary so to do, make an order directing that such person be detained.
(2)...
(3)...
(4) When any order is made under this section by an officer mentioned in sub-section (3), he shall forthwith report the fact to the State
Government to which he is subordinate together with the grounds on which the order has been made and such other particulars as, in his opinion,
have a bearing on the matter, and no such order shall remain in force for more than twelve days after the making thereof unless, in the meantime, it
has been approved by the State Government:
Provided that where u/s 8 the grounds of detention are communicated by the officer making the order after five days but not later than ten days
from the date of detention, this sub-section shall apply subject to the modification that, for the words ""twelve days"", the words ""fifteen days"" shall
be substituted.
(5) When any order is made or approved by the State Government under this section, the State Government shall, within seven days, report the
fact to the Central Government together with the grounds on which the order has been made and such other particulars as, in the opinion of the
State Government, have a bearing on the necessity for the order.
(iii) As far as the revocation of detention orders are concerned Section 14 contemplates that:
(1) Without prejudice to the provisions of section 21 of the General Clauses Act, 1897 (10 of 1897), a detention order may, at any time, be
revoked or modified,-
(a) notwithstanding that the order has been made by an officer mentioned in sub-section (3) of section 3, by the State Government to which that
officer is subordinate or by the Central Government;
(b) notwithstanding that the order has been made by a State Government, by the Central Government.
(2) The expiry or revocation of a detention order (hereafter in this sub-section referred to as the earlier detention order) shall not [whether such
earlier detention order has been made before or after the commencement of the National Security (Second Amendment) Act, 1985] bar the
making of another detention order (hereafter in this sub-section referred to as the subsequent detention order) u/s 3 against the same person:
Provided that in a case where no fresh facts have arisen after expiry or revocation of the earlier detention 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
expiry of a period of twelve months from the date of detention under the earlier detention order.
While examining the impugned detention orders, it is to be seen that the earlier detention orders were passed by the second respondent on
12.5.2013 and 13.5.2013 respectively and the same were challenged before this Court in H.C.P. Nos. 832 and 877 of 2013 respectively.
Pending the said cases, the detenus have made representations to the third respondent through their advocates and on considering the
representations of the detenus and the material records placed before it, the third respondent revoked the earlier detention orders on 21.6.2013.
While so, the second respondent has passed subsequent orders of detention on 25.6.2013. It is clear from the records that the order of revocation
was served to the detenus only on 26.6.2013.
The second respondent is empowered u/s 14(1) of the Act, to pass subsequent detention order, without prejudice to the provisions of Section
21 of the General Clauses Act, 1897, at any time, provided (a) notwithstanding that the order has been made by an officer mentioned in sub-
section (3) of section 3, by the State Government to which that officer is subordinate or by the Central Government; (b) notwithstanding that the
order has been made by a State Government, by the Central Government. Then the authority is competent under sub section 2 that the expiry or
revocation of a detention order shall not [whether such earlier detention order has been made before or after the commencement of the National
Security (Second Amendment) Act, 1985] bar the making of another detention order u/s 3 against the same person.
The proviso to Section 14(2) of the Act, contemplates that in a case where no fresh facts have arisen after expiry or revocation of the earlier
detention 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 expiry of a period of twelve months from the date of detention under the earlier detention order.
A reading of the above proviso makes it clear that the second respondent/District Magistrate is competent to pass a subsequent detention
order even where no fresh facts have arisen after the expiry or revocation of the earlier detention order.
The Central Government, while exercising power u/s 14(1) of the Act, shall give reasons for revoking the detention order and the same shall be
communicated to the State Government. Thereafter, if it is necessary, the State Government can pass a subsequent detention order. In this case,
the third respondent had passed the revocation order on 21.6.2013 and the relevant portions are extracted hereunder:
The detenu has inter alia, state in his representation that he has been falsely implicated in the case.
I have gone through the material on record including the order of detention and grounds for the same and the representation of the detenu
thereon. After consideration of the whole matter, I have come to the conclusion that the allegations, on which the order of detention is based, can
be handled through the relevant provisions of the substantive law rather than invoking the provisions of NSA.
In the totality of the facts and circumstances of the case, I am inclined to revoke the order of detention passed by the District Magistrate,
Kancheepuram, Tamil Nadu in respect of Thiru Palani in terms of Section 14(1) of the NSA. I order accordingly.
From a reading of the above order of the third respondent, it is clear that the authority concerned has not given any reason for revocation of
the detention orders passed by the second respondent. In the ratio laid down by the Supreme Court as well as this Court, it is emphasized that
reasons have virtually become as indispensable a component of a decision-making process as observing principles of natural justice by judicial,
quasi-judicial and even by administrative bodies. Admittedly, no reason was assigned by the third respondent for revocation of the detention
orders passed by the second respondent. On the facts in the instant case, we opine that the power of subsequent detention by the District
Magistrate is very much available and the same is exercised in the manner known to law. At the same time, we also find it not necessary to go into
the question whether a reasoned order of revocation of the Central Government would bar the exercise of powers u/s 14(2) of the National
Security Act by the State Government.
Detaining a person subsequent to the revocation has now been questioned by the detenus on the ground that the subsequent detention was not
based on subjective satisfaction of the detaining authority. In this case, the third respondent revoked the detention orders passed by the second
respondent and before the orders of revocation were communicated, the second respondent passed the subsequent detention orders. Considering
the legal principles and the material records placed before us, we are of the considered opinion that the course adopted by the second respondent
in passing a subsequent detention order is valid and has no legal infirmity and the contention of the learned senior counsel for the petitioner that the
second respondent has no power to pass subsequent detention order while the earlier order was revoked deserves to be rejected.
Now, we have to test the subsequent detention orders. The learned counsel for the petitioners have raised two main grounds assailing the
impugned orders. The first ground is that even before the order of revocation passed on 21.6.2013 was communicated on 26.6.2013, the second
respondent has passed the subsequent orders of detention on 25.6.2013, which would reflect the non application of mind on the part of the second
respondent.
On the above said pleading, we have verified the records and the material information furnished before this Court. The detaining authority is
cognizant of the fact that the representations of the petitioners are pending consideration before the third respondent. While thus the Central
Government is seized of the matter, the second respondent even without waiting for the decision of the Central Government on the representations
submitted by the detenus has come to a conclusion that the subsequent detention order is necessary and accordingly passed the impugned orders.
The said act of the second respondent, we feel, is certainly tainted with mala fides and the same cannot be lost sight of.
It is true, u/s 14(2) of the Act, the District Magistrate, as the detaining authority, is empowered to pass subsequent detention order even
without fresh facts having arisen after expiry or revocation of the earlier detention order made, but, the authority must exercise the powers with
subjective satisfaction and such satisfaction has to be arrived at in the manner as contemplated.
An order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must
show that (i) the detaining authority was aware of the fact that the detenu is already in detention; and (ii) there were compelling reasons justifying
such detention despite the fact that the detenu is already in detention. The expression compelling reasons in the context of making an order for
detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be
satisfied that (a) the detenu is likely to be released from custody in the near future, and (b) taking into account the nature of the antecedent activities
of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to
prevent him from engaging in such activities.
Also, an order for preventive detention is made on the subjective satisfaction of the detaining authority. The detaining authority, before
exercising the power of preventive detention, would take into consideration the past conduct or antecedents of the person and, as a matter of fact,
it is largely from the prior events showing the tendencies or inclinations of a man that an inference could be drawn whether he is likely even in the
future to act in a manner prejudicial to the maintenance of public order. If the subjective satisfaction of the detaining authority leads to this
conclusion, it can provide against such activity by making a preventive detention order.
The subjective satisfaction of the detaining authority with respect to the persons sought to be detained should be based only on the nature of
the activities disclosed by the grounds of detention and the grounds of detention must have nexus with the purpose for which the detention is made.
Moreover, the subjective satisfaction of the detaining authority must comprehend the very fact that the person sought to be detained is already in
jail or under detention and yet a preventive detention order is a compelling necessity. If the subjective satisfaction is reached without the awareness
of this very relevant fact, the detention order shall be vitiated.
Keeping the above principles in mind, if we examine the present case, the District Magistrate has passed the impugned orders on 25.06.2013
even before the order of revocation passed by the third respondent reached his hand. Though the detaining authority is empowered to pass such
detention orders on the subjective satisfaction, the consideration of the reasons for revocation should also be taken into account by the said
authority, before making such detention. If he fails to do so, in our opinion, there is no subjective satisfaction at all. Since the detaining authority
herein has conspicuously failed to take into account the reasons for revocation of the earlier detention orders before passing the impugned orders
of detention, we hold that the subjective satisfaction was wrongly arrived at by the detaining authority and, therefore, the impugned orders cannot
be sustained in law.
The second ground raised by the petitioners is that the detaining authority has not supplied the vernacular version of the bail order and other
relevant documents passed in similar cases relied on by him and the same would deprive the detenus from making an effective representation. On
verification of the records as well as the material information and the submission made by the learned Public Prosecutor, we find that those
documents have not been furnished to the detenus. The detenus are certainly prejudiced by such non furnishing of vernacular version of the
documents relied upon by the detaining authority.
Article 22(5) of the Constitution of India provides that when any person is detained in pursuance of an order made under any law providing for
preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has
been made and shall afford him the earliest opportunity of making a representation against the order. Such an opportunity can be effectively utilised
by the detenu by going through the detention order, the grounds of detention, the documents in support thereof on which the detaining authority
have the subjective satisfaction and the translation of such documents to the language known to the detenu and by making a representation to the
detaining authority for redressing his grievances. In the instant case, from the above grounds, it is evident that such bail order and other relevant
documents in vernacular version have not been furnished to the detenu and thereby depriving the detenu from making an effective representation,
which would definitely deprive the constitutional right guaranteed under Article 22(5).
On overall consideration of the facts and circumstances of the case and on analysing the various decisions relied on by the learned counsel for
the parties, while we uphold the power of the second respondent/District Magistrate for passing the subsequent detention orders, but, on testing
the subsequent orders of detention impugned herein, following the above stated legal position, we hold that they are legally infirmed. In the result,
these Habeas Corpus petitions are allowed and the impugned detention orders passed by the second respondent, detaining the detenus, namely,
Mari and Palani in proceedings no. M1. D.O. Nos. 101 and 100 of 2013, dated 25.6.2013, respectively, are quashed. The above named detenus
are ordered to be set at liberty forthwith, unless their custody is required in connection with any other case.