M. Hidayatullah, C.J. - (1.) The petitioner Ghulam Nabi Zaki has been detained under Section 3(1)(a) of the Jammu & Kashmir Preventive 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 government on November 12, 1968, under Section 8(2) read with Section 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. Previously, both the orders, that is to say, the order under Section 3 and the order under Section 8(2), were not served on the petitioner. On August 20, 1969, the first two orders were revoked, and under Section 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 Section 8(2) read with Section 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 communicated 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 Section 14(2) of the Detention Act, and, secondly, that the non-service of the order of detention as well as the order under Section 8(2) upon the detenu is fatal to his continued detention.
(2.) 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 authority, as contemplated by Section 14(2) of the Act. We give our reasons below.
(3.) The power to detain persons and to make orders regarding them is contained in Section 3 of the Jammu & Kashmir Preventive Detention Act, 1964 (Act No. 13 of 1964). It enables the government, if satisfied with respect to any person with a view to preventing him from acting in certain manners described in the section that it is necessary to detain him, to make an order directing that such a person be detained. A similar power is exercisable under Sub-section 2 by certain officers of the State. It is next provided that the grounds of the order of detention must be disclosed to persons affected by the order. This direction is contained in Section 8(1) which says that when a person is detained in pursuance of a detention order, the authority making the order shall as soon as may be but not later than ten days of the date of detention, communicate to him the grounds on which the order has been made, further giving him an opportunity of making a representation. Sub-section 2 of Section 8 says "Nothing in Sub-section (1) shall require the authority to disclose facts which it considers to be against the public interest to disclose." Sections 9 and 10 deal with the Constitution of and reference to the Advisory Boards, Section 11, with the procedure of the Advisory Boards, and Section 12, action upon the report of the Advisory Board. We need not refer to those sections. Section 13 then lays down that the maximum period for which any person may be detained in pursuance of any detention order which has been confirmed under Section 12, shall be two years from the date of detention. Sub-section (2) of that section is in the nature of a proviso to the first Sub-section we have quoted. It says that nothing contained in Section 13 shall affect the power of the government to revoke or modify the detention order at any earlier time. This power, however, is subject to one other provision and that is Section 14 which may be quoted in extenso here. It reads: 14. Revocation of detention ordeRs. --(1) Without prejudice to the provisions of Section 21 of the General Clauses Act, Samvat 1977, a detention order may at any time be revoked or modified by the Government, notwithstanding that the order has been made by any officer mentioned in Sub-section (2) of Section 3. (2) The revocation or expiry of a detention order shall not bar the making of a fresh detention order under Section 3 against the same person in any case where fresh facts have arisen after the date of revocation or expiry on which the Government or an officer, as the case may be, is satisfied that such an order should be made. ;