Decided on January 15,1974



- (1.) The petitioner prays for a declaration that his arrest on 14-12-1973 and detention thereafter are illegal, and for a further direction by this Court to release him forthwith. In connection with some irregularities alleged to have been done by the petitioner in his business as an authorised retail distributor of rationed articles, the District Supply Officer initiated certain proceedings under the Kerala Rationing Order, 1966, against the petitioner. Exts. P3 to P5 and P8 and P9 evidence those proceedings which are still pending. The District Supply Officer informed the police also of the matter and the latter has registered a crime case against the petitioner under S.408 and 477A of the Indian Penal Code. Ext. P6 is the First Information Report. Ext. P7 order shows that the petitioner was enlarged on bail on 12-12-1973. In the mean while, the District Supply Officer had on 13-11-1973 informed the 2nd respondent also of these irregularities. Based on that information, the 2nd respondent made Ext. P1 order under S.3(1)(a)(iii) of the Maintenance of Internal Security Act, 1971 (for short, the Act) directing the petitioner's detention. However, the 2nd respondent did not report the fact of his having made such an order to the 1st respondent as contemplated by sub-s.(3) of S.3. According to the 2nd respondent, the petitioner 'wilfully evaded the execution of the order' or in other words absconded He therefore on 14-12-1973 made another order on the same facts. The petitioner was arrested on 14-12-1973. At that time only Ext. P1 order was served on him. Subsequently, on 16-12-1973, Ext. P2 memorandum dated 15-12-1973 detailing the grounds for detention was also, admittedly, served on the petitioner. The 2nd respondent has a case that on 16-12-1973 a copy of the second order dated 14-12-1973 was also served on the petitioner, but the petitioner's brother who has filed a reply affidavit denies this. Whatever it be, Ext. P2 makes mention of the two orders, the one dated 14-11-1973 and the other dated 14-12-1973. These in short are the relevant facts.
(2.) The main point raised by Shri Sivasankara Panicker, the learned counsel for the detenu, is based on S.14(2) of the Act. The substance of his argument is that the first order dated 14-11-1973 ceased to have force and lapsed or expired after 12 days of the making of it for want of approval by the 1st respondent; that on 14-12-1973 the petitioner could not be arrested and thereafter detained on the force of the first order for detention; that the second order (dated 14-12-1973) for detention is illegal and without jurisdiction in so far as it is not based on any fresh fact that had arisen after the expiry (on 26-11-1973) of the first order. The petitioner in ground C of the petition has stated that no fresh facts came into existence. Not only that this averment stands uncontroverted, but from a reading of Para.11 of the counter affidavit what I gather is that no fresh facts had arisen. Besides, Ext. P2, which refers to the two orders, is silent about any fresh facts. There was no suggestion also on behalf of the respondent that fresh facts had arisen after 26-11-1973. The point raised by the learned counsel for the petitioner is answered by the learned Government counsel by pointing out that the petitioner was absconding, that he thus successfully evaded execution of the first order, that therefore the first order did not take effect at all, that the word 'expiry' in S.14(2) means expiry after the order has taken effect, and that in so far as the first order had not taken effect there could not be any question of expiry of that order.
(3.) The case in hand, I am afraid, is an example of the slipshod exercise of the power conferred by the Act, by the 2nd respondent. I am not in this case concerned about the merits and demerits of the sufficiency of the grounds which is not justiciable and are matters within the purview of the authorities functioning under the Act. (See principle No. 2 laid down by the learned Chief Justice So paragraphic of his judgment delivered on behalf of the Court in Goyal and Dhilip Kumar v. State of Kerala ( 1973 KLT 612 ). I, therefore, refrain from expressing any opinion about the sufficiency of the grounds.;

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