KOKJE, J. - (1.) BOTH these petitions raise similar points and therefore were heard together and are being decided together by this common Order.
(2.) IN D. B. Habeas Corpus Petition No. 3429/95, petitioner Gulia @ Gulsher was detained earlier in the year 1992 under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act which was ultimately revoked on the basis of Advisory Board's report. The petitioner was again detained by the Order of the District Magistrate, Jaisalmer on August 13, 1995 under Section 3 (2) of the National Security Act, 1980 (for short `the Act' hereinafter ). This Order was based on a complaint dated August 13,1995 lodged by the Superintendent of Police, Jaisalmer and the order was approved by the State Government on August 23,1995. The petitioner's case was considered by the Advisory Board on September 14, 1995 but it appears that it did not recommend revocation of the Order of detention. The petitioner has challenged his detention order on the ground that it has been mechanically passed on the basis of the report of the Superintendent of Police of the same date without proper application of mind. That certain cases in which the petitioner was acquitted had been taken into consideration while passing the second detention order without taking into account the fact of acquittal in those cases, that the ground of detention under the Prevention of Illicit Traffic in Narcotic Drugsand Psychotropic Substances Act earlier and the grounds of detention of the impugned Order were substantially the same and the Detaining Authority could not have passed an order relying on the grounds which have not found favour with the Advisory Board in the earlier case, that the material documents referred to and relied upon by the Detaining Authority were not supplied to the petitioner, that the petitioner was not informed that he could make representation to the Detaining Authority also which deprived him from making an effective representation to the Detaining Authority, that the petitioner was not allowed to engage the services of a friend to argue his case before the Advisory Board when the respondents were represented by a large number of senior officers including Additional Superintendent of Police which prejudiced the petitioner's case and that the grounds of detention are vague and general. In D. B. Habeas Corpus Petition No. 3430/95, petitioner Hazi Menu was detained in the year 1993 under the National Security Act. Ultimately, that order was quashed on August 19,1993 in D. B. Habeas Corpus Petition No. 2836/93, preferred by the petitioner. The petitioner was again detained by the Order of the District Magistrate, Jaisalmer by his Order dated August 13,1995. According to the petitioner, this Order of detention was based on a complaint by the Superintendent of Police, Jaisalmer of August 13,1995 itself. The Order was approved by the State Government on August 23,1995. A representation made by the petitioner was considered by the Advisory Board in its meeting dated September 14, 1995 but it appears that the Advi- sory Board did not find any fault with the detention Order. The petitioner has therefore filed this petition on the grounds that the detention order has been passed mechanically without proper application of mind, that the grounds of detention in the earlier detention order and the grounds of detention of impugned detention order are substantially the same and there is no substantial change in the circumstances which could support the second detention order, that the Detaining Authority placed reliance on the earlier detention order dated January 30,1993 which was already quashed by the High Court, that the copies of material documents relied upon by the Detaining Authority were not supplied to the petitioner and thus he was deprived of making an effective representation, that the Detaining Authority did not inform the petitioner about his right to represent the Detaining Authority itself and thus a right to make an effective representation has been lost to the petitioner, that the proceedings before the Advisory Board, the Detaining Authority was represented by a large number of senior officers including Additional Superintendent of Police but the petitioner was not allowed to get himself represented through a friend and that the entire procedure followed prior to and after detention of the petitioner was violative of Article 22 (5) of the Constitution of India. Though the learned counsel for the petitioner placed reliance on all the grounds taken by him but we find that the ground relating to the taking into consideration the material on the basis on which earlier detention orders were passed goes to the root of the matter and we therefore, deal with it first. In Hadibandhu Das vs. District Magistrate Cuttack & Anr. (1), in Paragraphs 11 and 12, it was observed as follows: "para-11'' "the power of the detaining authority must be determined by reference to the language used in the statute and not by reference to any predilections about the legislative intent. There is nothing in Section 13 (2) which indicates that the expression ``revocation'' means only revocation of an order which is otherwise valid and operative ; apparently it includes cancellation of all orders invalid as well as valid. The Act authorises the executive to put severe restrictions upon the personal liberty of citizens without even the semblance of a trial and makes the subjective satisfaction of an executive authority in the first instance the sole test of competent exercise of power. We are not concerned with the wisdom of the Parliament in enacting the Act, or to determine whether circumstances exist which necessitate the retention on the statute book of the Act which confers upon the executive extraordinary power of detention for long period without trial. But we would be loath to attribute to the plain words used by the Parliament a restricted meaning so as to make the power more harsh and its operation more stringent. The word ``revocation'' is not, in our judgment, capable of a restricted interpretation without any indication by the Parliament of such an intention. '' Para-12- ``negligence or inaptitude of the detaining authority in making a defective Order or in failling to comply with the mandatory provisions of the Act may in some cases enure for the benefit of the detenue to which he is not entitled. But it must be reme- mbered that the Act confers power to make a serious invasion upon the liberty of the citizen by the subjective determination of facts by an executive authority, and the Parliament has provided several safeguards against misuse of the power. The very fact that a defective order has been passed, or that an order has become invalid because of default in strictly complying with the mandatory provisions of the law be speaks negligence on the part of the detaining authority, and the principle underlying Section 13 (2) is, in our view the outcome of insistence by the Parliament that the detaining authority shall fully apply its mind to and comply with the requirements of the statute and of insistence upon refusal to countenance slipshod exercise of power''. In Har Jas Dev Singh vs. State of Punjab & Ors. (2), it was held that if the fresh facts cannot form the basis of a conclusion on which the deten- tion order can be made, then those facts are not fresh facts which will justify the detaining authority to make an order of detention. A fresh order of detention can only be made if fresh grounds came into existence, after the expiry or revocation of the earlier order of detention. No such fresh order could be made on the ground which existed prior to the revocation or expiry of the earlier order of detention. It was further observed that if first order of detention was revoked due to a technical defect the same result follows.
(3.) IN Chhagan Bhagwan Kahar vs. N. L. Kalna & Ors. (3), in paragraph-12, it was observed as follows: ``it emerges from the above authoritative judicial pronounce- ments 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. '' When we examine the present cases in the light of the aforesaid decisions of the Supreme Court what we find is that there are clear allegations in the petition as to the detaining authority having taken into conside- ration the grounds which were basis of earlier detaining order also In Ground-E of Paragraph-6 of Hazi Menu's petition, it has been specifically stated that detaining authority while passing the present Order of detention has placed reliance on large number of grounds which were also subject matter of the earlier order, which was quashed by the High Court. Similarly, in Ground D of Paragraph-10 in Gulia's petition, it was clearly averred that the detaining authority while passing the order has placed reliance on large number of grounds which were also subject- matter of the earlier order of detention, which was revoked on the advise of the Advisory Board. ;