No 211 of 1969
Petition under article 32 of the Constitution of India for a writ in the nature of habeas corpus
Hardev Singh for the petitioner Naunit Lal for the respondent
518 The Judgment of the Court was delivered by Bhargava J
The petitioner in this petition under Article 32 of the Constitution was arrested and detained under an order made under section 31aii of the hereinafter referred to as the Act on 24th April 1968
On 30th August 1968 he filed a petition in the High Court of Assam under article 226 of the Constitution for issue of a writ of habeas corpus
The same day he was released by the Government and according to him without being set at liberty he was again put in detention in pursuance of a fresh order dated 29th August 1968 passed under section 31aii of the Act
The grounds of detention were also served on the same day
He made his representation on 17th September 1968 and his case was referred to the Advisory Board also on the same date
The report of the Advisory Board was received on 28th October 1968
On 7th November 1968 his order of detention was confirmed by the Government on the basis of the report of the Advisory Board
This petition was then received in this Court from the petitioner in July 1969
challenging his detention trader the order dated 29th August 1968
The petition came up for hearing before a Bench of this Court on 29th August 1969 when at the request of the counsel for the State of Assam time was granted by the Court till 8th September 1969 to send for full material
Meanwhile it appears that a fresh order for his detention under section 31aii of the Act was issued on 28th August 1969 and this order was served on the petitioner in Delhi on 29th August 1969 after the adjournment had been obtained from this Court
Thereupon the petitioner on 1st September 1969 filed an application for amendment of the writ petition and for adding additional new grounds so as to challenge the validity of his detention under the order dated 28th August 1969
The grounds of detention under this new order were also served on the petitioner on 29th August 1969
When this petition came up for hearing before us on 9th September 1969 learned counsel for the State of Assam stated that no material had been received from the Government and wanted time to be granted to meet the facts put forward in the application dated 1st September 1969
It appears that though an officer was sent by the Government of Assam to Delhi to serve the order dated 28th August 1969 on the detenu which he did on 29th August 1969 no attempt was made to obtain the material for which time had been obtained from the Court on 29th August 1969
If a fresh order had been passed and had been served on the petitioner in supersensible of the previous order which was challenged in the writ petition the State Government should have sent full material relating to this order which it became necessary for the petitioner to challenge by amending his writ peti 519 tion
Detention of a person without trial even for a single day is a matter of great consequence and hence we did not consider that in the circumstances mentioned above there was any justification for granting further time to the State Government to obtain material and file a reply to this application dated 1st September 1969
In view of the facts mentioned above it is clear that the  validity of the order of detention dated 29th August 1968 which was first challenged in the petition has become immaterial because the petitioner is now under detention by virtue of the fresh order dated 28th August 1969 served on him on 29th August 1969
In the counter affidavit filed it was stated that the first order of detention dated 24th April 1968 had automatically lapsed because that order did not receive the approval of the State Government within 12 days as required by section 33 of the Act
This admission would indicate that after the expiry of those 12 days the petitioner s detention was not justified by any valid order passed in law until the second detention order was served on him on the 30th August 1968 after releasing him from custody
However in the present writ petition we are not concerned with the effect of this procedure adopted by the State Government because even if it be assumed that the second order of detention was validly served on the petitioner on 30th August 1968 the period of that detention expired on 28th August 1969 in view of section 11 A of the Act which prescribes a maximum period of 12 months for detention under the Act on the basis of an order passed under section 3 of the Act
On 29th August 1969 the detention under the second order dated 29th August 1968 having expired the State Government passed this third order of detention and served it on the petitioner while he was still in custody in Delhi
The question is whether the further detention under this third order is valid
The provision contained in section 11 A2 of the Act clearly lays down the intention of Parliament that on the basis of grounds found to exist at one time the maximum period of detention under section 3 should be 12 months and no more
On the expiry of that period that order of detention would lapse but a fresh order of detention is permitted to be passed under section 132 of the Act which is as follows  13
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 Central Government 520 or a State Government or an officer as
the case may be is satisfied that such order should be made This provision clearly lays down that a fresh detention order can be made on the revocation or expiry of a previous detention order only in cases where fresh facts have arisen after the date of revocation or expiry
This principle was explained by this Court in Hadibandhu Das vs District Magistrate Cuttack and Another1 where it was held  On January 28 1968 the State of Orissa purported to revoke the first order and made a fresh order
The validity of the fresh order dated January 28 1968 made by the State of Orissa is challenged on the ground that it violates the express provisions of Section 132 of the 
In terms that subsection authorises the making of a fresh detention order against the same person against whom the previous order has been revoked or has expired in any case where fresh facts have arisen after the date of revocation or expiry on which the detaining authority is satisfied that such an order should be made
The clearest implication of Section 132 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 the present case the order dated December 15 1967 passed by the District Magistrate Cuttack was revoked on January 28 1968 and soon thereafter a fresh order was served upon the appellant
It is not the case of the State that any fresh facts which had arisen after the date of revocation on which the State Government was satisfied that an order under Sec
31aii may be made
There was a fresh order but it was not based on any fresh facts
 In view of this decision we have to see whether in the present case the requirements laid down by section 132 of the Act for making a fresh order were or were not satisfied
The main requirement is that the order must be made not merely on the past grounds but no fresh facts which have arisen after the date of expiry
In the present case we have compared the grounds of detention served in pursuance of the order dated 28th August 1969 with the grounds of detention which were served on the petitioner pursuance of the second detention order dated 29th August 1968 and we find that the two are identical except that two 1  521 small paragraphs have been added when serving the grounds of detention in respect of the detention order dated 28th August 1969
These paragraphs are as follows That though in preventive custody he has been maintaining links with Shah Syed Hussain and other associates who went underground in Nagaland through his friends and relatives
Shah Syed Hussain and his gang since received some arms and explosives from Naga rebels for committing acts of sabotage and creating large scale disturbances particularly in the plains areas along Assam Nagaland border
That in the circumstances Shri Khetra Gogoi s being at large will jeopardise the security of the State and the maintenance of public order in this region
 The first one of these two paragraphs is the only one that purports to mention some ground in addition to the grounds which were included amongst the grounds which were the basis of the order dated 29th August 1968
We have found it very difficult to appreciate how a person in preventive custody could continue to maintain links with his associates outside jail who had gone underground even through his friends and relatives
of the present petitioner was able to maintain such links it casts a sad reflection on the persons in charge of him while he was in custody and in any case it would appear that his detention could serve no useful purpose
It appears to us to be in fact very doubtful whether any such contacts could possibly have been maintained
However even if we accept that such links were maintained this additional ground mentioned does not satisfy the requirements of section 132 of the Act because the only allegation is that the links were maintained during the period of preventive detention
Under section 132 what is required is that fresh facts should have arisen after the expiry of the previous detention
Facts arising during the period of detention are therefore not relevant when applying the provisions of section 132
In the present case the fresh order was passed on 28th August 1969 a day before the expiry and it is obvious that no fresh facts could by that date arise and yet be held to have arisen after the date of expiry
The order dated 28th August 1969 was therefore not at all justified under section 132 of the Act and that order being in violation of the provisions of the Act has to be held to be invalid so that the detention under that order is illegal
The petition is allowed
The petitioner shall be set at liberty forthwith
YP Petition allowed


Summary:
Section 11 A2 of the lays down in part that the maximum period of detention under section 3 should be 12 months and no more and after the expiry of that period that order
of detention would lapse
A fresh detention order under section 132 can be made on the revocation or expiry of a previous detention order only in cases where fresh facts have arisen after the date of revocation or expiry
The petitioner was put in detention in pursuance of an order dated August 29 1968
He presented a petition under article 32 of the Constitution for the issue of a write of habeas corpus while this petition was pending another order of detention was issued on August 28 1969 a day before the expiry of the previous order
The grounds of detention in this latter order was identical to that of August 28 1968 excepting the charge that the petitioner though in preventive custody was maintaining links with certain named hostile persons through friends and relatives and that his liberty would jeopardise the security of the State and public order in the region
The petitioner challenged the latter order of detention by adding additional grounds
 The order of detention dated August 28 1969 was not justified under section 132 of the Act being in violation of the provisions of the Act and was invalid
Under sec
132 what is required is that fresh facts should have arisen
after the expiry of the previous detention
Facts arising during the period of detention are therefore not relevant when applying the provisions of section 132
In the present case the fresh order was passed on 28th August 1969 a day before the expiry and it was obvious that no fresh facts could by that date arise and yet be held to have arisen after the date of expiry
It is very difficult to appreciate how a person in preventive custody could continue to maintain links with his associates outside jail who had gone underground even through his friends and relatives
If the petition was able to maintain such links it cast a sad reflection on the persons in charge of him while he was in custody and in any case it would appear that his detention could serve no useful purpose
Even if it be accepted that such links were maintained this additional ground mentioned did not satisfy the requirements of section 132 of the Act because the only allegation was that the links were maintained during the period of preventive detention