Judgement

WANCHOO, CJI. :-These two petitions under Article 32 of the Constitution raise common questions of law and will be dealt with together. The petitioners were detained under Rule 30 (1) (b), Defence of India Rules, 1962 (hereinafter referred to as the Rules), under orders of the Government of Jammu and Kashmir in March, 1965. Their detention was continued from time to time after review under Rule 30A. One of such reviews was made in February, 1967. At that time the scope of review was governed by judgment dated June 1, 1965 of Shah, 1. (Vacation Judge) in Sadhu Singh v. Delhi Administration, (1966) I SCR 243 In that case it was field that Rule 80A relating to review did not require a judicial approach to the question of continuance of detention. No opportunity therefore was given to the petitioners to represent their cases when the review was made in February 1967, and their detention was continued for a further period of six months. Then came the judgment of this Court in P. L. Lakhanpal v. Union of India, W. P. No. 258 of l966, D/- 7-3-1967 . That judgment overruled the decision of Shah, J. and held that the function of review under Rule 30A was quasi judicial and therefore in exercising it, rules of natural justice had to be complied with. In view of his judgment what the respondent did was to hold another review in April 1967. At that time notice was given to the petitioners and they were given a hearing. Thereafter order was passed in each case on April 27, 1967 by which the State Government directed the continuance of the detention orders for a further period. In the meantime the present petitions had been filed on March 30, 1967 and were based on the judgment of this Court in Lakhanpal s case W. P. No. 258 of 1966, D/- 7-3-1967

2. It is not disputed on behalf of the respondent that Lakhanpal s case W. P. No. 258 of 1956, D/- 7-3-1967 will apply to the present petitions and the petitioners will be entitled to release because the procedure of a quasi judicial tribunal was not followed when earlier reviews were made from August, l965 to February, 1967. Reliance is however placed on behalf of the respondent on the review made in April, 1967 and it is urged that that review was in accordance with the view taken by this Court in Lakhanpal s case, W. P. No. 258 of 1966, D/- 7-3-1967 and therefore continuance of detention thereafter is justified. Further it is urged that even if this contention is not correct the State Government has power to pass a fresh order of detention on the same facts, and even if we allow the present petitions, we should make it clear that the State Government has such power. It is urged in this connection that the judgment of Bhargava, J: in Avtar Singh v. State of Jammu and Kashmir, W. P.s. Nos. 68, 70, 79, 89 and 92 of 1967, D/- 9-6-67 is not correct.

3. The first question therefore is whether the orders of review dated April 27, 1967 are sufficient for the continuance of detention, even though the earlier orders of review passed from August, 1965 to February, 1967 were not properly made in view of the judgment of this Court in Lakhanpal s case, W. P. No. 258/66, D/-7-3-67 . Reliance in this connection is placed on the judgment of this Court in A. K. Gopalan v. Government of India, (1966) 2 SCR 427 In that case it was held that "it is well settled that in dealing with a petition for habeas corpus the court has to see whether the detention on the date on which the application is made is legal if nothing more has intervened between the date of the application and the date of hearing." So it is urged for the respondent that as the order passed on review under Rule 30A continuing detention on April 27, 1967 was in accordance with the judgment of Lakhanpal s case, W. P. No. 258/66, D/- 7-3-67 the earlier orders of review made between August, 1965 and February, 1967 which were improper made no difference.

4. We cannot accept this contention. In Gopalan s case, (1966) 2 SCR 427 what had happened was