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Panna Lal Vs. the State of Uttar Pradesh and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad High Court
Decided On
Judge
Reported in1975CriLJ1426
AppellantPanna Lal
RespondentThe State of Uttar Pradesh and ors.
Excerpt:
- - 7. learned counsel for the respondents, however, placed strong reliance on two decisions, one of the kerala high court in o. presidential declaration that a person shall not have a right to move the court to enforce the protection offered by various clauses of article 22, will have the effect of precluding him from moving the court for enforcement of similar statutory right as well. accordingly, if a party is precluded from moving the court for enforcing the various provisions of article 22 of the constitution, he can also not complain that the statutory provision laving down the manner for complying with the provision of article 22 of the constitution has been breached. (1) the central government or the state government or any officer of the central government not below the rank.....h.n. seth, j.1. by this petition under article 226 of the constitution banna lal challenges the validity of the order of the state government dated 19-12-1974 directing him to be detained under the provisions of section 3(1) of of the conservation of foreign exchange and prevention of smuggling activities act, 1974 annexure 9 to the writ petition.2. the petitioner alleges that on 1st october 1974 he was detained in pursuance of an order of the district magistrate passed under the provision of the maintenance of internal security act 1971 as amended by ordinance ii of 1974 issued on 17-9-1974. subsequently, the grounds for his detention as contemplated by section 8 of the maintenance of internal security act were communicated to him on 4-10-1974. the petitioner then filed a habeas corpus.....
Judgment:

H.N. Seth, J.

1. By this petition under Article 226 of the Constitution Banna Lal challenges the validity of the order of the State Government dated 19-12-1974 directing him to be detained under the provisions of Section 3(1) of of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 Annexure 9 to the writ petition.

2. The petitioner alleges that on 1st October 1974 he was detained in pursuance of an order of the District Magistrate passed under the provision of the Maintenance of Internal Security Act 1971 as amended by Ordinance II of 1974 issued on 17-9-1974. Subsequently, the grounds for his detention as contemplated by Section 8 of the Maintenance of Internal Security Act were communicated to him on 4-10-1974. The petitioner then filed a Habeas Corpus Petn. No. 6181 of 1974 before this Court and challenged the validity of his detention on a number of grounds. That petition was heard by a Full Bench of this Court on 12-12-1974 and onwards. Ultimately it was listed for hearing on 19-12-1974. On that date, the learned Advocate-General informed the Court that a new Act known as Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 had come into force and the Ordinance No. II of 1974 stood repealed, with the result, that the existing detention order passed against the petitioner, under Section 3 (1) (c) of the Maintenance of Internal Security Act, had lapsed. In these circumstances, the Full Bench, without going into the merits of various arguments made on behalf of the petitioner, directed that he be released from detention forthwith. Before the aforesaid order of the High Court could be complied with, the State Government made the impugned order directing the detention of the petitioner under the provisions of Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974 (hereinafter referred to as the 1974 Act) on 19th December, 1974 and served the same upon him at about 1.30 P. M. While serving the detention order, the State of U. P. did not inform the petitioner about the grounds on which he was being detained. The petitioner therefore, apprehended that his detention had been continued on the same grounds on which he had been ordered to be detained under the provision of Section 3 (1) (c) of the Maintenance of Internal Security Act. He, therefore, filed the present writ petition on 23-12-1974 and challenged the validity of the fresh detention order, inter alia on the following grounds:

(1) The Parliament had no legislative power to enact the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974.

(2) Petitioner's detention under the provisions of the aforesaid Act was in contravention Of Article 22(5) of the Constitution.

(3) If the petitioner was being detained on the same grounds on which he had been detained under the provisions of Maintenance of Internal Security Act, those grounds are non-existent. They were also vague and had no proximity : with the matter of smuggling. The detention order had been passed On the basis of the alleged activities of the year 1969 which could not lead to the requisite satisfaction under Section 3(1)(c) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974. As the condition precedent for passing the detention order did not exist, the order was invalid.

3. However, in the meantime, the President of India made an order under Article 359(1) Of the Constitution, declaring that the right to move any court with respect to orders of detention which have already been made or which may hereafter be made under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act or with respect to any other action including the making of any declaration under Section 9 of the said Act which has already been or may hereafter be taken or omitted to be taken in respect of detention under such orders, for the enforcement of the rights conferred by Article 14, Article 21 and Clauses (4) and (5) read with Clauses (6) and (7) of Article 22 of the Constitution, and directed that all proceedings pending in any court for the enforcement of the aforesaid rights with respect to orders of detention made under the said Act or any other action (including the making of any declaration under the said Section 9 taken or omitted to be taken in respect of detention under such orders, shall remain suspended for a period of 6 months from the date of issue of the order or for the period during which the proclamation of emergency issued under Clause (1) of Article 352 of the Constitution expires earlier. The Government of U. P. also communicated to the petitioner the grounds for his detention, by its communication dated 23rd December, 1974. (Annexure 'S-1' to the supplementary affidavit of Hem Chand Jain dated 29th December, 1974, and filed in Court on 2-1-1975).

4. The petitioner then filed a supplementary affidavit and reiterated that his detention was for reasons which had no connection with the purposes for which a detention order under the provisions of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 could be made.

5. Learned Counsel appearing for the petitioner contended that petitioner's detention being in contravention of the provision of Section 3(3) of the 1974 Act was invalid.

6. When the writ petition came up for hearing, learned Counsel for the petitioner conceded that in view of the Presidential Order dated 23rd of December, 1974, made under Article 359(1) of the Constitution, it was not open to him to contend that his detention was invalid on account of any contravention of Article 22(5) of the Constitution of India. He. however, contended that a protection similar to that guaranteed by Article 22 of the Constitution had been provided under the provisions of Sections 3(3) and 8 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. Notwithstanding the Presidential Order dated 23rd December, 1974, the petitioner was not precluded from enforcing the statutory protection afforded by those sections. In support of this submission learned Counsel referred to a number of decisions of the Supreme Court - viz.. Makhan Singh v. State of Punjab : 1964CriLJ217 , Ram Manohar Lohia v. State of Bihar : 1966CriLJ608 , Durgadas Shirali v. Union of India : 1966CriLJ812 , Ananda v. Chief Secretary Government of Madras : 1966CriLJ586 and Jaichand Lal Sethiya v. State of West Bengal : 1967CriLJ520 . He also placed special emphasis on a Division Bench decision of the Madras High Court in the case of Zahuffar Hamid v. State of Tamil Nadu Writ Petn. No. 3312 of 1974 decided on 18-11-1974. , In that case it was held that notwithstanding the Presidential Order, suspending the right to move any court for the enforcement of the rights conferred by Clauses (4), (5), (6) and (7) of Article 22 of the Constitution with regard to detention order which had already been made or which may hereafter be made under Section 3 (1) (c) of the Maintenance of Internal Security Act, 1971, as amended by Ordinance 11 of 1974, it was open to a detenu to file a petition under Article 226 of the Constitution and to challenge the validity of his detention on the ground that it was in contravention of Section 8 of the Act which provided for a similar statutory protection to a detenu. He urged that a similar view was taken by the Gujarat High Court in the case, C. T. Daru Special Criminal Application No. 142 of 1974 decided on 5-12-1974. Learned Counsel further cited a decision of the Karnataka High Court in the case of K. Hemraj Jain v. Commissioner of Appeals. Writ Petition No. 6151 of 1974, decided on 9-12-1974, and urged that in this case a view similar to that taken by the Madras High Court, has been taken by the learned Judges of the Karnataka High Court. He also cited a decision of a Division Bench of the Delhi High Court in the case of Daya Shankar Kapoor v. Union of India C. R. No. 37 of 1974. decided on 22-11-1974 : (reported in 1975 Cri LJ 1376) (Delhi) wherein the learned Judges of the Delhi High Court, without actually deciding the point, indicated that they were inclined to hold that notwithstanding the declaration issued by the President, making Clauses (4), (5), (6) and (7) of Article 22 of the Constitution unenforceable before a court of law. the High Court was not precluded from going into the question whether the provisions of Section 8 of the Maintenance of Internal Security Act had been complied with or not.

7. Learned Counsel for the respondents, however, placed strong reliance on two decisions, one of the Kerala High Court in O. P. No. 5357 of 1974 and the other of the Nagpur Bench of the Bom-bay High Court in the case of Smt. Sharda v. V.B. Naik, Commr. of Appeals Cri. Application No. 58 of 1974, decided on 20-12-1974, wherein it had been held that in a case where a statute substantially conferred the same protection as is conferred by various clauses of Article 22 of the Constitution. Presidential declaration that a person shall not have a right to move the court to enforce the protection offered by various clauses of Article 22, will have the effect of precluding him from moving the court for enforcement of similar statutory right as well. Accordingly, even if it be held that Sections 3 and 8 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974 afford, on their own, that protection, it is of the same nature as is contemplated by Article 22 of the Constitution. Accordingly, in view of the Presidential declaration, a detenu can also not challenge the validity of a detention order as being in contravention of the provisions of those sections. He. however, contended that a perusal of those sections shows that the 1974 Act does not. on its own, provide for any statutory protection or safeguard of the nature contemplated by Article 22 of the Constitution. Section 3 merely lays down the manner for complying with the provisions of Article 22 of the Constitution. Accordingly, if a party is precluded from moving the court for enforcing the various provisions of Article 22 of the Constitution, he can also not complain that the statutory provision laving down the manner for complying with the provision of Article 22 of the Constitution has been breached.

8. Learned Counsel appearing for the State has not disputed that as held by the Supreme Court, in the case of : 1964CriLJ217 , a Presidential Order issued under Article 359(1) of the Constitution can merely preclude a party from moving a court for the enforcement of such rights conferred by Part III of the Constitution, as may be mentioned in the order. If the detenu pleads any right outside the right specified in the order, his right to move any court in that behalf is not suspended. Such an order will fall outside Article 359(1) and consequently outside the Presidential Order itself. Accordingly, in a case, where a person has been detained in violation of the mandatory provisions of an Act, it may be open to him to contend that his detention is illegal. Main controversy between the parties on this aspect of the case however centres round the question regarding the effect of such Presidential Order on the enforceability of statutory provisions which are substantially of the same nature, as of those made unenforceable under it.

9. In order to tackle this problem the first thing to be considered is whether in this case, when the petitioner contends that the provisions of Section 3(3) of the 1974 Act have not been complied with inasmuch as the grounds conveyed to him were either irrelevant or were such that he could not make a representation he, in fact, complains of contravention of any statutory provision (i.e. any provision of the 1974 Act) or he seeks to enforce the provisions of Article 22 of the Constitution which have, under the Presidential Order, been made unenforceable.

10. Relevant portion of Section 3 of the 1974 Act runs thus:

(1) The Central Government or the State Government or any officer of the Central Government not below the rank of Joint Secretary to the Government specially empowered for the purposes of that section by that Government or any officer of the State Government not below the rank of Secretary to that Government specially empowered for the purposes of that section may if satisfied with respect to any person (including a foreigner) that, with a view to preventing him from acting in any manner prejudicial to the conservation or augmentation of foreign exchange with a view to prevent him from-

(i) ...

(ii) ...

(iii) Engaging in transporting or concealing or keeping smuggled goods or

(iv) ...

(v) ...

it is necessary so to do, make an order directing that such person be detained

2...

3. For the purposes of Clause (5) of Article 22 of the Constitution the communication to a person detained in pursuance of a detention order of the ground on which the order has been made shall be made as soon as may be after the detention, but ordinarily not later than five days, and in exceptional circumstances and for reasons to be recorded in writing not later than 15 days, from the date of detention.

Phraseology of this section is different from the phraseology of Section 8 of the Maintenance of Internal Security Act 1971, Sub-section (1) of which runs thus:

(1) When a person is detained in pursuance of a detention order, the authority making the order shall as soon as may be, but ordinarily not later than five days and in exceptional circumstances for reasons to be recorded in writing not later than 15 days from the date of detention communicated to him the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order of the appropriate Government.

The difference in the phraseology of the two sections is rather significant. Whereas the language of Section 8 (1) of the Maintenance of Internal Security Act seems to indicate that the Statute itself provides for an obligation on the authority making a detention order to supply the grounds of detention so as to enable the detenu to make a representation against his detention order. Section 3(3) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, does not seem to imply any conferment of a fresh statutory obligation to supply the grounds of his detention to the detenu. That section merely provides that for the purposes of Article 22, the communication of the grounds of detention will have to be made as soon as it is possible to do so after a person has been put under detention and that such a communication should ordinarily be made within five days. If for some extraordinary reason the detention order cannot be served within five days the detaining authority has to record the reasons for the same and to take steps to serve the order within 15 days. This Legislation thus specifically seeks to regulate the manner in which the right guaranteed by Article 22 of the Constitution had to be given effect to. The Legislature did not intend to create any fresh statutory right or obligation independent of Article 22 of the Constitution which requires that in case of preventive detention the grounds of detention must be served upon the detenu, as soon as it may be after he is placed under detention. This section on its own does not require that the detenu should be served with the grounds of detention or that he should be afforded an opportunity of making representation against his detention. That requirement, in the case of a person detained under the 1974 Act, flows only from what is contained in Article 22 of the Constitution. Accordingly, when a detenu contends that his detention is illegal because he has not been supplied with .the grounds of detention or that the grounds of detention supplied to him are such that he cannot make an effective representation, he does not complain of any breach of obligation flowing from Section 3(3) of the 1974 Act. In such a case, he merely complains of violation of the provisions of Article 22 of the. Constitution. Once the right to enforce the provisions of Article 22 has been suspended, no question of enforcing the procedure for the enforcement of that right or obligation under Article 22 of the Constitution in the manner provided in the 1974 Act can remain. In this view of the matter, it is not necessary for us to resolve the divergence of opinion between the Kerala and the Nagpur Bench of the Bombay High Court on the one hand and the Madras, Karnataka, Gujarat and Delhi High Courts on the other. Suffice it to say that as in this case the right to enforce the provisions of Article 22(4), (5), (61 and (7) has been suspended, this Court cannot enforce those very provisions by requiring the respondents to follow a statutory provision enacted with the sole object of regulating the manner in which the obligation flowing from the provisions of those articles, is to be discharged. It, therefore, follows that in this case, the petitioner is precluded from challenging his detention either because the grounds of detention were not communicated to him or that those communicated to him were so vague that he was deprived of an effective opportunity of making an effective representation.

11. However, the Presidential order does not preclude the petitioner either from contending that his detention is illegal as condition precedent for making the detention order as provided in Section 3(1) of the 1974 Act was not fulfilled or that he was being detained under a Statute which the Legislature was not competent to enact, Further in order to substantiate his case that condition precedent for making the order under Section 3(1) of the Act did not exist, he can make use of the grounds for his detention as communicated to him.

12. Section 3(1) of the 1974 Act, provides that the State Government, if satisfied that with a view to prevent a person from keeping smuggled goods, it is necessary so to do it may make an order directing that such person be detained. The State Government claims that in this case it was so satisfied. On receipt of a secret information from the Directorate of Revenue Intelligence the premises belonging to the petitioner were searched by the Central Excise Staff and the staff of the Directorate of Revenue Intelligence in the year 1969, At that time, 14 gold guineas, 44 pieces of gold biscuits and Indian currency amounting to Rs. 73,750 were recovered from petitioner's residential premises. In that connection (as stated in paragraph 39 of the counter-affidavit of Sri J. N. Nigam) Sri Moti Lal, petitioner's brother, made a statement on 6th June, 1969, which showed that the petitioner and his brother were regular dealers in smuggled gold. They received gold from one Nain Mal Paniani Shah of Bombay another notorious smuggler who, according to the newspaper report, is also under detention under the Maintenance of Internal Security Act. The smuggling activities of the petitioner were so deeply rooted that the seizure made in the year 1969 as also the existence of the preventive machinery could not deter him from his nefarious trade. The Central Excise and Customs Authorities received information regarding despatches of unaccounted silver. On one occasion a telephonic information, was received from the Assistant Collector Ahmedabad that 12 bars of silver seized by the Police at Viara had been despatched from Agra by M/s. Parma Lal Moti Chand. On receipt of this information enquiries were got made through local officers and the Inspector (Gold), vide its secret report dated 25-7-1974, reported that the correct name of the firm despatching silver was Moti Lal Panna Lal and not Moti Lal Moti Chand and that the business in that firm name was in fact being carried on by the petitioner. The Inspector also confirmed that 12 bars of silver related to the petitioner Messrs. Moti Lal Panna Lal of Agra and that he had deliberately introduced some variation in the name in order to confuse the authorities. He further reported that the petitioner was manipulator of accounts and that he was keeping unaccounted stocks with local refiners and not at his residence. Follow-in;? a message from the Collector, the residential and business premises of Messrs. Moti Lal Fanna Lal were searched by the Officers of Agra Division on 18-2-1974 but nothing incriminating could be recovered. The Inspector (Gold) submitted another intelligence report on 25-7-1974 wherein he mentioned that the petitioner had not stopped his illicit smuggling activities and that 50% of the smuggled gold in Agra area was being brought and sold by him. He was also collecting huge amount of silver from Agra and connected districts and after refining the same he was smuggling it out of India. This was his way of paying for the illegal gold imports and acquisition. On verification the Superintendent (Gold) found the aforesaid report made by Inspector (Gold) to be correct. The Supdt. also observed that the petitioner was very shrewd and was famous for dodgine the officers.

13. Learned Counsel for the petitioner vehemently contended that all information collected by the Customs Authorities and forwarded to the State Government were factually wrong and that they relate only to one incident which took place as far back as the year 1969. On the basis of such an information in connection with a solitary incident which took place as far back as 1969. no inference that it was necessary to detain the petitioner with a view to prevent him from keeping smuggled goods could be drawn. At any rate, the information conveyed by the Customs Authorities to the Government merely contained the opinion of the Excise Authorities and that opinion could not furnish a basis on which the State Government could be satisfied that it was necessary to detain the petitioner with a view to prevent him from keeping smuggled goods. According to the learned Counsel, the counter-affidavit filed on behalf of the respondents does not reveal that the Customs Authorities in fact forwarded any material on which their report was based to the State Government.

14. The counter-affidavit filed in the case, in our opinion, makes it clear that while making the detention order the State Government had information not merely in respect of petitioner's activity in the year 1969, but also in respect of his activities thereafter. So much so, that the enquiries made by the authorities of the Customs Department in the year 1972 revealed that despite the seizure made in the year 1969, the petitioner had continued his activity of smuggling gold and that he was responsible for distribution of 50% of smuggled gold in the city of Agra. Such activities of the petitioner could be taken into consideration for coming to the conclusion that unless the petitioner was detained he would continue those activities and if the State Government believed those reports, it could be satisfied that in order to prevent the petitioner from keeping smuggled goods, it was necessary to detain him.

15. In the very nature of things, in order to decide whether a person is to be placed under preventive detention under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974 or not, the State Government or the Central Government has to act on the basis of the information supplied to it by persons whose duty it is to look to the enforcement of laws relating to foreign exchange and smuggling. The satisfaction, which the State Government has to arrive at under Section 3(1) is a subjective satisfaction. It is now well settled that the High Courts, while going into the question whether the condition precedent for making a detention order existed, will not examine the sufficiency of the material on the basis of which the satisfaction of the Government was based. That in our opinion would be a matter for the Advisory Board to consider, if and when the matter is referred to it.

16. In the case of R. v. Home Secretary Ex parte Budd. (1941) 2 All ER 749, the King's Bench Division had an occasion to consider the question regarding validity of a detention order passed against one Budd under the provisions of regulation 18-B of the Defence (General) Regulations 1939. In order to justify the detention order passed by him, the Home Secretary filed an affidavit stating that before he made the order he had carefully studied reports and information coming from persons in responsible position, who are experienced in investigating matters of the kind, and whose duty it is to make such investigation and to report confidentially to the Home Secretary. The learned Judges upheld the ultimate order of detention, passed as a result of a belief entertained on the basis of such confidential reports. Moreover, in the case Liversidge v. Anderson (1941) 3 All ER 338, the House of Lord's countenanced such a satisfaction being arrived at on the basis of confidential report of the concerned agencies without disclosing the precise material contained in those reports to the detenu. It is obvious that while exercising the power conferred by Section 3(3) of the 1974 Act the State Government or the concerned authority will have to act on the information supplied to it by the enforcement agencies dealing with the matters relating to smuggling etc. If the State Government or the concerned authority acts bona fide on the basis of the information supplied to it by such enforcement or intelligence agency, it cannot be said that there was no material on the basis of which it could feel so satisfied, or that it was in fact not so satisfied before issuing the detention order. In case the State Government was not inclined to act on the information supplied by the Customs Authority, it could have asked it to furnish material in support of the information supplied by it. But, if the State Government did not ask for material on the basis of which the information contained in the report was being given, it did not mean that the State Government did not in fact have the requisite satisfaction. We are, accordingly not impressed by petitioner's argument that unless the report submitted by the Customs Authority disclosed also the evidence in support of the information supplied by it. the State Government merely on the basis of that information could not be so satisfied, as is required by Section 3(1) of the 1974 Act, or that such information furnished by the Customs Authority would merely be its own opinion which could not provide the base for State Government's satisfaction. We find that in this case the necessary facts viz. that the petitioner, despite the raid made in 1969, had continued to function as smuggler of goods, had been revealed in the report of the Customs Authorities, Even if the evidence in support of this allegation had not been revealed, still the State Government could act upon the information and be reasonably satisfied about the existence of condition precedent for making the detention order,

17. Learned Counsel for the petitioner next argued that the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974 came into force only with effect from 19-12-1974. It was only when this Act came into force that the State Government acquired jurisdiction to make detention orders under Section 3 thereof. Prior to that date, the authority which was making detention orders under the Maintenance of Internal Security Act was the District Magistrate. Accordingly till that stage all the information with regard to the alleged objectionable activity of the petitioner had been collected and processed by the District Magistrate. The State Government acquired jurisdiction to act under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974 only on 19-12-1974. It is impossible to believe that any material on the basis of which the State Government could have the requisite satisfaction had been .placed before it after the midnight of 18th and 19th January, 1974, so as to enable it to make the detention order under the provisions of Section 3(2) of the Act, before 1,30 p. m. on 19-12-1974. This, argument pre-supposes that the State Government did not have any information prior to 19-12-1974 with regard to the prejudicial activities carried on by the petitioner and that it could act only on the basis of the information which had been collected after the coming into force of the 1974 Act. In the supplementary counter-affidavit filed on behalf of . the State, it has been stated that even before the 1974 Act came into force on 19-12-1974 the information which provided the basis for State Government's satisfaction had already been communicated to it by the Customs Authorities, While the Act was in the bill form, the State Government had applied its mind to the material facts and had formed the requisite satisfaction. It may be that so long as the 1974 Act did not come into force, the State Government could not act upon the satisfaction or the opinion formed by it on the basis of the information supplied to it, but then it did not mean that as soon as the 1974 Act came into force on 19-12-1974 the State Government's satisfaction disappeared and got erased. The State Government continued to be so satisfied and so long as that satisfaction was there, based on relevant material, it could pass necessary orders under Section 3(2) of the Act. Accordingly, merely because the impugned detention order was passed by the State Government on the basis of material which had already been collected before the 1974 Act came into force, no inference that it recorded its satisfaction mechanically or that the same had been arrived at without considering relevant material, can be drawn.

18. Learned Counsel for the petitioner next submitted that the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974, is ultra vires the legislative powers of the Parliament. He contended that the Parliament is entitled to make laws only in respect of various items enumerated in lists 1 and 3 of the 7th Schedule. So far as the power to make laws regarding preventive detention is concerned. Item No. 9 of List I empowered it to make laws in respect of such detention only for the reasons connected with Defence, Foreign Affairs or the security of India. Similarly, under Item No. 3 of List 3 the law relating to preventive detention can be made for reasons connected with the security of a State, the maintenance of public order or the maintenance of supplies arid services essential to the community. Detention of a person for the reason connected with smuggling of goods cannot be described as, detention for reasons connected with Defence, Foreign Affairs or the Security of India. Such detention can also not be said to be for the reasons connected with the security of the State, maintenance of public order or the maintenance of supplies and services essential to the community. It therefore follows that the petitioner is being detained under an authority derived from an illegal enactment.

19. According to its preamble, the 1974 Act had been enacted with the professed object of dealing with the violation of foreign exchange regulations and smuggling activities which were having an increasingly deleterious effect on the national economy, thereby seriously affecting the security of the State adversely. It is thus clear that in the opinion of the Parliament, smuggling activities had acquired such dimensions so as to impair the security of the State. Accordingly, the Legislation in question made provision for preventive detention for reasons connected with the security of the State. Such legislation therefore clearly fell within the ambit of Entry No. 9 of List I. Whether or not the smuggling activity in the country had assumed such dimensions that it impaired its security is, on the face of it, a question of fact. We find that the petitioner has placed absolutely no material before us on the basis of which it could be said that the opinion of the Legislature in this regard was unfounded. The petitioner has therefore failed to show that the subject-matter of the impugned legislation did not fall within the ambit of Entry No. 9 of List I of the seventh schedule of the Constitution.

20. Learned Counsel for the respondents contended that even if it be assumed that the law providing for preventive detention in connection with the smuggling, is not connected with the defence, foreign affairs or the security of India or with the security of State, maintenance of public order or maintenance of supplies and services essential to the community, the Parliament had ample jurisdiction to legislate and provide for such preventive detention under Entry No. 97 of List 1 of the Seventh Schedule. That entry runs thus:

Any other matter not enumerated in List II or List III including any tax not mentioned in either of those Lists.

Learned Counsel for the petitioner countered this argument by contending that when Item No. 9 of List I and Item No. 3 of List III enables the Parliament to legislate only with regard to preventive detention for the purposes specified therein, it necessarily follows that the intention of the Constitution makers was to preclude it from making law relating to preventive detention for achieving any other purpose. Accordingly, making of a law with respect to preventive detention for reasons not connected with the matters enumerated in Item No. 9 of List I or Item No. 3 of List III, has not been authorised under Item No. 97 of List I.

21. We are unable to accept this submission. The authority of the Parliament to enact a law is not derived from anything contained in the lists enumerated in the Seventh Schedule. Article 248(1) of the Constitution declares the Constitutional power of the Parliament to enact laws and it reads thus:

Parliament has exclusive power to make any law with respect to any matter not enumerated in the Concurrent list or State List.

It follows that Constitution has conferred a power on the Parliament to enact laws in a very wide way. It has given the Parliament the exclusive power to make any law in respect of any matter which is not enumerated in either the Concurrent or the State list i.e., Lists II and III of the Seventh Schedule. According to the submissions made by the learned Counsel for the petitioner the law on the subject-matter of preventive detention for the reasons connected with the smuggling of goods is not a matter which has been enumerated either in the Concurrent or the State List. Accordingly, as stated in Article 248(1) and notwithstanding enumeration of various entries in List I, the Parliament would have ample jurisdiction to legislate in respect of preventive detention for reasons connected with smuggling. We derive considerable support for this view of ours from the observations of Chief Justice Sikri in the case of Union of India v. H. S. Dhillon : [1972]83ITR582(SC) wherein he said:

It seems to us that the function of Article 246(1) read with Entries 1-96, List I is to give positive power to Parliament to legislate in respect of these entries. Object is not to debar Parliament from legislating on a matter even if other provisions of the Constitution enable it to do so. Accordingly, we do not interpret the word 'any other matter' occurring in Entry 97, List I to mean a topic mentioned by way of exclusion. These words really refer to the matters contained in each of the Entries 1 to 96. The words 'any other matter' has to be used because Entry 97. List I follows Entries 1 to 96, List I. It is true that the field of legislations is demarcated by Entries 1 to 96, List I, but demarcation does not mean that if Entry 97 List I confers additional powers, we should refuse to give effect to it. At any rate, whatever doubt there may be on the interpretation of Entry 97. List I is removed by the wide terms of Article 248. It is framed in the widest possible terms. On its terms the only question to be asked is : Is the matter sought to be legislated included in List II or in List III or is the tax sought to be levied mentioned in List II or in List III : No question has to be asked about List I. If the answer is in negative then it follows that Parliament has power to make laws with respect to that matter or tax.

Accordingly, even if it be held that the subject-matter of Legislation did not fall either under Entry No. 9 of List I or Entry No. 3 of List III of the Seventh Schedule of the Constitution, the Parliament still had ample jurisdiction to legislate in respect thereof as provided under Article 248(1) of the Constitution. The argument of the learned Counsel for the petitioner that the Legislation in question is ultra vires the power of the Parliaments has therefore no merits and deserves to be rejected.

22. Since all the submissions made by the petitioner have been repelled, this petition fails and is dismissed. We direct the parties to bear their own costs.


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