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Smt. Hemlataben Manharlal Soni Vs. the State of Gujarat and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in1976CriLJ882; (1976)GLR201
AppellantSmt. Hemlataben Manharlal Soni
RespondentThe State of Gujarat and ors.
Cases ReferredS. Krishnan v. State of Madras
Excerpt:
.....position regarding the effect of repeal of a temporary statute. 11 of 1974 being tacked on to the period of detention undergone under the cofeposa act must fail. that in view of the provisions of article 22(7) read with article 22(4)(b), the provisions of the amending act substantially satisfied the requirements of sub-clause (b) of clause (4) of article 22 and could not be declared unconstitutional and void. who agreed with him found that the requirements of article 22(4)(b) were met, really speaking there was no question of any violation of article 22(4) because article 22(4)(a) itself indicates that if the parliament .passes a law as contemplated by article 22(7), it will not be hit by article 22(4)(a). it has been pointed out that the law could still be upheld if it fulfilled the..........of internal security act, 1971 (hereinafter referred to as 'the misa') should be tacked on to the period of detention under the conservation of foreign exchange and prevention of smuggling activities act, 1974 (hereinafter referred to as 'the cqf-eposa act') for considering the question of maximum period of detention when the detention order under the cofeposa act is passed after formal release and re-arrest should be settled. the division bench felt that this question was of wide public importance. in spl. criminal application no. 103 of 1975 (guj.), a division bench consisting of a. d. desai and b. k. mehta, jj. had held that the period of detention under the misa could not be tacked on to the period of detention under the cofeposa act but j. b. mehfca and p. d. desai, jj. found that.....
Judgment:

B.J. Diwan, C.J.

1. This matter has been referred to us by the Division Bench consisting of J. B. Mehta and P. D. Desai JJ. as the Division Bench felt that the law on the question as to whether the period of detention under the Maintenance of Internal Security Act, 1971 (hereinafter referred to as 'the MISA') should be tacked on to the period of detention under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as 'the CQF-EPOSA Act') for considering the question of maximum period of detention when the detention order under the COFEPOSA Act is passed after formal release and re-arrest should be settled. The Division Bench felt that this question was of wide public importance. In Spl. Criminal Application No. 103 of 1975 (Guj.), a Division Bench consisting of A. D. Desai and B. K. Mehta, JJ. had held that the period of detention under the MISA could not be tacked on to the period of detention under the COFEPOSA Act but J. B. Mehfca and P. D. Desai, JJ. found that the decision of the Supreme Court in S. Krishnan v. State of Madras : [1951]2SCR621 and the effect of Section 24 of the General Clauses Act had not been considered by the Division Bench which decided Special Criminal Application No. 103 of 1975 and under these circumstances this question has been referred to the larger Bench and we will now dispose of the matter.

2. The MISA as originally enacted on July 2, 1971 provided for detention of a person if the detaining authority was satisfied that with a view to preventing him from acting in any manner prejudicial to (i) the defence of India, the relations of India with foreign powers, or the Security of India, or (ii) the security of the State or the maintenance of public order, or (iii) the maintenance of supplies and services essential to the community, or if satisfied with respect to any foreigner that with a view to regulating his continued presence in India or with a view to making arrangements for his expulsion from India, it was necessary to pass an order directing that such person be detained. Thereafter the President promulgated the Maintenance of Internal Security (Amendment) Ordinance, 1974, being Ordinance No. 11 of 1974, and as a result of the Ordinance, the detaining authorities were empowered to detain a person if they were 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 of foreign exchange or with a view to preventing him from (i) smuggling goods, or (ii) abetting other persons to smuggle goods, or (iii) dealing in smuggled goods, it was necessary to pass an order of detention, such order of detention could be passed. Thus by this Ordinance, orders of detention could be passed to prevent persons from carrying on activities prejudicial to the conservation of foreign exchange, or, what may be briefly described as 'to preventing smuggling activities'. The Ordinance was promulgated on September 17, 1974. Thereafter the Parliament enacted the COFEPOSA Act on December 13, 1974 but by Section 1, Sub-section (3) it was to come into force on such date (being a date not later than the twentieth day of December, 1974), as the Central Government may, by notification in the Official Gazette, appoint, The Central Government appointed December 19, 1974 as the date for the commencement of this Act and thus the COFEPOSA Act came into force with effect from December 19, 1974. The preamble to the COFEPOSA Act shows that it was enacted having regard to the persons by whom and the manner in which such activities or violations are organised and carried on, and having regard to the fact that in certain areas which are highly vulnerable to smuggling, smuggling activities of a considerable magnitude are clandestinely organised and carried on, and it was necessary for the effective prevention of such activities and violations to provide for detention of persons concerned in any manner therewith.

3. It may be mentioned here that so far as the MISA was concerned, the relevant portion of it was amended by the Defence of India Act, 1971, being Act 42 of 1971 in certain respects. Under Section 13 of the MISA, the maximum period for which any person may be detained in pursuance of any detention order which has been confirmed under Section 12 shall be twelve months from the date of detention provided that nothing contained in Section 13 was to affect the power of the appropriate Government to revoke or modify the detention order at any earlier time. By the Defence of India Act, 1971 an amendment was introduced in Section 13 with the result that the maximum period for which any person can be de- tained in pursuance of any detention order passed under the MISA is to be twelve months from the date of detention or until the expiry of the Defence of India Act, 1971 whichever is later and by Section 6 of the Defence of India Act, 1971 this amendment of the MISA is to remain on the Statute Book during the continuance in force of the Defence of India Act, 1971. The Defence of India Act is still in force and the result, therefore, is that in respect of all orders of detention passed under the MISA, the maximum period of detention is twelve months from the datft of detention or until the expiry of the Defence of India Act, 1971, whichever is later and thus all orders of detention under the MISA are for an indefinite period, that is, till the expiry of the Defence of India Act. Under Section 10 of the COFEPOSA Act, on the other hand, it has been provided that the maximum period for which any person may be detained in pursuance of any detention order to which the provisions of Section 9 do not apply and which has been confirmed under Clause (f) of Section 8 shall be one year from the date of detention and the maximum period for which any person may be detained in pursuance of any detention order to which the provisions of Section 9 apply and which has been confirmed under Clause (f) of Section 8 read with Sub-section (2) of Section 9 shall be two years from the date of detention. By the proviso, nothing contained in Section 10 shall affect the power of the appropriate Government in either case to revoke or modify the detention order at any earlier time.

4. It may also be mentioned that under the MISA the orders of detention could be passed by the Central Government or the State Government or under certain circumstances by the District Magistrates, Additional District Magistrates specially empowered in this behalf by the State Government and Commissioners of Police, wherever they have been appointed. The District Magistrates, the Additional District Magistrates specially empowered and the Commissioners of Police could only exercise the power in respect of some of the grounds of detention and not in respect of all the grounds in respect of which the orders of detention under the MISA could be passed. Under the COFEPOSA Act, on the other hand, the detaining authorities are the Central Government or the State Government or any officer of the Central Gov- ernment, not below the rank of a Joint Secretary to that Government, specially empowered for the purposes of that Section by that Government, or any officer of a State Government, not below the rank of a Secretary to that Government, specially empowered for the purposes of that Section by that Government. Thus the persons or the authorities who can pass orders of detention are different under the COFEPOSA Act from the authorities under the MISA. It may also be mentioned that a comparison of the grounds for detention under the MISA as amended by Ordinance No. 11 of 1974 and the COFEPOSA Act shows that in addition to prejudicial activities mentioned in Ordinance No. 11 of 1974, the COFEPOSA Act provides for detention with a view to preventing a person from acting in any manner prejudicial to the augmentation of foreign exchange or with a view to preventing him from harbouring persons engaged in smuggling goods or in abetting the smuggling of goods. Thus harbouring persons engaged in these two prejudicial activities of smuggling goods or abetting the smuggling of goods is a new ground under the COFEPOSA Act as compared to the MISA as amended by Ordinance No. 11 of 1974. These are the major differences between the two enactments and the question that we have to consider regarding Section 24 of the General Clauses Act will have to be answered bearing in mind these differences between the COFEPOSA Act on the one hand and the MISA as amended by Ordinance No. 11 of 1974 on the other.

5. The contention of Mr. Daru for the petitioner can be summed up as follows. He has pointed out that in this particular case the petitioner is the wife of the detenu. On September 21, 1974 an order of detention was passed against the detenu under Section 3(1)(c) of the MISA as amended by Ordinance No. 11 of 1974 by the Commissioner of Police, Ahmeda-had. On December 19, 1974 the detenu was released for a few minutes and thereafter he was again detained under a fresh order passed under the COFEPOSA Act by the Secretary to the Government in the Public Works Department who has been specially authorized in this behalf. Mr.. Daru has contended that the order passed under the MISA should be deemed to have been passed under the COFEPOSA Act by virtue of the provisions of Section 24 of the General Clauses Act, 1897 and once the deeming fiction is applied, the maximum period of duration of detention under Section 10 of COFEPOSA Act should be counted from September 21, 1974 when the original order of deten- tion was passed and not from December 19, 1974 when the order under the COFEPOSA Act was passed, Mr. Daru has pointed out that the Central Government has not passed any order under Section 9 so far as the detenu before us is concerned and hence under Section 10 of the COFEPOSA Act, the maximum period of detention is one year. He has thus contended that the period of detention undergone as a result of the order of detention under the MISA as amended by the Ordinance should be tacked on to the period of detention undergone as a result of the order under Section 3 of the COFEPOSA Act and because of this tacking on of the two periods, his detention must come to an end on September 20, 1975.

6. In support of his argument, Mr. Daru has relied upon certain observations of Mahajan J. in S. Krishnan v. State of Madras (52 Cri LJ 1103) (SC) (supra). Thereafter he has relied upon certain observations of Patanjali Sastri J., in the same case regarding tacking on of two periods and he has relied upon Section 24 of the General Clauses Act for the deeming fiction under that section. Mr. Daru has frankly conceded that unless all the three supports for his argument are upheld, his main contention cannot succeed. In our opinion, whatever the conclusion may toe regarding what was observed by the Supreme Court in S. Krishnan's case, Section 24 of the General Clauses Act cannot apply to cases like the present. Section 24 of the General Clauses Act is in these terms-

Where any Central Act or Regulation, is, after the commencement of this Act, repealed and re-enacted with or without modification, then, unless it is otherwise expressly provided, any appointment, notification, order, scheme, rule, form or bye-law, made or issued under the repealed Act or Regulation, shall, so far as it is not inconsistent with the provisions re-enacted, continue in force, and be deemed to have been made or issued under the provisions so re-enacted unless and until it is superseded by any appointment, notification, order, scheme, rule, form or bye-law, made or issued under the provisions so re-enacted.

The rest of the Section is not material for the purposes of this judgment. It must be borne in mind that the provisions of the COFEPOSA Act as regards the maximum period of detention are more liberal as compared with the provisions of the MISA as amended by the Defence of India Act and as amended by Ordinance No. 11 of 1974. Under the MISA as amended by Defence of India Act, any order of detention under the MISA remains in force for much longer than the period of one year because the period of detention is period of one year from the date of order or until the expiry of the Defence of India Act whichever is later and thus the order of detention under the MISA as it stood before the repeal of Ordinance No. 11 of 1974 by Section 14 of the COFEPOSA Act, was an indefinite period beyond the period of one year which is now prescribed as the maximum period by Section 10 of the COFEPOSA Act. Thus it cannot be said that so far as the maximum period of detention is concerned, the provisions of the MISA have been repealed and re-enacted by the COFEPOSA Act. On, three points, namely, regarding the grounds of detention, the duration of the period of detention and the authorities which could pass the orders of detention, the COFEPOSA Act differs so materially from the provisions of MISA as amended by Ordinance No. 11 of 1974 that it is not possible for us to say that the provisions of MISA have been repealed and re-enacted by the COFEPOSA Act. In any event, so far as the question of duration of the maximum period of detention is concerned, the order passed under the MISA which was for an indefinite period because of the amendment in Section 13 by the Defence of India Act, is now restricted to a period of twelve months only from the date of order of detention. Hence, it cannot be said that the order of detention passed under the MISA is consistent with the provisions of the COFEPOSA Act, Section 10, and that is one additional ground for saying that the provisions of Section 24 of the General Clauses Act are not attracted to this case. Lastly, it must be pointed out on the facts of this particular case that the authorities concerned have proceeded on the footing that Ordinance No. 11 of 1974, being Maintenance of Internal Security (Amendment) Ordinance, 1974 was & temporary statute and since the temporary statute was repealed by Section 14 of the COFEPOSA Act, the order of detention passed under MISA as amended by Ordinance No. 11 of 1974 also came to an end and was terminated. It is because of this footing of the repeal of a tempo- rary statute that the detaining authorities appear to have passed a fresh order of detention under the COFEPOSA Act on December 19, 1974. It may be pointed out that in S. Krishnan's case, out of the five learned Judges of the Supreme Court who heard the matter, Kania, C, J., Patanjli Sastri, Mahajan and S. R. Das, JJ. were of the view that in circumstances like the present, the previous order of detention would be technically terminated. Since there was a termination of the order of detention passed under the MISA as amended by Ordinance No. 11 of 1974, because of the repeal of Ordinance No. 11 of 1974, the fresh order of detention under the COFEPOSA Act became necessary if the detenu was to be detained with a view to preventing him from carrying on what were alleged to be offensive activities covered by the COFEPOSA Act and sought to be prevented by the COFEPOSA Act and it was for this reason that the order of detention came to be passed on December 19, 1974. Thus in any event, so far as the order under the MISA was concerned, it came to an end automatically because of the repeal of the Ordinance No. 11 of 1974 on which it was based and, therefore, there is no question of the order under MISA continuing in force and being deemed to have been passed under the COFEPOSA Act. Even if this view of ours is not correct, it must be held that the order under the MISA as amended by Ordinance No, 11 of 1974 was superseded by the fresh order of detention passed on December 19, 1974 and once it is so superseded, it came to an end. Mr. Daru has contended in this connection that the order of detention passed under the COFEPOSA Act on December 19, 1974 was a superfluous order but we are unable to accept that contention because Ordinance No. 11 of 1974 being a temporary statute and having been repealed by Section 14 of the COFEPOSA Act, the order of detention of September 21, 1974 which was passed on the basis of that Ordinance, stood terminated, or, could well be said to have been terminated in the light of the legal position regarding the effect of repeal of a temporary statute. It is obvious that according to the contention of Mr. Daru which we have formulated above, if Section 24 of the General Clauses Act does not apply and cannot be brought into play, his whole argument regarding the period of detention suffered under the MISA as amended by Ordinance No. 11 of 1974 being tacked on to the period of detention undergone under the COFEPOSA Act must fail.

7. As regards his argument based on observations of the different Judges in S. Krishnan's case (52 Cri Lj 1103) (SC) (supra), it must be pointed out that the main question before the Bench of five Judges in that case was as to whether certain provisions of the Preventive Detention (Amendment) Act, 1951 purporting to amend the Preventive Detention Act, 1950, authorized detention of a person to be continued beyond the expiry of one year and hence were ultra vires and inoperative. Out of the five Judges who heard that case, Kania, C. J., and Patan-jali Sastri J. on one set of reasoning and Mahajan and S. R. Das, JJ, on another line of reasoning all held that the provisions were intra vires and were not invalid. Vivian Bose, J. delivered a dissenting judgment and he came to the conclusion that Section 11 (1) of the Amending Act was ultra vires. Mahajan J., who delivered the judgment on behalf of himself and S. R. Das, J., has pointed out-

Technically speaking, an amended statute remains the same statute as originally enacted but from that proposition it does not follow that the law contained in the amended statute is the same law as was contained in the original one. Section 9 of the original Act has been substituted by Section 9 of the amended Act and declares a new law and it is not a re-enactment of the law as was contained in the earlier statute. Section 12 of the original statute has been completely repealed and no longer exists. The law declared by that section has been abrogated. The law declared by Section 12 of the amended Act is in the nature of a substituted provision. It seems to me that the law declared by the amended statute is not the same law as was declared by the original statute and to that extent the amended statute is in the nature of a new and independent statute. The petitioners are being detained today by force of the provisions contained in Sections 9 and 12 of the amended Act and not under the law that was passed in 1950, as by repeal of Section 12 of that Act their detention under it technically terminated. The new law admittedly standing by itself does not authorize detention of any person beyond a period of three months except in the manner provided by Article 22(4) of the Constitution. No question whatever arises of tacking of the period of detention under one law in the period of detention under another law, inasmuch as the detention under the earlier law automatically terminates with the repeal of Section 12 of the Act IV of 1950.' Mr. Daru has pointed out that Patanjali Sastri J. speaking for himself and Kania, C. J., while considering the provisions of Article 22(4)(a) of the Constitution has observed in paragraph 8 of his judgment-It will be seen that although the object of the new Act was to liberalise the provisions of the old Act in the manner indicated above, Section 12 had the effect of enlarging the period of detention of the petitioners who were under detention at the commencement of the new Act by enacting the legal fiction that detention in such oases shall have effect as if it had been made under the new Act. On that basis, the new Act seeks to bring detention orders in force at its commencement and more than three months' old into conformity with Article 22(4)(a) by prescribing a period of six weeks in Section 9 for referring such cases to the Advisory Board and ten weeks in Section 10(1) for the submission by the Board of the report, the period in each case being calculated from the commencement of the new Act. But this fiction cannot obscure the fact that in the case of the petitioners more than three months had elapsed from the date of their arrest without any Advisory Board making a report on their detention and it is, of course, not possible for the Advisory Board now provided for in such cases to submit its report before the expiration of that period, with the result that their detention contravened Article 22(4)(a). No doubt the detention up to the commencement of the new Act was lawful under Section 12 of the old Act, as it was in accordance with Sub-clause (b) of Clause (4) of Article 22, but that could not make the petitioners' continued detention any the less a violation of Article 22(4)(a) after the deletion of old Section 12. It is a fallacy to treat what maa a lawful detention under Sub-clause (b) as toeing no detention at all for the purposes of Sub-clause (a). Detention is a hard physical fact, and the total period of detention of the petitioners having far exceeded three months without an Advisory Board having reported within three months that there were sufficient grounds therefor, it could not lawfully be continued under Article 22(4)(a). Constitutional provisions regarding fundamental rights cannot be circumvented by resorting to legal fictions.

However, it was found by Patanjali Sastri J. that in view of the provisions of Article 22(7) read with Article 22(4)(b), the provisions of the Amending Act substantially satisfied the requirements of Sub-clause (b) of Clause (4) of Article 22 and could not be declared unconstitutional and void.

8. A reference to Article 22 shows that according to Clause (4) no law providing for preventive detention shall authorize the detention of a person for a longer period than three months unless (a) an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention. Provided that nothing in the Sub-clause shall authorize the detention of any person beyond the maximum period prescribed by any law made by Parliament under Sub-clause (b) of Clause (7), or (b) such person is detained in accordance with the provisions of any law made by Parliament under Sub-clauses (a) and (b) of Clause (7). Under Clause (7), Parliament may by law prescribe (a) the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an Advisory Board in accordance with the provisions of Sub-clause (a) of Clause (4); (b) the maximum period for which any person may in any class or classes of cases be detained under any law providing for preventive detention. Since Patanjali Sastri J. and Kania C. J. who agreed with him found that the requirements of Article 22(4)(b) were met, really speaking there was no question of any violation of Article 22(4) because Article 22(4)(a) itself indicates that if the Parliament .passes a law as contemplated by Article 22(7), it will not be hit by Article 22(4)(a). It has been pointed out that the law could still be upheld if it fulfilled the conditions laid down in Sub-clause (b) of Clause (4) of Article 22 and that was precisely found in that particular case. With utmost respect, therefore, what has been observed by Patanjali Sastri J. while considering the provisions of Article 22(4)(a) was not strictly necessary for the decision of the particular case before the Supreme Court and it seems that while considering the argument advanced before the Bench regard- ing the alleged violation of Article 22(4)(a) that the observations stated above have been made. Even though these observations are entitled to utmost respect, the clear position as emerges on a close examination of the case is that out of the four Judges who constituted the majority, two Judges, namely, Mahajan and S. R. Das JJ. were of the view that the detention order under the earlier law automatically terminated with the repeal of Section 12 of Act 4 of 1950 by the Amending Act and there was no question of tacking of period under the old Act to the period of detention under the new Act. Whatever has been observed by Patanjali Sastri J. and by Kania C. J., who agreed with him, was in passing while considering the argument advanced before the court regarding the alleged violation of Article 22(4)(a) and even though Patanjali Sastri J. and Kania C. J., found that there was a violation of Article 22(4)(a), by virtue of Article 22(4)(b) the impugned provisions were saved. Under these circumstances if we have to choose between the two views set forth by Patanjali Sastri J. with whom Kania, C, J. agreed on the one hand and Mahajan and S. R. Das, JJ. on the other hand, we would prefer to be guided by the view of Mahajan and S. R-Das JJ. because Mahajan J. has directly dealt with the main point that was in controversy and has pointed out that in view of the facts of that particular case and the law as it stood, there was no question of any period being tacked on and alleged violation of Article 22(4)(a). It is open to us to prefer one view to the other and for the reasons indicated above, we prefer, with respect, to follow the view put forward by Mahajan and S. R. Das, JJ.

9. Thus even as regards the observations set out in S. Krishnan's case (52 Cri LJ 1103) (SC), the contention of Mr. Daru for the petitioner cannot be accepted. After examining this decision in S. Krishnan's case we have come to the conclusion that the period of detention undergone under MISA as amended by Ordinance No. 11 of 1974 cannot be tacked on to the period of detention undergone under the COFEPOSA Act. Both Mr. Daru for the petitioner and the learned Government Pleader are agreed that this question about tacking on of the period of detention was the only point that was argued before the Division Bench of J. B. Mehta and P. D. Desai, JJ. and since that point is decided against the petitioner and since the contentions of Mr. Daru on behalf of the petitioner are rejected, this Special Criminal application fails and is rejected and the Rule is discharged with no order as to costs.

10. Before parting with the case we must point out that the learned Government Pleader wanted to canvass before us the larger question as to the exact meaning of Section 11 of the COFEPOSA Act. He pointed out before us that under Section 11 a detention order may, at any time, be revoked or modified notwithstanding that the order has been made by an officer of a State Government, by that State Government or by the Central Government and notwithstanding that the order has been made by an officer of the Central Government or by a State Government, by the Central Government and under Sub-section (2) the revocation of a detention order shall not bar the making of another detention order under Section 3 against the same person. He has pointed out that under MISA relevant provision of Sub-section (2) of Section 14 is that 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 or a State Government or an officer, as the case may be, is satisfied that such an order should be made. The learned Government Pleader contended that there is a distinction between the COFE-PQSA Act and the MISA inasmuch as under the MISA after the revocation or expiry of a detention order, a fresh order of detention can be passed only where fresh facts have arisen after the date of revocation or expiry of the order of detention whereas under the COFEPOSA Act, the revocation of a detention order is not to bar the making of another detention order under the same Act. There is no reference to expiry of the order of detention operating as a bar except in the case where fresh facts have arisen, so far as the COFEPOSA Act is concerned. However, we have not gone into this larger question as it was not necessary for the purposes of this judgment.


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