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Vasantlal Dhansurhlal Jariwala Vs. G.N. Dike, Secretary to Govt. of Gujarat and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in(1976)17GLR122
AppellantVasantlal Dhansurhlal Jariwala
RespondentG.N. Dike, Secretary to Govt. of Gujarat and ors.
Cases ReferredIn S.K. Salim v. State of W.B.
Excerpt:
- - (2) when one or more of the several grounds given for preventive detention under section 3 of the conservation of foreign exchange and prevention of smuggling activities act, are found to be irrelevant, or non-existent, or bad whether the whole of the order of detention is vitiated or whether in such cases the court should, by applying the tests of reasonable man exclude the irrelevant or non-existent ground or grounds and consider, if on such exclusion, the concerned authority would have reached the same subjective satisfaction or not? 204 of 1974 was detained by an order passed under section 3(1) of the conservation of foreign exchange and prevention of smuggling activities act, 1974 (hereinafter referred to as the cofeposa act) on december 19, 1974. the order was passed by the.....b.j. divan, c.j.1. the following three questions have been referred for our decision by a division bench of this court consisting of a.d. desai and t.u. mehta jj. the questions referred to us are as follows:(1) whether on the court coming to the conclusion that some grounds given for the detention are not according to law and some are valid the court should set aside the entire detention order passed under section 3 of the act without attempting to further probe into the question whether the detain ing authority would have passed the order of detention even though some of the grounds are proved to be invalid?(2) when one or more of the several grounds given for preventive detention under section 3 of the conservation of foreign exchange and prevention of smuggling activities act, are.....
Judgment:

B.J. Divan, C.J.

1. The following three questions have been referred for our decision by a division bench of this Court consisting of A.D. Desai and T.U. Mehta JJ. The questions referred to us are as follows:

(1) Whether on the court coming to the conclusion that some grounds given for the detention are not according to law and some are valid the court should set aside the entire detention order passed under Section 3 of the Act without attempting to further probe into the question whether the detain ing authority would have passed the order of detention even though some of the grounds are proved to be invalid?

(2) When one or more of the several grounds given for preventive detention under Section 3 of the conservation of foreign exchange and prevention of smuggling Activities Act, are found to be irrelevant, or non-existent, or bad whether the whole of the order of detention is vitiated or whether in such cases the court should, by applying the tests of reasonable man exclude the irrelevant or non-existent ground or grounds and consider, if on such exclusion, the concerned authority would have reached the same subjective satisfaction or not?

(3) If the second part of question No. (2) is answered in the affirmative, whether in special criminal applications Nos. 204 of 1974 and 7 of 1975 the detaining authority could have reasonably come to the conclusion that, in view of the validity of the common ground relating to the incident of 10-12-1973, the detention of the detenu, could have been ordered?

2. The facts giving rise to this full bench reference are as follows. The detenu in special criminal application No. 204 of 1974 was detained by an order passed under Section 3(1) of the conservation of foreign exchange and prevention of smuggling Activities Act, 1974 (hereinafter referred to as the COFEPOSA Act) on December 19, 1974. The order was passed by the first respondent to the petition who is the secretary to the Government of Gujarat, panchayats and health department, and the order of detention stated that the first respondent was satisfied with respect to the detenu that with a view to preventing the detenu from smuggling goods and engaging in transporting smuggled goods, it was necessary to detain him. Therefore, under Section 3(1) of the COFEPOSA Act, the first respondent directed by the order of detention that the detenu be detained. The grounds for detention supplied to the petitioner mentioned as follows:

(1) That on 10-12-1973, Ahmedabad customs officials chased one vehicle No. RJZ-7117, on information that you (detenu) and Shri Niranjan alias Nirubhai Parekh of Surat had brought 3 jackets of gold by three vehicles viz., GJL-5845, RJZ-7117 and MRJ-1861 from Surat for disposal in ahmedabad to a party inside the sports club and that vehicle No. RJZ-7117 had started with the said gold from your place of stay in ahmedabad viz., hotel international, ahmedabad for the sports club in Navrangpura at ahmedabad to deliver the said gold to the said party; that the car RJZ-7117 gave a slip to the officers at Sardar patel bridge in the course of the chase while the other two cars were apprehended by them in Hotel International, Ahmedabad; that on a search of these two cars it was found that they had specially made cavities obviously for the purpose of concealment of gold; that the investigation in this case revealed that one out of the three jackets of gold brought by you and two others from Surat was meant for delivery to Shri Kanubhai Bhailalbhai Choksi of Ahmedabad. A show cause notice has been issued to you by the Collector of Customs and Central Excise, Ahmedabad vide his No. VIII/10-32/Collr/ 74 dated 3-6-1974.

(2) that on 4-1-1974, the Customs Officers of Surat apprehended a jeep bearing No. MPJ-2539 having specially prepared compartment in its rear portion at ring road, surat. Search of the jeep resulted in the recovery of silver valued at Rs. 8,63,550/ - from the specially prepared compartment in the jeep as aforesaid. The jeep was lying abandoned with a false number plate (MPI-2539). Further probe into the matter revealed that the original number of the jeep was GJL-5845, which was purchased by you in a fictitious name viz., Shri M. B. Patel of village Tundi, who never existed; that the above vehicle was being utilised by you for smuggling purpose.

3. In special Criminal Application No. 7 of 1975, the order of detention was passed on December 19, 1974 under Section 3(1) of the COFEPOSA Act by the Secretary to the Public Works Department, Government of Gujarat, who is the second respondent to the petition. The order stated that the second respondent was satisfied with respect to the detenu that with a view to preventing him from smuggling goods and dealing in smuggled goods (otherwise than by engaging in transporting or concealing or keeping smuggled goods) it was necessary to detain the detenu and, therefore, the order of detention under Section 3(1) of the COFEPOSA Act was being passed. In the grounds of detention which were furnished to the detenu, the first ground was as follows:

(1) that on 7-11-1970 the residential premises of your employee Babulal H. Patel were searched, resulting in recovery and seizure of documents belonging to you and your firm M/s. Bhailal Dahyabhai Chokshi. On a detailed scrutiny of the aforesaid documents it was revealed that you had surreptitiously removed 15363 kgs. Of silver bullion valued at Rs. 76,81,675/- from ahmedabad to surat and Bombay in the year 1969 and 1970 without cover of transport vouchers as required under Rule 3 of the specified goods (prevention of illegal export) Rules, 1969 read with Section 11-K of chapter IV-B of the customs Act 1962 and thereby indulged in smuggling as defined in Section 2(39) of the customs Act, 1962. In this case, a show cause notice was issued to you by the deputy Collector, customs, ahmedabad Collectorate vide his No. VIII/10-51/70 dated 20-4-1971 and the case is pending adjudication.

The second ground was as follows:

(2) That on 10-12-1973, ahmedabad customs officials chased one vehicle No. RJZ-7117 on information that Shri Dhansukhlal Atmaram Patel Pawthawala and Niranjan alias Nirubhai Parekh of Surat had brought 3 jackets of gold by three vehicles viz., GJL-5845, RJZ-7117 and MRJ-1861 for disposal in ahmedabad to a party inside sports club and that vehicle No. RJZ-7117 had started with the said gold from hotel international, ahmedabad for sports club in navrangpura at Ahmedadad to deliver the said gold to the said party; that the car No. RJZ-7117 gave a slip to the officers at sardar patel bridge, ahmedabad in the course of the chase while the other two cars were apprehended by them in Hotel International Ahmedabad; that on a search of these two cars it was found that they had specially made cavities ostensibly for the purpose of concealment of gold; that the investigation made in this case revealed that you were concerned with the receipt of one out of the three jackets of gold brought by the aforesaid persons from Surat; that a show cause notice in this case has been issued to you by the Collector of customs ahmedabad, vide his, no, VIII/10-32/Collr/74, dated 30-5-1974.

These two petitions along with a third petition, namely, special criminal application No. 203 of 1974 came up for hearing before the division bench consisting of A.D. Desai and T.U. Mehta JJ. It May be pointed out that the first ground in special criminal application No. 203 of 1974 was the same as the first ground in special criminal application No. 204 of 1974 and the second ground in special criminal application No. 7 of 1975. So far as the merits of the case were concerned, both the learned judges constituting the division bench came to the conclusion that the first ground in the order of detention in special criminal application no, 204 of 1974 was not a stale ground and that it was a valid ground and a good ground for passing the order of detention. The Division Bench found that the second ground of detention in special Criminal Application No, 204 of 1974 was non-existent and it also found that the first ground in special criminal application No. 7 of 1975 was bad. Thereafter the question arose before the division bench as to whether the orders of detention should be struck down because out of the two grounds mentioned in each of these two orders of detention one was found to be bad or whether the court should try to find out whether the ground which was found to be bad was so inconsequential that by applying the rule of exclusion the court should exclude the inconsequential part and after severing the good from the bad, try to consider whether the detaining authority could have passed the order on the remaining good ground, that is, the ground which was found to be good and sustainable by the court. There was a difference of opinion between the two learned judges, A.D. Desai and T.U. Mehta JJ. On this aspect and thereafter in order to clarify the legal position, the Division Bench has referred the abovementioned three questions to this court.

4. It May be pointed out that the maintenance of internal security Act, 1971 was enacted by parliament and came into force on July 2, 1971, (hereinafter referred to as the MISA). By Ordinance No. 11 of 1974 known as the Maintenance of Internal Security (amendment) ordinance, 1974, promulgated by the president on September 17, 1974 certain amendments were made in the MISA providing for the passing of an order of detention if the detaining authority was satisfied that the detention was required for the purpose of preventing the detenu from Acting in any manner prejudicial to the conservation of foreign exchange or from smuggling goods, or abetting other persons to smuggle goods, or dealing in smuggled goods. While the ordinance amending the MISA was in force, the president issued an order suspending the application of some of the articles of the constitution to orders passed under Section 3(1) of the MISA as amended by the ordinance No. 11 of 1974. The presidential order was issued on November 16, 1974 under Article 359(1) of the constitution. By the presidential order the enforcement of the rights conferred under Articles 14, 21 and Clauses (4), (5), (6) and (7) of Article 22 of the constitution was suspended and the right to move any court with respect to such orders of detention which had already been made or which might have been made after November 16, 1974 was suspended. Thereafter on on December 13, 1974 the COFEPOSA Act was enacted by the parliament. By Section 14 of the COFEPOSA Act, the maintenance of internal security (amendment) ordinance, 1974, was repealed and accordingly the amendments made in the MISA by the said ordinance were, on the commencement of the COFEPOSA Act to cease to have any effect. The Act was brought into force on December 19, 1974 by virtue of the power conferred upon the central Government by Sub-section (3) of Section 1 of the COFEPOSA Act and thereafter a presidential order was passed on December 23, 1974 under Article 359(1) of the constitution suspending the right to move a court for the enforcement of the rights conferred by Articles 14, 21 and Clauses (4), (5), (6) and (7) of Article 22 of the constitution as regards an order passed under the COFEPOSA Act.

5. The learned judges of the division bench found that the legal position was that under the MISA as it stood amended by Ordinance No. 11 of 1974, if one of the grounds for an order of detention was found to be bad, the whole order must be quashed; but a difference of opinion arose between A.D. Desai and T.U. Mehta, JJ., regarding the position as it prevailed after the enactment of COFEPOSA Act. T.U. Mehta, J., was of the opinion that in view of the changes made by the COFEPOSA Act as compared with the MISA as amended by ordinance No. 11 of 1974, the whole order in an eventuality of this kind need not be struck down but the court should examine the position in each case and ascertain for itself whether the ground which was found to be bad could be disregarded and the validity of the order on the remaining ground or grounds could be upheld. On the other hand A.D. Desai, J., came to the conclusion that if one of the grounds for an order of detention is found to be bad, even though the order has been passed under the COFEPOSA Act, the whole order is liable to be struck down and it is not open to the court to enter into an inquiry as to whether the detaining authority would have passed the order of detention only on the basis of the ground which has been found to be good. In the light of the different decisions of the Supreme Court it was felt by A.D. Desai, J., that it was not open to the court to enter into an inquiry when under Section 3(1) of the COFEPOSA Act the condition precedent to the passing of an order of detention was the subjective satisfaction of the detaining authority and since if one of the grounds was found to be bad, it was not possible for the court to predicate whether the bad ground did not weigh with the detaining authority when it passed the order of detention.

6. Two main questions are required to be considered by us in order to answer the questions which the division bench has referred to us. The first question is whether prior to December 19, 1974 when MISA as amended by ordinance No. 11 of 1974 was in force, it was open to the court while considering an order of detention passed under Section 3(1) of the MISA, to sever a. Bad ground of detention from good grounds and after severing and excluding the ground which was found to be bad, the court would have entered into the inquiry whether the remaining ground was sufficient to support an order of detention. Secondly, if it is found, as both A.D. Desai and T.U. Mehta JJ., in fact found, on an examination of the case law, that prior to December 19, 1974 it was not open to the court to sever the bad ground from good grounds and after severing and excluding in suitable cases the bad ground and consider the question of upholding the order of detention on the remaining good grounds and the legal position, according to both the learned judges, as it prevailed prior to December 19, 1974 was that the entire order was required to be struck down if one of the grounds for an order of detention was bad. The next question that we have to consider is whether the changes made by the COFEPOSA Act are such that by necessary implication it will follow that in enacting the COFEPOSA Act the legislature had intended to do away with this legal position as it prevailed prior to December 19, 1974, namely, that if one of the grounds for an order of detention is bad, the entire order must be struck down. Mr. Girish C. Patel appearing for the union of India in special criminal application No. 7 of 1975 has urged before us that even prior to December 19, 1974 the legal position was that in an appropriate case the court could sever the bad ground from the remaining good grounds and if the bad ground was found to be inconsequential, to disregard that ground and consider whether the order of detention would have been passed by the detaining authority on the remaining good grounds. In view of this submission of Mr. Patel it is necessary for us to consider briefly the case law on the point.

7. It May be pointed out that when the High Court under Article 226 or the Supreme Court under Article 32 of the constitution considers the validity of an order of detention in the process what is done is reviewing judicially an administrative order passed by an authority exercising the power of detention. In Khudiram Das v. State of West Bengal : [1975]2SCR832 , Bhagwati, J., has pointed out under which circumstances courts would exercise the power of judicial review. In paragraph 9 at page 557 of the report it has been stated:

The courts have by judicial decisions carved out an area, limited though it be, within which the validity of the subjective satisfaction can yet be subjected to judicial scrutiny. The basic postulate on which the courts have proceeded is that the subjective satisfaction being a condition precedent for the exercise of the power conferred on the executive, the court can always examine whether the requisite satisfaction is arrived at by the authority; if it is not, the condition precedent to the exercise of the power would not be fulfilled and the exercise of the power would be bad. There are several grounds evolved by judicial decisions for saying that no subjective satisfaction is arrived at by the authority as required under the statute. The simplest case is whether the authority has not applied its mind at all; in such a case the authority could not possibly be satisfied as regards the fact in respect of which it is required to be satisfied.... Then there may be a case where the power is exercised dishonestly or for an improper purpose; such a case would also negative the existence of satisfaction on the part of the authority. The existence of improper purpose, that is, a purpose not contemplated by the statute, has been recognised as an independent ground of control in several decided cases. The satisfaction, moreover, must be a satisfaction of the authority itself, and therefore, if, in exercising the power, the authority has Acted under the dictation of another body as the commissioner of police did ii? Commissioner of Police v. Gordhandas Bhanji...the exercise of the power would be bad and so also would the exercise of the power be vitiated where the authority has disabled itself from applying its mind to the facts of each individual case by self-created rules of policy or in any other manner. The satisfaction said to have been arrived at by the authority would also be bad where it is based on the application of a wrong test or the misconstruction of a statute. Where this happens, the satisfaction of the authority would not be in respect of the thing in regard to which it is required to be satisfied. Then again the satisfaction must be grounded on materials which are of rationally probative value... the grounds on which the satisfaction is based must be such as a rational human being can consider connected with the fact in respect of which the satisfaction is to be reached. They must be relevant to the subject-matter of the inquiry and must not be extraneous to the scope and purpose of the statute. If the authority has taken into account, it may even be with the best of intention as a relevant factor something which it could not properly take into account in deciding whether or not to exercise the power or the manner or extent to which it should be exercised, the exercise of the power would be bad... if there are to be found in the statute expressly or by implication matters which the authority ought to have regard to, then, in exercising the power, the authority must have regard to those matters. The authority must call its attention to the matters which it is bound to consider.

There is also one other ground on which the subjective satisfaction reached by an authority can successfully be challenged and it is of late becoming increasingly important. The genesis of this ground is to be found in the famous words of lord halsbury in Sharpe v. Wakefield 1891 AC 173 at page 179:.when it is said that something is to be done within the discretion of the authorities...that something is to be done according to the rules of reason and justice, not according to private opinion...according to law and not humour. It is to be, not arbitrary, vague, fanciful, but legal and regular..but in England and in India, the courts stop-short at merely inquiring whether the grounds on which the authority has reached its subjective satisfaction are such that any reasonable person could possibly arrive at such satisfaction. If, the authority has come to a conclusion so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere. In such a case, a legitimate inference may fairly be drawn either that the authority did not honestly form that view or that in forming it, he could not have applied his mind to the relevant facts the power of the court to interfere in such a case is not as an appellate authority to override a decision taken by the statutory authority but as a judicial authority which is concerned, and concerned only, to see whether the statutory authority has contravened the law by Acting in excess of the power which the legislature has confided in it. It is on this ground that the order of preventive detention made by the district magistrate in Debu Mahto v. State of West Bengal : 1974CriLJ699 was struck down by this court.

It was pointed out that the last ground, namely, whether any reasonable authority could possibly have come to the conclusion reached by the statutory authority is in a sense tends to blur the dividing line between subjective satisfaction and objective determination but the dividing line is very much there howsoever faint or delicate it may be, the courts have never failed to recognise it. It is in the light of these principles culled out by Bhagwati J., from several decided cases that the courts approach the question whether the condition precedent to the passing of an order of detention namely, the subjective satisfaction of the detaining authority was or not properly reached and secondly, whether the ground is proper or not.

8. It is true, as observed by Ray C.J. in M.A. Rasheed v. State of Kerala : [1975]2SCR93 where reasonable conduct is expected the criterion of reasonableness is not subjective, but objective. It has been pointed out by the Supreme Court in M.A. Resheeds case that the onus of establishing unreasonableness, however, rests upon the person challenging the validity of the Acts. It was observed in paragraph 9 at page 2252.

Administrative decisions in exercise of powers even if conferred in subjective terms are to be made in good faith on relevant consideration. The courts inquire whether a reasonable man could have come to the decision in question without misdirecting himself on the law or the facts in a material respect. The standard of reasonableness to which the administrative body is required to conform may range from the courts own opinion of what is reasonable to the criterion of what a reasonable body might have decided. The courts will find out whether conditions precedent to the formation of the opinion have a factual basis.

In the light of these principles laid down in M.A. Rasheeds case we have to consider the whole line of judicial decisions starting from the decision of the federal court in Keshav Talpade v. Emepror .

9. In Keshav Talpades case (supra) the federal court was concerned with an order of detention passed under the defence of India rules. This was a pre-constitutional law and there was no obligation either under the defence of India Act or rules on the detaining authority to furnish grounds of detention. At page 8 of the report sir Mawnee Gwyer C.J. Speaking for the court observed:

We think it right to refer to certain observations made by one of the learned Judges in the court below. He says this:

As I have pointed out, there is no doubt that it was competent to the Government of Bombay to detain the applicant on the ground that his detention was necessary inasmuch as he was Acting in a manner prejudicial to the defence of British India and also for the maintenance of public order. It may be that the other two grounds given in the order are not justified by any of the items in schedule 7 but f the two or even one of the two grounds are justified as coming within the continence of the Indian legislative, I do not think it makes any difference to the validity of the order if the Government of Bombay proceed to give further reasons which are not well founded.

We doubt whether this is a correct statement of the law. If a detaining authority give four reasons for detaining a man, without distinguishing between them, and any two or three of the reasons are held to be bad, it can never be certain to what extent the bad reasons operated on the mind of the authority or whether the detention order would have been made at all if only one or two good reasons had been before them.

10. In Machindar Shivaji v. Theking A.I.R. 1950 F.C. 129, decided on January 20, 1950, that is, just before the constitution came into force, the federal court was concerned with the provisions of an order of detention passed under C.P. And berar public safety Act and the Act itself did not provide for a review of the grounds of detention by an independent body, like an advisory council which was a familiar feature of other similar enactments providing for prevention detention. It was contended before the federal court that the principles of natural justice required that the provincial Government should give the person against whom they proposed to make a detention order the opportunity of being heard. The federal court observed:

It is true that the Act departs from the usual pattern of public safety legislation in many of the provinces in eliminating an important safeguard against the misuse of the power of detention. But such elimination, however deplorable, cannot by itself import an obligation on the provincial Government to hold an enquiry before issuing a detention order, which is a purely executive Act, when the Act nowhere imposes such an obligation on the Government. The court can, however, examine the grounds disclosed by the Government to see if they are relevant to the object which the legislation has in view, namely, the prevention of Acts prejudicial to public safety and tranquillity, for satisfaction in this connection must be grounded on material which is of rationally probative value. This brings us to the question whether the grounds put forward by the Government here are such as to satisfy that test.

11. After the constitution come into force, by Article 22, certain fundamental rights were conferred against detention without trial. Article 22 contemplates a person being detained under any jaw providing for preventive detention and Clause (4) of Article 28 provides that no law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless an advisory board as contemplated by Sub-clause (a) of Clause (4) has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention. The provision to Clause (a) lays down that nothing in Sub-clause (a) of Clause (4) shall authorise the detention of any person beyond the maximum period prescribed by any law made by parliament under Sub-clause (b) of Clause (7). However, the person detained under a law providing for preventive detention may be detained for a period longer than three months if 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 (5) of Article 22, a fundamental right has been conferred to this effect.

When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.

Under Sub-clause (6) it has been provided nothing in Clause (5) shall require the authority making any such order as is referred to in that clause to disclose facts which such authority considers to be against the public interest to disclose. Clause (7) of Article 22 lays down:

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; and

(c) the procedure to be followed by an advisory board in an inquiry under Sub-clause (a) of Clause (4).

Every post-constitutional law providing for preventive detention has to comply with these requirements of Article 22 and in cases which we will hereafter deal, this factor of constitutional safeguard and constitutional guarantees has to be borne in mind while reading the cases.

12. In Ram Krishan v. State of Delhi : 1953CriLJ1241 , the detenu was detained by virtue of an order passed under Section 3 of the preventive detention Act of 1950. In paragraph 5 at page 320, it has been pointed out-

The question, however, is not whether the petitioner will in fact be prejudicially affected in the matter of securing his release by his representation, but whether his constitutional safeguard has been infringed. Preventive detention is a serious invasion of personal liberty and such meagre safeguards as the constitution has provided against the improper exercise of the power must be jealously watched and enforced by the court. In this case, the petitioner has the right, under Article 22(5), as interpreted by this Court by a majority, to be furnished with particulars of the grounds of his detention sufficient to enable him to make a representation which on being considered may give relief to him. We are of opinion that this constitutional requirement must be satisfied with respect to each of the grounds communicated to the person detained subject of course to a claim of privilege under Clause (6) of Article 22. That not having been done in regard to the ground mentioned in Sub-para (e) of para 2 of the statement of grounds, the petitioners detention cannot be held to be in accordance with the procedure established by law within the meaning of Article 21.

Thus one of the grounds was found to be bad inasmuch as it did not comply with the requirements of Article 22(5) and hence the whole order was struck down.

13.In Shibban Lal v. State of U.P. A.I.R. 1974 S.C. 159 the Supreme Court was concerned with an order of detention passed under the preventive detention Act. In paragraph 8, B.K. Mukherjee J., as he then was, speaking for the court observed:

The detaining authority gave here two grounds for detaining the petitioner. We can neither decide whether these grounds are good or bad, nor can we attempt to assess in what manner and to what extent each of these grounds operated on the mind of the appropriate authority and contributed to the creation of the satisfaction on the basis of which the detention order was made.

To say that the other ground, which still remains, is quite sufficient to sustain the order, would be to substitute an objective judicial test for the subjective decision of the executive authority which is against the legislative policy underlying the statute in such cases, we think, the position would be the same as if one of these two grounds was irrelevant for the purpose of the Act or was wholly illusory and this would vitiate the detention order as a whole, this principle, which was recognised by the federal court in the case of Keshav Talpade v. Emperor Air 1943 PC 72 (sic) seems to us to be quite sound and applicable to the facts of this case.

It appears that the Government had purported to pass an order of revocation under Section 11 of the preventive detention Act and in paragraph 9. B.K. Mukherjee J., pointed out:

We desire to point out that the order which the Government purported to make in this case under Section 11 of the P.O. Act is not one in conformity with the provision of that section. Section 11 lays down what Action the Government is to take after the advisory board has submitted its report. If in the opinion of the Board there is sufficient reason for the detention of a person, the Government May confirm the detention order and continue the detention for such period as it thinks proper. On the other hand, if the advisory board is of opinion that there is no sufficient reason for the detention of the person concerned, the Government is in duty bound to revoke the detention order.

What the Government has done in this case is to confirm the detention order and at the same time to revoke it under one of the sub-clauses of Section 3(1) of the Act. This is not what the section contemplates. The Government could either confirm the order of detention made under Section 3 or revoke it completely and there is nothing in law which prevents the Government from making a fresh order of detention if it so chooses.

We May point out that under the preventive detention Act of 1950, the power of revocation of detention orders was conferred by Section 13 and in Sub-clause (2) of Section 13 it was provided-

The revocation of a detention order shall not bar the making of a fresh order under Section 3 against the same person.

We May point out at this stage that Section 11 Sub-section (2) of the COFEPOSA Act also provides that the revocation of a detention order shall not bar the making of another detention order under Section 3 against the same person. Thus the observations of the Supreme Court that in view of the power of revocation which the Government possessed under the preventive detention Act of 1950 it was not open to the Government to partly confirm the order of detention and at the same time to revoke it was not correct. Thus the Supreme Court indicated that in view of the power of revocation it was always open to the Government to pass a fresh order of detention after revoking the earlier order if the Government found the earlier order to be bad and the making of a fresh order of detention after the order of revocation was not barred at all in view of the clear language of the preventive detention Act, 1950. But the principle enunciated in Keshav Talpades case (supra) very clearly states that the whole order of detention would be vitiated if one of the grounds of the order of detention was found to be bad and in terms the Supreme Court found in Shibban Lai's case that if the court were to hold that the other ground which still remains quite sufficient to sustain the order, it would amount to substituting an objective judicial test for the subjective decision of the executive authority which is against the legislative policy underlying the statute.

14. Then come three decisions of the Supreme Court in the field of preventive detention where some attempt at severance and exclusion of the bad ground was made. In Dwarka Das v. State of J. & K. : 1957CriLJ316 , the Supreme Court was concerned with the provisions of Jammu and Kashmir preventive detention Act. The order of detention was passed on several grounds and some grounds were found to be non-existent or irrelevant and the question was what was the effect of these non-existent or irrelevant grounds on the validity of the order. In paragraph 4 at page 168, Jagannadhadas J., delivering the judgment of the Supreme Court observed after referring to Keshav Talpades case (supra):

The principle underlying all these decisions is this. Where power is vested in a statutory authority to deprive the liberty of a subject on its subjective satisfaction with reference to specified matters, if that satisfaction is stated to be based on a number of grounds or for a variety of reasons, all taken together, and if some out of them are found to be non-existent or irrelevant the very exercise of that power is bad. That is so because the matter bang one for subjective satisfaction, it must be properly based on all the reasons on which it purports to be based. If some out of them are found to be non-existent or irrelevant, the court cannot predicate what the subjective satisfaction of the said authority would have been on the exclusion of those grounds or reasons. To upheld the validity of such an order in spite of the invalidity of some of the reasons or grounds would be to substitute the objective standards of the court for the subjective satisfaction of the statutory authority. In applying these principles, however, the court must be satisfied that the vague or irrelevant grounds are such as, if excluded, might reasonably have affected the subjective satisfaction of the appropriate authority. It is not merely because some ground or reason of a comparatively unessential nature is defective that such an order based on subjective satisfaction can be held to be invalid. The court while anxious to safeguard the personal liberty of the individual will not lightly interfere with such orders. It is in the light of these principles that the validity of the impugned order has to be judged.

In Dwarka Dass case the order of detention was based on the ground that the petitioner was engaged in unlawful smuggling Activities relating to three commodities, cloth, zari and mercury of which two, namely, cloth and zari, were found not to be essential articles. No material was placed before the court enabling the court to say that the smuggling attributed to the petitioner was substantially only of mercury and that the smuggling as regards the other two commodities was of an inconsequential nature and the court came to the conclusion from the particulars furnished to the detenu that probably the smuggling of cloth and zari was not of an inconsequential nature and under these circumstances, after applying the test of severance and considering whether the bad grounds were or were not of an inconsequential nature, the court came to the conclusion that the order of detention was bad and must be quashed.

15. In Rameshwar Lal v. Slate of Bihar : [1968]2SCR505 , a bench of two judges, namely, Didayatullah J., as he then was and Vaidialingam J., was dealing with a case of an order of preventive detention. There it was alleged that the detenu was indulging in black-marketing in foodgrains. In paragraph 12 it was pointed out by Hidayatullah J., speaking for the court-

It appears that there may be suspicion that the appellant may be connected with come black marketing. We are not concerned with the sufficiency or the reasonableness of the grounds. In this case at least two grounds are vague, one ground is found to be false and of the remaining in one there is no explanation and in the other there is a lame excuse that the driver of the truck did not furnish the full information. The case is thus covered by our rulings that where some grounds are found to be non-existing or are cancelled or given up the detention cannot be justified. It is further covered by our decision that if the grounds are not sufficiently precise and do not furnish details for the purpose of making effective representation the detention can be questioned. This case displays both these defects and it is a tear of great regret that powers of detention without a trial, which should be in raised with the greatest care and attention have been exercised in this case with such disregard to truth and accuracy.

The order was then quashed. However, in paragraph 7 the legal position regarding preventive detention was thus summarized:

Now the law on the subject of preventive detention has been stated over and over again and it is not necessary to refer all that has been decided by this Court on numerous occasions. We shall refer to what concerns this case. The formation of the opinion about detention rests with the Government or the officer authorised.

Their satisfaction is all that the law speaks of and the courts are not constituted an appellate authority. Thus the sufficiency of the grounds cannot be agitated before the court. However, the detention of a person without a trial, merely on the subjective satisfaction of an authority however high is a serious matter. It must require the closest scrutiny of the material on which the decision is formed, leaving no room for errors or at least avoidable errors. The very reason that the courts do not consider the reasonableness of the opinion formed or the sufficiency of the material on which it is based, indicates the need for the greatest circumspection on the part of those who wield this power over others. Since the detenu is not placed before a magistrate and has only a right of being supplied the grounds of detention with a view to his making a representation to the advisory board, the grounds must not be vague or indefinite and must afford a real opportunity to make a representation against the detention. Similarly, if a vital ground is shown to be non-existing so that it could not have and ought not to have played a part in the material for consideration, the court May attach some importance to this fact. Thus it was held in Shibhcm Lai Saksena v. State of U.P. : [1954]1SCR418 that when Government itself confirmed the order on one ground rejecting the other, the order was held unsustainable. This Court applied the case of the federal court in Keshav Talpade v. King Emperor AIR 1943 SC 72 and held that the detention on the ground which survived could not be allowed to stand.

16. On behalf of the respondents in both these special criminal applications, considerable emphasis was laid on the words the court may attach some importance to this fact. It is true that in this decision Hidayatullah J., has not in categorical terms in paragraph 7 while summing up the position in terms referred to the decision in Dwarka Dass case nor has he in terms pointed out that if one of the grounds for an order of detention is found to be bad, the whole order is vitiated and must be struck down as was done in categorical terms in Shibban Lal's case following the case of Keshav Talpade. It may be pointed out at this stage that the bench which decided Dwarka Dass case was a bench of three judges.

17. In Motilal v. State of Bihar : 1969CriLJ33 , a bench of six judges again considered the point about one of the grounds of detention being bad. In paragraph 7 the Supreme Court found that the grounds mentioned in Clauses (a) and (d) of the order of detention were bad. In paragraph 4, Hegde J., delivering the judgment of the bench observed-

Mr. Chagla, Learned Counsel for the appellant, contended that each one of the grounds supplied to the appellant in support of the order of detention is either vague or non-existing, and therefore the appellants detention is clearly illegal. After we have heard the Learned Counsel for the appellant as well as the Learned Counsel for the respondents in respect of the grounds mentioned in Clauses (a) and (d) of the order of September 27, 1967, we did not think it necessary to examine the remaining grounds as we were of the opinion that the ground set in Clause (a) is vague as well as irrelevant and that set out in Clause (d) is non-existing, and as such the impugned order of detention cannot be sustained.

In paragraph 7 Hegde J., observed-

It was strensously urged on behalf of the respondents that even if the grounds mentioned in Clause (a) and (d) of the order of Government dated September 27, 1967 are ignored, still the detention of the appellant can be justified on the basis of the remaining grounds mentioned in that order. We have no hesitation in rejecting this contention as being wholly untenable.

It is true that having observed that this particular contention on behalf of the detaining authority was wholly untenable, in Martiah case the Supreme Court proceeded to consider the different decisions and after referring to Ram Krishan v. State of Delhi, : 1953CriLJ1241 and case of ShibbanLal (supra) Dwarka Das Bhatia (supra) and Rameshwar Lal (supra) Hegde J., observed in paragraph 12-

The defects noticed in the two grounds mentioned above are sufficient to vitiate the order of detention impugned in these proceedings as it is not possible to hold that those grounds could not have influenced the decision of the detaining authority. Individual liberty is a cherished right; one of the most valuable fundamental rights guaranteed by our constitution to the citizens of this country. If that right is invaded, excepting strictly in accordance with law, the aggrieved party is entitled to appeal to the judicial power of the state for relief.

No observations are to be found in Motilal's case indicating that severance and thereafter examining whether the bad grounds are inconsequential or of a trivial nature, has not been disproved in Motilal 's case but the contention that if the bad grounds are ignored still the detention order can be justified on the basis of the remaining grounds was held to be wholly untenable. But in paragraph 12 the Supreme Court did proceed to hold that the two grounds, namely, grounds (a) and (d) were sufficient to vitiate the order as it was not possible to hold that those grounds could not have influenced the decision of the detaining authority. Thus the test which was in fact applied was whether it could be predicated that the bad grounds could not have influenced the decision of the detaining authority. This was the test which was applied in Shibban Lai's case and no attempt was made in Motilal's case to consider whether grounds (a) and (d) were inconsequential or of a trivial nature or were such that if they were excluded, the order of detention could still be upheld.

18. In Monti Bhusan v. State of WB : 1974CriLJ401 , a bench of three judges consisting of Shelat, Chandrachud and Dua JJ. Again dealt with the same point. The Supreme Court there was dealing with an order of detention-on the ground of violent Activities of the detenu. In paragraph 8 it was observed-

Ground No. 1 in the case before us merely mentions murderous assault by the petitioner on Balo Das Gupta. It shows neither the nature of the weapon used nor the nature or extent of the injuries inflicted, nor does it disclose as to how long after the assault the injured person died. The motive for the purpose of the assault is also not stated. This kind of a solitary assault on one individual, which may well be equated with an ordinary murder which is not an uncommon occurrence, can hardly be said to disturb public peace or place public order in jeopardy, so as to bring the cage within the purview of the Act. It can only raise a law and order problem and no more; its impact on the society as a whole cannot be considered to be so exclusive, widespread and forceful as to disturb the normal life of the community thereby reactive shaking the balanced tempo of the orderly life of the general public. This ground is, therefore, not at all relevant for sustaining the. Order of detention for preventing the petitioner from Acting in a manner prejudicial to the maintenance of public order. Ground No. 2, however, is quite germane to the problem of maintenance of public order. But the question arises whether in the absence of ground No. 1 which, in our view, is wholly irrelevant, the detaining authority would have felt satisfied on the basis of the solitary ground No. 2 alone to make the impugned order. Can it be said that ground No. 1 is of a comparatively unessential nature so as not to have meaningfully influenced the decision of the detaining authority. Similar problem has faced this Court on a number of occasions and the decision has generally gone in favour of the detenu.

Dua J., then referred to the decisions in Ram Krishna Bharadwaj (supra), Dwarka Das Bhatia (supra) and the passage from the decision of Jagannadhadas J., in Dwarka Das Bhatias case which we have set out therein above. He also referred to the decisions in Rameshwar Lal (supra) and Motilal Jain (supra). Then in paragraph 9, Dua J., observed-

In the case before us there are only two grounds on which the detention order is based. One of them which relates to an occurrence of April, 1971 has no relevance or relation to the disturbance of public order. The other ground relates to an occurrence of July, 1971. This ground is no doubt germane to the object of maintenance of public order but we are satisfied that the first ground is not of an unessential nature and in our view its exclusion from consideration might reasonably have affected the subjective satisfaction of the authority making the impugned order of detention. This was the test laid down in Bhatias Case (supra) and approved in Motilal Jain (supra).

Thus the rule of severance and the principle of exclusion of bad ground if the bad ground was found to be of an unessential or inconsequential nature was applied in Mann Bhusarfs case. It is important to note that Chandrachud J., was a member of the bench which decided this case because we find that there are subsequent pronouncements on this point by Chandrachud J. Himself and by a bench of which Chandrachud J., was a member, which do not in any way qualify the basic principle that if one of the grounds in an order of detention is found to be bad, the whole order is vitiated.

19. The problem arose once again before the Supreme Court in Prabhu Dayal v. District Magistrate, Kammn : 1974CriLJ286 . There the bench of the Supreme Court consisted of Mathew Beg and A. K. Mukherjee, JJ. The decision of the, Supreme Court was by the majority consisting of Mathew and Mukherjee, JJ. And Beg J., delivered a dissenting judgment. In paragraph 13 at page 188, of his judgment, Beg J., observed:

Assuming, however, that there was some infirmity or vagueness in some parts of the documents containing the grounds, can it be said that it was of such a kind as to vitiate the detention orders? This court, following the principles laid down in Keshav Talpade v. Emperor. has held in some cases that even if some of the grounds are vague the detention is vitiated. 1 am, respectfully, unable to concur with this view.

In paragraph 21, however, Beg J., pointed out-

A distinction between grounds which are merely vague and those which are extraneous or irrelevant often tends to be over-looked. Particulars of vague grounds can be, as seen already, supplied even later so as to show that the grounds were justified. If not supplied, the detenu can also ask for them. But, no amount of particulars of it would cure the defect of a ground given which is extraneous to the purposes for which preventive detention may be ordered. Any such ground would vitiate the detention order at its inception. At any rate, this Court could not separate the extraneous or irrelevant ground from the proper and the relevant ones it could only order the release of detenu because something extraneous to the legally authorised objects of detention had also affected the decision to detain.

Thus the difference of opinion between Beg J., on the one hand and Mathew and Mukherjee JJ. On the other was whether one of the grounds of detention being vague, the whole order could be said to be bad. All the three judges seem to concur with the view that if one of the grounds was extraneous or irrelevant, the whole order must be held to be vitiated. Mathew J., delivering the majority judgment observed in paragraph 59 at page 197-

As one of the grounds communicated to the petitioners is found to be vague, the detention orders must be pronounced to be bad on the basis of a series of decisions of this court...these decisions followed the decision of the Federal Court in where it was said:

If a detaining authority gave four reasons for detaining a man, without distinguishing between them, and any two or three of the reasons are held to be bad, it can never be certain to what extent the bad reasons operated on the mind of the authority or whether the detention order would have been made at all if only one or two good reasons had been before them.

We cannot predicate that if the first ground was excluded, the detaining authority would have passed the order.

Thus it is clear that in Prabhu Dayavs case all the three judges were of he view that if one ground is bad for the reasons that it is extraneous or irrelevant the whole order of detention would be vitiated but Beg J., took the view that because of vagueness of one ground whole order would not be vitiated whereas Mathew and Mukherjee JJ. Were of the view that if one of the grounds was bad because it was found to be vague, the whole order would be vitiated. There is no qualification regarding unessential or inconsequential nature of the bad ground but without any qualification the whole order of detention would be held to be bad.

20. In Biram Chand v. State of U.P. : 1974CriLJ817 the bench of the Supreme Court consisted of Khanna and Goswami JJ. And the judgment of the Supreme Court was delivered by Goswami J. In paragraph 12 Goswami J. Observed:

It is well settled that in an order under the present Act the decision of the authority is a subjective one and if one of the grounds is non-existent or irrelevant or is not available under the law, the entire detention order will fall since it is not possible to predicate as to whether the detaining authority would have made an order for detention even in the absence of non-existent or irrelevant ground. The conclusion is, therefore irresistible in this case that the impugned order is invalid and the detention in this case must be held to be illegal.

In paragraph 13 Goswami, J., further observed-

As too many books spoil the broth so also too many grounds May vitiate an order detention if any one of them is irrelevant or non-existent. The authority, there are has to be careful enough to see that only relevant and valid grounds are elected having a nexus with the object of the order of detention. Although the aim d object of the order of detention be laudable and the antecedents of a detenu be extremely reproachable yet it is essential that if it is desired to detain a person without trial, the authorities concerned should conform to the requirements of the law. The shady antecedents of the detenu cannot provide the justification for noncompliance with the mandatory provisions. The scope of the inquiry in the case of preventive detention based upon subjective satisfaction being necessarily narrow and limited, the scrutiny of the court has to be even stricter than in a normal case of punitive trial.

21. In Dwarka Prasad v. State of Bihar : 1975CriLJ221 , the question again came up before the Supreme Court and the decision was by a bench consisting of Chandrachud and Bhagwati JJ. The decision of the court was delivered by Bhagwati J. And it is important to note that though Chandrachud J. Was a member of the bench that decided Manu Bhusans case (supra), no test of severance and exclusion was applied and no attempt to find out whether the bad ground was of an unessential or inconsequential nature was made by the Supreme Court. In paragraph 6 at page 138 Bhagwati J. Observed-

If there is one principle more firmly established than any other in this field of jurisprudence, it is that even if one of the grounds or reasons which led to the subjective satisfaction of the detaining authority is non-existent or misconceived or irrelevant, the order of detention would be invalid and it would not avail the detaining authority to contend that the other grounds or reasons are good and do not suffer from any such infirmity, because it can never be predicated to what extent the bad grounds or reasons operated on the mind of the detaining authority or whether the detention order would have been made at all if the bad ground or reason were excluded and the good grounds or reasons alone were before the detaining authority.

In this connection bhagwati j. Referred to the decisions in Shibhan Lal (supra), Ram Manohar Lohia v. State of Bihar : 1966CriLJ608 , Pushkar Mukherjee v. The State of Westbengal : 1970CriLJ852 and also the decision in Biram Chand (supra).

22. In Ram Bahadur v. State of Bihar : 1975CriLJ269 , the same bench, namely, bench consisting of Chandrachud and Bhagwati JJ. Decided the matter but the judgment of the court was delivered by Chandrachud J. The grounds of detention were seven in number and out of those seven grounds the first two grounds were found to be bad. In paragraph 24 Chandrachud J., observed-

The first ground being vague and the second irrelevant, the order of detention is liable to be set aside. It is too late in the day to contend, as the learned advocate general did, that the detaining authority assesses the cumulative effect of the Activities of the detenu while passing the order of detention. Where the order of detention is founded on distinct and separate grounds if any one of the grounds is value or irrelevant the entire order must fall. The satisfaction of the detaining authority being subjective, it is impossible to predicate whether the order would have been passed in the absence of vague or irrelevant date.

Thus the distinction which Beg J. Wanted to draw between a ground being bad because it is vague as distinguished from a ground being bad because it is irrelevant or non-existent or not germane to the Act, does not find favour with the Supreme Court in Ram Bhadurs case and vague grounds and irrelevant grounds are put on the same footing and it is held that if a ground is vague or if a ground is irrelevant, the whole order would be vitiated.

In Tulshi Rabidas v. State of W.B. : 1975CriLJ598 , the bench of the Supreme Court consisted of Krishna Iyer, Goswtimi and Sarkaria JJ. In paragraph 5 at page 640, Krishna Iyer J. Speaking for the court observed-

The price that subjective satisfaction, as validating an order and excluding judicial scrutiny, has to pay in a court, is that if one of many grounds relied on by the authority goes, undeniably the whole order falls, even though if it were a case of objective satisfaction the court might have attempted to sustain the order on the surviving grounds.

In Jatindra Nath v. State of West Bengal : AIR1975SC1215 , out of the two grounds, one was found to be bad ground and in paragraph 6, Untwalia J., speaking for the court observed-

In our judgment ground No. (ii) could not justify the detention of the petitioner for preventing him from Acting in a manner prejudicial to the maintenance of public order. It has been repeatedly pointed out by this Court that even if one ground, out of two or more is found to vitiate the subjective satisfaction of the detaining authority, the order of detention falls. In such a situation one does not know whether the authority would have thought it fit to pass an order of detention only on the basis of the surviving ground or grounds. The order stands vitiated if some out of many grounds are found to have no nexus with the object of detention.

23. All these decisions of the Supreme Court after Martu Bhusans case have been delivered under MISA. None of them was delivered after MISA was amended by ordinance No. 11 of 1974 but by Ordinance No. 11 of 1974 no change was made in the requirement as to subjective satisfaction contemplated by Section 3(1) of the MISA and the same subjective satisfaction even after ordinance No. 11 of 1974 was required, namely, whether the Activities which were sought to be prevented were prejudicial to the defence of India or the relations of India with foreign powers, or the security of India, or the security of the state or the maintenance of public order, or the maintenance of supplies and services essential to the community, or the conservation of foreign exchange or prevention of smuggling goods, or abetting other persons to smuggle goods, or dealing in smuggled goods. Even after the MISA was amended by Ordinance No. 11 of 1974 it was a case of subjective satisfaction of the detaining authority and if the subjective satisfaction which was a condition precedent to the exercise of the power of detention was found to have been based on a ground which was irrelevant or vague or non-existent or such as no reasonable person could ever have founded or there was found to be no nexus between me ground and the provisions of the statute, on any one of those grounds if a particular ground out of the several was found to be bad, the whole order would be vitiated and in our conclusion it is too late in the day now to say that the rule of severance and exclusion would apply in this particular field of law.

24. It is worthwhile remembering that three distinct categories can arise when a statutory authority has to pass an order. Under the first category the statutory authority can pass an order on subjective satisfaction on facts which are entirely to be assessed by itself. In the second category, has subjective satisfaction of the statutory authority may be there but it may be in respect of objective facts which are required to be objectively determined and in third category would be cases where a purely judicial process would be called upon, namely, where an objective conclusion regarding facts which are existing independently and which are to be objectively determined. The third category is a purely judicial process but even in the second category, the cases will stand on a different footing from cases falling within the first category. If there are cases where there is subjective determination in respect of objective facts, the court can interpose itself and ask itself whether out of the several grounds-one ground was good or bad and if one ground is found to be good, uphold the order.

25. State of Maharashtra v. B.A. Takkamore : [1967]2SCR583 was a case in which there was no doubt the subjective satisfaction of a statutory authority but it was on determination of facts which must exist independently and objectively. The relevant section was Section 403 of the city of Nagpur Corporation Act which was in these terms:

If at any time upon representations made or otherwise it appears to the state Government that the Corporation is not competent to perform, or persistently makes default in the performance of the duties imposed on it by or under this Act or any other law for the time being in force, or exceeds or abuses its powers the state Government may, after having given an opportunity to the Corporation to show cause why such an order should not be made, or, if it appears to the state Government that the case is one of emergency, forthwith issue an order directing that all the councillors shall retire from office as and from such date as May be appointed and declare the Corporation to be superseded.

Looking to the fact that the opportunity of show cause notice was to be given and also looking to the fact that default in the performance of the duties imposed upon the Corporation under the Corporation Act or any other law for the time being in force, the objective facts and the satisfaction of the state Government though subjective was required to be arrived at in respect of objective facts, a different principle appears to have been laid down, namely, that the rule of severance and exclusion of bad grounds should be applied. There the Supreme Court held that where an order is based on several grounds, some of which are irrelevant, then if there is nothing to show that the authority would have passed the order on the basis of relevant and existing grounds that order cannot be sustained. Where, however, the court is satisfied that the authority would have passed the order on the basis of the other relevant and existing grounds and the exclusion of irrelevant or non-existing ground could not have affected the ultimate opinion or decision of the authority, the order has to be sustained. It may also be pointed out that in this case before the Supreme Court it was found as a matter of fact that the satisfaction of the state Government was based on its conclusions on each of the grounds separately and also on the basis of all the grounds collectively. In paragraph 16 Bachawat J. Speaking for the court observed-

Now the opinion of the state Government that the Corporation was not competent to perform the duties imposed on it by or under the Act, was based on two grounds one of which is relevant and the other irrelevant. Both the grounds as also other grounds were set out in paragraphs 1 and 2 read with the Annexures 1 and 2 of the show-cause notice dated July 21, 1963, para 3 of the show-cause notice stated. And whereas the grounds aforesaid jointly as well as severally appear serious enough to warrant Action under Section 408(1) of the said Act. The order dated September 29, 1965, read with the notice dated July 21, 1965 shows that in the opinion of the state Government the second ground above was serious enough to warrant Action under Section 408(1) and was sufficient to establish that the Corporation was not competent to perform its duties under the Act. The fact that the first ground mentioned in the order is now found not to exist and is irrelevant, does not affect the order.

Thus on the material before it the Supreme Court found as a matter of fact that the opinion was based on each of the grounds independently as well as on all the grounds taken together. It is true that in two other decisions of the Supreme Court, Namely State of Orissa v. Bidyabhushan : (1963)ILLJ239SC and Railway Board, New Delhi v. J.V. Singh : (1969)IILLJ743SC the test of severance and exclusion was applied but neither of them was a case relating to the field of preventive detention and personal liberty of the citizen. Both were cases of what may be called service jurisprudence but we are not concerned in the present case with these service jurisprudence cases. In all decisions of the Supreme Court after Manu Bhusan Roys case, the position of the law has been set out and stated in unequivocal and clear cut terms and the rule of severance and exclusion in the field of preventive detention has been completely discarded.

26. If the rule of severance of bad ground and good grounds and excluding it and considering whether the bad ground was of an inconsequential or unessential and were an obligatory rule in each of the cases decided after Manu Bhusan roys case, it would have been incumbent upon the court to enter into the inquiry whether the ground which was found to be bad was unessential or of an inconsequential nature but no such inquiry is found to have been made in any one of these cases by the court. In our opinion, therefore, even under the law as it prevailed prior to December 19, 1974 when COFEPOSA Act came into force, the settled position of law was that in the field of preventive detention where the order of detention is based on the subjective satisfaction of the detaining authority and the order is based on several grounds, if one of the grounds is found to be bad in the sense of being vague or irrelevant or non-existent or such as no reasonable person could have arrived at, that is one of the grounds on which judicial review is permissible, as observed by Bhagwati J. In Khudiram Dass case (supra) the whole order, is vitiated because it is impossible to predicate what weighed with the detaining authority at the time when it passed the order of detention and whether the irrelevant ground did not weigh at all and secondly it is impossible to predicate whether the order of detention would have been passed at all if the irrelevant ground had not been present to the mind of the detaining authority.

27. As to what is meant by grounds in the context of the grounds of detention under the law relating to preventive detention has now been finally settled by the Supreme Court in Khudiram Dass case (supra). After examining all the earlier decisions on the point, Bhagwati J., in paragraph 6 observed-.nothing jess than all the basic facts and materials which influenced the detaining authority in making the order of detention must be communicated to the detenu. That is the plain requirement of the first safeguard in Article 22(5).

Relying on the observations from the earlier decisions it was pointed out that the word grounds would include any information or material on which the order was based. The materials on which the detaining authority considered that an order of detention should be made could properly be described as grounds therefore. It was emphasized that the grounds in the context of the law of preventive detention meant all the basic facts and material which have been taken into account by the detaining authority in making the order of detention and on which therefore an order of detention is based. It is not open after the pronouncement of this decision by the Supreme Court to contend that the grounds on which the detention order is based are something other than the basic materials or facts.

28. Before parting with this aspect of the case we May point out that in the light of the Supreme Court decisions which we have so far discussed, the following passage from judicial review of administrative Actions, S.A. De Smith, Third Edition, page 91 relied upon by Mr. Patel for the union of India need not be considered by us:

The legal implications of void or invalid Acts and decisions will be considered later. What if such an Act or decision is partly valid and partly invalid? Suppose that a tribunal has power to revoke occupational licences. It revokes as licence, and proceeds to order that he shall be disqualified from applying for a new licence for five years. It has no power to impose such a disqualification. In this case, x will be able to obtain an order of certiorari to quash the five year disqualification, or a declaration that the disqualification is void but the court can still hold that the revocation of his licence is valid, for the two limbs of the tribunals order are severable from one another...three approaches may be followed by the court, assuming that the jurisdiction of the court, (e.g. to entertain an appeal against the conditions alone) has not been demarcated by statute. First, it may set aside the entire decision because the competent authority might well have been unwilling to grant unconditional permission the applicant must therefore start again. Secondly, it may simply serve the bad ground the good. In such a case the effect will be to give unconditional permission if all the conditions are struck down, and this may frustrate the intentions of the competent authority. Thirdly, the court may adopt an intermediate position, and serve the invalid condition only if it is trivial, or if it is quite extraneous to the subject-matter of the grant, or perhaps if there are other reasons for supposing that the authority would still have granted permission had it believed that the conditions might be invalid. This approach has commended itself to the house of lords in a case involving the validity of planning conditions. But it involves the courts in a speculative attribution of intent to an administrative body, and it would be more satisfactory if the courts had statutory power (a) to remit the decision to the competent authority and (b) to award the applicant damages or compensation for such pecuniary loss as he had sustained because of that authority failure to render a valid decision in the first place.

Ultimately, the case turns upon the provisions of the statute which confers the power upon a particular authority to detain an individual. The question which the court asks itself in such cases is, does the decision depend upon the subjective satisfaction of the detaining authority and if is does, is this satisfaction to be arrived at on determination of objective facts which must exist independently of the subjective satisfaction, this being category (2) which we have referred to earlier, or is the subjective satisfaction entirely upon mental satisfaction regarding certain facts which the authority May be right or wrong in deciding? The position in the context of preventive detention was summed up very succinctly by B.K. Mukherjee J., in Sodhi Shamasher Singh v. State of Pensu : AIR1954SC276 -

It has been held by this court, on more occasions than one, that the propriety or reasonableness of the satisfaction of the central or state Government upon which an order for detention under Section 3, preventive detention Act is based, cannot be raised in this Court and we cannot be invited to undertake an investigation into sufficiency of the matters upon which such satisfaction purports to be grounded. We can, however, examine the grounds disclosed by the Government to see if they are relevant to the object which the legislation has in view, namely, the prevention of objects prejudicial to the defence of India, or to the security of stage maintenance of law and order therein.

So far as the requirements of Section 3(1) of the COFEPOSA Act are concerned, they stand on the same footing as the requirement of preventive detention Act or of the MISA and the subjective satisfaction is on the same footing as it was to be found in the preventive detention Act. If the court were to embark upon severing the good ground from the bad and then asking itself whether the authority would still have passed the order, it is tantamount to calling upon the court to embark upon an inquiry about the sufficiency or adequacy of the matters which may be covered by the good ground. That is not permissible to the court of law and ultimately as Krishna Iyer J., has pointed out in Tulshi Rabidass case (supra): the price that subjective satisfaction, has to pay in a court, is that if one of many grounds relied on by the authority goes, undeniably the whole order falls, even though if it were a case of objective satisfaction the court might have attempted to sustain the order on the surviving grounds. The attempt of the legislature all along in all laws relating to preventive detention has been to make the order of detention dependent upon the subjective satisfaction of the detaining authority and it is a necessary concomitant of this legal position regarding subjective satisfaction that if the court finds that some ground which is not relevant or non-existent or which is otherwise bad is relied upon by the detaining authority for arriving at its subjective satisfaction, the court cannot be called upon to enter into an inquiry about the sufficiency or insufficiency of the remaining grounds for arriving at the subjective satisfaction because in that eventuality the court would be substituting its own satisfaction or conclusions as to subjective satisfaction for that of the detaining authority and that course is not open to a court of law when the matter rests entirely on the subjective satisfaction of the detaining authority.

29. Under these circumstances our conclusion is that under the law of preventive detention as it stood under the MISA immediately before the coming into force of the COFEPOSA Act, the legal position was-

(1) If one ground for the order of detention was bad-it might be bad be cause it was irrelevant or non-existent or unreasonable or not relevant for the purposes of the Act which authorizes detention or because it was vague and did not afford the constitutional safeguard to the detenu concerned-on whatever footing the court found that one of the grounds was bad, the whole order must be held to have been vitiated and the whole order of detention must be struck down.

(2) It is not open to a court of law to sever the good ground from the bad ground and to exclude the bad ground if it is found to be in con sequential or unessential because it is not possible for the court to predicate as to which out of the several grounds, good and bad, weighed with the detaining authority when it arrived at the subjective satisfaction that it was necessary to detain a particular detenu.

(3) Whatever the position May be in other branches of jurisprudence, so far as this particular branch of jurisprudence relating to preventive detention is concerned, this is the legal position.

We have now to consider whether the changes brought about by the specific provisions of COFEPOSA Act indicate either by express language or by necessary implication that when the legislature enacted the COFEPOSA Act its intention was to do away with this well-settled legal position, namely, that if one of the grounds for an order of detention is bad, the whole order is vitiated. The major change which has been brought about by the COFEPOSA Act as distinguished from MISA as amended by ordinance No. 11 of 1974 is that instead of a general law relating to preventive detention which provided for detention also on the ground of Activities prejudicial to defence of India, the relations of India with foreign powers, the security of India, the security of the state, the maintenance of public order, the maintenance of supplies and services essential to the community and conservation of foreign exchange, smuggling of goods or abetting other persons to smuggle goods, or dealing in smuggled goods as part of the general law pertaining to preventive detention, a separate enactment altogether dealing specifically with Activities prejudicial to the conservation or augmentation of foreign exchange and smuggling goods, abetting the smuggling of goods, engaging in transporting or concealing or keeping smuggled goods, dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods, or harbouring persons engaged in smuggling goods or in abetting the smuggling of goods, all these Activities which prejudicially affect the basic economy of the country both in relation to international trade and commerce as well as from the point of view of the moral fabric of the society, the parliament has thought it fit to enact a separate law regarding conservation and augmentation of foreign exchange and prevention of smuggling Activities. Before we enter upon an inquiry regarding the changes in the legal provisions, it is important to bear in mind the legal principle regarding the intention to be attributed to the legislature. In Bengal Immunity co. V. State of Bihar : [1955]2SCR603 , the legal position in this connection has been summarized as follows:

It is a well-settled rule of construction that when a statute is repealed and re-enacted and words in the repealed statute are reproduced in the new statute, they should be interpreted in the sense which had been judicially put on them under the repealed Act, because the legislature is presumed to be acqainted with the construction which the courts have put upon the words, and when they repeat the same words, they must be taken to have accepted the interpretation put on them by the court as correctly reflecting the legislative mind.

30. The principal changes which have been brought about by the COFEPOSA Act as compared with the provisions of MISA as amended by ordinance No. 11 of 1974 are as follows:

(1) Under MISA the order of detention could be passed by a district magistrate; additional district magistrate specially empowered in this behalf by the state Government, and commissioners of police, wherever they have been appointed. Over and above these three authorities, an order of detention could also be passed by the central Government or the state Government, under the COFEPOSA Act the order of detention can be passed by the cen tral Government or the state Government or any officer of the central Government, not below the rank of a joint secretary, specially empowered for the purposes of Section 3(1) by the central Government, or any officer of the state Government, not below the rank of a secretary to the state Government, specially empowered for the purposes of Section 3(1) by that Government. Therefore, now the subjective satisfaction is that of a much higher authority, namely, a joint secretary to the central Government spe cially empowered in that behalf or a secretary to the state Government specially empowered by the state Government in that behalf.

(2) The second change which has been made is that whereas under the MISA as amended by ordinance No. 11 of 1974 in connection with this kind of economic offences an order of detention could be passed if the detaining authority was satisfied with regard to only person that with a view to preventing him from (a) Acting in any manner prejudicial to the conservation of foreign exchange or (b) with a view to preventing him from smug gling goods, or (c) with a view to preventing him from abetting other persons to smuggle goods, or (d) with a view to prevent him from dealing in smuggled goods, it was necessary so to do, the detaining authority could have made an order directing that such person be detained, under the COFEPOSA Act, if the detaining authority is satisfied that with a view to preventing any person from (a) Acting in any manner prejudicial to the conservation or augmentation of foreign exchange, or (b) with a view to preventing him from smuggling goods, or (c) with a view to preventing him from abetting the smuggling of goods, or (d) with a view to preventing him from engaging in transporting or concealing or keeping smuggled goods, or (e) with a view to preventing him from dealing in smuggled goods other wise than by engaging in transporting or concealing or keeping smuggled goods, or (f) with a view to preventing him from harbouring persons engaged in smuggling goods or in abetting the smuggling of goods, it is necessary so to do, the detaining authority may make an order that such person be detained.

Whereas under the MISA as amended by ordinance No. 11 of 1974, a person could be detained with a view to preventing him from Acting in any manner prejudicial to the conservation of foreign ex change, now such a person can be detained with a view to preventing him from Acting in any manner prejudicial to the conservation or augmentation of foreign exchange. That is change No. 1. Instead of the Activity of dealing in smuggled goods, we have now two types of Activities which are specifically set out, namely engaging in transporting or concealing or keeping smuggled goods, or dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods; and harbouring persons engaged in smuggling goods or in abetting the smuggling of goods is a separate category of prejudicial Activity in respect of which an order of detention can be passed. It is obvious that without conservation of foreign exchange, there cannot be augmentation of foreign exchange and when the COFEPOSA Act uses the words conservation or augmentation of foreign exchange it is an elaboration of the previous phraseology of conservation of foreign exchange. Therefore, so far as this particular prejudicial Activity is. Concerned, there is no substantive departure by the COFEPOSA Act from the provisions of MISA as amended by ordinance No. 11 of 1974. Smuggling of goods and abetting the smuggling of goods are Activities common both to MISA as amended by the ordinance and COFEPOSA Act. Clauses (iii) and (iv) of Section 3(1) of COFEPOSA Act which mention engaging in transporting or concealing or keeping smuggled goods, or dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods, clearly are an elaboration of the category mentioned in MISA as amended by the ordinance by the words dealing in smuggled goods. The very words occurring in Clauses (iv) of Section 3(1) of the COFEPOSA Act, namely, otherwise than by engaging in transporting or concealing or keeping smuggled goods clearly indicate that according to the parliament the words dealing in smuggled goods would cover Activities of engaging in transporting or concealing or keeping smuggled goods; but for the sake of greater clarity and to avoid any possible argument, the legislature has put forward a specific category of prejudicial Activity, namely, engaging in transporting or concealing or keeping smuggled goods though these Activities would be covered by the words dealing in muggled goods, only the category of harbouring persons engaged in smuggling goods or in abetting the smuggling of goods is a new category. According to ordinary law of abetment as understood in India, a person referred to in English law as accessory after the fact is not considered to be an abettor and in order to rope in even those who are accessory after the fact so far as smuggling Activities are concerned the new category of prejudicial Activity, namely, of harbouring persons engaged in smuggling goods or in abetting the smuggling of goods has been introduced by the parliament in the COFEPOSA Act. Thus, so far as the prejudicial Activities which are sought to be restrained are concerned, barring the new category of prejudicial Activity, namely, harbouring persons engaged in smuggling goods or in abetting the smuggling of goods the provisions of COFEPOSA Act under Section 3(1) are substantially the same as the provisions of MISA as amended by ordinance No. 11 of 1974.

31. The next change is that the requirement which existed under the MISA that if an order was passed by a District Magistrate or an additional District Magistrate specially empowered in that behalf or a Commissioner of Police, the detaining authority had forthwith to report the fact to the state Government to which he was subordinate together with the grounds on which the order had been made and such other particulars as in his opinion had a bearing on the matter, and no such order was to remain in force for more than twelve days after the making thereof unless in the meantime it had been approved by the state Government, under the COFEPOSA Act the detaining authority is either the central Government or the state Government or a person not below the rank of a joint secretary to the central Government, specially empowered for the purposes of Section 2(1) or an officer of the state Government, not below the rank of a secretary to the Government specially empowered for the purposes of Section 3(1). These higher authorities are authorized to pass the orders of detention and there is no question of any report having to be made to the state Government under the COFEPOSA Act and this is so because an important limb of the Government, namely, an officer not below the rank of a secretary to the Government specially empowered in that behalf is authorized to pass an order of detention. Since secretaries to the state Government and joint secretaries and officers higher in rank in the central Government participate in the decision making stages in administration, it is but natural that the requirement of the detaining authority having to report the fact of the order of detention together with the grounds for the order of detention and such other particulars as in the opinion of the detaining authority have a bearing on the matter, has been dispensed with. The word forthwith occurring in Sub-section (3) of Section 3 of MISA cannot find place in the new scheme of the COFEPOSA Act regarding the persons authorized to pass the orders of detention. Under the MISA as amended by the ordinance, when any order was made or approved by the State Government, the state Government had within seven days, to report the fact to the Central Government together with the grounds on which the order had been made and such other particulars as in the opinion of the state Government had a bearing on the necessity for the order. Under the COFEPOSA Act when any order of detention is made by a state Government or by an officer empowered by a State Government, the State Government shall, within ten days, forward to the central Government a report in respect of the order. Now it was urged on behalf of the union of India as well as on behalf of the state Government that the substitution of the words a report in respect of the order for the words the fact of detention together with the grounds on which the order has been made and such other particulars as in the opinion of the state Government or the detaining authority have a bearing on the necessity for the order has an important, impact on this aspect of the case. This substitution, it is contended, indicates that a serious departure from the pre-existing, provision of law was intended to be made. We are unable to agree with this contention. Both under the MISA as amended by the ordinance No. 11 of 1974, vide Section 14 of MISA and under the COFEPOSA Act vide Section 11, power of revocation of detention orders has been conferred both on the state Government as well as on the central Government. It has been laid down by the Supreme Court in R. Saha v. State of W.B. : 1974CriLJ1479 in the context of Section 14 of the MISA as follows:

Section 14 of the Act clothes the authority with the power of revoking or modifying the detention order at any time. Such a power which is for the benefit of the detenu carries with it the duty to exercise that power whenever and as soon as changed or new factors call for the exercise of that power. This shows that the authorities can consider new factors or changed circumstances. This Court has already held in Fagu Shaw v. State of West Bengal : 1974CriLJ486 that when parliament prescribed two years or until the expiry of the defence of India Act, whichever is later, it satisfied the requirements of Article 22(7)(b), of fixing the maximum period. The further requirement of a six monthly review as contended for by the petitioners suggests a new provision. That does not go to reasonableness but to policy of legislature and due process of law.

Thus the requirement is for the state Government to keep the matter under constant review and to go on considering new factors or changed circumstances which might justify an order of revocation of the order of detention.

32. In S.K. Salim v. State of W.B. : [1975]3SCR394 , the meaning of the word forthwith occurring in Section 3(3) of the MISA was considered and it was pointed out that the expression forthwith does not connote a precise time and even if the statute requires that the report shall be made forthwith, its terms shall have been complied with if the report is made without avoidable or unreasonable delay. It is obvious that the pros and cons of the order of detention or the basic materials as Bhagwati J., has said in Khudiram Dass case (supra) must be before the reviewing authority when it considers the advisability of passing an order of revocation. These pros and cons or the basic materials must be contained in the report which is contemplated by Section 3(2) of the COFEPOSA Act; otherwise it is impossible for the reviewing authority to exercise its power under Section 11 of the COFEPOSA Act and hence when Section 3(2) speaks of a report in respect of the order, all that it means is that all the relevant materials including the pros and cons and the basic materials on the basis of which the detention order is passed must be set out in the report to be made by the State Government to the Central Government. Barring the change from a period of seven days to ten days there is no other substantial change between the requirements of the MISA as amended by ordinance No. 11 of 1974 and of COFEPOSA Act as regards the contents of the report to be made by the State Government to the Central Government.

33. Even if it were to be considered that the change in the phraseology between the MISA as amended by the ordinance and COFEPOSA Act regarding the contents of the report, makes a difference, so far as the Central point which arises for consideration, there is no material change. An order even made by Central Government can be challenged on the footing that one of the grounds for the order of detention was either irrelevant or non-existent or unreasonable or vague and no report is required to be made by the Central Government to anybody. Therefore, when all the detaining authorities, namely, the Central Government, the State Government, an officer of the State Government not below the rank of a secretary, specially empowered for the purpose, and an officer of the Central Government not below the rank of a joint secretary, specially empowered for the purpose, all these four detaining authorities enjoy the same power so far as the power of detention under Section 3(1) is concerned and because orders of the State Government or an order passed by an officer of the State Government a report in respect of the order has to be made to the Central Government, the validity or otherwise of an order of detention cannot be judged in the light of the provisions regarding the contents of the report to be made to the Central Government in certain eventualities. Moreover, what the court is concerned with is the subjective satisfaction of the detaining authority at the moment when it passed the order and it is only if the court comes to the conclusion that the condition precedent to the passing of the order of detention, namely, arriving at the subjective satisfaction is not satisfied, that the court will interfere and strike down the order of detention. Therefore, the provisions of law regarding what is required to be done after the order of detention is made, can have no bearing to the stage when the subjective satisfaction is to be reached. We have indicated above that there is no substantial change between the provisions of MISA as amended by ordinance No. 11 of 1974 and the COFEPOSA Act so far as the question of subjective satisfaction is concerned and barring addition of one category of prejudicial Activities, no change regarding the different categories of prejudicial Activities is sought to be introduced.

34. One very important change which has been made in the cofe-posa Act is that the furnishing of the grounds of detention so as to enable the detenu to make a representation is now correlated to the specific provisions of Article 22 of the constitution. Section 3(3) of the COFEPOSA Act provides-

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 grounds on which the order has been made shall be made....

In a particular manner within a particular number of days etc. Again in Section 3 which deals with advisory boards, the COFEPOSA Act provides for the purposes of Sub-clause (a) of Clause (4), and Sub-clause (c) of Clause (7), of Article 28 of the constitution whereas under the MISA as amended by Ordinance No. 11 of 1974, a specific provision was made in Section 8 for furnishing of the grounds of detention and affording an opportunity of making a representation to the appropriate Government. The constitution of the advisory boards under the MISA was provided for by the Act itself without correlating it to the definite clauses of Article 22. It is necessary at this stage to refer to a historical fact of which judicial notice can be taken, namely, that after MISA as amended by the ordinance No. 11 of 1974 and the presidential order of November 16 1974 this High Court as well as some of the other High Courts had taken the view that though by the presidential order of November 16, 1974 the right to move the court for breach of the provisions of Article 22(5) had been suspended, the right to move the court for violation of the statutory right which was a separate and independent right conferred by Section 8 of the MISA was not suspended and if any of the grounds did not satisfy the requirements of Section 8 of MISA, the order was liable to be struck down. It is to eliminate the contention based on the existence of a separate statutory right as distinguished from the fundamental rights conferred by the different clauses of Article 22 of the constitution that the parliament has in COFEPOSA Act abstained from conferring to any statutory right but it has correlated in Section 3(3) the furnishing of the grounds to Article 22(5). This no doubt is a material change and what May be even called a drastic change. At the same time it must be remembered that when the COFEPOSA Act was passed, Article 22(5) remained on the statute book and was not suspended by any presidential order. Hence at the time when the parliament enacted the COFEPOSA Act, in order to avoid the invalidity of any of the provisions of COFEPOSA Act it was necessary to comply strictly with the requirements of the constitution regarding what a law of preventive detention should contain and what provisions should be set out in such a law. However, with the possibility that the presidential order suspending some of these fundamental rights May be issued after the enactment of COFEPOSA Act in connection with an order passed under COFEPOSA Act, the parliament has correlated the rights conferred by the constitution by Article 22(5) of the constitution not by a separate statutory provision but by correlating it directly for the purposes of Article 22(5). Thus there is a deliberate departure from the provisions of the MISA in the COFEPOSA Act. 35. We may also point out that a new concept of areas highly vulnerable to smuggling has now been introduced under the COFEPOSA Act. Under the MISA as amended by the Ordinance No. 11 of 1974 the concept was of specified area as defined in Clause (c) of Section 11-H of the customs Act, 1962, but now in view of the experience which had been gained since the passing of ordinance No. 11 of 1974 in the Prevention of Smuggling Activities, this new concept of area highly vulnerable to smuggling has been introduced so as to enable the detention of a particular individual without his case having been referred to an advisory board for a much longer period than was possible under the MISA. Detention without reference to the advisory board can now be made upto a period of one year from the order of detention. The maximum period of detention under the COFEPOSA Act is now two years whereas under the MISA as amended by ordinance No. 11 of 1974, the maximum period of detention was a period of twelve months. Vide Section 13(1), Section 11 of the COFEPOSA Act provides for revocation of detention orders and similar provision was to be found in Section 14 of the MISA but there is an important departure in the COFEPOSA Act in Sub-section (2) of Section 11 as compared with Sub-section (2) of Section 14. Under Sub-section (2) of Section 14 of MISA, 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. Therefore, unless fresh facts had arisen which justified, in the view of the detaining authority, passing of a fresh order of detention, the revocation of a detention order or expiry of a detention order was to operate as a bar to the making of a fresh detention order. Under Sub-section (2) of Section 11 of the COFEPOSA Act on the other hand, the revocation of a detention order shall not bar the making of another detention order under Section 3 against the same person. It may incidentally be pointed out that the provisions of the section pertaining to revocation in the preventive detention Act, 1950 were in identical terms as the provisions of Section 11(2) of the COFEPOSA Act. Section 13(2) of the preventive detention Act, 1950 provided.

Revocation of a detention order shall not bar the making of a fresh detention order under Section 3 against the same person.

As pointed in Shihban Lal's case (supra), there was nothing in law under the preventive detention Act which prevented the Government from making a fresh order of detention if it so chose after revoking the earlier order of detention. The same position is now available to the state Government or the central Government after revoking an order of detention.

36. It is true as has been emphasized by the statement of objects and reasons that the COFEPOSA Act was passed to check diversion of foreign exchange from official channels and to prevent smuggling of goods into or out of India. By the COFEPOSA Act the links which facilitate violations of foreign exchange regulations and smuggling Activities were sought to be disrupted by immobilising by detention the persons engaged in these operations as it was thought that otherwise anti-smuggling measures would not have a substantial impact. Hence the president promulgated on the 17th September, 1974 the maintenance of internal security (amendment) ordinance, 1974 (emphasis ours). In the light of experience gained and keeping in view the distinct class of persons to be covered, this Act seeks to replace the said ordinance by a new and self-contained Act. Therefore, so far as the statement of objects and reasons is concerned, it merely indicates that the COFEPOSA Act was to replace ordinance No. 11 of 1974 and in the light of the experience gained since the promulgation of the ordinance and keeping in view the distinct class of persons to be covered, a separate Act was enacted by the parliament. It is clear from the statement of objects and reasons that by enacting the COFEPOSA Act the provisions of Ordinance No. 11 of 1974 amending the MISA were to be now set out in a comprehensive separate Act without making specific changes except to the extent indicated by the legislature in the enactment itself.

37. The long title of the COFEPOSA Act and the preamble to the Act do not furnish, in our opinion, any indication for the solution of the problem that faces us. The long title of the Act is an Act to provide for prevention in certain cases for the purposes of conservation and augmentation of foreign exchange and prevention of smuggling Activities and for matters connected therewith. The preamble to the Act says-

Whereas violations of foreign exchange regulations and smuggling Activities are having an increasingly deleterious effect on the national economy and thereby a serious adverse effect on the security of the state.

And whereas 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, it is necessary for the effective prevention of such Activities and violations to provide for detention of persons connected in any manner therewith;

Be it enacted....

The preamble indicates the object of the parliament in enacting COFEPOSA Act, namely, that it was with a view to prevent Activities which were having an increasingly deleterious effect on the national economy and thereby a serious adverse effect on the state. It is possible, as has been pointed out by some of the High Courts in decisions dealing with MISA as amended by Ordinance No. 11 of 1974 that Activities of smuggling are very often interlinked with espionage and thus the question of the security of the state directly comes in. Moreover, evasion of regulations regarding foreign exchange Act and carrying on smuggling Activities seriously affect national economy and the economic fabric of the society is endangered. Under these circumstances it is but natural that the parliament should make provisions for detention of persons who are engaged in such anti-social white collar economic offences. But enactment of a separate Act to deal with these specified kind of Activities does not mean that the subjective satisfaction which is contemplated by Section 3(1) of the COFEPOSA Act is of a different kind or of a different category than the subjective satisfaction which was contemplated by Section 3(1) of the MISA as amended by ordinance No. 11 of 1974. It is important to note in this connection that under the MISA as amended by Ordinance No. 11 of 1974 there was a possibility of an order of detention being passed by a district magistrate or by an additional district magistrate specially empowered in that behalf or by a commissioner of police and in that eventuality the law provides for a representation to the State Government before the State Government approved the order of detention passed by any one of those subordinate officers. Because the COFEPOSA Act has not conferred any power of detention on these authorities like the district magistrate, additional district magistrate specially empowered in that behalf or the commissioner of police, the stage where the detenu got an opportunity to make a representation before the order of detention was approved, is now denied to the detenu. Hence, in our opinion, it is all the more necessary that the tests regarding subjective satisfaction being reached on proper and relevant grounds should be applied all the more strictly under the COFEPOSA Act as distinguished from MISA as amended by Ordinance No. 11 of 1974. Moreover, when the court strikes down an order of preventive detention either under COFEPOSA Act or under the MISA as amended by ordinance No. 11 of 1974 on the ground that one of the grounds for detention was not relevant or nonexistent, all that the court tells the detaining authority is that he Acted contrary to law and beyond the scope of his powers in arriving at his subjective satisfaction when he could not have done so. It has been pointed out by this Court in some cases under the MISA that it is open to the detaining authority even when the court strikes down an order of detention because one of the grounds for detention was found to be bad, to pass a proper order after reconsidering all the materials on record. In such cases the court merely asks the detaining authority to do its duty and to abide by the provisions of law as enjoined by the provisions of law and not to transgress the provisions of law. The order in appropriate cases is struck down by the court when the court finds that the subjective satisfaction this is a condition precedent to the passing of an order of detention was not a genuine satisfaction as required by law. The reversion in Section 11(2) of the COFEPOSA Act to the language of the preventive detention Act, 1950 clearly goes to show the intention of the legislature to confer the power upon the state Government and the central Government to pass an order of detention on the same facts as before even after passing an order of revocation. Under the circumstances it is difficult to accept the contention urged on behalf of the state Government and on behalf of the union of India that the provisions of the COFEPOSA Act indicate an intention on the part of the legislature to depart from the well-settled law as it prevailed before the enactment of COFEPOSA Act, namely, that if one of the grounds for an order of detention is found to be bad, the whole order must be held to be vitiated. We emphasize here once again that grounds in the context of an order of detention mean the basic materials and the basic facts on which the detaining authority arrived at its subjective-satisfaction.

38. We therefore, conclude that none of the changes made by the COFEPOSA Act indicate either expressly or by necessary implication an intention of the legislature to depart from the previously existing legal position that if one of the grounds for an order of detention is found to fee bad, the whole order must be struck down as vitiated. The reasoning which applied to orders passed under MISA as amended by the ordinance No. 11 of 1974, namely, that it is not possible for the court to decide whether the detaining authority would have passed the order of detention if the bad ground had not been present before it and that it is not possible to predicate what weighed with the detaining authority when it reached the subjective satisfaction, still holds good under the COFEPOSA Act. On the contrary the principle should be more strictly applied under COFE POSA Act as compared with the MISA as amended by Ordinance No. 11 of 1974. Under these circumstances we answer the questions referred to the full bench as follows:

(1) When the court comes to the conclusion that out of several grounds given for the detention some are not according to law and some are valid the Court should set aside the entire detention order passed under Section 3 of the COFE POSA Act. It is not open to the court to attempt to probe further into the question whether the detaining authority would have passed the detention order even though some of the grounds are proved to be invalid.

(2) As regards the first part of question No. (2), when one or more of the several grounds given for preventive detention under Section 3 of the COFEPOSA Act are found to be irrelevant, or non-existent or bad the whole of the order of detention is vitiated.

As regards the second part, in such cases the court cannot by applying the tests of reasonable man exclude the irrelevant or non existent ground or grounds and cannot consider, whether on such exclusion the concerned authority would have reached the same subjective satisfaction or not.

(3) Since we answer the second part of question No. (2) in the negative in special criminal applications Nos. 204 of 1974 and 7 of 1975 the question whether detaining authority could have reasonably come to the con elusion that, in view of the validity of the common ground relating to the incident of 10-12-1973, the detention of the detenu could have been ordered, does not arise.

The matter will now go before the division bench to pass approprivate orders in the light of the answers given by us to the questions referred to the full bench. Questions.


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