HEMLATABEN MANHARLAL SONI v. STATE — 1975 DIGILAW 141 (GUJ)

B. J. DIVAN, B. K. MEHTA, T. U. MEHTA, J. ( 1 ) THIS matter has been referred to us by the Division Bench consisting of J. B. Mehta and P. D. Desai JJ. as the Division Bench felt that the law on the question as to whether the period of detention under the Maintenance of Internal Security Act 1971 (hereinafter referred to as the MISA) should be tacked on to the period of detention under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974 (hereinafter referred to as the COFE POSA Act) for considering the question of maximum period of detention when the detention order under the COFE POSA Act is passed after formal release and rearrest should be settled. The Division Bench felt that this question was of wide public importance. In Special Criminal Application No. 103 of 1975 (KANUBHAI BHAILALBHAI CHOKSHI V. STATE OF GUJ.) a Division Bench consisting of A. D. Desai and B. K. Mehta JJ. had held that the period of detention under the MISA could not be tacked on to the period of detention under the COFE POSA Act but J. B. Mehta and P. D. Desai JJ. found that the decision of the Supreme Court in S. KRISHNAN V. STATE OF MADRAS A. I. R. 1951 S. C. 301 and the effect of sec. 24 of the General Clauses Act had not been considered by the Division Bench which decided Special Criminal Application No. 103 of 1975 and under these circumstances this question has been referred to the larger Bench and we will now dispose of the matter. ( 2 ) THE MISA as originally enacted on July 2 1971 provided for detention of a person if the detaining authority was satisfied that with a view to preventing him from acting in any manner prejudicial to (i) the defence of India the relations of India with foreign powers or the security of India or (ii) the security of the State or the maintenance of public order or (iii) the maintenance of supplies and services essential to the community or if satisfied with respect to any foreigner that with a view to regulating his continued presence in India or with a view to making arrangements for his expulsion from India it was necessary to pass an order directing that such person be detained. Thereafter the President promulgated the Maintenance of Internal Security (Amendment) Ordinance 1974 being Ordinance No. 11 of 1974 and as a result of the Ordinance the detaining authorities were empowered to detain a person if they were satisfied with respect to any person (including a foreigner) that with a view to preventing him from acting in any manner prejudicial to the conservation of foreign exchange or with a view to preventing him from (i) smuggling goods or (ii) abetting other persons to smuggle goods or (iii) dealing in smuggled goods it was necessary to pass an order of detention such order of detention could be passed. Thus by this Ordinance orders of detention could be passed to prevent persons from carrying on activities prejudicial to the conservation of foreign exchange or what may be briefly described as to preventing smuggling activities. The Ordinance was promulgated on September 17 1974 Thereafter the Parliament enacted the COFE POSA Act on December 13 1974 but by Sec. 1 sub-sec. (3) it was to come into force on such date (being a date not later than the twentieth day of December 1974 as the Central Government may by notification in the Official Gazette appoint. The Central Government appointed December 19 1974 as the date for the commencement of this Act and thus the COFE POSA Act came into force with effect from December 19 1974 The preamble to the COFE POSA Act shows that it was enacted having regard to the persons by whom and the manner in which such activities or violations are organised and carried on and having regard to the fact that in certain areas which are highly vulnerable to smuggling smuggling activities of a considerable magnitude are clandestinely organised and carried on and it was necessary for the effective prevention of such activities and violations to provide for detention of persons concerned in any manner therewith. ( 3 ) IT may be mentioned here that so far as the MISA was concerned the relevant portion of it was amended by the Defence of India Act 1971 being Act 42 of 1971 in certain respects. Under sec. 13 of the MISA the maximum period for which any person may be detained in pursuance of any detention order which has been confirmed under sec. 12 shall be twelve months from the date of detention provided that nothing contained in sec. Under sec. 13 of the MISA the maximum period for which any person may be detained in pursuance of any detention order which has been confirmed under sec. 12 shall be twelve months from the date of detention provided that nothing contained in sec. 13 was to affect the power of the appropriate Government to revoke or modify the detention order at any earlier time. By the Defence of India Act 1971 an amendment was introduced in sec. 13 with the result that the maximum period for which any person can be detained in pursuance of any detention order passed under the MISA is to be twelve months from the date of detention or until the expiry of the Defence of India Act 1971 whichever is later and by sec. 6 of the Defence of India Act 1971 this amendment of the MISA is to remain on the statute book during the continuance in force of the Defence of India Act 1971 The Defence of India Act is still in force and the result therefore is that in respect of all orders of detention passed under the MISA the maximum period of detention is twelve months from the date of detention or until the expiry of the Defence of India Act 1971 whichever is later and thus all orders of detention under the MISA are for an indefinite period that is till the expiry of the Defence of India Act. Under sec. 10 of the COFE POSA Act on the other hand it has been provided that the maximum period for which any person may be detained in pursuance of any detention order to which the provisions of sec. 9 do not apply and which has been confirmed under clause (f) of sec. 8 shall be one year from the date of detention and the maximum period for which any person may be detained in pursuance of any detention order to which the provisions of sec. 9 apply and which has been confirmed under clause (f) of sec. 8 read with sub-sec. (2) of sec. 9 shall be two years from the date of detention. By the proviso nothing contained in sec. 10 shall affect the power of the appropriate Government in either case to revoke or modify the detention order at any earlier time. 9 apply and which has been confirmed under clause (f) of sec. 8 read with sub-sec. (2) of sec. 9 shall be two years from the date of detention. By the proviso nothing contained in sec. 10 shall affect the power of the appropriate Government in either case to revoke or modify the detention order at any earlier time. ( 4 ) IT may also be mentioned that under the MISA the orders of detention could be passed by the Central Government or the State Government or under certain circumstances by the District Magistrates Additional District Magistrates specially empowered in this behalf by the State Government and Commissioners of Police wherever they have been appointed. The District Magistrates the Additional District Magistrates specially empowered and the Commissioners of Police could only exercise the power in respect of some of the grounds of detention and not in respect of all the grounds in respect of which the orders of detention under the MISA could be passed. Under COFE POSA Act on the other land the detaining authorities are the Central Government or the State Government or any officer of the Central Government not below the rank of a Joint Secretary to that Government specially empowered for the purposes of that section by that Government or any officer of a State Government not below the rank of a Secretary to that Government specially empowered for the purposes of that section by that Government. Thus the persons or the authorities who can pass orders of detention are different under the COFE POSA Act from the authorities under the MISA. It may also be mentioned that a comparison of the grounds for detention under the MISA as amended by Ordinance No. 11 of 1974 and the COFE POSA Act shows that in addition to prejudicial activities mentioned in ordinance No. 11 of 1947 the COFE POSA Act provides for detention with a view to preventing a person from acting in any manner prejudicial to the augmentation of foreign exchange or with a view to preventing him from harbouring persons engaged in smuggling goods or in abetting the smuggling of goods. Thus harbouring persons engaged in these two prejudicial activities of smuggling goods or abetting the smuggling of goods is a new ground under the COFE POSA Act as compared to the MISA as amended by Ordinance No. 11 of 1974. Thus harbouring persons engaged in these two prejudicial activities of smuggling goods or abetting the smuggling of goods is a new ground under the COFE POSA Act as compared to the MISA as amended by Ordinance No. 11 of 1974. These are the major differences between the two enactments and the question that we have to consider regarding sec. 24 of the General Clauses Act will have to be answered bearing in mind these differences between the COFE POSA Act on the one hand and the MISA as amended by Ordinance No. 11 of 1974 on the other. ( 5 ) THE contention of Mr. Daru for the petitioner can be summed up as follows. He has pointed out that in this particular case the petitioner is the wife of the detenu. On September 21 1974 an order of detention was passed against the detenu under sec. 3 (1) (c) of the MISA as amended by Ordinance No. 11 of 1974 by the Commissioner of Police Ahmedabad. On December 19 1974 the detenu was released for a few minutes and thereafter he was again detained under a fresh order passed under the COFE POSA Act by the Secretary to the Government in the Public Works Department who has been specially authorized in this behalf. Mr. Daru has contended that the order passed under the MISA should be deemed to have been passed under the COFE POSA Act by virtue of the provisions of sec. 24 of the General Clauses Act 1897 and once the deeming fiction is applied the maximum period of duration of detention under sec. 10 of COFE POSA Act should be counted from September 21 1974 when the original order of detention was passed and not from December 19 1974 when the order under the COFE POSA Act was passed. Mr. Daru has pointed out that the Central Government has not passed any order under sec. 9 so far as the detenu before us is concerned and hence under section 10 of the COFE POSA Act the maximum period of detention is one year. He has thus contended that the period of detention undergone as a result of the order of detention under the MISA as amended by the Ordinance should be tacked on to the period of detention undergone as a result of the order under sec. He has thus contended that the period of detention undergone as a result of the order of detention under the MISA as amended by the Ordinance should be tacked on to the period of detention undergone as a result of the order under sec. 3 of the COFE POSA Act and because of this tacking on of the two periods his detention must come to an end on September 20 1975 ( 6 ) IN support of his argument Mr. Daru has relied upon certain observations of Mahajan J. in S. Krishnan v. State of Madras (supra ). Thereafter he has relied upon certain observations of Patanjali Sastri J. in the same case regarding tacking on of two periods and he has relied upon sec. 24 of the General Clauses Act for the deeming fiction under that section. Mr. Daru has frankly conceded that unless all the three supports for his argument are upheld his main contention cannot succeed. In our opinion whatever the conclusion may be regarding what was observed by the Supreme Court in S. Krishnans case sec. 24 of the General Clauses Act cannot apply to cases like the present. Sec. 24 of the General Clauses Act is in these terms - where any Central Act or Regulation is after the commencement of this Act repealed and re-enacted with or without modification then unless it is otherwise expressly provided any appointment notification order scheme rule form or byelaw made or issued under the repealed Act or Regulation shall so far as it is not inconsistent with the provisions re-enacted continue in force and be deemed to have been made or issued under the provisions so re-enacted unless and until it is superseded by any appointment notification order scheme rule form or bye-law made or issued under the provisions so re-enacted. The rest of the sec. 1 not material for the purposes of this judgment. It must be borne in mind that the provisions of the COFE POSA Act as regards the maximum period of detention are more liberal as compared with the provisions of the MISA as amended by the Defence of India Act and as amended by Ordinance No. 11 of 1974. 1 not material for the purposes of this judgment. It must be borne in mind that the provisions of the COFE POSA Act as regards the maximum period of detention are more liberal as compared with the provisions of the MISA as amended by the Defence of India Act and as amended by Ordinance No. 11 of 1974. Under the MISA as amended by Defence of India Act any order of detention under the MISA remains in force for much longer than the period of one year because the period of detention is period of one year from the date of order or until the expiry of the Defence of India Act whichever is later and thus the order of detention under the MISA as it stood before the repeal of Ordinance No. 11 of 1974 by sec. 14 of the COFE POSA Act was an indefinite period beyond the period of one year which is now prescribed as the maximum period by sec. 10 of the COFE POSA Act. Thus it cannot be said that so far as the maximum period of detention is concerned the provisions of the MISA have been repealed and re-enacted by the COFE POSA Act. On three points namely regarding the grounds of detention the duration of the period of detention and the authorities which could pass the orders of detention the COFE POSA Act differs so materially from the provisions of MISA as amended by Ordinance No. 11 of 1974 that it is not possible for us to say that the provisions of MISA have been repealed and re-enacted by the COFE POSA Act. In any event so for as the question of duration of the maximum period of detention is concerned the order passed under the MISA which was for an indefinite period because of the amendment in sec. 13 by the Defence of India Act is now restricted to a period of twelve months only from the date of order of detention. Hence it cannot be said that the order of detention passed under the MISA is consistent with the provisions of the COFE POSA Act sec. 10 and that is one additional ground for saying that the provisions of sec. 24 of the General Clauses Act are not attracted to this case. Hence it cannot be said that the order of detention passed under the MISA is consistent with the provisions of the COFE POSA Act sec. 10 and that is one additional ground for saying that the provisions of sec. 24 of the General Clauses Act are not attracted to this case. Lastly it must be pointed out on the facts of this particular case that the authorities concerned have proceeded on the footing that Ordinance No. 11 of 1974 being Maintenance of Internal Security (Amendment) Ordinance 1974 was a temporary statute and since the temporary statute was repealed by sec. 14 of the COFE POSA Act the order of detention passed under MISA as amended by Ordinance No. 11 of 1974 also came to an end and was terminated. It is because of this footing of the repeal of of a temporary statute that the detaining authorities appear to have passed a fresh order of detention under COFE POSA Act on December 19 1974 It may be pointed out that in S. Krishnans case out of the five learned Judges of the Supreme Court who heard the matter Kania C. J. Patanjali Sastri Mahajan and S. R. Das JJ. were of the view that in circumstances like the present the previous order of detention would be technically terminated. Since there was termination of the order of detention passed under the MISA as amended by Ordinance No. 11 of 1974 because of the repeal of Ordinance No. 11 of 1974 the fresh order of detention under the COFE POSA Act became necessary if the detenu was to be detained with a view to preventing him from carrying on what were alleged to be offensive activities covered by the COFE POSA Act and sought to be prevented by the COFE POSA Act and it was for this reason that the order of detention came to be passed on December 19 1974 Thus in any event so far as the order under the MISA was concerned it carne to an end automatically because of the repeal of the Ordinance No. 11 of 1974 on which it was based and therefore there is no question of the order under MISA continuing in force and being deemed to have been passed under the COFE POSA Act. Even if this view of ours is not correct It must be held that the order under the MISA as amended by Ordinance No. 11 of 1974 was superseded by the fresh order of detention passed on December 19 1974 and once it is so superseded it came to an end. Mr. Daru has contended in this connection that the order of detention passed under the COFE POSA Act on December 19 1974 was a superfluous order but we are unable to accept that contention because Ordinance No. 11 of 1974 being a temporary statute and having been repealed by sec. 14 of COPE POSA Act the order of detention of September 21 1974 which was passed on the basis of that Ordinance stood terminated or could well be said to have been terminated in the light of the legal position regarding the effect of repeal of a temporary statute. It is obvious that according to the contention of Mr. Daru which we have formulated above if sec. 24 of the General Clauses Act does not apply and cannot be brought into play his whole argument regarding the period of detention suffered under the MISA as amended by Ordinance No. 11 of 1974 being tacked on to the period of detention undergone under the COFE POSA Act must fail. ( 7 ) AS regards his argument based on observations of the different Judges in S. Krishnans case (supra) it must be pointed out that the main question before the Bench of five Judges in that case was as to whether certain provisions of the Preventive Detention (Amendment) Act 1951 purporting to amend the Preventive Detention Act 1950 authorized detention of a person to be continued beyond the expiry of one year and hence were ultra vires and inoperative. Out of the five Judges who heard that case Kania C. J. and Patanjali Sastri J. on one set of reasoning and Mahajan and S. R. Das JJ. on another line of reasoning all held that the provisions were intra vires and were not invalid. Vivian Bose J. delivered a dissenting judgement and he came to the conclusion that sec. 11 (1) of the Amending Act was ultra vires. on another line of reasoning all held that the provisions were intra vires and were not invalid. Vivian Bose J. delivered a dissenting judgement and he came to the conclusion that sec. 11 (1) of the Amending Act was ultra vires. Mahajan J. who delivered the judgment on behalf of himself and S. R. Das J. has pointed out technically speaking an amended statute remains the same statute as originally enacted but from that proposition it does not follow that the law contained in the amended statute is the same law as was contained in the original one. Sec. 9 of the original Act has been substituted by sec. 9 of the amended Act and declares a new law and it is not a re-enactment of the law as was contained in the earlier statute Sec. 12 of the original statute has been completely repealed and no longer exists. The law declared by that section has been abrogated. The law declared by sec. 12 of the amended Act is in the nature of a substituted provision. It seems to me that the law declared by the amended statute is not the same law as was declared by the original statute and to that extent the amended statute is in the nature of a new and independent statute. The petitioners are being detained to day by force of the provisions contained in secs. 9 and 12 of the amended Act and not under the law that was passed in 1950 as by repeal of sec. 12 of that Act their detention under it technically terminated. The new law admittedly standing by itself does not authorize detention of any person beyond a period of three months except in the manner provided by Article 22 (4) of the Constitution. No question whatever arises of tacking of the period of detention under one law in the period of detention under another law inasmuch as the detention under the earlier law automatically terminates with the repeal of sec 12 of the Act IV of 1950. Mr. No question whatever arises of tacking of the period of detention under one law in the period of detention under another law inasmuch as the detention under the earlier law automatically terminates with the repeal of sec 12 of the Act IV of 1950. Mr. Daru has pointed out that Patanjali Sastri J. speaking for himself and Kania C. J. while considering the provisions of Article 22 (4) (a) of the Constitution has observed in paragraph 8 of his judgment it will be seen that although the object of the new Act was to liberalise the provisions of the old Act in the manner indicated above sec. 12 had the effect of enlarging the period of detention of the petitioners who were under detention at the commencement of the new Act by enacting the legal fiction that detention in such cases shall have effect as if it had been made under the new Act. On that basis the new Act seeks to bring detention orders in force at its commencement and more than three months old into conformity with Article 22 (4) (a) by prescribing a period of six weeks in sec 9 for referring such cases to the Advisory Board and ten weeks in sec. (10) (1) for the submission by the Board of the report the period in each case being calculated from the commencement of the new Act. But this fiction cannot obscure the fact that in the case of the petitioners more than three months had elapsed from the date of their arrest without any Advisory Board making a report on their detention and it is of course not possible for the Advisory Board now provided for in such cases to admit its report before the expiration of that period with the result that their detention contravened Article 92 No doubt the detention up to the commencement of the new Act was lawful under sec. 12 of the old Act as it was in accordance with sub-clause (b) of clause (4) of Art. 22 but that could not make the petitioners continued detention any the less a violation of Art. 22 (4) (a) after the deletion of old sec. 12. It is a fallacy to treat what was a lawful detention under sub-clause (b) as being no declaration at all for the purposes of sub-clause (a ). 12. It is a fallacy to treat what was a lawful detention under sub-clause (b) as being no declaration at all for the purposes of sub-clause (a ). Detention is a hard physical fact and the total period of detention of the petitioners having far exceeded three months without an Advisory Board having reported within three months that there were sufficient grounds therefor it could not lawfully be continued under Article 22 (4) (a ). Constitutional provisions regarding fundamental rights cannot be circumvented by resorting to legal fictions. However it was found by Patanjali Sastri J. that in view of the provisions of Article 22 (7) read with Article 22 (4) (b) the provisions of the Amending Act substantially satisfied the requirements of sub-clause (b) of clause (4) of Article 22 and could not be declared unconstitutional and void. ( 8 ) A reference to Article 22 shows that according to clause (4) no law providing for preventive detention shall authorize the detention of a person for a longer period than three months unless (a) an Advisory Board consisting of persons who are or have been or are qualified to be appointed as Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention. Provided that nothing in the sub-clause shall authorize the detention of any person beyond the maximum period prescribed by any law made by Parliament under sub-clause (b) of clause (7 ). or (b) such person is detained in accordance with the provisions of any law made by Parliament under sub-clauses (a) and (b) of clause (7 ). Under clause (7) Parliament may by law prescribe (a) the circumstances under which and the class or classes of cases in which a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an Advisory Board in accordance with the provisions of sub-clause (a) of clause (4); (b) the maximum period for which any person may in any class or classes of cases be detained under any law providing for preventive detention. Since Patanjali Sastri J. and Kania C. J. who agreed with him found that the requirements of Article 22 (4) (b) were met really speaking there was no question of any violation of Article 22 (4) (a) because Article 22 (4) (a) itself indicates that if the Parliament passes a law as contemplated by Article 22 (7) it will not be hit by Article 22 (4) (a ). It has been pointed out that the law could still be upheld if it fulfilled the conditions laid down in sub-clause (b) of clause (4) of Article 22 and that was precisely found in that particular case. With utmost respect therefore what has been observed by Patanjali Sastri J. while considering the provisions of Article 22 (4) (a) was not strictly necessary for the decision of the particular case before the Supreme Court in that particular case and it seems that while considering the argument advanced before the Bench regarding the alleged violation of Article 22 (4) (a) that the observations stated above have been made. Even though these observations are entitled to utmost respect the clear position as emerges on a close examination of the case is that out of the four Judges who constituted the majority two Judges namely Mahajan and S. R. Das JJ. were of the view that the detention order under the earlier law automatically terminated with the repeal of sec. 12 of Act 4 of 1950 by the Amending Act and there was no question of tacking of period under the old Act to the period of detention under the new Act. Whatever has been observed by Patanjali Sastri J. and by Kania C. J. who agreed with him was in passing while considering the argument advanced before the Court regarding the alleged violation of Article 22 (4) (a) and even though Patanjali Sastri J and Kania C. J. found that there was a violation of Article 22 (4) (a) by virtue of Article 22 (4) (b) the impugned provisions were saved. Under these circumstances if we have to choose between the two views set forth by Patanjali Sastri J. with whom Kania C. J. agreed on the one hand and Mahajan and S. R. Das JJ. on the other hand we would prefer to be guided by the view of Mahajan and S. R. Das JJ. Under these circumstances if we have to choose between the two views set forth by Patanjali Sastri J. with whom Kania C. J. agreed on the one hand and Mahajan and S. R. Das JJ. on the other hand we would prefer to be guided by the view of Mahajan and S. R. Das JJ. because Mahajan J. has directly dealt with the main point that was in controversy and has pointed out that in view of the facts of that particular case and the law as it stood there was no question of any period being tacked on and alleged violation of Article 22 (4) (a ). It is open to us to prefer one view to the other and for the reasons indicated above we prefer with respect to follow the view put forward by Mahajan and S. R. Das JJ. ( 9 ) THUS even as regards the observations set out in S. Krishnans case the contention of Mr. Daru for the petitioner cannot be accepted. After examining this decision in S. Krishnans case we have come to the conclusion that the period of detention undergone under MISA as amended by Ordinance No. 11 of 1974 cannot be tacked on to the period of detention undergone under the COFE POSA Act. Both Mr. Daru for the petitioner and the learned Government Pleader are agreed that this question about tacking on of the period of detention was the only point that was argued before the Division Bench of J B. Mehta and P. D. Desai JJ. and since that point is decided against the petitioner and since the contentions of Mr. Daru on behalf of the petitioner are rejected this Special Criminal application fails and is rejected and the Rule is discharged with no order as to costs. ( 10 ) BEFORE parting with the case we must point out that the learned Government Pleader wanted to canvass before us the larger question as to the exact meaning of sec. 11 of the COFE POSA Act. He pointed out before us that under sec. ( 10 ) BEFORE parting with the case we must point out that the learned Government Pleader wanted to canvass before us the larger question as to the exact meaning of sec. 11 of the COFE POSA Act. He pointed out before us that under sec. 11 a detention order may at any time be revoked or modified notwithstanding that the order has been made by an officer of a State Government by that State Government or by the Central Government and notwithstanding that the order has been made by an officer of the Central Government or by a State Government by Central Government and under sub-sec. (2) the revocation of a detention order shall not bar the making of another detention order under sec. 3 against the same person. He has pointed out that under MISA relevant provision of sub-sec. (2) of sec. 14 is that the revocation or expiry of a detention order shall not bar the making of a fresh detention order under sec. 3 against the same person in any case where fresh facts have arisen after the date of revocation or expiry on which the Central Government or a State Government or an officer as the case may be is satisfied that such an order should be made. The learned Government Pleader contended that there is a distinction between the COFE POSA Act and the MISA inasmuch as under the MISA after the revocation or expiry of a detention order a fresh order of detention can be passed only where fresh facts have arisen after the date of revocation or expiry of the order of detention whereas under the COFE POSA Act the revocation of a detention order is not to bar the making of another detention order under the same Act. There is no reference to expiry of the order of detention operating as a bar except in the case where fresh facts have arisen so far as the COFE POSA Act are concerned. However we have not gone into this larger question as it was not necessary for the purposes of this judgment. .