TMI Blog1975 (6) TMI 55X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pondent 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 ₹ 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asheeds case we have to consider the whole line of judicial decisions starting from the decision of the federal court in Keshav Talpade v. Emperor. 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 gro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... im 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. State 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 vitiat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecisions 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wati 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evokes 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 ext ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tive 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 wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eneral 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 smuggling 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 prev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder 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 conferre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 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 difficu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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