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TMI Blog1999 (2) TMI 732X X X X Extracts X X X X X X X X Extracts X X X X ..... on 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short, 'COFEPOSA Act') by the Lt. Governor of National Capital Territory of Delhi with a view to prevent him from smuggling of goods, etc. The detention of the respondent was challenged in Criminal Writ Petition No. 590 of 1997 in the High Court of Delhi. On April 15, 1998, the High Court allowed the writ petition on the ground that the report sent up by the State Government under Section 3(2) of the COFEPOSA Act was considered by the Joint Secretary (Revenue) who was not the competent authority under the notification issued by the Finance Minister in 1966 (sic) ; was considered by the Secretary (Revenue) after six months along with the representation, therefore the safeguards provided under Article 22(5) of the Constitution had been violated. Against the said order of the High Court, the Union of India and other officials have come up in appeal by special leave. 4. Mr. K.N. Rawal, learned Additional Solicitor General, contented that the High Court erred in setting aside the order of detention and directing release of the respondent on the ground that 1991 notification was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y or Senior Technical Officer in the Ministry of Finance (Department of Revenue), Government of India. Sd/- (Yashwant Sinha) Ministry of Finance New Delhi : 26.4.1991" 7. From a perusal of this notification, two things are evident that : (i) it is a statutory notification issued under the provisions of Rule 2(3) of the Government of India (Transaction of Business) Rules, 1991 and (ii) it contains delegation of powers of the Central Government under various provisions noted in Column (1) in favour of officers noted in Column (2). It may be noted that Section 3(2) is not mentioned in Column (1) of the said notification. 8. The office order of 20th January, 1993 (hereinafter referred to as "the 1993 order"), relevant portion of which are reproduced hereunder, shows that it does not deal with delegation of powers of the Central Government under the COFEPOSA Act "No. A-22012/2/93-Admn. 1 Government of India/Bharat Sarkar Ministry of Finance/Vitta Mantralaya Department of Expenditure/Vyaya Vibhag New Delhi, the 20th January, 1993 OFFICE ORDER Subject : - Allocation of work to Ministers. Finance Minister has decided that the Ministers of State in the M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Income-Tax Act. It may be noted here that there is no reference to Section 3(2) or for that matter, any of the provisions of the COFEPOSA Act in this office order. But in so far as the COFEPOSA Act is concerned, the delegation of powers relates to disposal of files concerning representation from the detenues under COFEPOSA/PITNDPS addressed to the Government of India, i.e., representation under Section 11 and application for parole under Section 17 to the Secretary (Revenue). Omission of Section 3(2) in the notification/orders is not material as the report submitted by the State Government is for purposes of exercise of powers under Section 11 of the COFEPOSA Act. It may be noticed that the subject matter of the 1991 notification and the 1996 order is in effect the same. But it must be borne in mind that the 1996 order is not a statutory order whereas the 1991 notification is a statutory notification issued under Rule 3 of the Transaction of Business Rules. It is true that where a subsequent order does not specifically supersede an earlier order but if both the orders relate to the same subject and are issued in exercise of the same power, statory or otherwise, notwithstanding a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the conclusion that both 1991 and 1996 office orders co-existed and 1996 office order was nothing but an order giving more clarity to the existing 1991 order. In that view of the matter, it held that the consideration by the Joint Secretary was proper. 15. In the light of the above discussion, we find it difficult to endorse the view of the Delhi High Court and for the reasons, we approve the judgment of the Madras High Court in Rosana Begum's case (supra). 16. It may be pointed out that in these cases the question was one of consideration of representation of the detenu under Section 11 of the COFEPOSA Act. But in the instant case, the question is not one of consideration of representation but non-consideration of the report of the State Government submitted under Section 3(2) of the COFEPOSA Act by the competent authority which was held by the High Court as vilation of Article 22(5) of the Constitution. 17. Here it may be useful to refer to clause (5) of Article 22 of the Constitution, which runs thus: "22(5). 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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