Bombay High Court
Amritlal Shah And Etc. vs State Of Maharashtra And Others on 22 January, 1986
Equivalent citations: 1986(2)BOMCR545, (1986)88BOMLR175, 1986(10)ECC292
JUDGMENT Jahagirdar, J.
1. The facts of these two writ petitions ought to be mentioned before we proceed to decide the questions of law raised in them. In Criminal Writ Petition No. 26 of 1986 the detenu had been originally detained by an order of detention passed under S. 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, hereinafter referred to as the "COFEPOSA Act", by the Government of Maharashtra. That order was of 18th July, 1985 and subsequently the said order of detention was revoked by the Government of Maharashtra on 28th November, 1985. On the same day, a fresh order of detention has been passed by the Government of Maharashtra under the same provision of law and on the same grounds.
2. In Criminal Writ Petition No. 30 of 1986, the original order of detention under S. 3 of the COFEPOSA Act was passed by the Government of Maharashtra on 8th April, 1985. After the Advisory Board submitted its opinion to the Government, the Government revoked the order of detention by virtue of the duty cast upon it under S. 8(f) of the COFEPOSA Act. That order was passed on 28th of June, 1985. On 4th of November, 1985 a fresh order of detention has again been passed against the detenu in this writ petition.
3. In the first petition the question that arises is, where an order of detention has been passed by the Government of Maharashtra and where subsequently the same authority revokes the order of detention, whether a fresh order of detention can be passed against the same detenu on the same grounds. The question that arises in the second petition is whether after a detenu has been released pursuant to an order of revocation, which is passed under S. 8(f) of the COFEPOSA Act, the same authority can pass a fresh order of detention against the same detenu on the same grounds. Though the points arising in these two petitions are thus somewhat different, we have heard the Advocates for the petitioners and the Advocates for the respondents together because ultimately the interpretation of S. 11 of the COFEPOSA Act is involved in both the petitions.
4. Before we proceed to consider the arguments of Mr. Kotwal appearing in support of Criminal Writ Petition No. 26 of 1986, we should mention that by a judgment dated 7th January, 1986 in Criminal Writ Petn. No. 683 of 1985 this Bench held that the order of revocation passed by the Government of Maharashtra on 28th November, 1985 was an order passed under S. 21 of the General Clauses Act and not under S. 11(1) of the COFEPOSA Act. We held so because under the COFEPOSA Act an order passed by the State Government could not be revoked by the State Government, it could only be revoked by the Central Government. But S. 11 of the COFEPOSA Act itself retains intact the powers vested in any authority under S. 21 of the General Clauses Act. Since the validity of the order of revocation was involved and since it was found that the said order could not have been passed under S. 11 of the COFEPOSA Act, the learned counsel appearing for the State advanced an argument, which argument commended itself to us, that if the order is made by mentioning a wrong provision of law it could still be held to be valid if it could be supported by reference to the correct provision of law. We accepted this argument in the aforesaid judgment and it was held as follows :-
"We accept the argument of Mr. Gursahani and uphold the validity of this order as having been made under S. 21 of the General Clauses Act."
We must, therefore, proceed on the basis that the order of revocation which has been passed in the case of the detenu in Criminal Writ Petition No. 26 of 1986 is an order passed under S. 21 of the General Clauses Act and not under S. 11(1) of the COFEPOSA Act. The question now is whether the Government of Maharashtra which has revoked the order of detention under S. 21 of the General Clauses Act can proceed to pass a fresh order of detention by virtue of the provisions contained in sub-sec. (2) of S. 11 of the COFEPOSA Act. Sub-sec. (2) of S. 11 of the COFEPOSA Act is in the following terms :-
"The revocation of a detention order shall not bar the making of another detention order under S. 3 against the same person."
5. Prima facie, therefore, the above mentioned provisions do not limit the powers of making a fresh order of detention in classes of detenus in respect of whom revocation of the detention order has been made earlier. In other words, sub-sec. (2) of S. 11 of the COFEPOSA Act does not say that a fresh order of detention can be passed in respect of certain classes of detenus in respect of whom revocation orders have been passed under any particular provision of law. Since there are no words of limitation in sub-sec. (2) of S. 11 itself, prima facie, we would have been inclined to take the view that a fresh order of detention can be passed against a particular person in respect of whom an order of revocation of the detention order has been passed either under S. 11 of the COFEPOSA Act or under S. 21 of the General Clauses Act. This, in fact, is the view which has been advanced for our acceptance by Mr. Gumaste appearing for the State of Maharashtra and Mr. Agarwal and Mr. Desai appearing for the Union of India before us.
6. However, Mr. Kotwal has invited our attention to a judgment of the Supreme Court in Ibrahim Bachu Bafan v. State of Gujarat, . The facts that can be culled out from that judgment show that the petitioners before the Supreme Court had been detained by orders of detention passed under the COFEPOSA Act but their orders of detention had been quashed by the Gujarat High Court. Subsequently fresh orders of detention were passed against the same detenus. The question was whether where the orders of detention have been quashed by orders of a Court fresh orders of detention could be passed against the same persons under sub-sec. (2) of S. 11 of the COFEPOSA Act.
7. The Supreme Court noticed that the inbuilt safeguards provided by the different statutes dealing with preventive detention had been accepted by it in keeping with the rule of law. The judicial consensus that under the preventive detention law, before the COFEPOSA Act came into the field, repeated orders of detention could not be made was also noticed by the Supreme Court. In fact the Supreme Court itself had clearly indicated that more than one order of detention on the same grounds in succession would not be valid. Despite this S. 11(2) of the COFEPOSA Act authorises making of another order of detention under S. 3 against the same person. Therefore, we must proceed on the basis that the Supreme Court noticed what the law was before the COFEPOSA Act came into the field and specific provision was made under S. 11(2) of the COFEPOSA Act. In para 6 of the judgment, arguments advanced on behalf of the petitioners before the Supreme Court were dealt with and it was held by the Supreme Court that the powers given for revoking the orders of detention were in addition to the power which is vested in the relevant authorities under S. 21 of the General Clauses Act. This was so because S. 11(1) of the COFEPOSA Act begins with the words "without prejudice to the provisions of S. 21 of the General Clauses Act, 1897 .....". Since under S. 21 of the General Clauses Act, no authority or officer other than the one who had originally passed the order of detention could revoke or rescind the said order and since the legislature thought that the power of revoking should be entrusted to some other persons also, specific provision was made under sub-sec. (1) of S. 11 of the COFEPOSA Act in that regard. It may be noted, as we have held in Criminal Writ Petn. No. 683 of 1985, that if the State Government has passed the original order of detention, it could only be revoked by the Central Government and not by the State Government. That is how the Supreme Court noted the "conferment of such power was necessary as Parliament rightly found that S. 21 of the General Clauses Act was not adequate to meet the situation. Thus, while not affecting in any manner and expressly preserving the power under S. 21 of the General Clauses Act of the original authority making the order, power to revoke or modify has been conferred on the named authorities".
8. Ultimately, the Supreme Court held that the quashing of an order of detention by a Court did not amount to the revocation of that order by any of the authorities and, therefore, under S. 11(2) of the COFEPOSA Act a fresh order of detention could not legitimately be passed. However, while subjecting the provisions of S. 11 of the Act to its scrutiny the Supreme Court has stated as follows :-
"The rule relating to interpretation of statutes is too well settled to be disputed that unless a contrary intention is expressly or by necessary implication available, words used in a statute should be given the same meaning. This position is all the more so where the word occurs in two limbs of the same section. We, therefore, agree with the contention advanced by counsel for the petitioners that the word 'revocation' in sub-s. (2) has the same meaning and covers the same situations as provided in sub-s. (1) of S. 11 of the Act. This would necessarily mean that the power under sub-s. (2) would be exercisable in cases covered by sub-s. (1)."
9. Relying heavily on this part of the judgment Mr. Kotwal urged that the power of revocation contained in sub-sec. (2) of S. 11 would be exercisable only when the orders of revocation have been made as provided in sub-sec. (1) of S. 11. If, as we have already held, in the instant case the order of revocation was passed by the Government under S. 21 of the General Clauses Act, the power contained in sub-sec. (2) of S. 11 of the COFEPOSA Act cannot be exercised because the order of revocation is not under sub-sec. (1) of Section 11 of the COFEPOSA Act.
10. Mr. Gumaste has, however, pointed out, and in our opinion with considerable justification, that what was before the Supreme Court, in Ibrahim Bachu's case (1985 Cri LJ 533) was the question whether the quashing of a detention order by a Court would amount to revocation and it was held, and rightly, that it did not. According to Mr. Gumaste, the Supreme Court held that where an order of detention has been quashed by a Court, the power of redetention contained in sub-sec. (2) of S. 11 could not be exercised for the simple reason that quashing of an order of detention by an authority who is outside the provisions of the Act can never amount to revocation of that order. So far Mr. Gumaste is right, but, however, we cannot ignore the fact that while deciding the case before it the Supreme Court necessarily subjected the provisions of S. 11 of the COFEPOSA Act to an analysis and has stated in para 7, what we have already reproduced above. It is not possible for us to agree with Mr. Gumaste when he says that these are only casual observations which were not necessary for the determination of the question before the Supreme Court. We are of the opinion that when the Supreme Court, while deciding a case before it, analyses a particular provision of law or otherwise discusses a point of law, though not strictly relevant to the determination of the question before it, that part of the judgment must be held to contain the dicta of the Supreme Court on the law which, in our opinion, are binding upon us. They are not casual observations in the sense that they were made for merely explaining or elucidating a particular point of law. On the other hand, the peremptory language which has been used by the Supreme Court in para 7 and also, as we will show presently, in para 10 of its judgment is, in our opinion, indicative of the fact that the Supreme Court did express an opinion on the ambit and scope of sub-secs. (1) and (2) of S. 11 of the COFEPOSA Act.
11. We now turn to para 10 of the same judgment, which is in the following terms :-
"We are of the view that this seems to be the legislative scheme. The pronounced judicial view of this Court was that repeated orders of detention are not to be made. Parliament while making provision in S. 11(2) of the Act, must be taken to have been aware of such view and in conferring the power of making repeated orders, safeguards have been provided under sub-s. (1) by confining the exercise of power to limited situations ...."
12. The fact that powers of revoction of an order of detention were provided for not only in sub-sec. (1) of S. 11 of the COFEPOSA Act but also in S. 21 of the General Clauses Act was naturally before the Supreme Court, and it has been noticed in para 6 of its judgment. Despite this if the Supreme Court proceeded to say that in conferring the power of making repeated orders, safeguards have been provided under sub-sec. (1) of S. 11 by confining the exercise of power to limited situations, naturally one must necessarily hold that the power of making repeated orders of detention can be exercised only in those situations which are mentioned in sub-sec. (1) of S. 11. The language in para 10 of the Supreme Court judgment also, in our opinion, is sufficiently peremptory to compel us to hold in this manner. Coupled with this, we have already noticed that in para 7 of its judgment the Supreme Court has stated that "this would necessarily mean that the power under sub-s. (2) would be exercisable in cases covered by sub-s. (1)". In the light of the obiter, if it can be so called, of the Supreme Court in Ibrahim Bachu's case, (1985 Cri LJ 533). We are compelled to hold that the power of revocation contained in sub-sec. (2) of S. 11 of the COFEPOSA Act must be confined to situations mentioned in sub-sec. (1) of S. 11.
13. This view naturally would dispose of Criminal Writ Petition No. 30 of 1986 also because in that case the order of revocation has been passed not by any of the authorities mentioned in sub-sec. (1) of S. 11 of the COFEPOSA Act but by way of a statutory obligation cast on it by the State Government under S. 8(f) of the said Act. Assuming, however, our view in relation to the interpretation of sub-sec. (1) of Section 11 is wrong, we still hold that sub-sec. (2) of S. 11 will not apply to a situation arising consequent to the revocation of a detention order made after the Advisory Board has given its opinion.
14. Mr. Gumaste contended that since there are no words of limitation in sub-sec. (2) of S. 11 of the COFEPOSA Act even in cases where the Advisory Board has given its opinion in favour of the detenu, a fresh order of detention can still be passed. We are unable to agree that a fresh order of detention can be passed if the order of revocation is made under the duty cast upon the appropriate Government under S. 8(f) of the COFEPOSA Act. The said provision states that "........ in every case where the Advisory Board has reported that there is in its opinion no sufficient cause for the detention of the person concerned, the appropriate Government shall revoke the detention order and cause the person to be released forthwith." The order of revocation which is passed under S. 8(f) is an order which the appropriate Government is obliged to pass. There is no alternative to the revocation of the detention order. If the appropriate Government does not discharge its duty under S. 8(f), a further writ can be issued to it for discharging its duty.
15. Mr. Gumaste, however, says that in several cases the Advisory Board may express an opinion that no sufficient cause for the detention of the person concerned exists for various reasons and not necessarily always on merits. In such a case the appropriate Government should not be precluded from passing a fresh order of detention. It should be noted that there are certain provisions not only in the Constitution but also in the different laws of preventive detention for safeguarding the liberty of the citizens despite the fact that our Constitution permits preventive detention. But the tolerance accorded to the laws of preventive detention is strictly subject to the conditions imposed by the Constitution and by the law made for preventive detention permitted by the Constitution. Article 22(4) of the Constitution says :
"No law providing for preventive detention shall authorise 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"
In other words, if an Advisory Board does not express an opinion that there is sufficient cause for the detention of a person for a longer period than the one provided for in the law of preventive detention, the detention of a person beyond that period would be unconstitutional. In order to give effect to these safeguards different laws of preventive detention have incorporated the provisions for the constitution of Advisory Boards, references to the same and what should be done consequent to the opinion expressed by the Advisory Board. It is with a view of giving effect to this constitutional provision that cl. (f) of S. 8 has been enacted. We do not see how once an opinion is expressed by an Advisory Board that there is no cause for the detention of a person, he can be detained beyond a period of three months.
16. But, however, the question still remains as to whether a fresh order of detention can be passed against the same detenu. In our opinion, to hold that this can be done is to set at naught the provisions contained in Art. 22(4) of the Constitution. If a person is required to be released consequent to a report of the Advisory Board which is adverse to the order of detention, we do not see how the same person can be detained again unless there are fresh grounds for his detention. Such fresh orders of detention will set at naught the protection which is afforded to citizens by insisting that no order of detention can ensure beyond a period of three months if such detention has not been approved by the Advisory Board. There is also another aspect of this question which arises from the arguments advanced by Mr. Gumaste. As already mentioned above. Mr. Gumaste said that in several cases the Advisory Board may hold that there is no sufficient cause for the detention of the person not on merits but on technical grounds. In fact Mr. Gumaste offered to show us the report of the Advisory Board in the case of the detenu in Criminal Writ Petition No. 30 of 1986. However, we do not think it necessary to read the said report. Interpretation of the statutory and constitutional right of a citizen cannot be controlled by what a particular Advisory Board does in a particular case. The safeguard which has been provided to a citizen under Art. 22(4) of the Constitution and which safeguard has been incorporated in the different laws of preventive detention cannot be controlled or diluted by anything that might have been said in support of its opinion by an Advisory Board.
17. Mr. Gumaste sought to derive support for his argument firstly from the facts to be found in Ibrahim Ahmad v. State of Gujarat, . It is noticed that in Ibrahim Ahmad's case the Advisory Board had opined that "although at the date when the detention order was passed there was sufficient cause for reaching the subjective satisfaction that it was absolutely necessary to detain the detenu under S. 3(1) of the Act, the subsequent failure on the part of detaining authority to supply the translations in Urdu of the grounds and documents relied upon was a clear violation of the constitutional mandate of Art. 22(5) so as to vitiate the order of detention and hence, in our view, there exists no sufficient cause for the continued detention of the said detenu". Following the Advisory Board's opinion, the detenu was released and a fresh order of detention was passed and that was the subject-matter of challenge before the Supreme Court in Ibrahim Ahmad's case. The question whether a fresh order of detention could be passed after a detenu is released pursuant to the opinion of the Advisory Board under S. 8(f) was not even raised, let alone answered, by the Supreme Court. That the Advisory Board is not concerned with what happens after its report is also mentioned, according to Mr. Agarwal, in A. K. Roy v. Union of India, . However, for reasons which we have already mentioned above, we are unable to accept this argument of Mr. Gumaste.
18. That apart, if the appropriate Government is free to take a fresh step in the direction of detaining a person by its interpretation of the opinion given by the Advisory Board, it will be a great injustice to the citizen concerned. In every law of preventive detention the report of the Advisory Board is required to be confidential. If the appropriate Government decides to take a fresh action on the basis of its own interpretation or reading of the report of the Advisory Board, how is a citizen able to challenge the action of the appropriate Government ? The contents of the report of the Advisory Board are a closed book as far as the citizen is concerned. In our opinion, therefore, considering these aspects of Art. 22(4) of the Constitution and the effect of the report made by an Advisory Board and of the opinion expressed by it as provided for, in keeping with the requirement of Art. 22(4) of the Constitution, in the different laws of preventive detention, no order of detention can be passed against a detenu who has been released under S. 8(f) of the COFEPOSA Act unless there are fresh grounds for his detention.
19. In the result, both the petitions succeed and detenus in both the petitions shall be set at liberty forthwith.
20. Petitions allowed.