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Showing contexts for: temporary statutes in Smt. Hemlataben Manharlal Soni vs The State Of Gujarat And Ors. on 26 November, 1975Matching Fragments
The rest of the Section is not material for the purposes of this judgment. It must be borne in mind that the provisions of the COFEPOSA 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 Section 14 of the COFEPOSA Act, was an indefinite period beyond the period of one year which is now prescribed as the maximum period by Section 10 of the COFEPOSA 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it cannot be said that so far as the maximum period of detention is concerned, the provisions of the MISA have been repealed and re-enacted by the COFEPOSA Act.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 COFEPOSA 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MISA as amended by Ordinance No. 11 of 1974 that it is not possible for us to say that the provisions of MISA have been repealed and re-enacted by the COFEPOSA Act. In any event, so far 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 Section 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 COFEPOSA Act, Section 10, and that is one additional ground for saying that the provisions of Section 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 & temporary statute and since the temporary statute was repealed by Section 14 of the COFEPOSA 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 a tempo- rary statute that the detaining authorities appear to have passed a fresh order of detention under the COFEPOSA Act on December 19, 1974. It may be pointed out that in S. Krishnan's case, out of the five learned Judges of the Supreme Court who heard the matter, Kania, C, J., Patanjli 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 a 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 COFEPOSA 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 COFEPOSA Act and sought to be prevented by the COFEPOSA 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 came 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 COFEPOSA 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 COFEPOSA 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 Section 14 of the COFEPOSA 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 Section 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 COFEPOSA Act must fail.