RAM LAL NARANG Vs. UNION OF INDIA

JUDGEMENT

(1.) This petition under Article 226 of the Constitution of India seeks declarations that the detention order dated July 1, 1975 passed against the petitioner under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 and the declaration also made on July 1, 1975 under Section 12-A of the said Act are illegal and void ab initio.

(2.) The petition has arisen on these facts. Shri Ram Lal Narang, the petitioner pursuant to an order made on October 4, 1974 was detained under Section 3(1) of the Maintenance of Internal Security Act, 1971 (for short called the MISA), as amended by the Maintenance of Internal Security (Amendment) Ordinance, 1974. MISA, as originally enacted did not provide for preventive detention erf persons suspected of smuggling or abetting smuggling, but these activities were brought within its ambit by the said Ordinance. The detention of the petitioner was challenged in the High Court of Bombay by his son Ramesh Narang who sought a writ of Habeas Corpus, being Criminal Application No. 847 of 1974. The said petition was dismissed on December 5, 1974 and the petitioner continued to be detained by virtue of the order under the MISA. The Maintenance of Internal Security (Amendment) Ordinance, 1974 was repealed by Section 14 of 'the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short called the COFEPOSA) and accordingly the amendments made in the MISA ceased to have effect on the commencement of COFEPOSA. Section 3 of the COFEPOSA conferred power to make orders detaining certain person also with a view to preventing him from smuggling goods or abetting the Smuggling Activites Act, 1974 (for short called the President on December 13, 1974 and published in the. Gazette of India dated December 13, 1974. It was to come into force on such date (being a date not later than 20th day of December, 1974) as the Central Government may, by notification in the official Gazette appoint. The Central Government appointment the date as December 19, 1947 when COFEPOSA came into force by publication of a notification dated December 16, 1974. The detention order made under the MISA,therefore, ceased to have effect. The petitioner was technically released from detention under the MISA in morning of December 19, 1974.

(3.) In exercise of the powers conferred by sub-section (1) of Section 3 of COFEPOSA read with Government's notification dated December 17, 1974, Shri K. B. Srivastava, Secretary to the Government of Maharashtra, having been specially empowered by the Government of Maharashtra for the purpose of Section 3, recorded the satisfaction with respect to the petitioner that with a view to preventing him from smuggling goods, it was necessary to make an order of detention. The petitioner was directed to be detained by an order dated December 19, 1974. The petitioner was arrested on December 19, 1974 and detained in Thana Central Prison, Thana. The petitioner was supplied with the grounds of detention as required under sub-section 3 of Section 3 of COFEPOSA Prem Raj Sawhney, father-in-law of the petitioner then moved this Court for the issue of a writ in the nature Habeas Corpus and other appropriate relief for quashing the detention order dated December 19, 1974, being Cr. W. No. 10 of 1975. The petition was mostly confined, at the time of hearing, to the validity of the impugned detention order. The petition was heard and decided by a Bench of this Court on April 30, 1975 when the impugned detention order was quashed and the petitioner was directed to be released from the detention forthwith. The Division Bench had examined each one of the four ground forming the basis of the detention order. As regards second ground, it was held that the inclusion of the allegations about the standing Budha was in casual exercise of power, and that it was not possible to predicate how that aspect influenced the mind of the detaining authority. The inclusion of the allegation about standing Budha was held to vitiate the subjective satisfaction and in consequence the detention order. The Union of India filed on May 1, 1975 a petition for special leave to appeal under Article 136 of the Constitution of India against the judgement Of this Court and the leave prayed for was. granted. The appeal was filed in the Supreme Court. The Union of India also moved an application for stay of the operation of the order of this Court passed on April 30, 1975 but the stay application was rejected by the Supreme Court. The petitioner was, however, directed to report to the Police and to remain within Bombay and or Delhi.