AMRITLAL CHANDULAL JAIN Vs. STATE OF GUJARAT

JUDGEMENT

(1.) . Against petitioner No. 1 an order of detention was passed under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 on 21-7-1982. That order was revoked on 18-10-1982 and a fresh order for detention of petitioner No. 1 was passed on the same day on the same grounds. It appears that soon thereafter petitioner No. 1 filed Writ Petition (Criminal) No. 1342 of 1982 under Art. 32 of the Constitution of India in the Supreme Court. We were told at the time of hearing of these petitions that the said petition has been admitted and is referred to a Constitutional Bench. By an order dated 11-8-1983 the State Government fixed the period of detention till 16/08/1983. Petitioner No. 1 was, therefore, released from detention on 16/08/1983. On 10-10-1985, the Competent Authority under the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 initiated action not only against petitioner No. 1 but against other petitioners also and, therefore, all of them have joined in Special Criminal Application No. 499 of 1991 and they are challenging the order of detention dated 18-10-1982 as the action under the SAFEMA has been initiated on the basis of the said detention order.

(2.) . It may be stated that the learned Counsel for the petitioners stated before us that he was dropping the challenge to the vires of the Constitutional provisions and the relevant provisions of the COFEPOSA Act and the SAFEMA. It may also be stated that the learned Counsel has also sought permission to withdraw Special Civil Application No. 5684 of 1985. We see no reason not to grant that permission as the Supreme Court has not passed any order prohibiting withdrawal of the said petition by the petitioners. The stay in that petition is only in respect of consideration of the matter on merits.

(3.) . The first contention raised on behalf of the petitioners is that the first order of detention dated 21-7-1982 was passed by the State Government. It was revoked by the State Government on 18-10-1982. It was submitted that if it is an order passed under Sec. 11(l)(a) of the COFEPOSA Act then it must be regarded as an illegal and void order as the State Government does not possess any power under Sec. 11 of the Act to revoke an order of detention passed by it. If the said order can be said to have been passed in exercise of the powers available under Sec. 21 of the General Clauses Act, then the fresh order of detention passed on 18-10-1982 could be regarded as null and void as no fresh order could have been passed on the basis of the same facts. In support of this later contention, the learned Counsel relied upon the decision of the Supreme Court in Ibrahim Bachu Bafan v. State of Gujarat, AIR 1985 SC 697 : [1985(2) GLR 820 (SC)] and the decision of the Bombay High Court in Amritial Shah v. State of Maharashtra, 1986(2) Bom. Court Reports 545. .... .... .... .... ....