HEMLATABEN MANHARLAL SONI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This matter has been referred to us by the Division Bench consisting of J. B. Mehta and P. D. Desai JJ. as the Division Bench felt that the law on the question as to whether the period of detention under the Maintenance of Internal Security Act 1971 (hereinafter referred to as the MISA) should be tacked on to the period of detention under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974 (hereinafter referred to as the COFE POSA Act) for considering the question of maximum period of detention when the detention order under the COFE POSA Act is passed after formal release and rearrest should be settled. The Division Bench felt that this question was of wide public importance. In Special Criminal Application No. 103 of 1975 (KANUBHAI BHAILALBHAI CHOKSHI V. STATE OF GUJ.) a Division Bench consisting of A. D. Desai and B. K. Mehta JJ. had held that the period of detention under the MISA could not be tacked on to the period of detention under the COFE POSA Act but J. B. Mehta and P. D. Desai JJ. found that the decision of the Supreme Court in S. KRISHNAN V. STATE OF MADRAS A.I.R. 1951 S.C. 301 and the effect of sec. 24 of the General Clauses Act had not been considered by the Division Bench which decided Special Criminal Application No. 103 of 1975 and under these circumstances this question has been referred to the larger Bench and we will now dispose of the matter.

(2.) The MISA as originally enacted on July 2 1971 provided for detention of a person if the detaining authority was satisfied that with a view to preventing him from acting in any manner prejudicial to (i) the defence of India the relations of India with foreign powers or the security of India or (ii) the security of the State or the maintenance of public order or (iii) the maintenance of supplies and services essential to the community or if satisfied with respect to any foreigner that with a view to regulating his continued presence in India or with a view to making arrangements for his expulsion from India it was necessary to pass an order directing that such person be detained. Thereafter the President promulgated the Maintenance of Internal Security (Amendment) Ordinance 1974 being Ordinance No. 11 of 1974 and as a result of the Ordinance the detaining authorities were empowered to detain a person if they were satisfied with respect to any person (including a foreigner) that with a view to preventing him from acting in any manner prejudicial to the conservation of foreign exchange or with a view to preventing him from (i) smuggling goods or (ii) abetting other persons to smuggle goods or (iii) dealing in smuggled goods it was necessary to pass an order of detention such order of detention could be passed. Thus by this Ordinance orders of detention could be passed to prevent persons from carrying on activities prejudicial to the conservation of foreign exchange or what may be briefly described as to preventing smuggling activities. The Ordinance was promulgated on September 17 1974 Thereafter the Parliament enacted the COFE POSA Act on December 13 1974 but by Sec. 1 sub-sec. (3) it was to come into force on such date (being a date not later than the twentieth day of December 1974 as the Central Government may by notification in the Official Gazette appoint. The Central Government appointed December 19 1974 as the date for the commencement of this Act and thus the COFE POSA Act came into force with effect from December 19 1974 The preamble to the COFE POSA Act shows that it was enacted having regard to the persons by whom and the manner in which such activities or violations are organised and carried on and having regard to the fact that in certain areas which are highly vulnerable to smuggling smuggling activities of a considerable magnitude are clandestinely organised and carried on and it was necessary for the effective prevention of such activities and violations to provide for detention of persons concerned in any manner therewith.

(3.) It may be mentioned here that so far as the MISA was concerned the relevant portion of it was amended by the Defence of India Act 1971 being Act 42 of 1971 in certain respects. Under sec. 13 of the MISA the maximum period for which any person may be detained in pursuance of any detention order which has been confirmed under sec. 12 shall be twelve months from the date of detention provided that nothing contained in sec. 13 was to affect the power of the appropriate Government to revoke or modify the detention order at any earlier time. By the Defence of India Act 1971 an amendment was introduced in sec. 13 with the result that the maximum period for which any person can be detained in pursuance of any detention order passed under the MISA is to be twelve months from the date of detention or until the expiry of the Defence of India Act 1971 whichever is later and by sec. 6 of the Defence of India Act 1971 this amendment of the MISA is to remain on the statute book during the continuance in force of the Defence of India Act 1971 The Defence of India Act is still in force and the result therefore is that in respect of all orders of detention passed under the MISA the maximum period of detention is twelve months from the date of detention or until the expiry of the Defence of India Act 1971 whichever is later and thus all orders of detention under the MISA are for an indefinite period that is till the expiry of the Defence of India Act. Under sec. 10 of the COFE POSA Act on the other hand it has been provided that the maximum period for which any person may be detained in pursuance of any detention order to which the provisions of sec. 9 do not apply and which has been confirmed under clause (f) of sec. 8 shall be one year from the date of detention and the maximum period for which any person may be detained in pursuance of any detention order to which the provisions of sec. 9 apply and which has been confirmed under clause (f) of sec. 8 read with sub-sec. (2) of sec. 9 shall be two years from the date of detention. By the proviso nothing contained in sec. 10 shall affect the power of the appropriate Government in either case to revoke or modify the detention order at any earlier time.