ATMA SINGH Vs. STATE OF PUNJAB AND ORS.

JUDGEMENT

(1.) CRIMINAL Writ Petitions bearing Nos. 96, 97, 98, 106, 111, 112, 128, 130, 138, 140, 143, 191 and 192 of 1975 under Articles 226 and 227 of the Constitution of India will stand disposed of by this order. All these petitions relate to the detention of the detenues under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (No. 52 of 1974) (hereinafter called the COFEPOSA), and the challenge is posed to the orders of detention on the grounds which are common to all these petitions.

(2.) THESE petitions had earlier come up before a Full Bench of three Judges, but as in a miscellaneous petition arising out of one of these petitions the correctness of the judgment of a Division Bench of this Court was doubted and as in the petitions questions of interpretation of the Constitution and the Presidential Orders were involved, which questions were likely to arise in a large number of cases, these petitions were referred to a larger Bench and that is how these are before us now.

(3.) BEFORE identifying and dealing with the' questions that primarily arise for decision in these cases, it would be appropriate to briefly mention the historical background culminating in the passing of the COFEPOSA, as amended up -to -date, and the various Presidential Orders. Under the shadow of hostile relations between India and Pakistan, the Legislature enacted the MISA in July, 1971 and after the hostilities had broken out between the two countries, the President made the Proclamation of Emergency under Article 352 of the Constitution on December 3, 1971. This was followed by an Ordinance, dated September 17, 1974. whereby the MISA was amended so as to bring within its purview the activities relating to smuggling and those prejudicial to the conservation of foreign exchange. On November 16, 1974, another Presidential Order was made whereby the right to move any Court with respect to orders of detention which had already been made or which may be made thereafter under Section 3(1)(c) of the MISA for the enforcement of the rights conferred by Articles 14, 21 and 22, Clauses (4) to (7) was suspended. This was also made applicable to all pending proceedings. On December 13. 1974, the COFEPOSA was enacted by Parliament and it came into force on December 19, 1974. The Ordinance by which the MISA had been amended stood repealed as from the midnight of December 18, 1974. Thereafter another Presidential Order was issued on December 23, 1974 under Clause (1) of Article 359 of the Constitution whereby the right to move any Court with respect to orders of detention already made or which may be made under the COFEPOSA on the basis of Articles 14, 21 and 22, Clauses (4) to (7), was suspended. This was also made applicable to pending proceedings. It was followed by the Proclamation of Emergency by the President on June 26, 1975, by which it was declared that a grave emergency existed whereby the security of India was threatened by International disturbance. Soon thereafter, on June 27, 1975, another Presidential order was made, whereby the right of any person to move any Court for the enforcement of the rights conferred by Articles 14, 21 and 22 of the Constitution was suspended, and this was also made applicable to all pending cases. The order was to remain in force for the period during which the proclamations of Emergency under Article 352 of the Constitution made on December 3, 1971, and June 25, 1975, were to continue. On July 1, 1975, the COFEPOSA was amended by Ordinance 6 of 1975 which was replaced by Act 35 of 1975. By this Act, Sections 5 -A and 12 -A were added to the COFEPOSA. The only other provision to which reference need be made in Clause (IA). which was inserted in Article 359 of the Constitution by the Constitution of India (Thirty -eighth) Amendment Act, 1975, and it was further provided that this shall be deemed always to have been inserted.