AMRIK SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) THE petitioner who is detained under Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short, the Act) seeks the quashing of the said order dated January 16, 1986, copy of which is Annexure P.2 on the record of this case. It reads as follows :-

(2.) IT has been impugned on a wide variety of grounds, including the one that the detention was not ordered by any authority specified in Section 3 of the Act. The challenge in this regard is contained in paragraphs Nos. 11 and 12 of the petition which read as follows :-

(3.) A bare reading of this reply shows that the deponent has felt shy of disclosing as to who actually was the authority who had ordered the detention of the petitioner. It was not for the deponent to judge and say that the authority who had ordered the detention of the petitioner was the competent authority or the official who had actually passed the order and this was to be left to the Court to judge as to whether that authority was competent to pass the order under the provisions of section 3 of the Act. Normally, I would not have allowed the learned State Counsel to produce anything more in support of the above-noted averment in the written statement, yet in order to satisfy myself and to find out as to actually who was the authority who had ordered the detention of the petitioner, I allowed him to place all the requisite material before me. At the outset, he relied on an copy of the Standing Order of the Chief Minister dated June 19, 1986, (now copy placed on record and marked as A.1) which purports to have been passed under Rules 18 and 19 of the Rules of Business, 1985, of the Government of Punjab directing that the cases pertaining to the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, shall be dealt with in Home-III Branch of the Punjab Civil Secretariat under the administrative control of the Secretary to Government, Punjab, Department of Home Affairs and Justice and shall be disposed of by him in the manner indicated in this order. Firstly this order specifying the authority to dispose of the cases under the Act is subsequent to the date of the order of detention i.e. dated January 16, 1986 and would, therefore, obviously not make the Home Secretary completely to pass the detention order on that date and secondly this order to my mind, cannot be said to have "specially empowered" the Home Secretary "for the purpose of this section". It is clear from the language of the section that in case the detention order has to be passed by a Secretary to the State Government then he has to be one who has specially been empowered for the purpose of this section. General authorisation to deal with the matters under the Act cannot possibly be a substitute for special authorisation or entitlement to pass the detention order under this Section. The Standing Order Annexure P1 nowhere states that the Home Secretary would be competent to pass the detention order under Section 3 of the Act.