TaxTMI 
TaxTMI 
1975 (6) TMI 55
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....ted or whether in such cases the court should, by applying the tests of reasonable man exclude the irrelevant or non-existent ground or grounds and consider, if on such exclusion, the concerned authority would have reached the same subjective satisfaction or not? (3) If the second part of question No. (2) is answered in the affirmative, whether in special criminal applications Nos. 204 of 1974 and 7 of 1975 the detaining authority could have reasonably come to the conclusion that, in view of the validity of the common ground relating to the incident of 10-12-1973, the detention of the detenu, could have been ordered? 2. The facts giving rise to this full bench reference are as follows. The detenu in special criminal application No. 204 of 1974 was detained by an order passed under Section 3(1) of the conservation of foreign exchange and prevention of smuggling Activities Act, 1974 (hereinafter referred to as the COFEPOSA Act) on December 19, 1974. The order was passed by the first respondent to the petition who is the secretary to the Government of Gujarat, panchayats and health department, and the order of detention stated that the first respondent was satisfied with r....
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....e COFEPOSA Act by the Secretary to the Public Works Department, Government of Gujarat, who is the second respondent to the petition. The order stated that the second respondent was satisfied with respect to the detenu that with a view to preventing him from smuggling goods and dealing in smuggled goods (otherwise than by engaging in transporting or concealing or keeping smuggled goods) it was necessary to detain the detenu and, therefore, the order of detention under Section 3(1) of the COFEPOSA Act was being passed. In the grounds of detention which were furnished to the detenu, the first ground was as follows: (1) that on 7-11-1970 the residential premises of your employee Babulal H. Patel were searched, resulting in recovery and seizure of documents belonging to you and your firm M/s. Bhailal Dahyabhai Chokshi. On a detailed scrutiny of the aforesaid documents it was revealed that you had surreptitiously removed 15363 kgs. Of silver bullion valued at Rs. 76,81,675/- from ahmedabad to surat and Bombay in the year 1969 and 1970 without cover of transport vouchers as required under Rule 3 of the specified goods (prevention of illegal export) Rules, 1969 read with Section 1....
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....pplication No, 204 of 1974 was non-existent and it also found that the first ground in special criminal application No. 7 of 1975 was bad. Thereafter the question arose before the division bench as to whether the orders of detention should be struck down because out of the two grounds mentioned in each of these two orders of detention one was found to be bad or whether the court should try to find out whether the ground which was found to be bad was so inconsequential that by applying the rule of exclusion the court should exclude the inconsequential part and after severing the good from the bad, try to consider whether the detaining authority could have passed the order on the remaining good ground, that is, the ground which was found to be good and sustainable by the court. There was a difference of opinion between the two learned judges, A.D. Desai and T.U. Mehta JJ. On this aspect and thereafter in order to clarify the legal position, the Division Bench has referred the abovementioned three questions to this court. 4. It May be pointed out that the maintenance of internal security Act, 1971 was enacted by parliament and came into force on July 2, 1971, (hereinafter referred ....
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....arding the position as it prevailed after the enactment of COFEPOSA Act. T.U. Mehta, J., was of the opinion that in view of the changes made by the COFEPOSA Act as compared with the MISA as amended by ordinance No. 11 of 1974, the whole order in an eventuality of this kind need not be struck down but the court should examine the position in each case and ascertain for itself whether the ground which was found to be bad could be disregarded and the validity of the order on the remaining ground or grounds could be upheld. On the other hand A.D. Desai, J., came to the conclusion that if one of the grounds for an order of detention is found to be bad, even though the order has been passed under the COFEPOSA Act, the whole order is liable to be struck down and it is not open to the court to enter into an inquiry as to whether the detaining authority would have passed the order of detention only on the basis of the ground which has been found to be good. In the light of the different decisions of the Supreme Court it was felt by A.D. Desai, J., that it was not open to the court to enter into an inquiry when under Section 3(1) of the COFEPOSA Act the condition precedent to the passing of ....
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....r. Patel it is necessary for us to consider briefly the case law on the point. 7. It May be pointed out that when the High Court under Article 226 or the Supreme Court under Article 32 of the constitution considers the validity of an order of detention in the process what is done is reviewing judicially an administrative order passed by an authority exercising the power of detention. In Khudiram Das v. State of West Bengal [1975]2SCR832 , Bhagwati, J., has pointed out under which circumstances courts would exercise the power of judicial review. In paragraph 9 at page 557 of the report it has been stated: The courts have by judicial decisions carved out an area, limited though it be, within which the validity of the subjective satisfaction can yet be subjected to judicial scrutiny. The basic postulate on which the courts have proceeded is that the subjective satisfaction being a condition precedent for the exercise of the power conferred on the executive, the court can always examine whether the requisite satisfaction is arrived at by the authority; if it is not, the condition precedent to the exercise of the power would not be fulfilled and the exercise of the power wou....
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...., then, in exercising the power, the authority must have regard to those matters. The authority must call its attention to the matters which it is bound to consider. There is also one other ground on which the subjective satisfaction reached by an authority can successfully be challenged and it is of late becoming increasingly important. The genesis of this ground is to be found in the famous words of lord halsbury in Sharpe v. Wakefield 1891 AC 173 at page 179: ...when it is said that something is to be done within the discretion of the authorities...that something is to be done according to the rules of reason and justice, not according to private opinion...according to law and not humour. It is to be, not arbitrary, vague, fanciful, but legal and regular. ...but in England and in India, the courts stop-short at merely inquiring whether the grounds on which the authority has reached its subjective satisfaction are such that any reasonable person could possibly arrive at such satisfaction. If, the authority has come to a conclusion so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere. In such a case, a le....
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....ind out whether conditions precedent to the formation of the opinion have a factual basis. In the light of these principles laid down in M.A. Rasheeds case we have to consider the whole line of judicial decisions starting from the decision of the federal court in Keshav Talpade v. Emperor. 9. In Keshav Talpades case (supra) the federal court was concerned with an order of detention passed under the defence of India rules. This was a pre-constitutional law and there was no obligation either under the defence of India Act or rules on the detaining authority to furnish grounds of detention. At page 8 of the report sir Mawnee Gwyer C.J. Speaking for the court observed: We think it right to refer to certain observations made by one of the learned Judges in the court below. He says this: As I have pointed out, there is no doubt that it was competent to the Government of Bombay to detain the applicant on the ground that his detention was necessary inasmuch as he was Acting in a manner prejudicial to the defence of British India and also for the maintenance of public order. It may be that the other two grounds given in the order are not justified by any of the items....
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....tution come into force, by Article 22, certain fundamental rights were conferred against detention without trial. Article 22 contemplates a person being detained under any jaw providing for preventive detention and Clause (4) of Article 28 provides that no law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless an advisory board as contemplated by Sub-clause (a) of Clause (4) has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention. The provision to Clause (a) lays down that nothing in Sub-clause (a) of Clause (4) shall authorise the detention of any person beyond the maximum period prescribed by any law made by parliament under Sub-clause (b) of Clause (7). However, the person detained under a law providing for preventive detention may be detained for a period longer than three months if such person is detained in accordance with the provisions of any law made by parliament under Sub-clauses (a) and (b) of Clause (7). Under Clause (5) of Article 22, a fundamental right has been conferred to this effect. When any person is deta....
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....being considered may give relief to him. We are of opinion that this constitutional requirement must be satisfied with respect to each of the grounds communicated to the person detained subject of course to a claim of privilege under Clause (6) of Article 22. That not having been done in regard to the ground mentioned in Sub-para (e) of para 2 of the statement of grounds, the petitioners detention cannot be held to be in accordance with the procedure established by law within the meaning of Article 21. Thus one of the grounds was found to be bad inasmuch as it did not comply with the requirements of Article 22(5) and hence the whole order was struck down. 13.In Shibban Lal v. State of U.P. A.I.R. 1974 S.C. 159 the Supreme Court was concerned with an order of detention passed under the preventive detention Act. In paragraph 8, B.K. Mukherjee J., as he then was, speaking for the court observed: The detaining authority gave here two grounds for detaining the petitioner. We can neither decide whether these grounds are good or bad, nor can we attempt to assess in what manner and to what extent each of these grounds operated on the mind of the appropriate authority and con....
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....son. We May point out at this stage that Section 11 Sub-section (2) of the COFEPOSA Act also provides that the revocation of a detention order shall not bar the making of another detention order under Section 3 against the same person. Thus the observations of the Supreme Court that in view of the power of revocation which the Government possessed under the preventive detention Act of 1950 it was not open to the Government to partly confirm the order of detention and at the same time to revoke it was not correct. Thus the Supreme Court indicated that in view of the power of revocation it was always open to the Government to pass a fresh order of detention after revoking the earlier order if the Government found the earlier order to be bad and the making of a fresh order of detention after the order of revocation was not barred at all in view of the clear language of the preventive detention Act, 1950. But the principle enunciated in Keshav Talpades case (supra) very clearly states that the whole order of detention would be vitiated if one of the grounds of the order of detention was found to be bad and in terms the Supreme Court found in Shibban Lai's case that if the court ....
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....feguard the personal liberty of the individual will not lightly interfere with such orders. It is in the light of these principles that the validity of the impugned order has to be judged. In Dwarka Dass case the order of detention was based on the ground that the petitioner was engaged in unlawful smuggling Activities relating to three commodities, cloth, zari and mercury of which two, namely, cloth and zari, were found not to be essential articles. No material was placed before the court enabling the court to say that the smuggling attributed to the petitioner was substantially only of mercury and that the smuggling as regards the other two commodities was of an inconsequential nature and the court came to the conclusion from the particulars furnished to the detenu that probably the smuggling of cloth and zari was not of an inconsequential nature and under these circumstances, after applying the test of severance and considering whether the bad grounds were or were not of an inconsequential nature, the court came to the conclusion that the order of detention was bad and must be quashed. 15. In Rameshwar Lal v. State of Bihar [1968]2SCR505 , a bench of two judges, namely, Di....
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....e need for the greatest circumspection on the part of those who wield this power over others. Since the detenu is not placed before a magistrate and has only a right of being supplied the grounds of detention with a view to his making a representation to the advisory board, the grounds must not be vague or indefinite and must afford a real opportunity to make a representation against the detention. Similarly, if a vital ground is shown to be non-existing so that it could not have and ought not to have played a part in the material for consideration, the court May attach some importance to this fact. Thus it was held in Shibhcm Lai Saksena v. State of U.P. [1954]1SCR418 that when Government itself confirmed the order on one ground rejecting the other, the order was held unsustainable. This Court applied the case of the federal court in Keshav Talpade v. King Emperor AIR 1943 SC 72 and held that the detention on the ground which survived could not be allowed to stand. 16. On behalf of the respondents in both these special criminal applications, considerable emphasis was laid on the words the court may attach some importance to this fact. It is true that in this decision....
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....e defects noticed in the two grounds mentioned above are sufficient to vitiate the order of detention impugned in these proceedings as it is not possible to hold that those grounds could not have influenced the decision of the detaining authority. Individual liberty is a cherished right; one of the most valuable fundamental rights guaranteed by our constitution to the citizens of this country. If that right is invaded, excepting strictly in accordance with law, the aggrieved party is entitled to appeal to the judicial power of the state for relief. No observations are to be found in Motilal's case indicating that severance and thereafter examining whether the bad grounds are inconsequential or of a trivial nature, has not been disproved in Motilal 's case but the contention that if the bad grounds are ignored still the detention order can be justified on the basis of the remaining grounds was held to be wholly untenable. But in paragraph 12 the Supreme Court did proceed to hold that the two grounds, namely, grounds (a) and (d) were sufficient to vitiate the order as it was not possible to hold that those grounds could not have influenced the decision of the detaining aut....
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.... decision has generally gone in favour of the detenu. Dua J., then referred to the decisions in Ram Krishna Bharadwaj (supra), Dwarka Das Bhatia (supra) and the passage from the decision of Jagannadhadas J., in Dwarka Das Bhatias case which we have set out therein above. He also referred to the decisions in Rameshwar Lal (supra) and Motilal Jain (supra). Then in paragraph 9, Dua J., observed- In the case before us there are only two grounds on which the detention order is based. One of them which relates to an occurrence of April, 1971 has no relevance or relation to the disturbance of public order. The other ground relates to an occurrence of July, 1971. This ground is no doubt germane to the object of maintenance of public order but we are satisfied that the first ground is not of an unessential nature and in our view its exclusion from consideration might reasonably have affected the subjective satisfaction of the authority making the impugned order of detention. This was the test laid down in Bhatias Case (supra) and approved in Motilal Jain (supra). Thus the rule of severance and the principle of exclusion of bad ground if the bad ground was found to be of an un....
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....seem to concur with the view that if one of the grounds was extraneous or irrelevant, the whole order must be held to be vitiated. Mathew J., delivering the majority judgment observed in paragraph 59 at page 197- As one of the grounds communicated to the petitioners is found to be vague, the detention orders must be pronounced to be bad on the basis of a series of decisions of this court...these decisions followed the decision of the Federal Court in where it was said: If a detaining authority gave four reasons for detaining a man, without distinguishing between them, and any two or three of the reasons are held to be bad, it can never be certain to what extent the bad reasons operated on the mind of the authority or whether the detention order would have been made at all if only one or two good reasons had been before them. We cannot predicate that if the first ground was excluded, the detaining authority would have passed the order. Thus it is clear that in Prabhu Dayavs case all the three judges were of he view that if one ground is bad for the reasons that it is extraneous or irrelevant the whole order of detention would be vitiated but Beg J., too....
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....ered by Bhagwati J. And it is important to note that though Chandrachud J. Was a member of the bench that decided Manu Bhusans case (supra), no test of severance and exclusion was applied and no attempt to find out whether the bad ground was of an unessential or inconsequential nature was made by the Supreme Court. In paragraph 6 at page 138 Bhagwati J. Observed- If there is one principle more firmly established than any other in this field of jurisprudence, it is that even if one of the grounds or reasons which led to the subjective satisfaction of the detaining authority is non-existent or misconceived or irrelevant, the order of detention would be invalid and it would not avail the detaining authority to contend that the other grounds or reasons are good and do not suffer from any such infirmity, because it can never be predicated to what extent the bad grounds or reasons operated on the mind of the detaining authority or whether the detention order would have been made at all if the bad ground or reason were excluded and the good grounds or reasons alone were before the detaining authority. In this connection bhagwati j. Referred to the decisions in Shibhan Lal (sup....
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....r judgment ground No. (ii) could not justify the detention of the petitioner for preventing him from Acting in a manner prejudicial to the maintenance of public order. It has been repeatedly pointed out by this Court that even if one ground, out of two or more is found to vitiate the subjective satisfaction of the detaining authority, the order of detention falls. In such a situation one does not know whether the authority would have thought it fit to pass an order of detention only on the basis of the surviving ground or grounds. The order stands vitiated if some out of many grounds are found to have no nexus with the object of detention. 23. All these decisions of the Supreme Court after Martu Bhusans case have been delivered under MISA. None of them was delivered after MISA was amended by ordinance No. 11 of 1974 but by Ordinance No. 11 of 1974 no change was made in the requirement as to subjective satisfaction contemplated by Section 3(1) of the MISA and the same subjective satisfaction even after ordinance No. 11 of 1974 was required, namely, whether the Activities which were sought to be prevented were prejudicial to the defence of India or the relations of India with fore....
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....tively. The relevant section was Section 403 of the city of Nagpur Corporation Act which was in these terms: If at any time upon representations made or otherwise it appears to the state Government that the Corporation is not competent to perform, or persistently makes default in the performance of the duties imposed on it by or under this Act or any other law for the time being in force, or exceeds or abuses its powers the state Government may, after having given an opportunity to the Corporation to show cause why such an order should not be made, or, if it appears to the state Government that the case is one of emergency, forthwith issue an order directing that all the councillors shall retire from office as and from such date as May be appointed and declare the Corporation to be superseded. Looking to the fact that the opportunity of show cause notice was to be given and also looking to the fact that default in the performance of the duties imposed upon the Corporation under the Corporation Act or any other law for the time being in force, the objective facts and the satisfaction of the state Government though subjective was required to be arrived at in respect of ob....
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....sp;(1969)IILLJ743SC the test of severance and exclusion was applied but neither of them was a case relating to the field of preventive detention and personal liberty of the citizen. Both were cases of what may be called service jurisprudence but we are not concerned in the present case with these service jurisprudence cases. In all decisions of the Supreme Court after Manu Bhusan Roys case, the position of the law has been set out and stated in unequivocal and clear cut terms and the rule of severance and exclusion in the field of preventive detention has been completely discarded. 26. If the rule of severance of bad ground and good grounds and excluding it and considering whether the bad ground was of an inconsequential or unessential and were an obligatory rule in each of the cases decided after Manu Bhusan roys case, it would have been incumbent upon the court to enter into the inquiry whether the ground which was found to be bad was unessential or of an inconsequential nature but no such inquiry is found to have been made in any one of these cases by the court. In our opinion, therefore, even under the law as it prevailed prior to December 19, 1974 when COFEPOSA Act came int....
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....ollowing passage from judicial review of administrative Actions, S.A. De Smith, Third Edition, page 91 relied upon by Mr. Patel for the union of India need not be considered by us: The legal implications of void or invalid Acts and decisions will be considered later. What if such an Act or decision is partly valid and partly invalid? Suppose that a tribunal has power to revoke occupational licences. It revokes as licence, and proceeds to order that he shall be disqualified from applying for a new licence for five years. It has no power to impose such a disqualification. In this case, x will be able to obtain an order of certiorari to quash the five year disqualification, or a declaration that the disqualification is void but the court can still hold that the revocation of his licence is valid, for the two limbs of the tribunals order are severable from one another...three approaches may be followed by the court, assuming that the jurisdiction of the court, (e.g. to entertain an appeal against the conditions alone) has not been demarcated by statute. First, it may set aside the entire decision because the competent authority might well have been unwilling to grant unconditi....
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....d by the Government to see if they are relevant to the object which the legislation has in view, namely, the prevention of objects prejudicial to the defence of India, or to the security of stage maintenance of law and order therein. So far as the requirements of Section 3(1) of the COFEPOSA Act are concerned, they stand on the same footing as the requirement of preventive detention Act or of the MISA and the subjective satisfaction is on the same footing as it was to be found in the preventive detention Act. If the court were to embark upon severing the good ground from the bad and then asking itself whether the authority would still have passed the order, it is tantamount to calling upon the court to embark upon an inquiry about the sufficiency or adequacy of the matters which may be covered by the good ground. That is not permissible to the court of law and ultimately as Krishna Iyer J., has pointed out in Tulshi Rabidass case (supra): the price that subjective satisfaction, has to pay in a court, is that if one of many grounds relied on by the authority goes, undeniably the whole order falls, even though if it were a case of objective satisfaction the court might have attemp....
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.... Act indicate either by express language or by necessary implication that when the legislature enacted the COFEPOSA Act its intention was to do away with this well-settled legal position, namely, that if one of the grounds for an order of detention is bad, the whole order is vitiated. The major change which has been brought about by the COFEPOSA Act as distinguished from MISA as amended by ordinance No. 11 of 1974 is that instead of a general law relating to preventive detention which provided for detention also on the ground of Activities prejudicial to defence of India, the relations of India with foreign powers, the security of India, the security of the state, the maintenance of public order, the maintenance of supplies and services essential to the community and conservation of foreign exchange, smuggling of goods or abetting other persons to smuggle goods, or dealing in smuggled goods as part of the general law pertaining to preventive detention, a separate enactment altogether dealing specifically with Activities prejudicial to the conservation or augmentation of foreign exchange and smuggling goods, abetting the smuggling of goods, engaging in transporting or concealing or ....
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.... for the purposes of Section 3(1) by that Government. Therefore, now the subjective satisfaction is that of a much higher authority, namely, a joint secretary to the central Government specially empowered in that behalf or a secretary to the state Government specially empowered by the state Government in that behalf. (2) The second change which has been made is that whereas under the MISA as amended by ordinance No. 11 of 1974 in connection with this kind of economic offences an order of detention could be passed if the detaining authority was satisfied with regard to only person that with a view to preventing him from (a) Acting in any manner prejudicial to the conservation of foreign exchange or (b) with a view to preventing him from smuggling goods, or (c) with a view to preventing him from abetting other persons to smuggle goods, or (d) with a view to prevent him from dealing in smuggled goods, it was necessary so to do, the detaining authority could have made an order directing that such person be detained, under the COFEPOSA Act, if the detaining authority is satisfied that with a view to preventing any person from (a) Acting in any manner prejudicial to the conserva....
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....led goods, clearly are an elaboration of the category mentioned in MISA as amended by the ordinance by the words dealing in smuggled goods. The very words occurring in Clauses (iv) of Section 3(1) of the COFEPOSA Act, namely, otherwise than by engaging in transporting or concealing or keeping smuggled goods clearly indicate that according to the parliament the words dealing in smuggled goods would cover Activities of engaging in transporting or concealing or keeping smuggled goods; but for the sake of greater clarity and to avoid any possible argument, the legislature has put forward a specific category of prejudicial Activity, namely, engaging in transporting or concealing or keeping smuggled goods though these Activities would be covered by the words dealing in muggled goods, only the category of harbouring persons engaged in smuggling goods or in abetting the smuggling of goods is a new category. According to ordinary law of abetment as understood in India, a person referred to in English law as accessory after the fact is not considered to be an abettor and in order to rope in even those who are accessory after the fact so far as smuggling Activities are concerned the new categ....
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.... the matter, has been dispensed with. The word forthwith occurring in Sub-section (3) of Section 3 of MISA cannot find place in the new scheme of the COFEPOSA Act regarding the persons authorized to pass the orders of detention. Under the MISA as amended by the ordinance, when any order was made or approved by the State Government, the state Government had within seven days, to report the fact to the Central Government together with the grounds on which the order had been made and such other particulars as in the opinion of the state Government had a bearing on the necessity for the order. Under the COFEPOSA Act when any order of detention is made by a state Government or by an officer empowered by a State Government, the State Government shall, within ten days, forward to the central Government a report in respect of the order. Now it was urged on behalf of the union of India as well as on behalf of the state Government that the substitution of the words a report in respect of the order for the words the fact of detention together with the grounds on which the order has been made and such other particulars as in the opinion of the state Government or the detaining authority have a....
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....n. These pros and cons or the basic materials must be contained in the report which is contemplated by Section 3(1) of the COFEPOSA Act; otherwise it is impossible for the reviewing authority to exercise its power under Section 11 of the COFEPOSA Act and hence when Section 3(1) speaks of a report in respect of the order, all that it means is that all the relevant materials including the pros and cons and the basic materials on the basis of which the detention order is passed must be set out in the report to be made by the State Government to the Central Government. Barring the change from a period of seven days to ten days there is no other substantial change between the requirements of the MISA as amended by ordinance No. 11 of 1974 and of COFEPOSA Act as regards the contents of the report to be made by the State Government to the Central Government. 33. Even if it were to be considered that the change in the phraseology between the MISA as amended by the ordinance and COFEPOSA Act regarding the contents of the report, makes a difference, so far as the Central point which arises for consideration, there is no material change. An order even made by Central Government can be chal....
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.... person detained in pursuance of a detention order of the grounds on which the order has been made shall be made.... In a particular manner within a particular number of days etc. Again in Section 3 which deals with advisory boards, the COFEPOSA Act provides for the purposes of Sub-clause (a) of Clause (4), and Sub-clause (c) of Clause (7), of Article 28 of the constitution whereas under the MISA as amended by Ordinance No. 11 of 1974, a specific provision was made in Section 8 for furnishing of the grounds of detention and affording an opportunity of making a representation to the appropriate Government. The constitution of the advisory boards under the MISA was provided for by the Act itself without correlating it to the definite clauses of Article 22. It is necessary at this stage to refer to a historical fact of which judicial notice can be taken, namely, that after MISA as amended by the ordinance No. 11 of 1974 and the presidential order of November 16 1974 this High Court as well as some of the other High Courts had taken the view that though by the presidential order of November 16, 1974 the right to move the court for breach of the provisions of Article 22(5) had been s....
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....nger period than was possible under the MISA. Detention without reference to the advisory board can now be made upto a period of one year from the order of detention. The maximum period of detention under the COFEPOSA Act is now two years whereas under the MISA as amended by ordinance No. 11 of 1974, the maximum period of detention was a period of twelve months. Vide Section 13(1), Section 11 of the COFEPOSA Act provides for revocation of detention orders and similar provision was to be found in Section 14 of the MISA but there is an important departure in the COFEPOSA Act in Sub-section (2) of Section 11 as compared with Sub-section (2) of Section 14. Under Sub-section (2) of Section 14 of MISA, the revocation or expiry of a detention order shall not bar the making of a fresh detention order under Section 3 against the same person in any case where fresh facts have arisen after the date of revocation or expiry on which the Central Government or a State Government or an Officer, as the case may be, is satisfied that such an order should be made. Therefore, unless fresh facts had arisen which justified, in the view of the detaining authority, passing of a fresh order of detention, t....
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.... the provisions of Ordinance No. 11 of 1974 amending the MISA were to be now set out in a comprehensive separate Act without making specific changes except to the extent indicated by the legislature in the enactment itself. 37. The long title of the COFEPOSA Act and the preamble to the Act do not furnish, in our opinion, any indication for the solution of the problem that faces us. The long title of the Act is an Act to provide for prevention in certain cases for the purposes of conservation and augmentation of foreign exchange and prevention of smuggling Activities and for matters connected therewith. The preamble to the Act says- Whereas violations of foreign exchange regulations and smuggling Activities are having an increasingly deleterious effect on the national economy and thereby a serious adverse effect on the security of the state. And whereas 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, it is ....
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....ed on proper and relevant grounds should be applied all the more strictly under the COFEPOSA Act as distinguished from MISA as amended by Ordinance No. 11 of 1974. Moreover, when the court strikes down an order of preventive detention either under COFEPOSA Act or under the MISA as amended by ordinance No. 11 of 1974 on the ground that one of the grounds for detention was not relevant or nonexistent, all that the court tells the detaining authority is that he Acted contrary to law and beyond the scope of his powers in arriving at his subjective satisfaction when he could not have done so. It has been pointed out by this Court in some cases under the MISA that it is open to the detaining authority even when the court strikes down an order of detention because one of the grounds for detention was found to be bad, to pass a proper order after reconsidering all the materials on record. In such cases the court merely asks the detaining authority to do its duty and to abide by the provisions of law as enjoined by the provisions of law and not to transgress the provisions of law. The order in appropriate cases is struck down by the court when the court finds that the subjective satisfactio....