PETITIONER:
IBRAHIM BACHU BAFAN & ANR ETC.
Vs.
RESPONDENT:
STATE OF GUJARAT & ORS.
DATE OF JUDGMENT12/02/1985
BENCH:
MISRA RANGNATH
BENCH:
MISRA RANGNATH
FAZALALI, SYED MURTAZA
VARADARAJAN, A. (J)
CITATION:
1985 AIR 697 1985 SCR (2) 891
1985 SCC (2) 24 1985 SCALE (1)257
CITATOR INFO :
RF 1987 SC1472 (4)
F 1989 SC1234 (11)
ACT:
Constitution of India, 1950, Article 226-Detention
order under COFE. POSA quashed-Whether amounts to
'revocation'-Whether detaining authority precluded from
making a fresh order on identical grounds under s. 11(2) of
the Act
Conservation of Foreign Exchange and Prevention of
Smuggling Activities Act, 1974, ss 11 (1) and 11(2) and
General Clauses Act , 1897, s. 21.
Detention order-Quashed by High Court under writ
Jurisdiction-Subsequent order of detention made on the same
grounds Whether valid and legal-When is an order of
detention 'revoked' - Effect of 'declaration' issued under s
9.
Words & Phrases :
"Revoke" and "Revocation" - Meaning of-S. 11 COFEPOSA,I
,Act.
HEADNOTE:
The petitioners in the two separate writ petitions
were detained pursuant to orders made under s. 3 (1) of the
Conservation of Foreign Exchange and Prevention of Smuggling
Activities Act 1974. The detention orders wore assailed in
the High court. During the course of hearing of the writ
petitions the detention orders were revoked but the same
day fresh orders of detention were passed and the
positioners were again detained. The positioners assailed
the second detention orders in the High Court by fresh writ
petitions. The High Court quashed the detention orders
holding that they were violative of Article 2215) of the
Constitution and directed the release of the petitioners.
Fresh detention orders were passed on the same grounds and
the petitioners wore again detained.
In the writ petitions to this Court, it was contended
on behalf of the petitioners that the power conferred under
s. 11(2) of the Act was not available to be exorcised whom
there has been no revocation under s. 11(1) of the Act of a
previous order of detention but has been quashed by the High
Court in exercise of its extraordinary jurisdiction.
892
Allowing the Petitions,
^
HELD: 1. (i) Where an order of detention under the
Conservation of Foreign Exchange and Prevention of Smuggling
Activities Act, 1974 is quashed by a Court in exercise of
extraordinary Jurisdiction, the power of making a fresh
order under sub-s. (2) of s. I I is not available to be
exercised. [898 F]
(ii) The pronounced judicial view of this Court was
that repeated orders of detention are not to be made.
Parliament while making provision in s. 11(2) of the Act
must be taken to have been aware of such view and in
conferring the power of making repeated orders, safeguards
have been provided under sub. s. (1) by confining the
exercise of power to limited situations. [898 E]
(iii) Clothing the prescribed authority to exercise
power under s. 3 even in a situation where the Court has
intervened to bring about nullification of the order of
detention would give rise to complicated situations. [898 E]
In the instant case, the orders of detention made on
August 20 1984 on the same grounds on which the previous
orders had been made and which had been quashed by the High
Court are not tenable in law- Once those orders are held to
be invalid, the declarations made subsequently under s. 9
could not be made and would have no effect. [898 F-G]
2. The law of preventive detention within the ambit of
which the Act is covered has bean accepted by the
Constitution. Challenge to legislations of preventive
detention as being ultra vires the Constitution has,
therefore, been repelled by this Court on more than one
occasion. The inbuilt safeguards provided by the different
statutes dealing with preventive detention have been
accepted to be in keeling with the rule of law. There is
judicial consensus that under the preventive detention law,
before the Act in question came into the field, reported
orders of detention could not be made. This Court had
clearly indicated that more than one order of detention on
the same grounds in succession would not be valid.
Notwithstanding the aforesaid legal position, s. 11(2) of
the Act authorises making of another detention order under
B- (3) against the same person. [895 G-H]
3, The power conferred under cls. (a) and (b) of sub-
s. (1) of s. I l is in fact extension of the power
recognised under s. 21 of the General Clauses Act, the power
is exercisable by the authority making the order, the named
authorities under cls. (a) and (b) of s. 11 (1) of the Act
arc also entitled to exercise the power of revocation When
the High Court exercise jurisdiction under Article 226 of
the Constitution it does not make an order of revocation. By
issuing a high prerogative writ like habeas corpus or
certioraris it quashes the order impugned before it and by
declaring the order to be void and striking down the same it
nullifies the order. The ultimate effect of cancellation of
an order by revocation and quashing of the same in exercise
of the high Prerogative jurisdiction vested in the High
Court may be the same but the manner in which the situation
is obtained is Patently
893
different and while one process is covered by s. 11(1) of
the Act, the other A is not known to the statute and is
exercised by an authority beyond the purview of sub-s. (1)
OF s. I l of the Act. It is therefore, clear that in a
situation where the order of detention has been quashed by
the High Court, sub-s. (2) of s. ll is not applicable and
the detaining authority is not entitled to make another
order under s. 3 of the Act on the same grounds.
[897 G-H; 898 A-C]
4. Revoke is the verb and revocation is its noun.
These words have no statutory definition and, therefore,
would take the commonsense meaning available for these
words. The true meaning of the verb revoke and the noun
revocation seems to signify that revocation is a process of
recall of what had been done The word revoke carries with it
the idea of cancellation by the same power which originally
acted and not to setting aside of an original order be
higher forum of power or jurisdiction It does not mean
repudiation. . [897 C; F; G]
Black's Law Dictionary, Wharton's Law Lexican The
Shorter Oxford English Dictionary, Webster's Third New
International Dictionary and the Corpus Juris Secundum, 1952
Edition, V 1. 77, referred to.
JUDGMENT:
ORIGINAL JURISDICTIOlN: Writ Petition (Crl.) Nos. 1541
& 1542 of 1984.
(Under Article 32 of the Constitution of India)
Ram Jethamalani, Miss Kamini Jaiswal and J.B. Patel
for the petitioners.
T U. Mehta, Mrs. ‘H. Wahi and R.N. Poddar for the
respondents.
The Judgment of the Court was delivered by
RANGANATH MISRA, J. In each of these application under
Article of 32 the Constitution the petitioner therein
challenges the order of detention made against him under
Conservation of Foreign Exchange and Prevention of Smuggling
Activities Act, 1974 (COFEPOSA) (referred to as the ‘Act’
hereinafter). As the facts are more or less the same and
common contentions have been advanced, these two
applications are being disposed of by a common order.
Petitioner in Writ Petition No. 1541184 was detained
with effect from December 28, 1983, pursuant to an order
made under Section 3(1) of the Act on December 7, 1983. The
detention was assailed before the Gujarat High Court in a
writ petition filed OF January 22, 1984. While the said
application was being heard, the
894
order of detention was revoked on April 5, 1984, but on the
same day another order under s. 3(1) of the Act was made
directing his detention and he was detained pursuant to that
order with effect from the very day. The second order of
detention was challenged by a new writ petition before the
High Court. A Division Bench of that Court by order dated
August 8, 1984, quashed the same by holding that the order
of detention was violative of Article 22(5) of the
Constitution and directed the petitioner to be set at
liberty. On August 20, 1984, a fresh order was made
detaining the petitioner and with effect from the same day
the petitioner was detained again On the date of detention
the petitioner was served with documents along with the
grounds of detention- The writ petition has been filed in
this Court challenging that order of detention
So far as the petitioner in writ petition No. 1542/84
is concerned, he was detained with effect from January 12,
1984, pursuant to an order under s. 3 of the Act dated
January 2, 1984. that order of detention was assailed before
the High Court and in course of the hearing of the writ
position, the order of detention was revoked on April 5,
1984- On the self-same day another order of detention was
passed and the petitioner was detained with effect from that
date. On April 5, 1984, the petitioner assailed his
detention by filing a second writ petition. On August 8,
1984, the High Court quashed that order of detention on
similar grounds as in the connected writ petition. On August
20, 1984, a fresh order of detention was made under which
the petitioner has been taken into custody. His writ
petition assails that order of detention.
During the tendency of these writ petitions before
this Court the Act was amended by Central Act 58/84. The
Amending Act received assent of the President on August 30,
1984 but became effective from July 31,1984- Section 9 of
the principal Act of 1974 was amended by s. 2 of this Act
and the amended provision authorised making of declaration
by the Central Government or any officer of the Central
Government not below of the rank of Additional Secretary to
that Government on the basis of satisfaction that the
detenu-“(a) smuggles or is likely to smuggle goods into, out
of or through any area highly vulnerable to smuggling; or
(b) abets or is likely to abet the smuggling of goods into,
out of or through any area highly vulnerable to smuggling,
or (c) engages or is likely to engage in transporting or
concealing or keeping smuggled goods in any area highly
vulnerable to smuggling-” A declaration as contemplated by
the amended provision was made by the Additional
895
Secretary to the Government of India in the Ministry of
Finance A (Department of Revenue) in respect of each of the
petitioners on September 18, 1984, and this declaration has
been placed on record along with an affidavit of the
respondents. Under s. 10 of the Act the maximum period of
detention is one year where section 9 is not invoked, but
where a declaration is made, the maximum period is extended
up to two years. When rule was issued an affidavit in
opposition has been filed justifying the order of detention
and the petitioner has also filed a rejoinder.
Mr. Jethmalani appearing On behalf of the detenu in
each of these writ petitions advanced a number of
contentions but ultimately pressed one of them which in our
opinion entitles each of the petitioners to succeed and the
order of his detention to be quashed. That contention is
that the power conferred under s. 11(2) of the Act is not
available to be exercised where there has been no revocation
under s. 11(1) of the Act of a previous order of detention
but has been quashed by the High Court in exercise of its
extraordinary jurisdiction. In order to have a full
comprehension of the point advanced by counsel it is
necessary to refer to s. 11 of the Act. Section ll of the
Act provides: “(1) Without prejudice to the provisions of s.
21 of the General Clauses Act, 1897, a detention order may
at any time be revoked or modified-(a) notwithstanding that
the order has been made by an officer of a State Government
by that State Government or by the Central Government; (b)
notwithstanding that the order. has been made by an officer
of the Central Government or by a State Government, by the
Central Government; (2) The revocation of a detention order
shall not bar the making of another detention order under s.
3 against the same person.”
Law of preventive detention within the ambit of which
the Act is covered has accepted by our Constitution.
Challenge to legislations of preventive detention as being
ultra virus the Constitution has, therefore, been repelled
by this Court on more than one occasion. The inbuilt
safeguards provided by the different statutes dealing with
preventive detention have been accepted to be in keeping
with the rule of law. There is Judicial consensus that under
the preventive detention law, before the Act in question
came into the field, repeated orders of detention could not
be made. this Court had clearly indicated that more than one
order of detention on the same grounds in successions would
not be valid. Notwithstanding the aforesaid legal position,
s. 11(2) of the Act authorises making of
896
“another detention order under s. 3 against the same
person.” Counsel for both the parties have agreed that all
the three orders of detention made in these cases were on
the same grounds. Mr. Mehta for the respondents has fairly
conceded that as the law declared by this Court stood and
but for the enabling provisions in s. 11(2) of the Act, the
impugned orders would not stand a moment’s scrutiny.
Mr. Jethmalani does not intend to dispute the vires of
sub-s. (2) of s. I l in these writ petitions but has
contended that the ambit and scope of sub-s. (2) of s. 11
extends to orders of revocation covered by sub-s. (1).
Otherwise stated, in situations not covered by sub-s. (1) an
order under sub-s. (2) cannot be made. The heading of s. 11
is “Revocation of Detention Orders’. Sub-s. (1) authorises
revocation by two authorities, namely,-(a) if the order has
been made by an officer of a State Government, the State
Government or the Central Government may revoke the order;
and (b) if the order has been made by an officer of the
Central Government or by a Stat Government, revocation is
permissible by the Central Government. Sub-section (1) of s.
11 indicates that the power conferred under it in the
situations envisaged in clauses (a) and (b) is exercisable
without prejudice to the provisions of s. 21 of the General
Clauses Act. That section provides that a power to issue
orders includes a power exercisable in the like manner and
subject to the like sanction and conditions if any, to add,
to amend vary or rescind such order. Under s. 21 of the
General Clauses Act, therefore, the authority making an
order of detention would be entitled to revoke that order by
rescinding it. We agree with the submission of Mr.
Jethmalani that the words “without prejudice to the
provisions of s.21 of the General Clauses Act 1897 ‘ used in
s. 11(1) of the Act give expression to the legislative
intention that without affecting that right which the
authority making the order enjoys under s. 21 of the General
Clauses Act, an order of detention is also available to be
revoked or modified by authorities named in clauses (a) and
(b) of s. 11(1) of the Act. Power conferred under clauses
(a) and (b) of s. I l(l ) of the Act could not be exercised
by the named authorities under s. 21 of the General Clauses
Act as these authorities on whom such power has been
conferred under the Act are different from those who made
the orders. Therefore, conferment of such power was
necessary as Parliament rightly found that s. 21 of the
General Clauses Act was not adequate to meet the situation.
Thus, while not affecting in any manner and expressly
preserving the power under s. 21 of the General Clauses Act
of the original authority making the order, power to revoke
or modify has bean conferred on the named authorities.
897
The rule relating to interpretation of statutes is
too well settled A to be disputed that unless a contrary
intention is expressly or by necessary implication
available, words used in a statute should be given the same
meaning. this position is all the more so where the word
occurs in two limbs of the same section. We, therefore,
agree with the contention advanced by counsel for the
petitioners that the word ‘revocation’ in sub-s (2) has the
same meaning and covers the same situations as provided in
sub-s. (1) of s. 11 of the Act. This would necessarily mean
that the power under sub-s. (2) would be exercisable in
cases covered by sub-s. (1).
This leads us to examine the tenability of the
submission of Mr. Jethmalani as to the true meaning of the
word ‘revocation’. ‘Revoke’ is the verb and ‘revocation’ is
its noun. These words have no statutory definition and,
therefore, would take the commonsense meaning available for
these words. Black’s Law Dictionary gives the meaning of the
word ‘revoke’ to be “the recall of some authority or thing
granted or a destroying or making void of some deed that had
existence until the act of revocation made it void.”
Wharton’s Law Lexican gives the meaning to be “the undoing
of a thing granted or a destroying or making void of some
deed that had existence until the act of revocation made it
void.” The Shorter Oxford English Dictionary gives the
meaning of the word ‘revocation’ to be “the action of
recalling; recall of persons; a call or summons to return;
the action of rescinding or annulling, withdrawing. The
meaning of the word ‘revoke’ has been given as “to recall,
bring back, to restore, to retract, to withdraw, recant, to
take back to one-self.” The true meaning of the verb
‘revoke- and its noun, therefore, seem to signify that
revocation is a process of recall of what had been done.
According, to the Webster’s Third New International
Dictionary, the word means-“an act of recalling or calling
back, the act by which one having the right annuls Something
previously dose According to the Corpus Juris Secudum, 1952
Edition, Vol 77, the word ‘revoke’ carries with it “the idea
of cancellation by the same power which originally acted and
not to setting aside of an original order by higher forum Or
power or jurisdiction It does not mean repudiation ”
The power conferred under clauses (a) and (b) of sub-s.
(1) of s. 11 is in fact extension of the power recognised
under s. 21 of the General Clauses Act and while under the
General Clauses Act, the power is exercisable by the
authority making the order, the named authorities under
clauses (a) and(b) of s. 11(1) of the Act are also entitled
to exercise the power of revocation. When the High Court
898
exercises jurisdiction under Article 226 of the Constitution
it does not make an order of revocation. By issuing a high
prerogative writ like habeas corpus or certioraris it
quashes the order impugned before it and by declaring the
order to be void and striking down the same it nullifies the
order. The ultimate effect of cancellation of an order by
revocation and quashing of the same in exercise of the high
prerogative jurisdiction vested in the High Court may be the
same but the manner in which the situation is obtained is
patently different and while one process is covered by s.
11(1) of the Act, the other is not known to the statute and
is exercised by an authority beyond the purview of sub-
section (I ) of s. I l of the Act. It is, therefore, our
clear opinion that in a situation where the order of
detention has been quashed by the High Court, sub-s. (2) of
11 is non applicable and the detaining authority is not
entitled to make another order under s 3 of the Act on the
same grounds.
We are of the view that this seems to be the
legislative scheme. The pronounced judicial view of this
Court was that repeated orders of detention are not to be
made. Parliament while making provision in g. 11(2) of the
Act, must be taken to have been aware of such view and in
conferring the power of making repeated orders, safe. guards
have been provided under sub-s. (1) by confining the
exercise of power to limited situations. Clothing the
prescribed authority to exercise power under s. 3 even in a
situation where the Court has intervened to bring about
nullification of the order of detention would give rise to
complicated situations and keeping the scheme of the section
in view we are of the clear opinion that where an order is
quashed by a Court in exercise of extraordinary
jurisdiction, the power of making a fresh order under sub-
section (2) of s. 11 is not
available to be exercised.
In view of this conclusion of ours, the orders made on
August 20, 1984, on the same grounds on which the previous
order of detention had been made and which had been quashed
by the High Court are not tenable in law. Once those orders
are held to be invalid, the declarations made subsequently
under s. 9 of the Act could not be made and would have no
effect. Leaving all other questions mooted in the writ
petitions and partly argued before us by Mr. Jethmalani open
for examination in suitable cases, we allow these writ
petitions on the rationale of our conclusion indicated
above. The petitioner in each of these cases is directed to
be set at liberty forwith.
A.P. J. Petition allowed
899