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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

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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

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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

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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

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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

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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

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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