The
Conservation of Foreign Exchange and Prevention of Smuggling
Activities Act, 1974
(Act no.52 of 1974)
Preamble
[13th December, 1974]
An Act to
provide for preventive detention in certain cases for the purposes
of conservation and augmentation of foreign exchange and prevention
of smuggling activities and for matters connected therewith.
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 organized 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
organized and carried on, it is necessary for the effective
prevention of such activities and violations to provide for
detention of persons concerned in any manner there with ;
BE it enacted
by Parliament in the Twenty-fifth Year of the Republic of India as
follows :
1.
Short title, extent and commencement – (1) This Act may be called the Conservation of Foreign
Exchange and Prevention of Smuggling Activities Act, 1974.
(2) It
extends to the whole of India.
(3) It shall
come into force on such date as the Central Government may, by
notification in the Official Gazette, appoint.
2.
Definitions – In this Act, unless
the context otherwise requires, --
a.
"appropriate Government" means, as respects a detention order
made by the Central Government or by an officer of the Central
Government or a person detained under such order, the Central
Government, and as respects a detention order made by a State
Government or by an Officer of a State Government or a person
detained under such order, the State Government ;
b.
"detention order" means an order made under section 3;
c.
"foreigner" has the same meaning as in the Foreigners Act,
1946 (31 of 1946) ;
d.
"Indian customs waters" has the same meaning as in clause
(28) of section 2 of the Customs Act, 1962 (52 of 1962) ;
e.
"smuggling" has the same meaning as in clause (39) of section
2 of the Customs Act, 1962, and all its grammatical variations and
cognate expressions shall be construed accordingly ;
f.
"State Government", in relation to a Union Territory, means
the Administrator thereof ;
g.
any reference in this Act to a law which is not in force in
the State of Jammu and Kashmir shall, in relation to that State, be
construed as a reference to the corresponding law, if any, in force
in that State.
COMMENTS
"Indian
Customs Waters" means the waters extending into the sea upto the
limit of continuous zone of India under section 5 of the Territorial
Waters, Continental Shelf, Exclusive Economic Zone an Other Maritime
Zones Act, 1976 (80 of 1976) and includes any bay, gulf, harbour,
creek or tidal river.
"Smuggling"
in relation to any goods, means any act or omission which will
render such goods liable to confiscation under section 111 or
section 113.
3.
Power to make orders detaining certain persons – (1) The Central Government or the State Government
or any officer of the Central Government, not below the rank of a
Joint Secretary to that Government, specially empowered for the
purposes of this section by that Government, or any officer of the
State Government, not below the rank of a Secretary to that
Government, specially empowered for the purposes of this section by
that Government, may, if satisfied, with respect to any person
(including a foreigner), that, with a view to preventing him from
acting in any manner prejudicial to the conservation or augmentation
of foreign exchange or with a view to preventing him from –
(i) smuggling
goods, or
(ii) abetting
the smuggling of goods, or
(iii)
engaging in transporting or concealing or keeping smuggled goods,
or
(iv) dealing
in smuggled goods otherwise than by engaging in transporting or
concealing or keeping smuggled goods, or
(v)
harbouring persons engaged in smuggling goods or in abetting the
smuggling of goods,
It is
necessary so to do, make an order directing that such person be
detained :
[(Note:- Added by Act No.46 of
1988, S.15 (w.e.f. 4-7-1988) Provided that no order of detention
shall be made on any of the grounds specified in this sub-section on
which an order of detention may bemade under section 3 of the
Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic
Substances Act, 1988 or under section 3 of the Jammu and Kashmir
Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic
Substances Ordinance, 1988]. (J&K Ordinance, 1 of 1988).
(2) 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.
(3) For the
purposes of clause (5) of article 22 of the Constitution, the
communication to a person detained in pursuance of a detention order
of the grounds on which the order has been made shall be made as
soon as may be after the detention, but ordinarily not later than
five days, and in exceptional circumstances and for reasons to be
recorded in writing, not later than fifteen days, from the date of
detention.
COMMENTS
A.
Subjective satisfaction - Validity of
It is well
settled that the subjective satisfaction requisite on the part of
the detaining authority, the formation of which is a condition
precedent to the passing of the detention order will get initiated
if material or vital facts which would have a bearing on the issue
and would influence the mind of the detaining authority one way or
the other are ignoredor not considered by the detaining authority
before issuing the detention order. [Varinder Singh Batra v.Union of
India & Ors., (1993) 3 Crimes 637 (Delhi)]. R / t: Ashadevi
v.Shivraj & Anr., AIR 1979 Sc 447. R/t. Ayya alias Ayub v.State
of U.P & Anr., (1989) 1 Crimes 8 (S.C.).
If a piece of
evidence which might reasonably have affected the decision whether
or not to pass an order of detention is excluded from consideration,
there would be a failure of application of mind, which in turn,
vitiates the detention. [abid].
There would
be vitiation of the detention order on grounds of non-application of
mind if a piece of evidence which was relevant though not binding,
had not been considered at all. [ibid].
If an
important document on which reliance has been placed by the
detaining authority and it has not been supplied to the detenu it is
sufficient to vitiate the order of detention. [Mohammed Salim
/Khatri v.Union of India & Anr., (1993) 3 Crimes 867
(Delhi)].
It is the
duty of the sponsoring authority to collect all the relevant
material and place it before the detaining authority. The requisite
subjective satisfaction the formation of which is a condition
precedent to passing of a detention order will get vitiated if
material or vital facts which would have bearing on the issue and
weighted the satisfaction of the detaining authority one way or the
other and influenced his mind are either withheld or suppressed by
the sponsoring authority or ignored and not considered by the
detaining authority before issuing the detention order. [ibid] R/t.
Dharamdas Shamlal Agarwal v.Police Commissioner & Anr., AIR 1989
SC 1282 as also Madan Gopal alias Madan Bhaiya v.Union of India
& Ors. (1993) 49 Delhi Law Times 174.
Every failure
to furnish copy of a document to which reference is made in the
grounds of detention under section 3(1) of COFEPOSA is not an
infringement of article 22(5) of the Constitution fatal to the order
of detention. It is only failure of furnish copies of such documents
as were relied upon by the detaining authority, making it difficult
for the detenu to make an effective representation that amounts to a
violation of fundamental rights guaranteed by article 22(5).[abid]
R/t Mst. L.M.S. Ummu Saleema v.B.B. Gujaral & Anr., AIR 1981 SC
1191.
When the
non-supply of copies of relevant documents has prevented the detenu
from making an effect and purposeful representation, it results in
violation of article 22(5) of the Constitution of India read with
section 3(3) of the COFEPOSA. [ibid].
Documents
cannot be said irrelevant when they have been mentioned in the
detention order and reliance has been placed upon them. [ibid].
B.
Grounds - Communication of
Since the
order is based on grounds to be served on the detenu, the order of
detention could be passed only if the grounds are in existence and
are prepared contemporaneously, otherwise the order of detention
becomes purely illusory. [Pakhar Singh v.Union of India & Anr.,
(1993) 3 Crimes 765 (P & H) R/t. Krishna Murari Aggarwal v.Union
of India, AIR 1975 SC 1877.
It is the
duty of the detaining authority to satisfy the court about the
existence of the material and that he has not acted in a mechanical
or cavalier manner while exercising the power. The detaining
authority owes a duty to the detenu as wall as to the Court. An
obligation of the detaining authority is to satisfy the Court that
he has acted in accordance with law. [abid] R/t. Mohiuddin Tayab
Sony v.State of Maharashtra & Anr., 1980 Crl. LJ. 1040 (Bom.)
D.B.
It is well
settled that judicial scrutiny cannot be shut our merely on the
ipsedixit of the detaining authority. [abid]. Ibid.
The grounds
of detention must be communicated in the language understood by the
detenu. [In re: Smt. B.Ramprannamma, 1993 FAJ 485 (Cal Circuit Bench
at Port Blair) D.B.]
Article 22(5)
of the Constitution requires that the grounds of detention must be
communicated to the detenu. "Communicate" is a strong word. It
requires that sufficient knowledge of the basic-facts constituting
the grounds should be imparted effectively and fully to the detenu
in writing in a language which he understands, so as to enable him
to make a purposeful and effective representation. If the grounds
are only verbally explained to the detenu and nothing in writing is
left with him in a language which he understands, then that purpose
is not served, and the constitutional mandate in article 22(5) is
infringed. This follows from the decisions in Harikisan v. State of
Maharashtra, AIR 1962 SC 911, and Hadibandhu Das v.District
Magistrate, Cuttack and Ors., AIR 1969 SC 43.
In the case
of Smt. Raziya Umar Bakshi v.Union of India and Ors., AIR 1980 SC
1751, it was held by the Supreme Court that the service of the
ground of detention on the detenue is a very precious constitutional
right and where the grounds are couched in a language which is not
known to the detenu, unless the contents of the grounds are fully
explained and translated to the detenu, it will tantamount to not
serving the grounds of detention to the detenue and would thus
vitiate the detention ex-facie. In case where the detaining
authority is satisfied that the grounds are couched in a language
which is not known to the detenue, it must see to it that the
grounds are explained to the detenu, a translated script is given to
him and the grounds bear some sort of a certificate to show that the
grounds have been explained to the detenue in the language which he
understands. A bare statement at the stage when Habeas Corpus
petition is filed in the Court by the detaining authority that these
formalities were observed would be of no consequence particularly
when it is not supported by any document or by any affidavit of the
person who had done the job of explaining or translation.
In the case
of Mr. Kubic Dariusz v. Union of India and other, AIR 1990 SC 605,
the Supreme Court observed that 'it is settled law that the
communication of the grounds which is required by the earlier part
of clause (5) of article 22 is for the purpose of enabling the
detenu to make a representation, the right to which is guaranteed by
the latter part of the clause'. A communication in this context,
must, therefore, mean imparting to the detenu sufficient and
effective knowledge of the facts and circumstances on which the
order of detention is passed, that is, of the prejudicial acts which
the authorities attribute to him. Such a communication would be
there when it is made in a language understood by the detenu.
C.
Execution - Prior to
It is well
settled that the High Courts have the powers to entertain and
examine the grievances against the detention order prior to its
execution. [Pakhar Singh v.
Union of India & Anr., (1993) 3 Crimes 765 (P & H). R/t.
Addl. Secretary to the Government of India & Ors. V.Smt. Alka
Subhash Gadia & Anr., 1992 SCC (Crl.) 301.
The grounds
on which the courts have interfered with them at the preexecution
stage are necessarily very limited in scope and number, viz., where
the courts are prima facie satisfied (i) that the impugned order is
not passed under the Act under which it is purported to have been
passed, (ii) that it is sought to be executed against a wrong
person, (iii) that it is passed for a wrong purpose, (iv) that it is
passed on vague, extraneous and irrelevant grounds, or (v) that the
authority which passed it has no authority to do so.
It is well
settled in our Constitution frame word that the power of directing
preventive detention given to the appropriate authorities must be
exercised in exceptional cases as contemplated by the various
provisions of the different statutes dealing with preventive
detention and should be used with great deal of circumspection.
There must be awareness of the facts necessitating preventive
custody of a person for social defence. If a man is in custody and
there is no imminent possibility of his being released, the power of
preventive detention should not be exercised. [Ibrahim Umarbhaya v. State of
Gujarat & Ors., (1993) 3 Crimes 730 (Guj.) D.B.] R/t. Rameshwar
Shaw v. District Magistrate, AIR 1964 SC 334.
D.
Pre-execution stage - Challenge at
Detention
order under the Act cannot be challenged at pre-execution stage
merely on the ground that there was delay in its execution. [Inderjit Singh Chani v. Union
of India & Anr., (1994) 1 Crimes 539 (Delhi)].
E.
Delay - Effect of
Long and
undue delay in passing the detention order snaps the nexus between
the activity alleged and the activity sought to be curbed and shows
that the detention order was passed mechanically without application
of mind.
When the
detention order has been passed after a long delay and the service
was also effected after delay the detention order is liable to be
quashed. [Daljit Singh Sandhu
v. Union of India & Ors., (1993) 3 Crimes 629 (Delhi)].
No doubt it
is true that if the detaining authority shows that there is a
reasonable nexus between the prejudicial activity and the purpose of
detention, the delay in passing the detention order has to be
overlooked. [ibid].
The delay in
passing the detention order, if not adequately explained, vitiates
the same. [ibid].
Indeed more
delay in passing a detention order is not conclusive. The
authorities concerned must have due regard to the object with which
the order is passed. Inordinate delay in passing of a detention
order will raise genuine doubt about the satisfaction of the
Detaining Authority.
The test as
to whether the detention order should be quashed on the ground of
delay is not a rigid or mechanical test by merely counting the
number of days or months; the court should examine whether the
Detaining Authority has satisfactorily explained the delay. [Gurvinder Singh v.
Under-Secretary, Home, Government of Punjab, (1993) 3 Crimes 760 (P
& H) R/t. Lakshman Khatik v. State of W.B., AIR 1974 SC 1264 as
also T.A. Abdul Rehman v. State of Kerala, (1989) 2 All India
Criminal Law Reporter 294 (S.C.)].
The detenu
had been evading execution of the detention order hardly gives
credit to the authorities incharge of enforcing the orders of
detention. In case where the authorities are guilty of inaction
after passing of the order, a reasonable conclusion has to be drawn
that the detention order has lost nexus with the prejudicial
activities. [ibid].
4. Execution
of detention order – A detention order may be executed at any place
in India in the manner provided for the execution of warrants of
arrest under the Code of Criminal Procedure, 1973 (2 of 1974).
5.
Power to regulate place and conditions of detention – Every person in respect of whom a detention
order has been made shall be liable –
a.
To be detained in such place and under such conditions
including conditions as to maintenance, interviews or communication
with others, discipline and punishment for breaches of discipline,
as the appropriate Government may, by general or special order,
specify ; and
b.
To be removed from one place of detention to another place of
detention, whether within the same State or in another State by
order of the appropriate Government ;
Provided that
no order shall be made by a State Government under clause (b) for
the removal of a person from one State to another State except with
the consent of the Government of that other State.
5A.
[Note: Ins. by Act No.35 of 1975,
S.2 (w.e.f. 1-7-1975) Grounds of detention
severable – Where a person has been detained in pursuance of an
order of detention under sub-section (1) of section 3 which has been
made on two or more grounds, such order of detention shall be deemed
to have been made separately on each of such grounds and accordingly
–
(a) such
order shall not be deemed to be invalid or inoperative merely
because one or some of the grounds is or are –
(i)
vague,
(ii)
non-existent,
(iii) not
relevant,
(iv) not
connected or not proximately connected with such person, or
(v) invalid
for any other reason whatsoever,
and it is
not, therefore, possible to hold that the Government or officer
making such order would have been satisfied as provided in
sub-section (1) of section 3 with reference to the remaining ground
or grounds and made the orderof detention ;
a.
the Government or officer making the order of detention shall
be deemed to have made the order of detention under the said
sub-section (1) after being satisfied as provide din that
sub-section with reference to the remaining ground or grounds.]
6.
Detention order not to be invalid or inoperative on certain grounds
– No detention order shall be
invalid or inoperative merely by reason –
(a) That the
person to be detained thereunder is outside the limits of the
territorial jurisdiction of the Government or the officer making the
order of detention, or
(b) That the
place of detention of such person is outside the said limits.
7.
Powers in relation to absconding persons – (1) If the appropriate Government has reason to believe
that a person in respect of whom a detention order has been made has
absconded or is concealing himself so that the order cannot be
executed, the Government may –
a.
make a report in writing of the fact to a Metropolitan
Magistrate or a Magistrate of the first class having jurisdiction in
the place where the said person ordinarily resides ; and thereupon
the provisions of sections 82, 83, 84 & 85 of the Code of
Criminal Procedure, 1973 (2 of 1974), shall apply in respect of the
said person and his property as if the order directing that he be
detained were a warrant issued by the Magistrate ;
b.
by order notified in the Official Gazette direct the said
person to appear before such officer, at such place and within such
period as may be specified in the order ; and if the said person
fails to comply with such direction, he shall, unless he proves that
it was not possible for him to comply therewith and that he had,
within the period specified in the order, informed the officer
mentioned in the order of the reason which rendered compliance
therewith impossible and of his whereabouts, be punishable with
imprisonment for a term which may extend to one year or with fine or
with both.
(2)
Notwithstanding anything contained in the Code of Criminal
Procedure, 1973 (2 of 1974), every offence under clause (b) of
sub-section (1) shall be cognizable.
8.
Advisory Board – For the purposes
of sub-clause (a) of clause (4), and sub-clause (c) of clause (7) of
article 22 of the Constitution, --
a.
The Central Government and each State Government shall,
wherever necessary, constitute one or more Advisory Boards each of
which shall consist of a Chairman and two other persons possessing
the qualifications specified in sub-clause (a) of clause (4) of
article 22 of the Constitution ;
b.
Save as otherwise provided in section 9, the appropriate
Government shall, within five weeks from the date of detention of a
person under a detention order make a reference in respect thereof
to the Advisory Board constituted under clause (a) to enable the
Advisory Board to make the report under sub-clause (a) of clause (4)
of article 22 of the Constitution ;
c.
The Advisory Board to which a reference is made under clause
(b) shall after considering the reference and the materials placed
before it and after calling for such further information as it may
deem necessary from the appropriate Government or from any person
called for the purpose through the appropriate Government, from the
person concerned, and if, in any particular case, it considers it
essential so to do or if the person concerned desires to be heard in
person, after hearing him in person, prepare its report specifying
in a separate paragraph thereof its opinion as to whether or not
there is sufficient cause for the detention of the person concerned
and submit the same within eleven weeks from the date of detention
of the person concerned ;
d.
When there is a difference of opinion among the members
forming the Advisory Board the opinion of the majority of such
members shall be deemed to be the opinion of the Board ;
e.
A person against whom an order of detention has been made
under this Act shall not be entitled to appear by any legal
practitioner in any matter connected with the reference to the
Advisory Board, and the proceedings of the Advisory Board and its
report, excepting that part of the report in which the opinion of
the Advisory Board is specified, shall be confidential ;
f.
In every case where the Advisory Board has reported that
there is in its opinion sufficient cause for the detention of a
person, the appropriate Government may confirm the detention order
and continue the detention of the person concerned for such period
as it thinks fit and in every case where the Advisory Board has
reported that there is in its opinion no sufficient cause for the
detention of the person concerned, the appropriate Government shall
revoke the detention order and cause the person to be released
forthwith.
9.
[(Note: Subs. by Act No.58 of
1984, s.2, for s.9 (w.e.f. 13-7-1984) Cases in which and
circumstances under which persons may be detained for period longer
than three months without obtaining the opinion of Advisory Board
– (1) Notwithstanding anything contained in this Act, any person
(including a foreigner) in respect of whom an order of detention is
made under this Act at any time berfore the [(Note:- Subs. by Act No.52 of
1993, s.2 (w.e.f. 25-6-1993)) 31st of July, 1996],
may be detained without obtaining, in accordance with the provisions
of sub-clause (a) of clause (4) of article 22 of the Constitution,
the opinion of an Advisory Board for a period longer than three
months but not exceeding six months from the date of his detention,
where the order of detention has been made against such person with
a view to preventing him from smuggling goods or abetting the
smuggling of goods or engaging in transporting or concealing or
keeping smuggled goods and the Central Government or any Officer of
the Central Government, not below the rank of an Additional
Secretary to that Government, specially empowered for the purposes
of this section by that Government, is satisfied that such
person,-
(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,
and makes a
declaration to that effect within five weeks of the detention of
such person.
Explanation 1
– In this Sub-section, "area highly vulnerable to smuggling"
means,--
i.
The Indian customs waters, contiguous to [(Note:- Subs. by Act No.23 of
1987, s.2 (w.e.f. 2.7.1987)) The States of Goa, Gujarat,
Karnataka, Kerala, Maharashtra, Tamil Nadu and the Union territories
of Daman and Diu and Pondicherry] ;
ii.
The inland area fifty kilometers in width from the coast of
India falling within the territories of [(Note:- Subs. by Act No.23 of
1987, s.2 (w.e.f. 2.7.1987)) States of Goa, Gujarat, Karnantaka,
Kerala, Maharashtra, Tamil Nadu and the Union Territories of Daman
and Diu and Pondicherry] ;
iii.
the inland area fifty kilometres in width from the
India-Pakistan border in the State of Gujarat, Jammu and Kashmir,
Punjab and Rajasthan ;
iv.
the customs air port of Delhi ; and
v.
such further or other Indian customs waters, or inland area
not exceeding one hundred kilometres in width from any other coast
or border of India, or such other customs station, as the Central
Government may, having regard to the vulnerability of such waters,
area or customs station, as the case may be, to smuggling, by
notification in the Official Gazette, specify in this behalf.
Explanation 2 – For the
purposes of Explanation 1, "customs airport" and "customs station"
shall have the same meaning as in clauses (10) and (13) of section 2
of the Customs Act, 1962 (52 of 1962), respectively.
(2) In the
case of any person detained under a detention order to which the
provisions of sub-section (1) apply, section 8 shall have effect
subject to the following modifications, namely :-
(i) in clause
(b), for the words "shall, within five weeks", the words "shall,
within four months and two weeks" shall be substituted ;
(ii) in
clause (c), --
(1) for the
words "the detention of the person concerned", the words "the
continued detention of the person concerned" shall be substituted
;
(2) for the
words "eleven weeks", the words "five months and three weeks" shall
be substituted ;
(iii) in
clause (f), for the words "for the detention", at both the places
where they occur, the words "for the continued detention" shall be
substituted.]
COMMENTS
"Customs
airport" means any airport appointed under clause (a) of section 7
to be a customs airport.
"Customs
station" means any customs port, customs airport to land customs
station.
10.
Maximum period of detention – The
maximum period for which any person may be detained in pursuance of
any detention order to which the provisions of section 9 do not
apply and which has been confirmed under clause (f) of section 8
shall be [(Note:- Subs. by
Act No.20 of 1976 for words "one year from the date of detention")
a period of one year from the date of detention or the specified
period, whichever period expires later] and the maximum period for
which any person may be detained in pursuance of any detention order
to which the provisions of section 9 apply and which has been
confirmed under clause (f) of section 8 read with sub-section (2) of
section 9 shall be [(Note:-
Ibid, for words "two years from the date of detention") a period
of two years from the date of detention or the specified period,
whichever period expires later :
Provided that
nothing contained in this section shall affect the power of the
appropriate Government in neither case to revoke or modify the
detention order at any earlier time.
[(Note:- Ins. by Act No.20 of
1976) Explanation.—In this section and in section 10A,
"specified period" means the period during which the Proclamation of
Emergency issued under clause (1) of article 352 of the Constitution
on the 3rd day of December, 1971 and the Proclamation of
Emergency issued under that clause on the 25th day of
June, 1975, are both in operation.]
Comment: we hold that
since no order of confirmation of the detention was made under Cl.
(f) of S. 8 within three months of the date of detention by the
appropriate Government, further detention of the petitioner after
the expiry of that period is without the authority of law. Nirmal Kumar Khandelwal v.
The Union of India AIR 1978 SUPREME COURT 1155
10A.
[(Note:- Ibid) Extension of period of
detention. – (1) Notwithstanding anything contained in any other
contained in any other provision of this Act, the detention of every
person detained under a detention order which has been confirmed
under clause (f) of section 8 before the commencement of the
Conservation of Foreign Exchange and Prevention of Smuggling
Activities (Amendment) Act, 1976, and which is in force immediately
before such commencement shall, unless his detention has been
continued by the appropriate Government under the said clause for a
period shorter than one year from the date of his detention,
continue until the expiry of a period of one year from the date of
his detention under such order or until the expiry of the specified
period, whichever period expires later :
Provided that
nothing contained in this sub-section shall affect the power of the
appropriate Government to revoke or modify such detention order at
any earlier time.
(2)
Notwithstanding anything contained in any other provision of this
Act, the detention of every person detained under a detention order
which has been confirmed under clause (f) of section 8 read with
sub-section (2) of section 9 before the commencement of the
Conservation of Foreign Exchange and Prevention of Smuggling
Activities (Amendment) Act, 1976, and which is in force immediately
before such commencement, shall, unless his detention has been
continued by the appropriate Government under the said clause (f)
read with the said sub-section (2), for a period shorter than two
years from the date of his detention, continue until the expiry of a
period of two years from the date of his detention under such order
or until the expiry of the specified period, whichever period
expires later :
Provided that
nothing contained in this sub-section shall affect the power of the
appropriate Government to revoke or modify such detention order at
any earlier time.]
11.
Revocation of detention orders –
(1) Without prejudice to provisions of section 21 of the General
Clauses Act, 1897 (10 of 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 section 3 against the same person.
COMMENTS
Representation --- Disposal of
There is no
prescribed period either under the provisions of the Constitution or
under the concerned detention law within which the representation
should be dealt with. The use of the words "as soon as may be"
occurring in article 22 (5) of the constitution reflects that the
representation should be expeditiously considered and disposed of
with due promptitude and diligence and with a sense of urgency and
without avoidable delay. [Rama Dhondu Borado Vs. V.K. Sarf,
Commissioner of Police & Ors., JT 1989 (2) 579 ].
What is
reasonable despatch depends on the facts and circumstances of each
case and no hard and fast rule can be laid down in that regard. In
case the gap between the receipt of the representation and its
consideration by the authority is so unreasonable and the
explanation offered by the authority is so unsatisfactory, such
order could vitiate the order of detention.[ibid].
In a
detention matter the Government is required to deal with the
representation of a detenu expeditiously without avoidable delay.
Undue and unexplained delay in disposing of the representation
vitiates the detention order.[Hussain Erumban vs. Union of India,
(1993) 3 crimes 627 (Delhi)].
It is settled
law that the representation made by the detenu for seeking
revocation of te detention order must be dealt with promptly and in
right earnest by the authorities concerned and they are not supposed
to deal with the representation in a casual manner and allow the
same to remain unattended for any period of time. If there occurs
any undue delay in dealing with the representation it is incumbent
upon the authorities to explain such delay. [ibid].
Detaining Authority—Duty of
In smt. Gracy
vs. State of Kerala, (1991 ) 41 DLT1, the Supreme Court observed
that the detaining authority is obliged to consider the
representation even if the same was simply addressed to the Advisory
Board and not to him.
"It being
settled that the aforesaid deal obligation of consideration of the
detenu’s representation by the Advisory Board and independently by
the detaining authority flows from article 22 (5) when only one
representation is made and addressed to the detaining authority
there is no reason to hold that the detaining authority is relieved
of this obligation merely because the representation is addressed to
the Advisory Board instead of the detaining authority and submitted
to the Advisory Board during pendency of the reference before it. It
is difficult to spell out such an inference from the contents of
article 22 (5) in support of the contention of the learned Solicitor
General. The contents of article 22(5) as well as the nature of duty
imposed thereby on the detaining authority support the view that so
long as there is a representation made by the detenu against the
order of detention, the aforesaid dual obligation under article 22
(5) arises irrespective of the fact whether the representation is
addressed to the detaining authority or to the Advisory Board or to
both. The mode of address is only a matter of form which cannot
whittle down the requirement of the constitutional mandate in
article 22 (5) enacted as one of the safeguard provided to the
detenu in case of preventive detention."
It is clear
that once the detenu makes a representation, it has to be considered
by the detaining authority independent of its consideration by the
Advisory Board.[ Yashvir Singh vs. Administrator, Delhi & Ors.,
(1993) 3 Crimes 441 (Delhi)].
12.
Temporary release of persons detained --- [(Note:- Subs. for
sub-section (1) by Act No.20 of 1976, s.4 (w.e.f. 12-12-1975)
(1) The Central Government may, at any time, direct that any
person detained in pursuance of detention order made by that
Government or an officer subordinate to that Government or by a
State Government or by an officer subordinate to a State Government
, may be released for any specified period either without conditions
or upon such conditions specified in the direction as that person
accepts, and may, at any time, cancel his release.
(1A) A State
Government may, at any time, direct that any person detained in
pursuance of a detention order made by the Government or by an
officer subordinate to that Government may be released for any
specified period either without conditions or upon such conditions
specified in the direction as that person accepts, and may, at any
time, cancel his release.]
(2) In
directing the release of any person [(Note:- Subs. by Act No.20 of
1976, s.4 (w.e.f. 12.12.1975) under sub-section (1) or sub –
section (1A) , the Government directing the release] may require him
to enter into a bond with sureties for the due observance of the
conditions specified in the direction.
(3) Any
person released under [(Note:- Subs. for "under
sub-section (1), the appropriate Government" by Act No.20 of 1976,
s.4(b) (w.e.f. 12-12-1975) sub- section (1) or sub – section
(1A)] shall surrender him self at the time and place, and to the
authority, specified in the order directing his release or can
canceling his release, as the case may be.
(4) If any
person fails without sufficient cause to surrender himself in the
manner specified in sub-section (3) , he shall be punishable with
imprisonment for a term which may extend to two years, or with fine,
or with both.
(5) If any
person released under [(Note:- Subs. for "sub-section
(1)" by Act No.20 of 1976, s.4(c) (w.e.f. 12-12-1975)
sub-section (1) or sub section (1A)] fails to fulfill any of the
conditions imposed upon him under the said sub- section or in the
bond entered into by him, the bond shall be declared to be forfeited
and any person bound thereby shall be liable to pay the penalty
thereof.
(6) [(Note:- Ins. by Act No.35 of
1975, s.3 (w.e.f. 1-7-1975) Notwithstanding anything contained
in any other law and save as otherwise provided in this section, no
person against whom a detention order made under this Act is in
force shall be released whether on bail or bail bond or
otherwise.]
12A.
[(Note:- Ins. by Act No.35 of
1975, s.4 (w.e.f. 1-7-1975) Special Provisions for dealing
with emergency—(1) notwithstanding anything contained in this
Act or any rules of natural justice, the provisions of this section
shall have effect during the period of operation of the Proclamation
of Emergency issued under clause (1) of article 352 of the
constitution on the 3rd day of December, 1971, or the
Proclamation of Emergency issued under that clause on the
25th day of June, 1975, or a period of [(Note:- Subs. for "twelve
months" by Act No.90 of 1976, s.2 (w.e.f. 16-6-1976) twenty four
months] from the 25th day of June , 1975, whichever
period is the shortest.
(2) When
making an order of detention under this Act, against any person
after the commencement of the Conservation of Foreign Exchange and
Prevention of Smuggling Activities (Amendment) Act, 1975, the
Central Government or the State Government or, as the case may be,
the officer making the order of detention shall consider whether the
detention of such person under this Act is necessary for dealing
effectively with the emergency in respect of which the Proclamations
referred to in sub- section (1) have been issued (hereafter in this
section referred to as the emergency) and if, on such consideration,
the Central Government or that State Government or, as the case may
be, the officer is satisfied that it is necessary to detain such
person for effectively dealing with the emergency, that government
or officer may make a declaration to that effect and communicate a
copy of the declaration to the person concerned;
Provided that
where such declaration is made by an officer, it shall be reviewed
by the appropriate Government within fifteen days from the date of
making of the declaration and such declaration shall cease to have
effect unless it is confirmed by that Government, after such review,
within the said period of fifteen days.
(3) The
question whether the detention of any person in respect of whom a
declaration has been made under sub- section (2) continues to be
necessary for effectively dealing with the emergency shall be
reconsidered by the appropriate Government within four months from
the date of such declaration and thereafter at intervals not
exceeding four months, and if, on such reconsideration, it appears
to the appropriate government that the detention of the person is no
longer necessary for effectively dealing with the emergency, the
Government may revoke the declaration.
(4) In making
any consideration, review or reconsideration under sub-section (2)
or (3), the appropriate Government or officer may, if such
Government or officer considers it to be against the public interest
to do otherwise, act on the basis of the information and materials
in its or his possession without disclosing the facts or giving an
opportunity of making a representation to the person concerned.
(5) It shall
not be necessary to disclose to any person detained under a
detention order to which the provisions of sub – section (2) apply,
the grounds on which the order has been made during the period the
declaration made in respect of such person under that sub section is
in force, and, accordingly, such period shall not be taken into
account for the purposes of sub- section (3) of section 3.
(6) In the
case of every person detained under a detention order to which the
provisions of sub- section (2) apply, being a person in respect of
whom a declaration has been made thereunder, the period during which
such declaration is in force shall not be taken into account for the
purpose of computing.—
i.
The periods specified in clause (b) and (c) of section 8;
ii.
The periods of ‘one year’ and ‘ five weeks ‘ specified in sub
section (1) , the period of one year’ specified in sub section (2)
(i0 and the period of "six months" specified in sub section (3) , of
section 9.]
13.
Protection of action taken in good faith – No suit or other legal proceeding shall lie against the
Central government or a State Government, and no suit, prosecution
or other legal proceedings shall lie against any person, for
anything in good faith done or intended to be done in pursuance of
this Act.
14.
Repeal—The maintenance of
Internal Security (Amendment) Ordinance, 1974 (11 of 1974), shall,
on the commencement of this Act, stand repealed and accordingly the
amendments made in the Maintenance of Internal Security Act, 1971
(26 of 1971), by the said Ordinance shall, on such commencement,
cease to have effect.