1986 (1) TMI 384 - HC - Indian Laws

Summary

Issues Involved:
1. Validity of a fresh detention order under Section 3 of the COFEPOSA Act after the original order was revoked under Section 21 of the General Clauses Act.
2. Validity of a fresh detention order under Section 3 of the COFEPOSA Act after the original order was revoked under Section 8(f) of the COFEPOSA Act.

Issue-wise Detailed Analysis:

1. Validity of a Fresh Detention Order under Section 3 of the COFEPOSA Act after the Original Order was Revoked under Section 21 of the General Clauses Act:

The detenu in Criminal Writ Petition No. 26 of 1986 was initially detained under Section 3 of the COFEPOSA Act by the Government of Maharashtra. This order was revoked on 28th November 1985 under Section 21 of the General Clauses Act, and a fresh order was issued on the same day on the same grounds. The court had to determine whether the Government could issue a fresh detention order after revoking the original one under Section 21.

The court referred to a previous judgment where it was held that the revocation of a detention order by the State Government under Section 21 of the General Clauses Act was valid, even though the COFEPOSA Act stipulates that only the Central Government can revoke such orders. This interpretation was based on the argument that an order mentioning a wrong provision could still be valid if it could be supported by the correct provision of law.

Section 11(2) of the COFEPOSA Act states, "The revocation of a detention order shall not bar the making of another detention order under Section 3 against the same person." The court noted that this provision does not limit the powers of making a fresh order of detention based on the grounds of the original revocation. Therefore, prima facie, a fresh order of detention could be made regardless of whether the original revocation was under Section 11(1) of the COFEPOSA Act or Section 21 of the General Clauses Act.

However, the court considered the Supreme Court judgment in Ibrahim Bachu Bafan v. State of Gujarat, which held that the power of revocation under Section 11(2) is exercisable only in cases covered by Section 11(1). Since the revocation in this case was under Section 21 of the General Clauses Act, the court concluded that the fresh order of detention was not valid under Section 11(2) of the COFEPOSA Act.

2. Validity of a Fresh Detention Order under Section 3 of the COFEPOSA Act after the Original Order was Revoked under Section 8(f) of the COFEPOSA Act:

In Criminal Writ Petition No. 30 of 1986, the original detention order was revoked by the Government of Maharashtra under Section 8(f) of the COFEPOSA Act after the Advisory Board submitted its opinion. A fresh order of detention was subsequently issued. The court had to determine whether a fresh detention order could be passed after a revocation under Section 8(f).

Section 8(f) mandates that the government must revoke a detention order if the Advisory Board finds no sufficient cause for detention. The court held that a fresh order of detention cannot be issued in such cases unless there are new grounds for detention. This interpretation is consistent with Article 22(4) of the Constitution, which provides safeguards against preventive detention beyond three months unless approved by an Advisory Board.

The court rejected the argument that a fresh order could be issued based on the government's interpretation of the Advisory Board's report. Such an interpretation would undermine the constitutional safeguards and the confidentiality of the Advisory Board's report, making it impossible for the detenu to challenge the government's action.

Conclusion:

Both writ petitions were allowed, and the detenus were ordered to be released immediately. The court held that a fresh detention order under Section 3 of the COFEPOSA Act cannot be issued after the original order is revoked under Section 21 of the General Clauses Act or Section 8(f) of the COFEPOSA Act unless there are new grounds for detention.