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TMI Blog1986 (1) TMI 384X X X X Extracts X X X X X X X X Extracts X X X X ..... Board submitted its opinion to the Government, the Government revoked the order of detention by virtue of the duty cast upon it under S. 8(f) of the COFEPOSA Act. That order was passed on 28th of June, 1985. On 4th of November, 1985 a fresh order of detention has again been passed against the detenu in this writ petition. 3. In the first petition the question that arises is, where an order of detention has been passed by the Government of Maharashtra and where subsequently the same authority revokes the order of detention, whether a fresh order of detention can be passed against the same detenu on the same grounds. The question that arises in the second petition is whether after a detenu has been released pursuant to an order of revocation, which is passed under S. 8(f) of the COFEPOSA Act, the same authority can pass a fresh order of detention against the same detenu on the same grounds. Though the points arising in these two petitions are thus somewhat different, we have heard the Advocates for the petitioners and the Advocates for the respondents together because ultimately the interpretation of S. 11 of the COFEPOSA Act is involved in both the petitions. 4. Be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . (2) of S. 11 of the COFEPOSA Act does not say that a fresh order of detention can be passed in respect of certain classes of detenus in respect of whom revocation orders have been passed under any particular provision of law. Since there are no words of limitation in sub-sec. (2) of S. 11 itself, prima facie, we would have been inclined to take the view that a fresh order of detention can be passed against a particular person in respect of whom an order of revocation of the detention order has been passed either under S. 11 of the COFEPOSA Act or under S. 21 of the General Clauses Act. This, in fact, is the view which has been advanced for our acceptance by Mr. Gumaste appearing for the State of Maharashtra and Mr. Agarwal and Mr. Desai appearing for the Union of India before us. 6. However, Mr. Kotwal has invited our attention to a judgment of the Supreme Court in Ibrahim Bachu Bafan v. State of Gujarat, 1985CriLJ533 . The facts that can be culled out from that judgment show that the petitioners before the Supreme Court had been detained by orders of detention passed under the COFEPOSA Act but their orders of detention had been quashed by the Gujarat High Court. Subsequ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... et 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 been conferred on the named authorities . 8. Ultimately, the Supreme Court held that the quashing of an order of detention by a Court did not amount to the revocation of that order by any of the authorities and, therefore, under S. 11(2) of the COFEPOSA Act a fresh order of detention could not legitimately be passed. However, while subjecting the provisions of S. 11 of the Act to its scrutiny the Supreme Court has stated as follows :- The rule relating to interpretation of statutes is too well settled 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been used by the Supreme Court in para 7 and also, as we will show presently, in para 10 of its judgment is, in our opinion, indicative of the fact that the Supreme Court did express an opinion on the ambit and scope of sub-secs. (1) and (2) of S. 11 of the COFEPOSA Act. 11. We now turn to para 10 of the same judgment, which is in the following terms :- 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 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 .... 12. The fact that powers of revocation of an order of detention were provided for not only in sub-sec. (1) of S. 11 of the COFEPOSA Act but also in S. 21 of the General Clauses Act was naturally before the Supreme Court, and it has been noticed in para 6 of its judgment. Despite this if the Supreme Court proceeded to say that in conferring the power of making repeated orders, sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate Government is obliged to pass. There is no alternative to the revocation of the detention order. If the appropriate Government does not discharge its duty under S. 8(f), a further writ can be issued to it for discharging its duty. 15. Mr. Gumaste, however, says that in several cases the Advisory Board may express an opinion that no sufficient cause for the detention of the person concerned exists for various reasons and not necessarily always on merits. In such a case the appropriate Government should not be precluded from passing a fresh order of detention. It should be noted that there are certain provisions not only in the Constitution but also in the different laws of preventive detention for safeguarding the liberty of the citizens despite the fact that our Constitution permits preventive detention. But the tolerance accorded to the laws of preventive detention is strictly subject to the conditions imposed by the Constitution and by the law made for preventive detention permitted by the Constitution. Article 22(4) of the Constitution says : No law providing for preventive detention shall authorise the detention of a person for a longer period than three ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstitutional right of a citizen cannot be controlled by what a particular Advisory Board does in a particular case. The safeguard which has been provided to a citizen under Art. 22(4) of the Constitution and which safeguard has been incorporated in the different laws of preventive detention cannot be controlled or diluted by anything that might have been said in support of its opinion by an Advisory Board. 17. Mr. Gumaste sought to derive support for his argument firstly from the facts to be found in Ibrahim Ahmad v. State of Gujarat, [1983]1SCR540 . It is noticed that in Ibrahim Ahmad's case the Advisory Board had opined that although at the date when the detention order was passed there was sufficient cause for reaching the subjective satisfaction that it was absolutely necessary to detain the detenu under S. 3(1) of the Act, the subsequent failure on the part of detaining authority to supply the translations in Urdu of the grounds and documents relied upon was a clear violation of the constitutional mandate of Art. 22(5) so as to vitiate the order of detention and hence, in our view, there exists no sufficient cause for the continued detention of the said detenu . ..... X X X X Extracts X X X X X X X X Extracts X X X X
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