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TMI Blog1999 (2) TMI 732X X X X Extracts X X X X X X X X Extracts X X X X ..... cretary (Revenue) to the Government of India renders his continued detention illegal? 3 The respondent is the detenu. While on his way to Lohore (Pakistan), he was intercepted at Indira Gandhi International Airport by Customs authorities who, on search, found foreign currency equivalent to Indian Rs. 58,33,898.75p. and other articles such as textiles, artificial jewellery, etc. He was detained pursuant to an order made under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short, 'COFEPOSA Act') by the Lt. Governor of National Capital Territory of Delhi with a view to prevent him from smuggling of goods, etc. The detention of the respondent was challenged in Criminal Writ Pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Minister at the time of distribution of powers between him and the Minister of State for Finance; again, in 1996, he delegated his powers in favour of Secretary (Revenue). Therefore, consideration of the report under Section 3(2) of the COFEPOSA Act by the Joint Secretary was illegal and as there has been no consideration by the competent authority, the rights of the detenu under Article 22(5) of the Constitution were violated. She relied on two judgments of the High Court of Delhi in D. Rana @ Dharmesh Rana @ Dharmesh Prill v. Union of India Ors. [Criminal Writ Petition No. 17 of 1997 dated 15th September, 1997] and Ms. Li Galina Ors. v. Union of India Ors. [1998 (1) JCC 6 (Delhi)]. 6. To examine the contentions of the learned counsel, we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... avour of officers noted in Column (2). It may be noted that Section 3(2) is not mentioned in Column (1) of the said notification. 8. The office order of 20th January, 1993 (hereinafter referred to as the 1993 order ), relevant portion of which are reproduced hereunder, shows that it does not deal with delegation of powers of the Central Government under the COFEPOSA Act No. A-22012/2/93-Admn. 1 Government of India/Bharat Sarkar Ministry of Finance/Vitta Mantralaya Department of Expenditure/Vyaya Vibhag New Delhi, the 20th January, 1993 OFFICE ORDER Subject : - Allocation of work to Ministers. Finance Minister has decided that the Ministers of State in the Ministry of Finance will be allocated the following items of work: 1 MINISTER OF STATE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Section 36(i) (VIII) of the Income-tax Act (Except those cases where this concession is being granted for the first time or when extension is being rejected). (iv) All cases of concessions under Section 10(15)(A) of Income-tax Act where airlines are being given exemption from deduction of tax at source on lease rents being paid for hiring of aircraft. (N.M. Mookerjee) Additional Secretary to the Government. of India 11. From a plain reading of the 1996 order, extracted above, it appears that it relates to delegation of powers under the COFEPOSA Act among other Acts. Under this order, the Finance Minister delegated powers to the Secretary (Revenue) to dispose of files relating to COFEPOSA/PITNDPS and files relating to some provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tive order such an inference cannot be drawn as a non-statutory order cannot replace a statutory notification even if it purports to do so specifically though a statutory notification can substitute a non-statutory notification/order. We are, therefore, unable to hold that the 1996 order supersedes the 1991 notification. It thus follows that the Joint Secretary in the Ministry of Finance (Department of Revenue), Government of India was competent to exercise the powers of the Central Government under various provisions mentioned in the notification, including Section 3(2) of the COFEPOSA Act. 12. It is brought to our notice that on April 22, 1998, the Finance Minister has issued statutory notification under Rule 3 of the Business Rules in su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 order. In that view of the matter, it held that the consideration by the Joint Secretary was proper. 15. In the light of the above discussion, we find it difficult to endorse the view of the Delhi High Court and for the reasons, we approve the judgment of the Madras High Court in Rosana Begum's case (supra). 16. It may be pointed out that in these cases the question was one of consideration of representation of the detenu under Section 11 of the COFEPOSA Act. But in the instant case, the question is not one of consideration of representation but non-consideration of the report of the State Government submitted under Section 3(2) of the COFEPOSA Act by the competent authority which was held by the High Court as vilation of Article 22(5 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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