SECRETARY TO GOVERNMENT OF TAMIL NADU PUBLIC (LAW AND ORDER) REVENUE DEPARTMENT & ANR. versus KAMALA & ANR. on 10 April 2018

854

SUPREME COURT REPORTS

[2018] 3 S.C.R.

ASECRETARY TO GOVERNMENT OF TAMIL NADU PUBLIC(LAW AND ORDER) REVENUE DEPARTMENT & ANR.

v.

KAMALA & ANR.

(Criminal Appeal No. 507 of 2018)

B

APRIL 10, 2018

[DIPAK MISRA CJI, A. M. KHANWILKAR ANDDR. D. Y. CHANDRACHUD, JJ.]

Conservation of Foreign Exchange and Prevention ofCSmuggling Activities Act ,1974 – s.3(1)(ii) – Detention order – Periodof detention not specified in detention order – Non-specificationwould not vitiate detention order.

Disposing of the appeal, the Court

HELD: The High Court was not justified in quashing theDorder of detention on the basis that no period of detention wasprovided in the order. The High Court has proceeded on thebasis of the decision of this Court in Bhiryani which is no longergood law in view of the subsequent decision of a larger Bench inDevaki. The decision of the High Court in Santhi, to the extentEthat it adopts the same position as in Bhiryani, will not reflect thecorrect legal position. [Para 5][856-G]

Commissioner of Police v. Gurbux Anandram Bhiryani(1988) Supp SCC 568 – Not correct law.

S Santhi v. The Secretary to Government, Home,FProhibition and Excise Department, Secretariat,Chennai 2010 (3) MWN (Cr.) 42 (DB) – Partlydisapproved.

T Devaki v. Government of Tamil Nadu (1990) 2 SCC456 – relied on.

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Case Law Reference

(1988) Supp SCC 568

not correct lawPara 1relied onPara 4

(1990) 2 SCC 456

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SECY. TO GOVT. OF T.N. PUBLIC (LAW AND ORDER)REVENUE DEPT. v. KAMALA [DR. D. Y. CHANDRACHUD, J.]

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.507 of 2018.

From the Judgment and Order dated 24.02.2016 of the High Courtof Judicature at Madras in HCP No. 2442 of 2015.

Mrs. Sujatha Bagadhi, M. Yogesh Kanna, Advs. for the Appellants.

T. Harish Kumar, Navneet Dugar, Advs. for the Respondents.

The Judgment of the Court was delivered by DR. D. Y. CHANDRACHUD, J. 1. The High Court has setaside an order of detention issued under Section 3(1)(ii) of theConservation of Foreign Exchange and Prevention of SmugglingActivities Act 1974[1] on the ground that the period of detention was notspecified. In arriving at this conclusion, the High Court has relied upon adecision of this Court in Commissioner of Police v Gurbux AnandramBhiryani[2],and on a judgment of the High Court in S Santhiv TheSecretary to Government, Home, Prohibition and ExciseDepartment, Secretariat, Chennai[3].

2. The Government of Tamil Nadu is in appeal.

3. The submission which has been urged is that though the periodof detention has come to an end, it is necessary for the Court to correctthe statement of legal position contained in the decision of the HighCourt. Learned counsel has drawn the attention of the Court to the factthat the earlier decision of a Bench of two judges in Bhiryani(supra)wasoverruled by a Bench of three judges in T Devaki vGovernment of Tamil Nadu[4].

4. In T Devaki v Government of Tamil Nadu, a Bench of thisCourt has held that since the legislation does not require the detainingauthority to specify the period for which a detenue is required to bedetained, the order of detention is not rendered invalid or illegal in theabsence of such specification.This Court held thus:

“13. This Court has consistently taken the view that an order ofdetention is not rendered illegal merely because it does not specifythe period of detention. A Constitution Bench of this Court1The COFEPOSA Act 197421988 (Supp) SCC 5683 2010 (3) MWN (Cr.) 42 (DB)4 (1990) 2 SCC 456

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856SUPREME COURT REPORTS

Ain Ujagar Singh v. State of Punjab [(1952) 3 SCR 756: AIR1952 SC 350: 1953 Cri LJ 146] , while considering validity ofdetention order made under Section 3 of the Preventive DetentionAct, 1950 held that non-specification of any definite period in adetention order made under Section 3 of the Act was not a materialomission rendering the order invalid. In Suna Ullah Butt v. StateBof Jammu & Kashmir [(1973) 3 SCC 60: 1973 SCC (Cri) 138:(1973) 1 SCR 870] , validity of detention order made under Jammuand Kashmir Preventive Detention Act, 1964 was under challengeon the ground that the State Government while confirming thedetention order under Section 12 of the Act had failed to specifyCthe period of detention. The court held that since the StateGovernment had power to revoke or modify the detention orderat any time before the completion of the maximum periodprescribed under the Act, it was not necessary for the StateGovernment to specify the period of detention. In SureshBhojrajChelani v. State of Maharashtra [(1983) 1 SCC 382:D1983 SCC (Cri) 202] , while considering the validity of the detentionorder made under Section 3(1) of the Conservation of ForeignExchange and Prevention of Smuggling Activities Act, 1974 thisCourt rejected similar submission made on behalf of the detenuthat order of detention was vitiated as the government had failedEto mention the period of detention while confirming the order ofdetention. The court held that the COFEPOSA Act did not requirethe detaining authority to mention the period of detention in theorder of detention. When no period is mentioned in an order, theimplication is that the detention is for the maximum periodprescribed under the Act.”(Id at page 464)F

The decision in Bhiryani’scasehas been overruled.

5. In the circumstances, the High Court was not justified in quashingthe order of detention on the basis that no period of detention was providedin the order. The High Court has proceeded on the basis of the decisionGof this Court in Bhiryaniwhich is no longer good law in view of thesubsequent decision of a larger Bench in Devaki. The decision of theHigh Court in Santhi,to the extent that it adopts the same position as inBhiryani, will not reflect the correct legal position.

6. Accordingly, the impugned judgment of the High Court ofHJudicature at Madras dated 24 February 2016 in H.C.P. No. 2442/2015

SECY. TO GOVT. OF T.N. PUBLIC (LAW AND ORDER)REVENUE DEPT. v. KAMALA [DR. D. Y. CHANDRACHUD, J.]

is set aside. As a consequence, the detention order dated 31 August2015 bearing G.O. No. SR.1/63-5/2015 Public (SC) Department shallstand revived. However, since the period of detention has come to anend, nothing further remains except for this Court to clarify the truelegal position as we have done in the above terms.

7. The criminal appeal is accordingly disposed of.

Devika Gujral

Appeal disposed of.

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