High CourtDivision Bench2018-04-10Appeal disposed of; detention order revived; hi...

Secretary to Government of Tamil Nadu Public (Law and Order) Revenue Department & Anr. v. Kamala & Anr.

Case / Petition Number:Criminal Appeal No. A 507 of 2018

Case Details & Bench

Court: High Court
Hon'ble Judges: Dipak Misra
A. M. Khanwilkar
D. Y. Chandrachud
Judgment Date: 2018-04-10
Court Decision / Holding: The High Court’s order quashing the detention under COFEPOSA is set aside; the detention order dated 31 August 2015 shall stand revived. The criminal appeal is disposed of, and the true legal position regarding non-specification of detention period is clarified.
Final Disposition: Appeal disposed of; detention order revived; high court quashment reversed; CoFeposa detention upheld to the extent of revival of order.

Parties to the Case

Appellants / Petitioners

Secretary to Government of Tamil Nadu Public (Law and Order) Revenue Department & Anr.

Respondents

Kamala
Anr.

Legal Representation & Advocates

Counsels for Petitioners

• Mrs. Sujatha Bagadhi
• M. Yogesh Kanna

Counsels for Respondents

• T. Harish Kumar
• Navneet Dugar

Case Synopsis & Summary

This is an appeal by the Government of Tamil Nadu under COFEPOSA challenging a Madras High Court order that quashed a detention under Section 3(1)(ii) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 on the ground that the order did not specify a period of detention. The Court explains that Bhiryani (1988) was overruled by Devaki (1990) and that Santhi (2010) is not to be read as supporting Bhiryani’s position in its entirety. Devaki held that the COFEPOSA detention order is not rendered illegal merely because the period of detention is not stated; the detaining authority is not required to fix a specific period, since the maximum period under the Act governs the detention. The judgment traces earlier decisions (Ujagar Singh; Suna Ullah Butt; Suresh Bhojraj Chelani) to show a consistent line that non-specification does not invalidate detention. The Court notes that Bhiryani’s view is not good law and that Santhi’s stance is only partially disapproved. Consequently, the High Court’s quashing is set aside; the detention order dated 31 August 2015 (G.O. No. SR.1/63-5/2015) is revived, even though the period may have lapsed, and the criminal appeal is disposed of with the true legal position clarified. The overall outcome is a restoration of the detention order and a reaffirmation of the permissible scope of COFEPOSA detentions administered by the detaining authorities.

Provisions of Law Cited

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 – Section 3(1)(ii)Jammu and Kashmir Preventive Detention Act, 1964 – Section 12Preventive Detention Act, 1950 – Section 3

Legal Doctrines & Maxims

Non-specification of the detention period does not render a detention order illegal; maximum period under the Act governs.
Bhiryani (1988) Supp SCC 568 overruled by Devaki (1990) (larger Bench).
Detention orders under COFEPOSA do not require a specified period to be valid; non-specification is not fatal; detaining authority can revoke or modify before maximum period.
Standard precedent exists that earlier two-judge decisions may be overruled by a larger bench to reflect correct law.

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellants argued that the detention under COFEPOSA does not require the detaining authority to specify a period of detention and that Devaki’s larger-bench pronouncement correctly reflects the law; Bhiryani’s contrary view should no longer govern, and Santhi’s decision does not invalidate the settled position. The High Court’s quashing based on absence of period is thus incorrect and should be reversed.

Contentions of Respondents

The respondents contended that the detention order was defective for not specifying the period, and Bhiryani remained a valid precedent unless overruled by a higher bench; the High Court correctly quashed the order for lack of a stated period.

Cited Precedents (6)

Case Name	Citation	Treatment	Explanation
Commissioner of Police v. Gurbux Anandram Bhiryani	1988 (Supp) SCC 568	Overruled	Bhiryani’s decision was overruled by the larger Bench in Devaki; the Court holds Bhiryani is no longer good law.
S Santhi v. The Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai	2010 (3) MWN (Cr.) 42 (DB)	Partly Overruled / Limited	Santhi is disapproved to the extent it adopts Bhiryani’s position; the stance is not reflective of the correct law in its entirety.
Devaki v. Government of Tamil Nadu	(1990) 2 SCC 456	Positive	Devaki supports the proposition that lack of period specification does not invalidate a COFEPOSA detention order.
Ujagar Singh v. State of Punjab	(1952) 3 SCR 756	Positive	Cited as authority that non-specification of a definite period may not invalidate detention in preventive detention contexts.
Suna Ullah Butt v. State of Jammu & Kashmir	(1973) 3 SCC 60	Positive	Cited for the principle that detention validity is not contingent on a fixed period in certain regimes.
Suresh Bhojraj Chelani v. State of Maharashtra	(1983) 1 SCC 382	Positive	Support for the view that COFEPOSA does not require explicit mention of detention period.

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Extracted Judgment Text

Exact text extracted from official judgment records.

854 SUPREME COURT REPORTS[2018] 3 S.C.R. 854 [2018] 3 S.C.R. - A SECRETARY TO GOVERNMENT OF TAMIL NADU PUBLIC (LAW AND ORDER) REVENUE DEPARTMENT & ANR. v. ## KAMALA & ANR. B (Criminal Appeal No. 507 of 2018) ## APRIL 10, 2018 ## **[DIPAK MISRA CJI, A. M. KHANWILKAR AND DR. D. Y. CHANDRACHUD, JJ.]** _Conservation of Foreign Exchange and Prevention of_ C _Smuggling Activities Act ,1974 – s.3(1)(ii) – Detention order – Period of detention not specified in detention order – Non-specification would not vitiate detention order._ ## **Disposing of the appeal, the Court** - **HELD: The High Court was not justified in quashing the** - D **order of detention on the basis that no period of detention was provided in the order. The High Court has proceeded on the basis of the decision of this Court in** _**Bhiryani**_ **which is no longer good law in view of the subsequent decision of a larger Bench in** _**Devaki**_ **. The decision of the High Court in Santhi, to the extent** - E **that it adopts the same position as in** _**Bhiryani**_ **, will not reflect the correct 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,_ F _Prohibition and Excise Department, Secretariat, Chennai_ **2010 (3) MWN (Cr.) 42 (DB) – Partly disapproved.** _T Devaki v. Government of Tamil Nadu_ **(1990) 2 SCC 456 – relied on.** G ## **Case Law Reference** |**(1988)**|**Supp SCC 568**|**not correct law**|**Para 1**| |---|---|---|---| |**(1990)**|**2 SCC 456**|**relied on**|**Para 4**| H 854 SECY. TO GOVT. OF T.N. PUBLIC (LAW AND ORDER) REVENUE DEPT. v. KAMALA [DR. D. Y. CHANDRACHUD, J.] 855 CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. A 507 of 2018. From the Judgment and Order dated 24.02.2016 of the High Court of Judicature at Madras in HCP No. 2442 of 2015. Mrs. Sujatha Bagadhi, M. Yogesh Kanna, Advs. for the Appellants. B 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 set aside an order of detention issued under Section 3(1)(ii) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974[1] on the ground that the period of detention was not specified. In arriving at this conclusion, the High Court has relied upon a decision of this Court in **Commissioner of Police** v **Gurbux Anandram Bhiryani**[2] ,and on a judgment of the High Court in **S Santhi** v **The Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai**[3] . C D 2. The Government of Tamil Nadu is in appeal. 3. The submission which has been urged is that though the period of detention has come to an end, it is necessary for the Court to correct the statement of legal position contained in the decision of the High Court. Learned counsel has drawn the attention of the Court to the fact that the earlier decision of a Bench of two judges in **Bhiryani (supra)** wasoverruled by a Bench of three judges in **T Devaki** v **Government of Tamil Nadu**[4] . 4. In **T Devaki** v **Government of Tamil Nadu** , a Bench of this Court has held that since the legislation does not require the detaining authority to specify the period for which a detenue is required to be detained, the order of detention is not rendered invalid or illegal in the absence of such specification.This Court held thus: “13. This Court has consistently taken the view that an order of detention is not rendered illegal merely because it does not specify the period of detention. A Constitution Bench of this Court E F G 1The COFEPOSA Act 1974 21988 (Supp) SCC 568 3 2010 (3) MWN (Cr.) 42 (DB) 4 (1990) 2 SCC 456 H 856 SUPREME COURT REPORTS [2018] 3 S.C.R. - A in _Ujagar Singh_ v. _State of Punjab_ [(1952) 3 SCR 756: AIR 1952 SC 350: 1953 Cri LJ 146] , while considering validity of detention order made under Section 3 of the Preventive Detention Act, 1950 held that non-specification of any definite period in a detention order made under Section 3 of the Act was not a material omission rendering the order invalid. In _Suna Ullah Butt_ v. _State_ - B _of Jammu & Kashmir_ [(1973) 3 SCC 60: 1973 SCC (Cri) 138: (1973) 1 SCR 870] , validity of detention order made under Jammu and Kashmir Preventive Detention Act, 1964 was under challenge on the ground that the State Government while confirming the detention order under Section 12 of the Act had failed to specify - C the period of detention. The court held that since the State Government had power to revoke or modify the detention order at any time before the completion of the maximum period prescribed under the Act, it was not necessary for the State Government to specify the period of detention. In _Suresh BhojrajChelani_ v. _State of Maharashtra_ [(1983) 1 SCC 382: - D 1983 SCC (Cri) 202] , while considering the validity of the detention order made under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 this Court rejected similar submission made on behalf of the detenu that order of detention was vitiated as the government had failed - E to mention the period of detention while confirming the order of detention. The court held that the COFEPOSA Act did not require the detaining authority to mention the period of detention in the order of detention. When no period is mentioned in an order, the implication is that the detention is for the maximum period prescribed under the Act.”(Id at page 464) - F The decision in **Bhiryani’s** casehas been overruled. 5. In the circumstances, the High Court was not justified in quashing the order of detention on the basis that no period of detention was provided in the order. The High Court has proceeded on the basis of the decision G of this Court in **Bhiryani** which is no longer good law in view of the subsequent decision of a larger Bench in **Devaki** . The decision of the High Court in **Santhi** ,to the extent that it adopts the same position as in **Bhiryani** , will not reflect the correct legal position. 6. Accordingly, the impugned judgment of the High Court of H Judicature 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.] 857 is set aside. As a consequence, the detention order dated 31 August A 2015 bearing G.O. No. SR.1/63-5/2015 Public (SC) Department shall stand revived. However, since the period of detention has come to an end, nothing further remains except for this Court to clarify the true legal position as we have done in the above terms. 7. The criminal appeal is accordingly disposed of. B Devika Gujral Appeal disposed of. C D E F G H