Important Point
Consideration of report sent up by the State Government u/s 3(2) of COFEPOSA Act by a competent authority of Central Government is a statutory requirement in addition to the obligation imposed by Article 22(5) of the Constitution of India non compliance of which would vitiate continued detention.

Headnote:(i) COFEPOSA Act-Section 3 (2) - Preventive detention - Challenge to, on ground that report sent up by State Government u/s 3(2) not considered by competent authority - Joint Secretary (Revenue) considered report u/s 3(2)-Detenue’s plea that 1991 Notification empowering Joint Secretary (Revenue) Stood superseded by 1996 Notification under which Joint Secretary is not authorised to consider report u/s 3(2) and as such rights of detenue under Article 22(5) was violated-Not sustainable-1996 office order does not superseded 1991 Notification-Joint Secretary (Revenue) was competent to exercise powers of Central Government under Section 3(2) -Continued detention order not vitiated.
       Held : 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 the Income-tax Act. It may be noted here that ther eis no reference to Section 3(2) or, for that matter, any of the provisions of the COFEPOSA Act in this office order. But in so far as the COFEPOSA Act is concerned, the delegation of powers relates to disposal of files concerning representation from the detenues under COFEPOSA/PITNDPS addressed to the Government of India, i.e., representation under Section 11 and application for parole under Section 17 to the Secretary (Revenue). Omission of Section 3(2) in the notification/orders is not material as the report submitted by the State Government is for purposes of exercise of powers under Section 11 of the COFEPOSA Act. It may be noticed that the subject matter of the 1991 notification and the 1996 order is in effect the same. But it must be borne in mind that the 1996 order is not a statutory order whereas the 1991 notification is a statutory notification issued under Rule 2 of the Transaction of Business Rules. It is true that where a subsequent order does not specifically supersede an earlier order but if both the orders relate to the same subject and are issued in exercise of the same power, statutory or otherwise, notwithstanding absence of specific words superseding earlier orders in the subsequent order, it can be inferred that the earlier notification has been impliedly superseded. But where the earlier order is a statutory notification and the subsequent order is not a statutory notification/order but is merely an executive 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. (Para 9)
       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 supersession of all previous orders on the subject under which the Secretary in the Department of the Revenue, Ministry of Finance, is delegated the power to dispose of representations under Section 11 and the Secretary, Additional Secretary and Joint Secretary, COFEPOSA in the Ministry of Finance (Department of Revenue), have power to deal with the matter under sub-section (2) of Section 3, Section 5, sub-section (1) of Section 7 of the COFEPOSA Act. Inasmuch as the impugned order of detention was passed earlier to notification of 1998, it is of no consequence in this case. (Para 10)
       We cannot sustain the order of the High Court appealed from as we have held above that the Joint Secretary (Revenue) was competent to consider the report sent up by the State Government under Section 3(2) of the COFEPOSA Act. The order of the High Court dated 15th April, 1998 in Criminal Writ Petition No. 590 of 1997 is set aside. (Para 15)
       (ii) COFEPOSA Act-Section 3 (2) read with Section 11-Constitution of India-Article 22(5)-Preventive detention - Consideration of report u/s 3(2) sent up by State Government-Is not part of safeguards embodied under Article 22(5)-It is a statutory requirement in addition to obligation imposed by Article 22(5)-Non-compliance would vitiate continued detention.
       Held : The safeguards for the detenu embodied in clause (5) of Article 22 was two-fold. The authority making the order of detention shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. From this analysis of the clause, it appears to us that consideration of the report of the State Government by the Central Government is not part of the safeguards embodied under Article 22(5) of the Constitution. The Central Government’s power to revoke the order of detention under Section 11 may be either suo moto on consideration of report under Section 3(2) or on the representation made either by the detenu or any other person on his behalf against the order of detention. Consideration of report sent by the State Government under Section 3(2) of the COFEPOSA Act by the Central Government or a competente authority to whom that power is delegated is a statutory requirement which is in addition to the obligations imposed by Article 22(5) of the Constitution. Non-compliance of the statutory requirement, like abrogation of safeguards, would vitiate continued detention of a person ordered to be detained under the COFEPOSA Act. (Para 14)

Judgment

Quadri, J.-Leave granted

2. The short but question of some practical significance that arises in this appeal is whether consideration of the report of detention of the respondent under Section 3(1) sent by the State Government under Section 3(2) of the COFEPOSA Act by Joint Secretary (Revenue) to the Government of India renders his continued detention illegal?

3. The respondent is the detenu. While on his way to Lahore (Pakistan), he was intercepted at Indira Gandhi International Airport by Custom 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 Petition No. 590 of 1997 in the High Court of Delhi. On April 15, 1998, the High Court allowed the writ petition on the ground that the report sent by the State Government under Section 3(2) of the COFEPOSA Act was considered by the Joint Secretary (Revenue) who was not the competent authority under the notification issued by the Finance Minister in 1966; it was considered by the Secretary (Revenue) after six months along with the representation, therefore the safeguards provided under Article 22(5) of the Constitution had been violated. Against the said order of the High Court, the Union of India and other officials have come in appeal by special leave.

4. Mr. K.N. Rawal, learned Additional Solicitor General, contended that the High Court erred in setting aside the order of detention and directing release of the respondent on the ground that 1991 notification was superseded by 1996 order issued by the Finance Minister under which Secretary (Revenue) was the competent authority and that view was not accepted by the High Court of Madras in Rosana Begum v. State of Tamil Nadu & Ors.1.

5. Ms. Sangeeta Bhayana, learned counsel appearing for the detenu-respondent, submitted that by the 1991 notification, the Finance Minister had delegated his powers under the relevant provisions of the COFEPOSA Act to the Joint Secretary (Revenue) but in 1993 the said notification was superseded when the powers under the COFEPOSA Act were retained by the Finance Minister at the time of distribution of powers between him and the Minister of State for Finance; again, in 1996, he delegated him 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 Constition 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.2, and Ms. Li Galina & Ors. v. Union of India & Ors.3.

6. To examine the contentions of the learned counsel, we shall read the notification, referred to above. The 1991 notification is as follows:

“F.No. 685/14/84-Cus. VIII

Government of India

Ministry of Finance

(Department of Revenue)

In pursuance of the provisions of rule 3 of the Government of India (Transaction of Business) Rules, 1991, I, Yashwant Sinha, Minister in the Ministry of Finance, Government of India, hereby direct that the powers vested in the Central Government under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (52 of 1974), shall be exercised by the officers in the Ministry of Finance, (Department of Revenue), Government of India, as specified hereunder:-

Provision of the Act Officers

(a) Powers under Section Secretary or 5 sub-section (1) of Sp

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