Holding

A detention order that is quashed by a court is not a revocation within the meaning of s.11(1) of COFEPOSA, and therefore the authority cannot rely on s.11(2) to issue a fresh detention order on the same grounds.

Summary

The petitioners were detained under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. While their detention orders were pending before the Gujarat High Court, the Court quashed the orders by exercising its extraordinary jurisdiction, but the same day fresh detention orders were issued on the same grounds. The High Court again set aside the fresh orders, after which the authorities issued yet another detention order. The petitioners challenged the latest orders before the Supreme Court, contending that a quashed order does not constitute a "revocation" under s.11(1) of the Act and therefore the power to make a new order under s.11(2) could not be exercised. The Court held that a judicial quashing is not a revocation within the statutory meaning, and consequently the authority could not issue a fresh detention order on the same grounds. The Court declared the August 20, 1984 orders invalid, held that subsequent declarations under s.9 were ineffective, and allowed the writ petitions, directing the release of the petitioners.

Issues considered

Whether a detention order quashed by a court amounts to a 'revocation' within the meaning of s.11(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974.
Whether the authority can invoke s.11(2) of the Act to make a fresh detention order after a court has quashed the earlier order.
Interpretation of the terms 'revoke' and 'revocation' in the statutory context.
Whether repeated detention orders on the same grounds are permissible under the constitutional safeguard of Article 22(5).

Legislation cited

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974s. 10, s. 11(1), s. 11(2), s. 3, s. 9
Constitution of Indias. Article 22(5), s. Article 226, s. Article 32
General Clauses Act, 1897s. 21

Subjects

preventive detentionrevocationCOFEPOSAArticle 22(5)judicial reviewwrit jurisdictionSection 11quashing of order

Judgment

891

IBRAHIM BACHU BAFAN & ANR. ETC. A

v.

STATE OF GUJARAT & ORS .

• February 11, 1985 B
[S. MURTAZA FAZAL AL!, A. VARADARAJAN AND
RANGANATH MISRA JJ,)

Constitution of India, 1950, Article 226-Detention order under COFE·
POSA quashed-Whether amounts to 'revocation'-Whether detaining authority
precludedfrom making a fresh order on ide•lfca/ groands under s. 11(2) of the c
Act.

Conservation of Foreign Exchange and Prerentlon of Smuggling Activities
Act, 1974, "· 11 (I) and 11 (2) andGenera/ClaustsAct, 1897, s. 2/.

Detention order-Quashed by High Court under Writ Jurlsdlction-
Subsequent order of detention made on the same grounds-Whether valid and D
legal-When Is an order of detention rrevoked'-Ejfect of 'declaration' issued
under s. 9.

Words cli Phrases
E
"R1voke" and r'Revocatlon''-Meanlng of-S. 11. COPEPOSA. Act,

The petitioners in the two separate writ petitions were detained
pursuant to orders made under s. 3 (1) of the Conservation or Foreign
Exchanae and Prevention of Smuggling Activities Act, 1974. The detention
orders were assailed in the High court. During the course of hearing of F
the writ petitions the detention orders were revoked but on the same day
fresh orders of detention were oassed and the petitioners were again detai-
ned. The petitioners assailed the second detention orders io the High
Court by fresh writ petitions. The High Court quashed the detention
orders holding that they were violative of Article 22(5) of the Constitution
and directed the release of the petitioners. Fresh detention orders were
passed on the same grounds and the petitioners were again detained.
G

In the writ petitions to this Court, it was contended on behalf of the
petitioners that the power conferred under s. 11(2) or the Act was not
available to be e:i1ercised when there has been no revocation under s. 11(1)
of the Act of a previous order of detention but has been quashed by the
High Court in exercise of its extraordinary jurisdiction. H
892 SUPREME COURT REPORTS (1985) 2 S.C.R.

A Allowing the Petitions,

HELD : 1. (i) Where an order of detention under the Con~er~
vation of Foreign Exchaoge and Prevention of Smuggling Activities Act,
1974 is quashed by a Court in exercis~ of extraordinary Jurisdiction, the
power of making a fresh order under sub-s. (2) of s. 11 is not available to
bo exorcised. [898 F]
B
(ii) The pronounced judicial view of this Court was that repeated
orders of detention are not to be made. Parliament while making provi-
sion io 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 limi-
ted situations. [898 E)
c
(iii) Clothing the prescribed authority to exercise power under s. 3
even io a situation where the Court has intervened to bring about nullifica-
tion of the order of detention would give rise to complicated situations.
[898 E] 'f ·~

D In the instant case, the orders of detention made on August 20, 1984 •
on the same grounds on which the previous orders had been made and
which had been quashed by the High Court are not tenable in law. Once
those orders are held to be invalid, the declarations made subsequently
under s. 9 could not be made and would have no effect. [898 F-G]

2. The law of preventive detention within the ambit of which the Act
is covered has been accepted by the Constitution. Challenge to legislations
of preventive detention as being ultra vires cbe Constitution has, therefore,
been repelled by this. Court on more than one occasion. The inbuilt safe-
guards provided by the different statutes dealing with preventive detention
have been accepted to be in keeping with the rule of law. There is judicial
consensus that under the preventive detention law, before the Act in ques.
tion came into the field, repeated orders of detention could not be made.
F This Court had clearly indicated that more than one order of detention on
the same grounds in succession would not be valid. Notwithstanding the
aforesaid legal position, s. 11(2) of the Act authorises making of "another
detention ordor undor s. (3)" against the same porson. [895 G-H]

3. Tho power conferred under els. (a) and (b) of sub-s. (!) of s. 11
is in fact exten6ion of the power recognised under s. 21 of the General
G Clauses Act~ the power is exercisable by the authority making the order, the
named authorities under els. (a) and (b) of s. 11 (I) of the Act are also
entitled to exercise the power of revocation When the High Court exerci-
ses jurisdiction under Article 226 of the Constitution it does not make an
order of revocation. By issuing a high prerogative writ like habeas corpus
or certiorari it quashes the order impugned before it and by declaring the
order to be void and striking .down the same it nullifies the order. The
ultimate effect of canceliation of an order by revocation and quashing of the
same in exercise of the high prc:rogative jurisdiction vested in the High Court
fl maybe the same but the manner in which the situation isobtained is patently
'· B. BAFAN v. GUJARAT (Ranganath, Misra, J.) 893

different and while ono process is covered bys. 11(1) of the Act, the other A
is not known to the statute and is exercised by an authority beyond the
purview of sub-s. (1) of s. 11 of the Ac(. It is therefore, clear that in a situ-
ation where the order of detention has been quashed by the High Court,
sub·s. (2) of s. 11 is not applicable and the detaining authority is not
entitled to make another order under s. 3 of the Act on the same grounds.
(897 G·H; 898 A-CJ
B
4. ~Revoke' is the verb and 'revocation' is its noun. These words
have no statutory definition and, therefore, would take the common·
sense meaning available for these words. The true meaning of the
verb 'revoke' and the noun 'revocation' seems to sigaify that revocation
is a process of recall of what had beea done. The word rrevoke' carries
with it ''the idea of cancellation by the same power which originally acted
and not to setting aside of an original order by higher forum of power or c
jurisdiction. It does not mean repudiation.". [897 C; F; G]

-. Black's Law Dictionary, Wharton's Law Lexican. The Shorter Oxford
English Dictionary, Webster's Third New International Dictionary and The
Corpus Juris Secundum, 1952 Edition, V 1. 77, referred to.
D
ORIGINAL JURISDICTION : Writ Petition (Cr!.) Nos. 1541 &
1542 of 1984.

(Under Article 32 of the Constitution of India)

Ram Jethamalani, Miss Kamini Jaiswal and J.B. Patel for the
petitioners. E

TU. Mehta, Mrs. H. Wahi and R.N. Poddar for the respon-
dents.

The Judgment of the Court was delivered by
F
R \NGANATH MISRA, J. In each of these apphcations under
Article of 32 the Constitution the petitioner therein challenges the
order of detention made against him under Conservation of Foreign
Exchange and Prevention of Smuggling Activities Act, 1974 (COFE·
POSA) (referred to as the 'Act' hereinafter). As the facts are more
or less the same and common contentions have been advanced, these
two applications are being disposed of by a common order. G

Petitioner in Writ Petition No. 1541/84 was detained with
effect from December 28, 1983, pursuant to an order made under
Section 3(1) of the Act on December 7, 1983. The detention was
assailed before the Gujarat High Court in a writ petition filed on
January 22, 1984. While the said application was being heard, the ff
894 Sut>kBMB COURT llQPOllTS (1985] 2 S.C.ll.
A order of detention was revoked on April 5, 1984,but on tbesame day
another order under s. 3(1) of the Act was made directing bis deten- ,,..·'
tion and he was detained pursuant to that order with effect from the
very day. The second order of detention was challenged by a new
writ petition before the High Court. A Division Bench of that
Court by order dated Augnst 8, 1984, quashed the same by holding
that the order of detention was violative of Article 22(5) of the
B Constitution and directed the petitioner to be set at liberty. On
Augnst 20, 1984, a fresh order was made detaining the petitioner
and with effect from the same day the petitioner was detained again.
On the date of detention the petitioner was served with documents
along with the grounds of detention. The writ . petition has been
filed in this Court challenging that order of detention.
c
So far as the petitioner in writ petition No. 1542/84 is
concerned, be was detained with effect from January 12, 1984,
pursuant to an order under s. 3 of the Act dated January 2, ·-
1984. That order of detention was assailed before the High Court
and in course of the bearing of the writ petition, the order of deten-
D tion was revoked on April 5, 1984. On the self-same day another
order of detention was passed and the petitioner was detained with
effect from that date. On April i 0, 1984, the petitioner assailed his
detention by filing a second writ petition. On August 8, 1984, the
High Court quashed that order of detention on simjlar grounds as in
the connected writ petition. On August 20, 1984, a fresh order of
E detention was made under which the petitioner bas been taken •
into custody. His writ petition assails that order of detention.

During the pendency of these writ petitions before this Court
the Act was amended by Central Act 58/84. The Amending Act
received assent of the President on Augnst 30, 1984 but became
F effective from July 31,1984. Section 9ofthe principalAct of 1974was
amended by s. 2 of this Act and the amended provision authorised
making of declaration by the Central Government or any officer of
the Central Government not below of the rank of Additional
Secretary to that Government on the basis of satisfaction that the
detenu- "(a) smuggles or is likely to smuggle goods into, out of or
G
through any area highly vulnorable to smuggling ; or (b) abets or is
likely to abet the smuggling of goods into, out of or through any
area highly vulnerable to smuggling ; or (c) engages or is likely to
engage in transporting or concealing or keeping smuggled goods in
any area highly vulnerable to smuggling." A declaration as contem-
H plated by the amended provision was made by the Additional
t. B. BAFAN v. GUiARAT (Ranganath Misra, J.) 895

Secretary to the Government of India in the Ministry of Finance A
(Department of Revenue) in respect of each of the petitioners on
September 18, 1984, and this declaration has been placed on record
along with an affidavit of the respondents. Under s. 10 of the Act
the maximum period of detention is one year where section 9 is not
invoked, but where a declaration is made, the maximum period is
extended up to two years. When rule was issued an affidavit in B
opposition has been filed justifying the order of detention and the
) petitioner has also filed a rejoinder.

Mr. Jethmalani appearing on behalf of the detenu in each of
these writ petitions advanced a number of contentions but ultimately
pressed one of them which m our opinion entitles each of the c
petitioners to succeed and the order of his detention to be quashed.

- . That contention is that the power conferred under s. 11(2) of the
Act is not available to be exercised where there has been no revoca-
tion under s. 11(1) of the Act of a previous order of detention
but has been quashed by the High Court in exercise of its extraordi- D
nary jurisdiction. In order to have a full comprehension of the
point advanced by counsel it is necessary to refer to s. I I of the Act.
Section 11 of the Act provides: "(!) Without prejudice to the
provisions of s. 21 of the General Clauses Act, 1897, a detention
order may at any time be revoked or modified-(a) notwithstanding
that the order has been made by an officer of a State Government E
by that State Government or by the Central Government; (b) not-
withstanding that the order has been made by an officer of the
Central Government or by a State Government, by the Central
Government ; (2) The revocation of a detention order shall not bar
the making of another detention order under s. 3 against the same
person.'' F

Law of preventive detention within the ambit of which the Act
is covered has accepted by our Constitution. Challenge to legisla-
tions of preventive detention as being ultra vlres the Constition has,
therefore, been repelled by this Court on more than one occasion.
The inbuilt safeguards provided by the different statutes dealing G
with preventive detention have been accepted to be in keeping with
the rule oflaw. There is Judicial consensus that under the preven-
tive detention law, before the Act in question came into the field,
repeated orders of detention could not be made. This Court had
clearly indicated that more than one order of detention on the same
grounds in successions would not be valid. Notwithstanding the
aforesaid legal position, s. 11(2) of the Act authorises making of
H
SuPREME COURT REPORTS (!985) 2 S.C.R.

A "another detention order under s. 3 against the same person."
Counsel for both the parties have agreed that all the three orders of
detention made in these cases were on the same grounds. Mr. Mehta
for the respondents has fairly conceded that as the law declared by
this Court stood and but for the enabling provisions in s. 11(2) of
the Act, the impugned orders would not stand a moment's scrutiny.
B
Mr. Jethmalani does not intend to dispute the vires of sub·s.
(2) of s. 11 in these writ petitions but has contended that the ambit
and scope of sub-s. (2) of s. 11 extends to orders of revocation
covered by sub·s. (l). Otherwise stated, in situations not covered
by snb-s. (I) an order under sub-s. (2) cannot be made. The
c heading of s. II is "Revocation of Detention Orders". Sub-s. (!)
authorises revocation by two authorities, namely, -(a) if the order
has been made by an officer of a State Government, the State
Government or the Central Government may revoke the order ; and
(b) if the order has been made by an officer of the Central Govern-
D ment or by a State Government, revocation is permissible by the
Central Government. Sub-section (I) of s. II indicates that the
power conferred under it in the situations envisaged in clauses (a)
and (b) is exercisable without prejudice to the provisions of s. 21 of
the General Clauses Act. That section provides that a power to
issue orders includes a power exercisable in the like manner and
E subject to the like sanction and conditions, if any, to add, to amend
vary or rescind such orders. Under s. 21 of the General Clauses Act, •
therefore, the authority making an order of detention would be
entitled to revoke that order by rescinding it. We agree with the
submission of Mr. Jethmalani that the words "without prejudice to
the provisions of s.21 of the General Clauses Act 1897 'used in s.
11(1) of the Act give expres>ion to the legislative intention that
F
without affecting that right which the authority making the order
enjoys under s. 21 of the General Clauses Act, an order of deten-
tion is also available to be revoked or modified by authorities named
in clauses (al and (b) ofl. 11(1) of the Act. Power conferred under
clauses (a) and (b) ofs. 11(1} of the Act could not be exercised by
the named authorties under s. 21 of the General Clauses Act as
G these authorities on whom such power has been conferred under
the Act are different from those who made the orders. Therefore,
conferment of such power was necessary as Parliament rightly found
that s. 2 l of the General Clauses Act was not adequate to meet 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
H been conferred on the named authorities.
I. B. BAFAN" GUJAl<AT (Ranganath Misra, J.) 897

The rule relating to interpretation of statutes is too well settled A
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. 1his 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 n
same situations as provided in sub-s. (t) of s. 11 of the Act. This
l would necessarily mean that the power under sub-s. (2) would be
exercisable in cases covered by sub-s. (!).
This leads us to exmine the tenability of the submission of Mr.
Jethmalani as to the true meaning of the word 'revocation'. 'Revoke' c
is the verb and 'revocation' is its noun. These words have no st<.tu-

.. tory definition and, therefore, would take the commonsense meaning
available for these words. Black's Law Dictionary gives the mean-
ing of the word 'revoke' to be "the recall of some authority or thing
granted or a destroying or making void of some deed that had
existence until the act of revocation made it void." Wharton's Law D
Lexi can gives the meaning to be ''the undoing of a thing granted or
a destroying or making void of some deed that had existence until
the act of revocation made it void." The Shorter Oxford English
Dictionary gives the meaning of the word 'revocation' to be "the
action of recalling ; recall of persons ; a call or summons to
return; the action of rescinding or annulling, withdrawing ......... " E
The meaning of the word 'revoke' has been given as "to
recall, bring back, to restore, to retract, to withdraw, recant, to
take back to one.self." The true meaning of the verb 'revoke' and
its noun, therefore, seem to signify that revocation is a process of
recall of what had been done. According, to the Webster's Third
F
New International Dictionary, the word means- "an act of recalling
or calling back, the act by which one having the right annuls some-
thing previously done." According to the Corpus Juris Secudum,
1952 Edition, Vol. 77, the word 'revoke' carries with it "the idea of
cancellation by the same power which originally acted and not to
setting aside of an original order by higher forum of power or G
jurisdiction. It does not mean repudiation."
The power conferred under clauses (a) and (b) of sub-s. (!)of
s. 1l is in fact extension of the power recognised under s. 21 of the
General Clauses Act and while under the General Clauses Act, the
• power is exercisable by the authority making the order, the named
authorities under clauses (a) and (b) of s. 1!(I) of the Act are also
entitled to exercise the power of revocation. When the High Court
ff
898 SUPREMB COURT REPORTS (1985) 2 s.c.R.

A exercises jurisdiction under Article 226 of the Constitution it does
not make an order of revocation. By issuing a high prerogative writ
like habeas corpus or certiorari it quashes the order impugned
before it and by declaring the order to be void and striking down
the same it nullifies the order. The ultimate effect of cancel-
lation of an order by revocation and quashing of the same in
B exercise of the high prerogative jurisdiction vested in the High Court
may be the same but the manner in which the situation is obtained
is patently different and while one process is covered bys. 11(1) of
the Act, the other is not known to the statute and is exercised by an
authority beyond the purview of sub-section <I) of s. 11 of the Act.
It is, therefore, our clear opinion that in a situation where the order
c of detention has been quashed by the High Court, sub-s. (2) of 11 is
not applicable and the detaining authority is not entitled to make
another order under s. 3 of the Act on the same grounds. .. .
We are of the view that this seems to be the legislative scheme.
The pronounced judicial view of this Court was that repeated orders
D 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, safe-
guards have been provided under sub-s. (1) by confining the exercise
of power to limited situations. Clothing the prescribed authority to
exercise power under s. 3 even in a situation where the Court has
E
intervened to bring about nullification of the order of detention
would give rise to complicated situations and keeping the scheme of
the section in view we are of the clear opinion that where an order
is quashed by a Court in exercise of extraordinary jurisdiction, the
powe1 of making a fresh order under sub-section (2) of s. 11 is not
F available to be exercised.
In view of this conclusion of ours, the orders made on August
20, 1984, on the same grounds on which the previous order of deten-
tion had been made and which had been quashed by the High Court
are not tenable in law. Once those orders are held to be invalid,
the declarations made subsequently under s. 9 of the Act could not
be made and would have no effect. Leaving all other questions
G
mooted in the writ petitions and partly argued before us by Mr.
Jethmalani open for examination in suitable cases, we allow these
writ petitions on the rationale of our conclusion indicated above.
The petitioner in each of these cases is directed to be set at liberty
•
H forwith.

/\.P.J. Petition al/owed