Holding

A non‑statutory order cannot supersede a statutory notification; therefore the 1991 notification remained in force, the Joint Secretary was a competent authority, and failure to consider the report under Section 3(2) would vitiate the detention.

Summary

Diueet Singh was detained under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA) after customs seized a large amount of foreign currency. The State Government sent a report under Section 3(2) to the Central Government, which was considered by the Joint Secretary (Revenue) six months later. The Delhi High Court held that the Joint Secretary was not the competent authority because a 1996 office order allegedly superseded the 1991 statutory notification delegating powers, thereby violating the safeguards of Article 22(5) of the Constitution. On appeal, the Supreme Court examined whether the 1996 non‑statutory order could override the 1991 statutory notification and whether consideration of the report under Section 3(2) is a statutory requirement separate from Article 22(5). The Court held that a non‑statutory order cannot supersede a statutory notification; the 1991 notification remained effective, making the Joint Secretary a competent authority. It further held that consideration of the report is a statutory requirement in addition to Article 22(5) safeguards, and non‑compliance would vitiate detention. Consequently, the High Court’s order was set aside and the appeal was allowed.

Issues considered

The 1996 office order is a non‑statutory executive order; can it supersede the 1991 statutory notification delegating powers under COFEPOSA?
Whether the Joint Secretary (Revenue) was the competent authority to consider the State Government's report under Section 3(2) of COFEPOSA.
Whether consideration of the report under Section 3(2) forms part of the safeguards under Article 22(5) of the Constitution, and the effect of non‑compliance on the legality of detention.

Legislation cited

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974s. 10, s. 11, s. 12, s. 17, s. 3(1), s. 3(2), s. 5, s. 7, s. 8
Constitution of Indias. Article 22(5)

Subjects

preventive detentionCOFEPOSAstatutory notificationnon‑statutory orderArticle 22(5)delegation of powersadministrative law

Judgment

UNION OF INDIA AND ORS. A
v.
DIUEET SINGH AND ANR.

FEBRUARY 23, 1999

[K.T. THOMAS AND S.S.M. QUADRI, JJ.) B

Criminal Law :

Conservation of Foreign &change and Prevention of Smuggling Ac-
tivities Act, 1974: Sections 3(2) and II.
c
Preventive Detention-State Government's report under S. 3(2)-Con-
sideration of-Competent authority for-Held: Joint Secretary (Revenue) is
competent to consider such report under statutory Notification No.
685/141184-Cus VIII dated 26.4.1991-Subsequent non-statutory executive
order dated 25.7.1996 cannot supersede the earlier 1991 statutory notifica- D
tion-Transaction of Business Rules, 1991, R. 3-Government of India,
Ministry of Finance (Department of Revenue) Notification No. 685/14/184-
Cus dated 26.4.1991.

State Government's report-Consideration of-By Central Government
or a competent authorit)-Held : Not part of the safeguards embodied under E
Art. 22(5)---/t is a statutory requirement, which is in addition to the obligation
under Art. 22(5)-Non-cpmpliance of the statutory requirement would vitiate
the continued detention of a person detained under the Act-Constitution of
India, 1950, Art. 22(5).

Administrative Law,: F
/

Subordinate legislation-Statutory notification-Status of-Held :
/

Statutory notification cannot be superseded by non- statutory executive
order-However, statutory notification can supersede a non-statutory notifica-
tion/order.
G
The respondent was detained under Section 3(2) of the Conservation
.~· ....,. of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. The
High Court allowed the writ petition challenging the aforesaid detention
order on the grounds that the report sent up by the State Government
under Section 3(2) of the COFEPOSA Act was considered by the Joint· H
831
832 SUPREME COURT REPORTS [1999] 1 S.C.R.
A Secretary (Revenue) who was not the competent authority under the . .A,
Central Government notification dated 25. 7.1996 which superseded the
earlier Central Government notification No. 685/14/84-Cus. VIII dated
26.4.1991; that it was considered by the Secretary (Revenue) after six
months along with the representation and, therefore, the 'safeguards
B proYided under Article 22(5) of the Constitution had been violated.

Allowing the appeal, this Court

HELD : 1. The order dated 25.7.1996 is not a statutory order whereas
>-
, .
the notification No. 685/14/84-Cus. VIII dated 26.4.1991 is a statutory
C notification issued under Rule 3 of the Transaction of Business Rules,
1991. It is true that where a subsequent order does not specifically super-
sede 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, not-
withstanding absence of specific words superseding earlier orders in the
subsequent order, it can be inferred that the earlier notification has been
D impliedly superseded. But where the earlier order is a statutory notifica-
tion 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
E non-statutory notification/order. Therefore, it cannot be said that the 1996
order supersedes the 1991 notification. It thus follows that the Joint
Secretary in the Ministry of Finance (Department of Revenue), Govern-
ment of India was competent to exercise the powers of the Central Govern-
ment under various provisions of the Conservation of Foreign Exchange
and Prevention of Smuggling Activities Act, 1974. [834-E-H]
F
Rosana Begum v. State of Tamil Nadu, H.C. Petition No. 775 of (1997)
(Mad), approved.

D. Rana v. Union of India, Cri WP No. 17 of (1997) dated 15.9.1997
G (Del.) and Li Galina v. Union of India, (1998) 1 JCC 6 (Del), overruled.

2. The safeguards for the detenu embodied in Article 22(5) are
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
H representation against the order. From this analysis of the clause, it
U.O.I. v. DIUEETSINGH [QUADRl,J.] 833

appears that consideration of the report of the State Government by the A
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 considera-
tion of report under Section 2(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 up by the State Government under Section
B
3(2) of the COFEPOSA Act by the Central Government or a competent
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 abroga-
tion of safeguards, would vitiate continued detention of a person ordered C
to be detained under the COFEPOSA Act. [840-C-F]

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
235 of 1999.

From the Judgment and Order dated 15.4.98 of the Delhi High Court D
in Crl. W. No. 590 of 1997.

K.N. Rawal, Additional Solicitor General, K.C. Kaushik and V.K.
Verma for the Appellants.

Ms. Sangeeta Bhayana for Amlan Ghosh for the Respondents. E

The Judgment of the Court was delivered by

QUADRI, J. Leave is granted.

The short but question of some practical significance that arises in F
... 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 Govern-
ment of India renders his continued detention illegal?

The respondent is the detenu. While on his way to Lahore (Pakistan),
G
he was intercepted at Indira Gandhi International Airport by Custom
authorities who, no 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 Con-
servation of Foreign Exchange and Prevention of Smuggling Activities Act, H
834 SUPREME COURT REPORTS [1999] 1 S.C.R.
A 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 up by the State Government under Section 3(2) of the
B 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
C the said order of the High Court, the Union of India and other officials
have come up in appeal by special leave.

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
D 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., H.C. Petition No. 775 of {1997).

Ms. Sangeeta Bhayana, learned counsel appearing for the detenu-
E 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
F 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
G violated. She relied on two judgments of the High Court of Delhi in D.
Rana @ Dhannesh Rana @ Dham1esh Plill 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).

To examine the contentions of the learned counsel, we shall read the
H notifications, referred to above. The 1991 notification is as follows :
U.O.l. v. DIUEETSINGH [QUADRl,J.] 835

"F. No. 685/14/84-Cus. VIII A
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. 1, Yashwant Sinha, B
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 Smug-
gling Activities Act, 1974 (52 of 1974), shall be exercised by the
officers in the Ministry of Finance, (Department of Revenue), C
Government of India, as specified hereunder :

Provision of the Act Officers

(a) Powers under Section 5 Secretary or Special Secy.,
sub-section (1) of section or Joint Secretary in the D
7, clause (F) of section 8 Ministry of Finance
Section 10; Section 11 and (Department of Revenue),
sub-section (i) of section 12. Govt. of India.
(b) Clause (b) of section 8 Deputy Secretary or Under
Secretary or senior E
Technical Officer in the
Ministry of Finance
(Department of Revenue),
Government of India.

Sd/ F
,; (Yashwant Sinha)
Minister of Finance

New Delhi; 26 .4.1991"

From a perusal of this notification, two things are evident that : (i) it is G
a statutory notification issued under the provisions of Rule 2(3) of the Govern-
.- ..
. ment of India (Transaction of Business) Rules, 1991 and (ii) it contains
delegation of powers of the Central Government under various provisions
noted in Column (1) in favour of officers noted in Column (2). It may be noted
that Section 3(2) is not mentioned in Column (1) of the said notification. H
836 SUPREME COURT REPORTS [1999) 1 S.C.R.

A 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
B GoverlllJ'~nt of India/Bharat Sarkar
Ministry of Finance/Vitta Mantralaya
Department of Expenditure/Vyaya Vibhag ..
New Delhi, the 20th January, 1993
c OFFICER ORDER

Subject : Allocation of work to Ministers.

Finance Minister has decided that the Ministers of State in
D the Ministry of Finance will be allocated the following items of
.l<
work:
.
1. MINISTER OF' STATE (REVENUE AND EXPENDI-
TURE)
SHRI M.C. CHANDRASEKHAR MURTY
E
DEPARTMENT OF REVENUE

A. (i) to (viii) xx x xx

(ix) COFEPOSA (a) Parole
F (b) Transfer of Prisoners. )<

-~

(x) to (xii) xx xx x x

B. The following items of work will be put to Finance Minister
G through Minister of State of Revenue and Expenditure :

(i) to (xii) xx x xx
.. ~

(xiii) COFEPOSA - (a) Representations of revocation
(b) Confirmation of Detention
H Period.
U.O.I. v. DIUEETSINGH [QUADRI, J.] 837

(xiv) xx xx" A
A cursory look of the order makes it clear that it relates to various
subjects of different departments and their distribution between the Mini-
ster for Finance and Minister of State (Revenue and Expenditure). There
is nothing to connect the 1993 order with delegation of powers under the
COFEPOSA Act. It cannot, therefore, be legitimately contended that this B
order supersedes the1991 notification.
' . Now, the office order of 25th July, 1996 may also be noticed here :

"F. No. 50/61/96-Ad.l
Government of India
c
Ministry of Finance
Department of Revenue

New Delhi, the 25th July, 1996.
A
D
OFFICE ORDER NO. 160 OF 1996
...
Subject : Delegation of powers - Orders regarding -

The Finance Minister has delegated the P.OWers to Secretary
(Revenue) in respect of the disposal of the following cases : E
(i) All files concerning representation from
COFEPOSA/PITNDPS detenues addressed to the Govern-
ment of India.

,. (ii) Application for parole except where the applications are F
> addressed to the Minister of COFEPOSA/PITNDPS cases.

(iii) All files relating to routine extension of period of eligibility
under Sec. 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 befug rejected.
G

...... (iv) All cases of the concessions under Sec. 10(15)(A) of Income-
tax Act where airlines are being given exemption from deduc-
tion of tax at source on lease rents being paid for hiring of
aircraft. H
838 SUPREME COURT REPORTS [1999) 1 S.C.R.

A (N.M. Mookerjee)
Additional Secretary to the Govt. of India"

From a plain reading of the 1996 order, extracted above, it appears
B 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
COFEPOSAJPITNDPS and files relating to some provisions of the In- •
come-tax Act. It may be noted here that there is no reference to Section
3(2) or, for that matter, any of the provisions of the COFEPOSA Act in
C 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 COFEPOSAJPITNDPS addressed to the Govern-
ment of India, i.e. representation under Section 11 and application for
parole under Section 17 to the Secretary (Revenue). Omission of Section
D 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
E 1991 notification is a statutory notification· issued under Rule 3 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
F orders in the subsequent order, it can be inferred that the earlier .notifica-
tion has been in1pliedly superseded. But where the .earlier order is a
statutory notification and the subsequent order is not a §tatutory notifica-
tion/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
G 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
H notification, including Section 3(2) of the COFEPOSA Act.
_,,_

--U.0.1. v. DIUEET SINGH [QUADRI,J.] 839

i ~ It is brought to our notice that on April 22, 1998, the Finance A
Minister has issued3tatutory 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
B
.;..
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 car.sequence
in this case.
c
We shall now refer to the cases cited at the Bar.

In D. Rana (supra), a Division Bench of the Delhi High Court took
the view that the 1991 notification stood superseded by the 1996 Order and
accordingly held that the disposal of the representation by the Joint
A Secretary was no disposal in the eye of law; as the representation remained D
..... undisposed of, the continued detention of the detenu was illegal and the
detenu was entitled to be released. Following that judgment, another
Division Bench of the Delhi High Court in Ms. Li Galina (supra) took the
same view. However, a Division Bench of the Madras High Court in
Rosana Begum v. State of Tamil Nadu & Ors., when faced with the same E
question, viz., whether the 1991 notification was superseded by 1996 Order,
came to the conclusion that both 1991 and 1996 office orders co-existed
and 1996 office order was nothing but an order giving more clarity to the
existing 1991 order. In that view of the matter, it held that the consideration
by the Joint Secretary was proper.
)\ F
> 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).

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 G

... 'IJ.
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 of Government submitted under Section 3(2) of the COFEPOSA Act
by the competent authority which was held by the High Court as violation
of Article 22(5) of the Constitution. H
840 SUPREME COURT REPORTS [1999) 1 S.C.R.

A Here it may be useful to refer to clause (5) of Article 22 of the
Constitution, which runs thus :

"22(5). When any person is detained in pursuance of an order made
under any law providing for preventive detention, the authority
making the order sh?ll, as soon as may be, communicate to such
B person the grounds on which the order has been made and shall
afford him the earliest opportunity of making a representation
against the order."

The safeguards for the detenu embodied in clause (5) of Article 22 are
C two-fold. The authority making the order of detention shall, as soon as
may be, communicate to such persons the grounds on which the order has
been made and shall afford him the earliest opportunity of making as
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
D 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 considera-
tion 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 up by the State Government under Section
E 3(2) of the COFEPOSA Act by the Central Government or a competent
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 Constitu-
tion. 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.
F
In this view of the matter, 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
G High Court dated 15th April, 1998 in Criminal Writ Petition No. 590 of
1997 is set aside and the appeal is accordingly allowed.

v.s.s. Appeal allowed. .
~
....

t'
I