IBRAHIM BACHU BAFAN & ANR. ETC. versus STATE OF GUJARAT & ORS .

Citation: [1985] 2 S.C.R. 891 · Decided: 12-02-1985 · Supreme Court of India · Bench: S. MURTAZA FAZAL ALI · Disposal: Case Allowed

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Judgment (excerpt)

• 
IBRAHIM BACHU BAFAN & ANR. ETC. 
v. 
STATE OF GUJARAT & ORS . 
February 11, 1985 
[S. MURTAZA FAZAL AL!, A. VARADARAJAN AND 
RANGANATH MISRA JJ,) 
891 
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 
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 
legal-When Is an order of detention rrevoked'-Ejfect of 'declaration' issued 
under s. 9. 
Words cli Phrases 
"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 
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. 
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. 
A 
B 
c 
D 
E 
F 
G 
H 
A 
B 
c 
D 
F 
G 
fl 
892 
SUPREME COURT REPORTS 
(1985) 2 S.C.R. 
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] 
(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) 
(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 ·~ 
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. 
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 
Clauses Act~ the power is exercisable by the authority making the

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