UNION OF INDIA AND ANR. versus VENKATESHAN S. AND ANR.

Citation: [2002] 3 S.C.R. 268 · Decided: 22-04-2002 · Supreme Court of India · Bench: M.B. SHAH · Disposal: Appeal(s) allowed

Judgment (excerpt)

B 
UNION OF INDIA AND ANR. 
v. 
VENKA TES HAN S. AND ANR. 
APRIL 22, 2002 
[M.B. SHAH AND D.M. DHARMADHIKARI, JJ.] · 
Conservation of Foreign Exchange and Prevention of Smuggling 
Activities Act, 197 4-Section 3-'-Detention under for violation of FERA-
C Detention quashed by High Court as the preventive activity had ceased to be 
criminal activity in view of repeal of FERA, the same being replaced by 
FEMA-On appeal-Held, quashing of detention not justified-The view of 
High Court would result in implied repeal of substantial part of Section 3-
F oreign Exchange Regulation Act, 1973-Foreign Exchange Management Act, 
1999. 
D 
E 
Interpretation of Statutes: 
Implied repeal-Courts not to interpret implied repeal unless provisions 
are plainly repugnant to each other-There is presumption against implied 
repeal-Evidence-Presumption. 
Detenu-respondent was detained under Conservation of Foreign 
Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA Act) 
to prevent him from acting prejudicial to the augmentation of foreign 
exchange. 
F 
The detention order was challenged and the same was set aside by High 
G 
Court as not justified since the preventive activity violative of Foreign 
Exchange Regulation Act, 1973, (FERA) had ceased to be criminal activity 
on repeal of the Act which was replaced by Foreign Exchange Management 
Act, 1999 (FEMA). The judgment of High Court was passed after 9 months 
from the date of detention orde.-. 
In appeal to this Court appellant contended that order of High Court 
was erroneous as the same was passed on wrong interpretation of COFEPOSA 
Act For passing detention order, it is not necessary that the authority should 
be satisfied as to indulgence of the detenu who had committed act prohibited 
H under FERA or FEMA, in similar activities. 
268 
-
U.0.1. v. VENKATESHAN S. 
269 
Deleon-respondent contended that since the violation of FEMA is only A 
a civil wrong, a person cannot be preventively detained under COFEPOSA 
Act for violation of FERA after its repeal • 
. At the time of hearing the period of detention was over. 
Allowing the appea~ the Court 
B 
HELD: 1.1. The power of detention is a preventive measure. It does not 
r 
partake in any manner of the nature of punishment. It is taken by way of 
precaution to prevent mischief to the community. Hence, the order passed 
.; 
.) 
by the High Court holding that what was considered to be the criminal 
violation of Foreign Exchange Regulation Act, 1973 has ceased to be criminal C 
offence under Foreign Exchange Management Act, 1999 the detention order 
cannot be continued, is not justified. [275-C; 276-AJ 
Poonam Lata v. Ml. Wadhawan and Ors., (1987) 3 SCC 347; Khudiram 
Dosv. The State of West Bengal and Ors., [1975) 2 SCC 81 and Haradhan Saha D 
v. The State of West Bengal and Ors., [1975) 3 SCC 198, referred to . 
1.2. If the activity of any person is prejudicial to the conservation or 
augmentation of foreign exchange, the authority is empowered to make a 
detention order against such person and COFEPOSA Act does not 
contemplate that such activity should be an offence. (274-E-FJ 
E 
1.3. If the view taken by the High Court and the contentions of 
respondent that he could not be detained since the preventive activity violative 
of Foreign Exchange Regulation Act, 1973 had ceased to be criminal activity 
on repeal of the Act, the same being replaced by Foreign Exchange 
Management Act, 1999 are accepted, it would result in implied repeal of sub- F 
stantial part of Section 3 of Conservation of Foreign Exchange and Prevention 
of Smuggling Activities Act, 1974. One of the established principles of 
interpretation of the statutory provisions is that courts as a rule lean against 
implied repeal unless the provisions are plainly repugnant to each other. There 
is also a presumption against repeal by implication; and the reason of this G 
rule is based on the theory that the legislature while enacting a law bas 
complete knowledge of the existing laws on the same subject matter, and, 
therefore, when it does not provide a repealing provision it gives out an 
intention not to repeal the existing legislation. (276-B-Dj 
Municipal Council Palai v. T.J Joseph. AIR (1963) SC 1561 and Municipal H 
270 
SUPREME COURT REPORTS 
[2002] 3 S.C.R. 
A Corporation of Delhi v. Shiv Shanker, [1971) l SCC 442, referred to. 
2. In view of the facts and circumstances of the case, this would not be 
a fit case for directing the detenu to surrend

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