Supreme Court

Secretary to Government of Tamil Nadu Public (Law and Order) Revenue Department and Ors. Vs. Kamala and Ors.

MANU/SC/0355/2018

10.04.2018

Criminal

An order of detention cannot be rendered illegal merely because it does not specify period of detention

In instant case, the High Court has set aside an order of detention issued under Section 3(1)(ii) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974 on the ground that, the period of detention was not specified. In arriving at this conclusion, the High Court has relied upon a decision of this Court in Commissioner of Police v. Gurbux Anandram Bhiryani and on a judgment of the High Court in S. Santhi v. The Secretary to Government, Home, Prohibition and Excise Department, Secretariat. The Government of Tamil Nadu is in appeal.

In T Devaki v. Government of Tamil Nadu, a Bench of present Court has held that, since the legislation does not require the detaining authority to specify the period for which a detenue is required to be detained, the order of detention is not rendered invalid or illegal in the absence of such specification. Further, present Court has consistently taken the view that, an order of detention is not rendered illegal merely because it does not specify the period of detention. A Constitution Bench of present Court in Ujagar Singh v. State of Punjab, while considering validity of detention order made under Section 3 of the Preventive Detention Act, 1950 held that, non-specification of any definite period in a detention order made under Section 3 of the Act was not a material omission rendering the order invalid.

In Suna Ullah Butt v. State of Jammu & Kashmir, validity of detention order made under Jammu and Kashmir Preventive Detention Act, 1964 was under challenge on the ground that the State Government while confirming the detention order under Section 12 of the Act had failed to specify the period of detention. The court held that, since the State Government had power to revoke or modify the detention order at any time before the completion of the maximum period prescribed under the Act, it was not necessary for the State Government to specify the period of detention.

The decision in Bhiryani's case has been overruled. In the circumstances, the High Court was not justified in quashing the order of detention on the basis that, no period of detention was provided in the order. The High Court has proceeded on the basis of the decision of present Court in Bhiryani which is no longer good law in view of the subsequent decision of a larger Bench in Devaki. The decision of the High Court in Santhi, to the extent that it adopts the same position as in Bhiryani, will not reflect the correct legal position.

Accordingly, the impugned judgment of the High Court is set aside. As a consequence, the detention order shall stand revived. However, since the period of detention has come to an end, nothing further remains except for present Court to clarify the true legal position. The criminal appeal is accordingly disposed of.

Relevant

Ujagar Singh v. State of Punjab [MANU/SC/0018/1951
: (1952) 3 SCR 756 : AIR 1952 SC 350: 1953 Cri LJ 146], Suna Ullah Butt v. State of Jammu & Kashmir [MANU/SC/0270/1972
: (1973) 3 SCC 60: 1973 SCC (Cri) 138: (1973) 1 SCR 870], Suresh Bhojraj Chelani v. State of Maharashtra [MANU/SC/0223/1982
: (1983) 1 SCC 382: 1983 SCC (Cri) 202]

Tags : Detention Period Specification

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