QUADRI - (1.) LEAVE is granted. The short but question of some practical significance that arises in 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 Government of India renders his continued detention illegal?
(2.) THE respondent is the detenu. While on his way to Lahore (Pakistan), he was intercepted at Indira Gandhi International Airport by Custom authorities who, on 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 Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 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 15/04/1998, 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 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 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setting aside the order of detention and directing release of the respondent on the ground that 1991 notification was superseded by 1996 order issued by the Finance Minister under which Secretary (Revenue) was the competent authority and that view was not accepted by the High Court of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 (H.C. Petition No. 775 of 1997*). Ms. Sangeeta Bhayana, learned counsel appearing for the detenu 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the relevant provisions of the COFEPOSA Act to the Joint Secretary (Revenue) but in 1993 the said notification was superseded when the powers under the COFEPOSA Act were retained by the Finance Minister at the time of distribution of powers between him and the Minister of State for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 violated. She relied on two judgments of the High Court of Delhi in D. Rana alias Dharmesh Rana alias Dharmesh Prill v. Union of India (Criminal Writ Petition No. 17 of 1997 dated 15/09/1997) (reported in 1998 Cri LJ 354) and Ms. Li Galina v. Union of India (1998 (1) JCC 6) (Delhi). To examine the contentions of the learned counsel, we shall read the notifications, referred to above. The 1991 notification is as follows: "F. NO. 685/14/84-Cus. VII 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, I, Yashwant Sinha, 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 Smuggling Activities, Act, 1974 (52 of 1974), shall be exercised by the officers in the Ministry of Finance, (Department of Revenue), Government of India, as specified hereunder:- JUDGEMENT_609_JT1_1999Html1.htm Sd/- (Yashwant Sinha) Minister of Finance New Delhi: 26-4-1991"
(3.) FROM a perusal of this notification two things are evident that: (i) it is a statutory notification issued under the provisions of Rule 2(3) of the Government 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. The office order of 20/01/1993 (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 COFEPOSA Act. "No. A-22012/2/93-Admn. 1 Government of India/Bharat Sarkar Ministry of Finance/Vitta Mantralaya Department of Expenditure/Vyaya Vibhag New Delhi, the 20th January, 1993. OFFICE ORDER Subject :- Allocation of work to Ministers. Finance Minister has decided that the Ministers of State in the Ministry of Finance will be allocated the following items of work: I. MINISTER OF STATE (REVENUE AND EXPENDITURE) SHRI M. C. CHANDRASEKHAR MURTY DEPARTMENT OF REVENUE A. (i) to (viii) x x x x x (ix) COFEPOSA(a) Parole (b) Transfer of prisoners. (x) to (xii) x x x x x x B. The following items of work will be put to Finance Minister through Minister of State of Revenue and Expenditure:- (i) to (xii) x x x x x (xiii) COFEPOSA -(a) Representations of revocation (b) Confirmation of detention Period. (xiv) x x x x" ;