D.S. Tewatia, J. - (1.) GURBUX Singh Petitioner in Criminal Writ No. 34 of 1978 and Hazara Singh in Criminal Writ No. 35 of 1978, were detained by separate though similarly worded orders dated 23rd January, 1978, passed under Sub -section (1) of Section 3 of the Conservation of Foreign Exchange and prevention of Smuggling Activities Act, 1974 (hereinafter referred to as the Act). These petitions came up for hearing in the first instance before C.S. Tiwana, J. Before him one of the contentions advanced, on behalf of the Petitioner -detenus, was that the impugned orders had been signed by Deputy Secretary Home and he not being competent to pass the orders under Sub -section (1) of Section 3 of the Act, the orders detaining the Petitioners were without jurisdiction and illegal. In support of this submission the learned Counsel for the Petitioners relied on a Single Bench decision of this Court referred in Narinder Singh v. The State of Punjab etc. Cr. W. No. 58 of 1978 decided on 17th August, 1978 and pressed to attention the following observation of the learned Judge: The order of detention has been issued under the signatures of the Deputy Secretary to Government, Punjab, Home Department, Chandigarh, under Section 3(1) of the Act and the detention order on behalf of the State Government could only be passed by an officer not below the rank of a Secretary specially empowered for this purpose.
(2.) TIWANA , J., finding himself in disagreement with the aforesaid observation has referred the two petitions to us for determining the question which he formulated in the following words: Whether an order of detention under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, can be said to be invalid, if made in the name of the Governor but authenticated by Deputy Secretary (Home). Before adverting to the contention advanced on behalf of the Petitioner and question formulated by Tiwana, J., first the relevant provisions of the Act may be noticed. Section 3(1) of the Act is in the following terms: The Central Government or the State Government or any officer of the Central Government, not below the rank of a Joint Secretary to that Government, specially empowered for the purposes of this section by that Government, or any officer of a State Government, not below the rank of a Secretary to that Government, specially empowered for the purposes of this Section by that Government may, if satisfied, with respect to any person (including a foreigner), that, with a view to preventing him from acting in any manner prejudicial to the conservation or augmentation of foreign exchange or with a view to preventing him from - - (i) smuggling goods ; or (ii) abetting the smuggling of goods; or (iii) engaging in transporting or concealing or keeping smuggled goods ; or (iv) dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods ; or (v) harbouring persons engaged in smuggling goods or in abetting the smuggling of goods ; it is necessary so to do, make an order directing that such person be detained.
(3.) A perusal of the provisions of Section 3(1) of the Act would show that the detention order of the kind inter alia can be passed by the State Government or any officer of the State Government, not below the rank of a Secretary to that Government specially empowered for the purpose of the said section by the State Government. That means that the orders can be passed by the State Government as also by the Secretary of the State Government, if so specially authorised.;