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CRIMINAL APPEAL NO. 507 OF 2018
(Arising out of SLP (Crl) No 1600 of 2018)
Secretary to Government of Tamil Nadu .....Appellants
Public (Law and Order) Revenue Department & Anr
JUDGMENT
1 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[1] 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[2], and on a judgment The COFEPOSA Act 1974 1988 (Supp) SCC 568 of the High Court in S Santhi v The Secretary to Government, Home, Prohibition and Excise Department, Secretariat, Chennai[3].
2 The Government of Tamil Nadu is in appeal.
3 The submission which has been urged is that though the period of detention has come to an end, it is necessary for the Court to correct the statement of legal position contained in the decision of the High Court. Learned counsel has drawn the attention of the Court to the fact that the earlier decision of a Bench of two judges in Bhiryani (supra) was overruled by a Bench of three judges in T Devaki v Government of Tamil Nadu[4].
4 In T Devaki v Government of Tamil Nadu, a Bench of this 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. This Court held thus:
5 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 this 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.
6 Accordingly, the impugned judgment of the High Court of Judicature at Madras dated 24 February 2016 in H.C.P. No. 2442/2015 is set aside. As a consequence, the detention order dated 31 August 2015 bearing G.O. No. SR.1/63-5/2015 Public (SC) Department shall stand revived. However, since the period of detention has come to an end, nothing further remains except for this Court to clarify the true legal position as we have done in the above terms.
7 The criminal appeal is accordingly disposed of..................................................CJI [DIPAK MISRA]..…...............................................J [A M KHANWILKAR] …..................................................J [Dr D Y CHANDRACHUD] New Delhi; April 10, 2018.