ORDER P.N. Bakshi, J.
1. The petitioner is the elder brother of Lalit Liladhar Dholakia (hereinafter referred as to the detenu) who has been detained under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as the COFEPOSA). Being amenable to the jurisdiction of the Bombay High Court at the time of his detention, the detenu's wife filed Criminal Misc. Application No. 23 of 1975 in the High Court of Bombay on 4-1-1975 challenging the provisions of the COFEPOSA (Maharashtra Conditions of Detention) Order, 1974 (hereinafter referred to as the Maharashtra Conditions Order). On 7-1-1975 the petitioner also filed Habeas Corpus Petition in the Supreme Court being Writ Petition No. 3 of 1975 challenging the detention order pfss-ed against the detenu. On 9-2-1975 the detenu was transferred from Bombay to Agra and detained in Central Jail, Agra vide order of the Secretary to the Government of India passed under Section 5(b) of the COFEPOSA, vide Annexure C-A-1 to the petition. The detenu is alleged to have been kept in solitary confinement in a small room on account of which he is on the verge of nervous breakdown. He is also not allowed food from outside or other basic facilities, He is not even allowed sufficient bedding and is alleged to be subjected to harsh and inhuman treatment. On 12th March, 1975 the petitioner withdrew Criminal Misc. Application No. 23 of 1975, which was till then pending in the Bombay High Court since the detenu had been transferred outside the State of Maharashtra. I am informed that the detenu is about 35 years of age. He has been kept in detention since 29th September 1974 and has been treated as ordinary class security prisoner. By an order dated 18th December, 1974 issued by the Governor of Uttar Pradesh under Section 5 of the COFEPOSA, vide Annexure C-A-2, the U. P. Security Prisoners Rules, 1972 have been made applicable in respect of persons in detention in so far as they related to the condition of detention including conditions as to maintenance, interviews or communication with others, discipline and arrangements for breaches of discipline. On 27-1-1975 the Governor of Uttar Pradesh was pleased to partially modify the order dated 18th December 1974 and to direct that the person detained under the COFEPOSA shall be treated as ordinary class prisoners and that interviews with lawyers, relatives and others shall be subject to prior approval of the State Government vide Annexure C-A-3 it was further directed that the detenu will remain in detention in Central Jail Agra. This writ petition has been filed by the elder brother of the detenu in this Court on 4th August 1975. Prior to the admission of this Writ Petition by the Court the counsel for the State contended that the petitioner has suppressed that the interim orders which were sought for in this petition had already been refused by the Supreme Court and as such this petition was not maintainable and no relief should be granted. This matter was however left open by the Bench which admitted the writ petition on 12th November, 1975. Certain interim orders with regard to the food requirements of the detenu have subsequently been passed by this Court, which shall be referred to at the appropriate stage.
In this writ petition the first relief sought is for quashing the order of the State Government dated 18th December, 1974 Annexure 1 and the U. P. Security Prisoners Rules, 1972. The second relief is for the issue of an appropriate writ, order or direction for detaining the detenu in accordance with the conditions applicable to under-trial prisoners or civil prisoners in accordance with the Rules contained in the Jail Manual or the Rules made under the U. P. Prisons Act, 1894. The third relief claimed is for the issue of an appropriate writ, order or direction requiring the respondents (i) not to put the detenu in solitary confinement, (ii) to permit the detenu to supplement his diet at his own expense from outside the jail; (iii) to permit the detenu at his own expense an allowance of Rs. 200 per month; (iv) to permit the detenu all facilities for medical treatment by a physician or consultant of his own choice at his own expense; (v) to grant the detenu all the interviews including the additional interviews and special interviews provided for by the U. P. Security Prisoners Rules, 1972 and to permit him to correspond in connection with the business interest of the detenu; (vi) to give the detenu all books, periodicals and newspapers and to allow him to receive such books and periodicals through post subject to censorship; (vii) to allow the detenu to write letters and telegrams and receive the same to ensure the smooth working of his business and professional affairs.
2. The State counsel contends that the petitioner has concealed certain material facts from this Court and as such the detenu is not entitled to the reliefs claimed on his behalf. It is urged that the petitioner failed to disclose that in the Supreme Court the petitioner had filed Misc. Application No. 728 of 1975 on 4th August 1975 on behalf of the detenu in which he claimed the same reliefs as are claimed by him in this writ petition, vide Annexure '1' filed along with the counter-affidavit of Sri L. J. Arora. The prayer in the application was to permit the detenu to get his food from outside the jail subject to usual routine check. On this application the Supreme Court on 30th April 1975 had directed the detenu to be examined by the U. P. Medical Board and had further directed that the detenu would be given the food prescribed by them. The food was to be supplied to the detenu by the state, vide Annexure '2' filed along with the counter-affidavit of Sri Arora. In obedience to the directions contained in the order dated 30th April, 1975 passed by the Supreme Court, the diet prescribed by the U. P. Medical Board was being supplied to the detenu at the cost of the State. Counsel for the State has submitted that even though there is reference in Paragraph 3 of the petition that he was granted interim relief on 8-1-1975 by the Bombay High Court which permitted the detenu to have his food from outside at his expense subject to routine check, yet the orders of the Supreme Court referred to above, have been concealed by the petitioner while claiming the interim relief from this Court. The argument is that the petitioner sought to make out a case that since the Bombay High Court had granted the interim relief to the detenu, this Court should also grant the relief to him. I have carefully perused the documents in connection with this preliminary objection, but, I am of the opinion that the alleged suppression, if any, is not of such a degree that it disentitles the petitioner to approach this Court for an appropriate remedy. From a perusal of the application filed in the Supreme Court it appears that it was on the ground of ill health of the detenu that the petitioner prayed for permission to supplement his food from outside. The Medical Board examined the detenu and prescribed some diet for him which was given to him. The habeas corpur petition challenged the vires of the detention order which was given up with the withdrawal of the petition. The interim order passed by the Supreme Court also exhausted itself with the withdrawal of the Supreme Court petition. The petitioner's counsel has submitted that he did not consider it necessary to mention about the interim order in the petition as it was passed on humanitarian grounds. Be that as it may, it cannot be said that the omission to mention the above facts would in any way affect the merits of the decision of this writ petition. These questions have been raised afresh in this Court end have to be decided in accordance with law. In my view, therefore, this preliminary objection has no legs to stand on and will not deter the petitioner from claiming adequate relief for the detenu.
3. Reliance has been placed on behalf of the detenu on a Division Bench decision of the Bombay High Court reported in (1975) 77 Bom LR 599 : 1976 Cri LJ 534, Bhanudas Krishna Gavde v. K.G. Paranjpe. On the basis of this decision it is urged that the restrictions which had been placed upon the detenu have no nexus with the object of COFEPOSA, 1974. It is therefore urged that the conditions of detention which have been placed upon the detenu are ultra vires Section 5 of the COFEPOSA. The impugned conditions go beyond what is necessary for the preventive detention of the detenu. Punitive conditions cannot be imposed to deprive a detenu of ordinary amenities of life. As such these conditions are ultra vires the object of the Act and must be struck down.
4. It is also urged by the learned Counsel for the petitioner that the detenu falls in the category of a 'Civil prisoner' as denned in the Prisons Act, 1894. He is, therefore, entitled to all the terms and conditions which apply to the detention of a civil prisoner under the provisions of the said Act.
5. I have been taken through the decision of the Bombay High Court referred to above, which has been very strongly relied upon by the petitioner's counsel in support of his contention. The COFEPOSA provided for preventive detention in certain cases for the purposes of conservation and augmentation of foreign exchange and prevention of smuggling activities which were having increasingly deleterious effect on the national economy and the security of the State. As the preamble shows the smuggling activities were of a considerable magnitude and were clandestinely organised, as such it became necessary to provide for detention of persons indulging in such activities. Under Section 3 of the COFEPOSA the Central Government or the State Government has been empowered to make orders for the detention of persons with a view to preventing them from acting in any manner prejudicial to the conservation or augmentation of foreign exchange or with a view to preventing them from smuggling goods, or abetting the smuggling or dealing in smuggled goods, or engaging in transporting or concealing or keeping smuggled goods, or harbouring persons engaged in smuggling goods, or in abetting the smuggling of goods. Such a detention order can be made by an officer not below the rank of the Joint Secretary to the Central Government or not below the rank of the Secretary to the State Government. Under Section 4 of the COFEPOSA such a detention order can be executed at any place in India in the manner prescribed for the execution of warrants of arrest under the Code of Criminal Procedure. Section 5 of the COFEPOSA runs as follows:
5. Every person in respect of whom a detention order has been made shall be liable-
(a) to be detained in such place and under such conditions including conditions as to maintenance, interviews or communication with others, discipline and punishment for breaches of discipline. as the appropriate Government may, by general or special order, specify; and
(b) to be removed from one place of detention, to another place of detention whether within the same State or in another State by order of the appropriate Government:
Provided that no order shall be made by a State Government under Clause (b) for the removal of a person from one State to another State except with the consent of the Government of that other State.
6. From a perusal of Section 5 quoted above, it is apparent that the law authorises the appropriate Government to issue a general or special order as to the place of detention and also the conditions governing such detention, including conditions of maintenance, interviews or communication with others etc. In the instant case the State Government has ordered vide Annexure C-A-2 that the detenu under the COFEPOSA shall be liable to be detained under such conditions as are specified in the U. P. Security Prisoners Rules, 1972, which are being adopted for the purpose, subject to modification that the references in the said rules to the provision of the Maintenance of Internal Security Act, 1971 shall for these purposes be deemed to be references as to the Conservation of Foreign | Exchange and Prevention of Smuggling Activities Act, 1974. Thus the U. P. Security Prisoners Rules which had applied to detenus under MISA have also been made applicable to detenus under the COFEPOSA.
7. A detailed examination of the U. P. Security Prisoners Rules, 1972 indicates that the security prisoners have been divided into two classes namely, (1) Superior, and (2) Ordinary. Rule 4 of the aforesaid Rules runs:
(1) Security Prisoners shall be divided into two classes, viz. superior and ordinary. Ordinary persons detained for security purposes shall be placed in the superior class, except that security prisoners of the criminal or Goonda type shall be placed in the ordinary class.
(2) The District Magistrate of the district of residence shall ordinarily classify a security prisoner. If a security prisoner is arrested in a district other than the district of his residence or he is transferred to another district without being classified, then the District Magistrate of the district where the security prisoner is for the time being detained, shall classify him.
Apart from the aforesaid classification Rule 5 relates to the diet prescribed for superior class and ordinary class security prisoners. The details of the diets permissible to these two classes of security prisoners are given in Appendix 'A'. Security prisoners are not allowed to cook their own food. From Appendix 'A' it appears that superior class prisoners are allowed wheat, rice, dal, meat, milk, butter or ghee, mustard oil, sugar, tea and milk (if required), vegetables (of which not more than 230 gms. may be potatoes), spices, salt, amchur or chatni or lime juice, fruit and fuel. On the other hand, ordinary class security prisoners are given grain ration, dal, vegetables, oil, chillies, turmeric and salt. Rule 6 of the Rules deals with the clothing and bedding permissible to security prisoners of both classes. Rule 10 deals with the furniture which is to be provided to superior class security prisoners, according to the scales admissible vide Appendix 'C'. Under Rule 11 security prisoners are permitted to use their own utensils. Those security prisoners who are not provided with adequate utensils are to be supplied the same by the Superintendent in accordance with the requirements as laid down in Appendix 'D'. Under Rule 12 security prisoners of both classes are permitted to use toilets as detailed in Appendix 'E'. The Superintendent may also permit the security prisoner to receive other toilets at his own cost from his friends and relations, Under Rule 13 a security prisoner is allowed, with the previous sanction of the Supdt., to receive funds from his relatives or friends to enable him to supplement the amenities of life in jail. In the case of superior class security prisoners this amount may extend to Rs, 100 with the sanction of the State Government. Rule 14 of the aforesaid Rules regulates interviews of security prisoners with their friends and relatives. Rule 15 also makes provision of special interviews for the settlement of business or professional affairs. These interviews are to be conducted in accordance with the Rules regarding conditions and duration etc. Rule 32 permits security prisoners of both classes the use of newspapers and magazines at Government expense in accordance with Appendix 'F'. There are several other provisions in these Rules but for our purposes it is not necessary to deal with them.
8. I do not find any condition in the COFEPOSA which restricts the power of the appropriate Government in framing rules regarding the place of detention and the conditions of detention of a detenu, These Rules have been left to the complete discretion of the appropriate Government. In the instant case, the Uttar Pradesh Security Prisoners Rules, 1972 which govern detenus under MISA have been applied to the detenus under the COFEPOSA. A court of law is not authorised to import words in the statute which do not exist. It is true that the object of the COFEPOSA is to prevent smuggling activities which had assumed considerable magnitude and had been clandestinely organised to the detriment of natural economy thereby affecting security of the State. But from a perusal of Section 5 of the Act, it cannot be said that the Rules which are to be framed by the appropriate Government for the detention of detenus under the said Act, must necessarily be correlated to the object of the Act. If that principle was to be accepted then even an ordinary criminal could not be subjected to the ordinary diet prescribed under the rules embodied in Jail Manual, as there would be no nexus between his diet and the crime committed by him.
9. Under Section 3 of the COFEPOSA the Government is authorised to detain a person only if it is satisfied that such a person is acting in any manner prejudicial to the preservation or augmentation of foreign exchange. This is a preliminary satisfaction which must be arrived at by the appropriate Government before an order for detention can be passed under Section 3 of the Act. In other words the right to detain any person under the COFEPOSA can be exercised under Section 3 of the Act only after the appropriate Government is satisfied that such an action is necessary authorising the passing of a detention order. Neither the preamble to the Act nor Section 3 of the Act can be taken as restrictive conditions which have to be kept in view while the appropriate Government frames Rules to regulate the place and conditions of detention of a detenu under the COFEPOSA, I am not inclined to accept the view of the Bombay High Court that there must be rational nexus between the conditions of detention and the object of the Act. It is true that the detenu is not a convicted person and that the conditions imposed upon him for his detention must not be punitive. It has been observed in the Bombay case that the restrictions which can be placed upon the liberty of a citizen in preventive detention consistent with the effectiveness of detention must be minimal. From a close scrutiny of the provisions of the U. P. Security Prisoners Rules, 1972 it cannot be said that the restrictions that have been placed on the detenu detained under the COFEPOSA are in any manner punitive. As a matter of fact, these Rules have clearly classified the prisoners in two categories, namely superior class and ordinary class. Greater amenities are provided to prisoners of the superior class than to the ordinary class. This clearly indicates that the conditions of detention have not been laid down with a view to inflict punishment or to have a punitive effect upon the detenu, but these Rules clearly draw a distinction between the various classes of security prisoners, one of which being of a superior class and used to greater and better amenities of life is allowed to live in better conditions than the prisoners of the ordinary class.
10. Counsel for the petitioner has drawn my attention to the definition of a 'criminal prisoner' and 'Civil prisoner', as defined under the Prisons Act. Under Section 3(2) of the Prisons Act 'Criminal prisoner' means any prisoner duly committed to custody under the writ, warrant or order of any Court or authority exercising criminal jurisdiction, or by order of the Court-martial. Under Section 3(4) 'civil prisoner' means any prisoner who is not a criminal prisoner. The argument is that the detenu not being covered by the definition of a 'criminal prisoner' should be deemed to be a 'civil prisoner' and should be entitled to all the amenities to which a 'civil prisoner' is in law entitled. In my opinion, this argument suffers from a fallacy that a detenu under COFEPOSA is neither a 'criminal prisoner' nor a 'civil prisoner'. He has been termed as a 'detenu' i.e. a person detained under the authority of law under the COFEPOSA because of his anti-national activities of smuggling and action prejudicial to the conservation or augmentation of the foreign exchange, Section 5 of the Act does not make the Prisons Act applicable to such a detenu and I see no reason why the provisions of the Prisons Act should be applied in the I instant case. Section 5 of the COFEPOSA is an independent section which empowers the appropriate Government to regulate the place and conditions of detention of a detenu by general or special order. AS already mentioned the Governor of Uttar Pradesh has ordered that the U. P. Security Prisoners Rules, 1972 shall be applicable to such a detenu. I, therefore, do not find any reason to travel beyond the section and to hold that any other rule or procedure, except that provided under the U. P. Security Prisoners Rules, 1972, would be applicable to the detenu,
11. I have also been referred to Chapter XIX of the Jail Manual which deals with 'Civil Prisoners', and the conditions to which they are subjected while in jail. From a perusal of the provisions of this Chapter, it appears that the sureties detained in a civil prison under Section 514 (4), Cr. P.C. and persons detained under Sections 44 and 45 of the Guardian and Wards Act, or any person committed to prison in execution of a decree in favour of a private person etc. are various categories of persons who have been characterised as 'civil prisoner' and to whom the conditions laid down in Chapter XIX aforesaid are applicable. The detenu does not fall in any of these categories. It is thus clear that the expressions 'criminal prisoner', 'civil prisoner' and the detenu are all independent expressions and each of these classes of persons belong to an independent category.
12. Counsel for the State has argued that in view of the promulgation of emergency the detenu is not entitled to claim any relief from this Court. I am not prepared to accept that contention. In the instant case the petitioner is not challenging the validity of the COFEPOSA on the ground that it violates Article 22 of the Constitution of India. A habeas corpus petition on this ground was filed before the Supreme Court and has been withdrawn. In the instant case the petitioner has urged that the terms and conditions of detention of the detenu are not in accordance with law and that the authorities concerned must be directed to act in accordance with law. In my view, if an authority acts in excess of the powers conferred upon him by law or if he acts in a mala fide manner, such an action of the executive can always be called in question before a court of law. I have already held above that the U. P. Security Prisoners Rules, 1972 are applicable to the facts and circumstances of the present case. If the conditions which have been imposed upon the petitioner are not in accordance with these rules, he can certainly have a right to complain to this Court and to pray for the issue of a suitable writ, order or direction to the authorities concerned directing them to act in accordance with law.
13. I find from a perusal of Annexure C-A-3 that in partial modification of the orders issued by the Government on 18th December 1974 Annexure C-A-2, a fresh order has been passed treating the detenu as an ordinary prisoner. His interviews with lawyers, relatives and others have been made subject to prior approval of the State Government. In this connection it would be necessary once again to quote Rule 4 of the U. P. Security Prisoners Rules, 1972:
4(1) Security prisoners shall be divided into two classes, viz. superior and ordinary. Ordinarily persons detained for security purposes shall be placed in the superior class, except that security prisoners of the criminal or Goonda type shall be placed in the ordinary class.
This rule indicates that a security prisoner shall ordinarily be placed in the superior class. An exception is provided in those cases where the security prisoner is of criminal or Goonda type. In the later case he is to be placed in the ordinary class, From a perusal of Annexure C-A-3, I do not find any reason given therein as to why the detenu should be treated as an ordinary class prisoner. While passing this order it appears that the authority concerned has not applied its mind to this aspect of the matter. The order of the Governor passed under Section 5 of the COFEPOSA, Annexure C-A-2 directs that the detenu would be detained under conditions including conditions as to maintenance, interviews and communication with others, discipline- and punishment for breaches of discipline, as are specified in the U. P. Security Prisoners Rules, 1972 which are being adopted for this purpose. This order read along with Rule 4 of the U. P. Security Prisoners Rules, referred to above, clearly entitles the detenu to be treated as a superior class security prisoner. An exception is to be made if the detenu was a criminal or Goonda type. As already mentioned, Annexure C-A-3, which is the subsequent order of the Governor dated 27-1-1975, does not indicate why the detenu should be treated as the ordinary class prisoner. In my view, unless the conditions requisite in Rule 4 with respect to ordinary class prisoners are in existence, a security prisoner cannot be placed in ordinary class. Such a satisfaction is to be recorded by the Governor himself and not by a Court of law. In the absence of any indication in the order dated 27-1-1975 disentitling the detenu to be treated as a superior class prisoner, I am of the view that the order Annexure C-A-3 is not in accordance with law and it must, therefore, be quashed.
14. For the reasons given above, this writ petition is allowed though for reasons different to those embodied in the petition. Annexure C-A-3 dated 27-1-1975 is quashed and the respondents are directed to treat the detenu as a superior class prisoner entitled to the benefits which are provided under the U. P. Security Prisoners Rules, 1972. In the circumstances of the case, I make no order as to costs.