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PETITIONER:

MEENA JAYENDRA THAKUR

Vs.

RESPONDENT:

UNION OF INDIA & ORS.

DATE OF JUDGMENT: 22/09/1999

BENCH:

G.B.Pattanaik, N.Srinivasan, N.S.Hedge

JUDGMENT:

PATTANAIK, J.

This appeal is directed against the judgment dated

18.1.95 20.1.95 of the Bombay High Court in Criminal Writ

Petition No. 701 of 1994. The appellant is the wife of the

detenu, Jayendra Vishnu Thakur. The State of Maharashtra

issued an order of detention under Section 3(i) of the

Conservation of Foreign Exchange and Prevention of Smuggling

Activities Act, 1974 (hereinafter referred to as the

COFEPOSA Act) on 5.2.92. The detenu was served with the

order of detention on 13.8.93 while he was in custody on

being arrested on 23.7.93 in some other criminal case. On

15.9.93, a declaration was made under Section 9 (i) of the

COFEPOSA Act thereby extending the period within which the

procedural requirements under Section 8 of the said Act

could be complied with. The case of the detenu was referred

to the Advisory Board on 15.9.93 and the Advisory Board gave

its opinion stating that there exists sufficient cause for

detention of the person concerned and on the basis of the

said opinion, the State Government confirmed the order of

detention under Section 8 (f) of the Act by order dated

17.11.93. The appellant filed the writ petition in the

Bombay High Court on 15.5.94 assailing the legality of the

order of detention as well as the continued detention of the

detenu. The High Court, by the impugned judgment, dismissed

the writ petition after negativing all the contentions

raised and hence the present appeal. At the outset it may

be stated that though the period of detention is already

over and, therefore, normally this Court would not have gone

into the legality of the order of detention, but a

proceeding under Smugglers and Foreign Exchange Manipulators

(Forfeiture of Property) Act, 1976 (hereinafter referred to

as the SAFEMA) having been initiated, the appellant

pressed his appeal and the Court permitted him to raise the

contentions. It may not be out of place to mention here

that the Customs authorities received some information that

a large scale smuggling of silver is being made in a vessel

on 18.9.91 from Dubai and on the basis of said information

the vessel in question was searched and as many as 350

pieces of silver ingots each weighing 35 KGs were recovered

from the ship and the persons in the vessel were arrested.

Admittedly, the detenu was not present in the vessel. But

the statements of persons arrested from the vessel under

Section 108 of the Customs Act unequivocally indicate that

the silver in question was meant for the detenu and was to

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be handed over to him. The detaining authority on the basis

of such statements of the persons arrested from the vessel,

on being satisfied that pre-conditions for issuance of an

order of detention under sub-section (i) of Section 3 of the

COFEPOSA Act are satisfied thought it necessary to pass an

order and accordingly issued the impugned order of detention

dated 5.2.92. Mr. V.S. Kotwal, learned senior counsel

appearing for the appellant raised the following contentions

in assailing the order of detention: 1. While issuing the

declaration under Section 9(i) of the Act by order dated

15.9.93, the detenu not having been informed of a right of

representation to the authority issuing the declaration,

there has been an infringement of his constitutional right

under Article 22 and, therefore, the impugned order of

detention is vitiated and must be set aside. 2. That the

order of detention was issued on 6.2.92 but the same not

having been executed till 13.8.93, there has been an

inordinate delay in the execution which renders the

detention itself vitiated. 3. At the time of executing the

order of detention, the detenu having been already arrested

and in custody in another criminal case and there being no

consideration/ re- consideration regarding the necessity of

serving an order of detention by the detaining authority,

the detention of the detenu as well as the order of

detention itself gets vitiated and should be quashed 4. The

statements of the occupants of the vessel recorded under

Section 108 of the Customs Act having formed the sole basis

for the subjective satisfaction of the detaining authority

and those very persons having retracted their statements,

non- consideration of those material particulars before

issuing the order of detention on 5.2.92 vitiates the same

and, therefore, the same should be quashed.

According to Mr. V.S. Kotwal, the High Court

committed gross error in rejecting these contentions and in

arriving at the conclusions which are unsustainable in law.

Mr. N.N. Goswami, learned senior counsel appearing for the

Union of India and Mr. I.G. Shah, learned senior counsel

appearing for the State of Maharashtra repelled the

submissions of Mr. V.S. Kotwal and contended that the High

Court was fully justified in rejecting the contentions

advanced on behalf of the detenu. Mr. Goswami also further

contended that even assuming there has been some infraction

of the procedural requirements on account of which there has

been an infringement of the constitutional right of the

detenu in making a representation then the continued

detention becomes invalid and not the order of detention

itself. In this view of the matter, Mr. Goswami contends

that the period of detention having already expired,

question of declaring his continued detention illegal does

not arise and further the order of detention that was issued

by the detaining authority on 5.2.92 cannot be invalidated.

Mr. K.G. Shah, learned senior counsel appearing for the

State of Maharashtra contended that non consideration of

the retraction made by the persons who were in the vessel,

does not vitiate the subjective satisfaction of the

detaining authority inasmuch as the detaining authority was

not aware of the aforesaid retraction.That apart, the very

same persons have made a further statement stating that

their earlier statements under Section 108 are correct and

not the so called retraction and that material was before

the detaining authority when he issued the order of

detention, consequently, the satisfaction of the detaining

authority cannot be said to be vitiated. In view of the

rival submissions of the Bar, we have carefully scrutinised

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the impugned judgment of the Bombay High Court and the

conclusions arrived at in its judgment as well as several

authorities placed at the time of hearing and we proceed to

examine the contentions seriatim. Coming to the first

contention, Mr. Kotwal submits that under Section 8(b) of

the COFEPOSA Act, the appropriate Government is required to

make a reference to the Advisory Board within five weeks

from the date of detention, if no declaration under Section

9 has been made and on the receipt of the opinion of the

Advisory Board which the Board is required to submit within

eleven weeks from the date of detention, the State

Government can confirm the detention order and continue the

detention of the person concerned for such period as it

thinks fit as required under Section 8(f) of the COFEPOSA

Act but where there has been a declaration under Section 9 (

i) of the said Act which declaration is required to be made

within five weeks from the date of detention, then without

obtaining the opinion of the Advisory Board, there can be a

valid detention for a period of six months from the date of

detention. This being the scheme of the provision, the

authority making the declaration under Section 9 (i) of the

Act has to indicate to the detenu that he has a right of

representation to the declaring authority. In the case in

hand, the detenu not having been informed of such right the

entire proceedings starting from confirmation of the order

of detention gets vitiated which in turn makes the order of

detention illegal and void and, therefore, the same has to

be quashed by the Court. In order to appreciate this

contention, it would be appropriate to extract Sections 8

and 9 of the COFEPOSA Act in extenso:

8. Advisory Boards.- For the purposes of sub-

clause(a) of clause (4), and sub-clause(c) of clause (7), of

Article 22 of the Constitution,-

(a) the Central Government and each State Government

shall, whenever necessary, constitute one or more Advisory

Boards each of which shall consist of a Chairman and two

other persons possessing the qualifications specified in

sub- clause (a) of clause (4) of Article 22 of the

Constitution;

(b) save as otherwise provided in Section 9, the

appropriate Government shall, within five weeks from the

date of detention of a person under a detention order make a

reference in respect thereof to the Advisory Board

constituted under clause (a) to enable the Advisory Board to

make report under sub-clause (a) of clause (4) of Article 22

of the Constitution;

(c) the Advisory Board to which a reference is made

under clause (b) shall after considering the reference and

the materials placed before it and after calling for such

further information as it may deem necessary from the

appropriate Government or from any person called for the

purpose through the appropriate Government or from the

person concerned, and if in any particular case, it

considers it essential so to do or if the person concerned

desires to be heard in person, after hearing him in person,

prepare its report specifying in a separate paragraph

thereof its opinion as to whether or not there is sufficient

cause for the detention of the person concerned and submit

the same within eleven weeks from the date of detention of

the person concerned;

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(d) when there is a difference of opinion among the

members forming the Advisory Board, the opinion of the

majority of such members shall be deemed to be the opinion

of the Board;

(e) a person against whom an order of detention has

been made under this Act shall not be entitled to appear by

any legal practitioner in any matter connected with the

reference to the Advisory Board, and the proceedings of the

Advisory Board and its report, excepting that part of the

report in which the opinion of the Advisory Board is

specified shall be confidential;

(f) in every case where the Advisory Board has

reported that there is in its opinion sufficient cause for

the detention of a person, the appropriate Government may

confirm the detention order and continue the detention of

the person concerned for such period as it thinks fit and in

every case where the Advisory Board has reported that there

is in its opinion no sufficient cause for the detention of

the person concerned, the appropriate Government shall

revoke the detention order and cause the person to be

released forthwith.

9. Cases in which and circumstances under which

persons may be detained for periods longer than three months

without obtaining the opinion of Advisory Board. (1)

Notwithstanding anything contained in this Act, any person

(including a foreigner) in respect of whom an order of

detention is made under this Act at any time before the 31st

day of July, 1999, may be detained without obtaining, in

accordance with the provisions of sub-clause (a) of clause

(4) of Article 22 of the Constitution, the opinion of an

Advisory Board for a period longer than three months but not

exceeding six months from the date of his detention, where

the order of detention has been made against such person

with a view to preventing him from smuggling goods or

abetting the smuggling of goods or engaging in transporting

or concealing or keeping smuggled goods and the Central

Government or any officer of the Central Government, not

below the rank of an Additional Secretary to that

Government, specially empowered for the purposes of this

section by that Government, is satisfied that such person

(a) smuggles or is likely to smuggle goods into, out

of or through any area highly vulnerable to smuggling; or

(b) abets or is likely to abet the smuggling of goods

into, out of or through any area highly vulnerable to

smuggling; or

(c) engages or is likely to engage in transporting or

concealing or keeping smuggled goods in any area highly

vulnerable to smuggling,

and makes a declaration to that effect within five

weeks of the detention of such person.

In support of this contention, Mr. Kotwal, learned

senior counsel relies upon the decision of the Full Bench of

the Bombay High Court in the case of Sandeep Atmaram Parwal

V. The State of Maharashtra in Criminal Writ Petition No.

379 of 1995, disposed of on 31.8.96, since reported in 1996

II LJ 1 as well the decision of Full Bench of the Delhi High

Court in the case of Akhilesh Kumar Tyagi V. Union of India

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and Others 1996 Crl.L.J.965. He also relies upon the

decision of this Court in Shibapada Mukherjee V. The State

of West Bengal 1974 (3) SCC 50 and the decision in

Kamleshkumar Ishwardas Patel V. Union of India & and the

decision of the Constitution Bench of this Court in A.K.

Roy V. Union of India and Others 1982 (1) SCC 271. There

cannot be any dispute that the right to make a

representation of a detenu is the most valuable right

conferred upon him under Article 22 of the Constitution and

if there has been any infraction of such right then

certainly the detenu is entitled to be released. The

question, therefore, arises as to whether when a declaration

is made under Section 9( i) of the Act which in turn extends

the period of detention without being confirmed whether the

officer issuing the declaration under Section 9 (i) is also

required to inform the detenue that he has a right to make a

representation to him. Under the constitutional scheme

engrafted in Article 22, no law providing for preventing

detention can authorise the detention of a person for a

longer period than three months unless the Advisory Board

reports before expiration of the said period of three months

that there is, in its opinion, sufficient cause for such

detention. When an authority issues a declaration under

Section 9(i) of the Act, the said authority has the

necessary powers to revoke the declaration on a

representation being made by the detenu against such

declaration. Consequently, if the detenu is not intimated

of his right to make a representation to the authority

issuing the declaration under Section 9(i) then certainly

his valuable constitutional right gets infringed and the two

decisions of the Full Bench relied upon by Mr. Kotwal fully

support this contention. Mr. N.N. Goswami, learned senior

counsel appearing for the Union of India fairly concedes

this position. In the case of A.K. Roy V. Union of India

1982(1 ) SCC 271 where the Court was examining the

constitutional validity of issuance of an Ordinance

providing for detention and the constitutional validity of

the National Security Act, it did rely upon the earlier

decision in Khduram Das. V. State of W.B. 1975 (2) SCC 81

and held that it is not open to anyone to contend that a law

of preventive detention, which falls within Article 22, does

not have to meet the requirement of Articles 14 or 19, and

in the same analogy it must be held that Article 21 also

would apply in case of a law of preventive detention. The

proposition laid down in the aforesaid decision of the

Constitution Bench cannot be doubted, but in our view the

said question does not arise for consideration in the case

in hand. In Kamleshkumar Ishwardas Patel V. Union of India

and Ors. JT 1995 (3) SC 639, it has been held in

unequivocal terms that the right to make a representation

within the meaning of Article 22(5) against the order of

detention is not only to the Advisory Board but also to the

detaining authority i.e. the authority that has made the

order of detention or the order for continuance of such

detention, and hence such right to make a representation

carries within it a corresponding obligation on the

authority making the order of detention to inform the person

detained of his right to make a representation. In this

view of the matter, the conclusion becomes irresistible that

the authority issuing a declaration under Section 9 of

COFEPOSA Act must intimate the detenu that he has right of

opportunity to represent to the declaring authority and non

intimation of the same infringes upon the constitutional

right of the detenu to make a representation under Article

22(5) and, therefore, the notification issued under Section

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9(i) becomes invalid and the continued detention pursuant to

such declaration and the opinion of the Advisory Board

within the extended period as well as the confirmation by

the State Government are vitiated. But the further question

that requires to be answered is whether the initial order of

detention issued under Section 3(i) of the COFEPOSA Act can

be held to be ab initio void on the aforesaid infraction of

the right of the detenu. On this question, we are unable to

agree with the submission of Mr. Kotwal, inasmuch as

Article 22(4) itself provides for a law for preventive

detention authorising detention up to a period of three

months. The infraction of the constitutional right to make

a representation on account of non intimating the detenu

about his right to make a representation or the opinion of

the Advisory Board and the order of detention not being made

within the period prescribed under law does not get into the

satisfaction of the detaining authority while making an

order of detention under Section 3(i) of the COFEPOSA Act.

If the detaining authority on the basis of materials before

him did arrive at his satisfaction with regard to the

necessity for passing an order of detention and the order is

passed thereafter, the same cannot be held to be void

because of a subsequent infraction of the detenus right or

of non- compliance of the procedure prescribed under law.

On such infraction and for non-compliance of the procedure

prescribed under law, the further detention becomes illegal.

But it does not affect the validity of the order of

detention itself issued under Section 3(i) of the Act by the

detaining authority. In view of our aforesaid conclusion,

the question of setting aside the order of detention issued

on 5.2.92 does not arise and further the detenu being no

longer under detention, question of issuing any other

direction does not arise. Our aforesaid conclusion is

supported by the decision of this Court in Shibapada

Mukherjee Vs. The State of West Bengal 1974 (3) SCC 50

wherein the Court observed that there being no valid

confirmation and continuation, the result is that the

petitioners detention after expiry of the period of three

months becomes illegal since it was not in compliance with

Section 12 (i). It would be appropriate, at this stage, to

extract the following few lines from the aforesaid judgment:

.. It is clear from clauses (4) and (7) of Article 22

that the policy of Article 22 is, except where there is a

Central Act to the contrary passed under clause (7)(a), to

permit detention for a period of three months only, and

detention in excess of that period is permissible only in

those cases where an Advisory Board, set up under the

relevant statute, has reported as to the sufficiency of the

cause for such detention. Obviously, the Constitution looks

upon preventive detention with disfavour and has permitted

it only for a limited period of three months without the

intervention of an independent body with persons on it of

judicial qualifications of a high order. The facts that the

report of such an Advisory Board has to be obtained before

the expiry of three months from the date of detention shows

that the maximum period within which the detaining authority

can on its own satisfaction detain a period is three

months.

In Shri Jagprit Singh V. Union of India & Ors. JT

1990(3) SC 293 where there had been a delay of one month and

13 days before the detenu was made aware of his right to

make an effective representation against declaration, this

Court held that it is contrary to the provision of Article

22(5) of the Constitution and, therefore, the detention of

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the detenu after the original period of one year, in the

circumstances, was unjustified. The Court further set aside

the detention of the detenu beyond September, 1989 and not

the original order of detention that had been issued on

2.9.88. This case was directly on the applicability of

Section 9 of the COFEPOSA Act and direct authority in

support of our conclusion. It is not necessary to multiply

authorities on this question. We, therefore, while agreeing

with Mr. Kotwal that there has been an infraction of the

right of detenu under Article 22 as the declaring authority

had not informed that he had right of representation against

the order of declaration, we are of the view that it will

not by itself vitiate the initial order of detention. So

far as the second and third contentions are concerned, the

question would essentially depend upon the facts of each

case. In the case in hand, no doubt the order of detention

was passed by the detaining authority on 5.2.92 but the same

could be served on 3.8.93 after the detaining authority came

to know that the detenu had been arrested on 23.7.93 in some

other case. Mr. Kotwal, in this connection, heavily relies

upon a recent decision of this Court in Smf. Sultan Abdul

Kader Vs. Jt. Secy. To Govt. of India and Others 1998(8)

SCC 343. In the aforesaid case, the Court has indicated

that the unreasonable delay in executing the order creates a

doubt regarding the genuineness of the detaining authority

as regards the immediate necessity of detaining the

petitioner in order to prevent him from carrying on the

prejudicial activity referred to in the grounds of detention

and as such the order of detention had not been passed in

lawful exercise of the power vested in him. But the

question has to be examined in the light of the facts and

circumstances of each case and further it has to be

considered whether the alleged delay is on account of the

reasons beyond the control of the detaining authority. From

the affidavit filed in the present case, it transpires that

the detenu had been evading execution and with best of

efforts, the order of detention could not be served upon

him. After the detenu was arrested in some other case, when

it was brought to the notice of the detaining authority, the

detaining authority then considered the desirability of the

execution of the order of detention issued earlier and

directed the concerned officer to execute the same. Thus,

there has been sufficient explanation for the delay in

execution of the order of detention and further just before

the execution, the detaining authority was made aware of the

fact that the detenu has been arrested and still the

detaining authority thought it necessary to execute the

order of detention. We, therefore, find no force in the

second contention raised by Mr. Kotwal in assailing the

order of detention. In support of the third contention, Mr.

Kotwal relies upon the decision of this Court in Binod Singh

V. District Magistrate, Dhanbad, Bihar and Others 1986 (4)

SCC 416. In the aforesaid case, this Court has observed:

If a man is in custody and there is no imminent possibility

of his being released, the power of preventing detention

should not be exercised. In the instant case when the

actual order of detention was served upon the detenu, the

detaining was in jail. There is no indication that this

factor or the question that the said detenu might be

released or that there was such a possibility of his

release, was taken into consideration by the detaining

properly and seriously before the service of the order.

It is this observation on which Mr. Kotwal heavily

relies upon. But as has been stated earlier in the

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affidavit filed, it has been indicated that not only the

fact that the detenu is in custody on being arrested in some

other case was brought to the notice of the detaining

authority, but also the detaining authority on consideration

of all relevant material including the fact that there may

be a possibility of detenu being released on bail, thought

it fit to get the order of detention served on the detenu.

In the premises, the ratio in the aforesaid case will have

no application. This is not a case where the detaining

authority has not applied his mind to the relevant material,

but a case where the detaining authority considered all the

relevant material and decided and directed to get the order

executed. Consequently, we do not find any merit in the

aforesaid two contentions of Mr. Kotwal. The only other

contention that survives for consideration is whether the

statements of the occupants of the vessel recorded under

Section 108 of the Customs Act having formed the sole basis

for the subjective satisfaction of the detaining authority

for the order of detention and those very persons having

retracted, non consideration of the retraction, vitiates

the order of detention itself. The High Court in the case

in hand did not accept the aforesaid contention on the

ground that there was no material before the detaining

authority that there has been retraction of the statements

made by those persons who had earlier been examined under

Section 108 of the Customs Act. We need not go into this

question in the case in hand, inasmuch as by the date of

issuance of the order of detention, those persons have made

a further statement indicating that the original statements

made by them under Section 108 of the Customs Act were

correct and not the retracted statements they had made and

this fact was before the detaining authority when he issued

the order of detention under Section 3(i) of the COFEPOSA

Act. This being the position, it is difficult for us to

accept the contention of Mr. Kotwal that the satisfaction

of the detaining authority gets vitiated for non

consideration of the relevant material. In our opinion, the

aforesaid submission, in the facts and circumstances of the

present case, is devoid of any force and we accordingly

reject the same.

All the contentions having failed, this appeal fails

and is dismissed accordingly.