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PETITIONER:

SATAR HABIB HAMDANI ETC

Vs.

RESPONDENT:

K.S. DILIPSINHJI & ORS.

DATE OF JUDGMENT20/12/1985

BENCH:

REDDY, O. CHINNAPPA (J)

BENCH:

REDDY, O. CHINNAPPA (J)

KHALID, V. (J)

CITATION:

1986 AIR 418 1986 SCC (1) 544

1985 SCALE (2)1429

CITATOR INFO :

RF 1991 SC 672 (20)

ACT:

Conservation of Foreign Exchange and Prevention of

Smuggling Activities Act, 1974. Section 9 - 'Detention' and

'continued detention' - Difference between - Advisory board

- Duty of Specifically consider and determine whether there

is sufficient cause for 'continued detention' of the person

concerned.

HEADNOTE:

An order of detention under the COFEPOSA was made by

the Additional Secretary to the Government of India against

the appellant, and the grounds of detention were served on

him on July 1, 1984. On July 13, 1984 the COFEPOSA was

amended. Purporting to act under section 9(1) of the

COFEPOSA as amended the Additional Secretary made a

declaration that he was satisfied that the appellant was

likely to abet the smuggling of goods into and through an

area highly vulnerable to smuggling as defined in

Explanation 1 to section 9(1) of the Act. Thereafter the

usual reference to the Advisory Board was made and after

obtaining its opinion the Government of India by an order

dated December 22, 1984 confirmed the detention for a period

of two years.

In the appeals to this Court, it was contended on

behalf of the appellants that in every case where it was

proposed to have recourse to s. 10 read with s. 9 it was

necessary for the Advisory Board to state its opinion, that

'the continued detention of the detenu was necessary and

that in a case where the Advisory Board merely opined that

'the detention' of the detenu was necessary, recourse could

not be had to s. 10 read with s. 9 so as to enable the

detenu to be detained for two years. This contention was

answered on behalf of the respondents through the counter

affidavit by contending, that once the Advisory Board gives

an opinion affirming the detention it must be regarded as an

opinion in regard to both the aspects viz. the original

'detention' and the 'continued detention'.

Allowing the Appeals,

^

HELD: 1. In the absence of the Advisory Board's opinion

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to the effect that there is sufficient cause for the

'continued

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detention' of the detenus, their detention for a period

exceeding one year is without legal sanction. More than one

year has lapsed since the appellants have been detained.

They are directed to be set at liberty forthwith. [1068 G]

2. The scheme of section 3,8,9 and 10 of the Act

appears to be that while generally the period for which a

person may be preventively detained under the COFEPOSA in

connection with the smuggling activities may not exceed a

period of one year, in case of certain kinds of activities

of smuggling into, out of, or through 'any area highly

vulnerable to smuggling', the period may extend upto two

years. In the latter event, a declaration is required to be

made within five weeks of the detention of such person in

the manner provided by section 9(1) of the Act. [1067G; 1068

A]

3. In a case to which s.9 applies, s.8 stands suitably

amended, a reference is required to be made within four

months and two weeks by the Government to the Advisory

Board, and the Advisory Board is required to state its

opinion within five months and three weeks from the order of

detention where there is sufficient cause for the 'continued

detention' of the person concerned. [1068 B]

4. The two safeguards provided to the detenu against

'continued detention' are the application of mind by the

specified authority before making a declaration under s.9(1)

and the consideration of the question by the Advisory Board.

[1068 C]

5. The Advisory Board is to state its opinion not

merely whether detention is necessary, but whether

'continued detention' is necessary. The Advisory Board will

necessarily have to go behind the declaration under s.9 to

consider the question whether there is sufficient cause for

'continued detention'. [1068 C]

6. In a case to which s.9 applies it is important that

the Advisory Board specifically considers and answers the

question whether in its opinion there is sufficient cause

for the 'continued detention' of the person concerned. If

the Advisory Board merely states that the detention of the

person is necessary it is not for anyone else to supplement

the Advisory Board's opinion and substitute the words

'continued detention' for the word 'detention'. [1068 E]

JUDGMENT:

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.

371 of 1985 etc.

1063

From the Judgment and Order dated 18.12.1984 of the

Gujarat High Court in Special Criminal Application No. 494

of 1984.

M.G. Karmali, U.R. Lalit, Vineet Kumar and N.D.B. Raju

for the Appellants.

V.C. Mahajan, R.N. Poddar, Miss Sushma Rahlan and

Girish Chandra for the Respondents.

The Judgment of the Court was delivered by

CHINNAPPA REDDY, J. These several Criminal Appeals

raise a common question and may be disposed of by a single

judgment. It is sufficient if we state that the facts in one

case : Criminal Appeal No. 371 of 1985. On 29.6.84 an order

of detention under the COFEPOSA was made by the Additional

Secretary to the Government of India, Finance Department

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against Satar Habib Hamdani. The grounds of detention were

served on him on July 1, 1984. On July 13, 1984 the COEEPOSA

was amended by an Ordinance which was replaced by an

Amending Act. We will presently refer to the provisions of

the Act. Purporting to act under s.9(1) of the COFEPOSA as

amended, the Additional Secretary to the Government of India

made a declaration that he was satisfied that 'Shri Satar

Habib Hamdani abets and is likely to abet the smuggling of

goods into and through Porbandar which is an area highly

vulnerable to smuggling, as defined in Explanation 1 to

section 9(1) of the Conservation of Foreign Exchange and

Prevention of smuggling Activities Act, 1974.' Thereafter

the usual reference to the Advisory Board was made and after

obtaining the opinion of the Advisory Board, the Government

of India, by an order dated December 22, 1984 confirmed the

detention of Satar Habib Hamdani for a period of two years.

The order was as follows :

"WHEREAS an order F.No.673/75/84-Cus. VIII dated

28/29 June, 1984 has been passed by the Additional

Secretary to the Government of India u/s 3(1) of

the Conservation of Foreign Exchange and

Prevention of Smuggling Act, 1974 for the

detention of Shri Satar Habib Hamdani whereas a

declaration u/s 9(1) ibid has been made against

him by the Additional Secretary to the Government

of India :

ANL WHEREAS the case of Shri ....... was placed

before the Advisory Board who are of the opinion

that there is sufficient cause for his detention ;

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NOW, THEREFORE, in exercise of the powers

conferred by section 8(f) read with section 9(2)

of the aforesaid Act, the Central Government here

- by confirms the aforesaid detention order and

Satar Habib Hamdani u/s 10 of the said Act, the

said Shri ........ be detained for a period 1-7-

1984 two years from the date of his detention i.e.

from

Sd/-

(A.N. AGNIHOTRI)

UNDER SECRETARY TO THE GOVERNMENT OF INDIA

Shri Satar Habib Hamdani,

Central COFEPOSA Detenu,

C/o Supdt. District Prison Rajkot."

The submission of Shri Karmali learned counsel for the

appellants who presented the case neatly and with precision

was that in every case where it was proposed to have

recourse to s.10 read with s.9 it was necessary for the

Advisory Board to state its opinion that 'the continued

detention' of the detenu was necessary and that in a case

where the Advisory Board merely opined that 'the detention'

of the detenu was necessary, recourse could not be had to

s.10 read with s.9 so as to enable the detenu to be detained

for two years. The answer to the claim of the appellant was

stated in the counter affidavit as follows:

"With reference to para 10(xv) I submit that it is

not incumbent upon the Advisory Board to send its

report to the effect that there is sufficient

cause for continued detention once having observed

and reported that there was sufficient cause for

detention. Once the Advisory Board gives an

opinion affirming the detention it must be

regarded as an opinion in regard to both the

aspects viz. the original detention and the

continued detention i.e. right from the date of

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arrest till the date of giving opinion deny that

the continued detention of the appellant is

violative of sec.8(c) of the Act.

In order to appreciate the submission of Shri Karmali

we may refer to the relevant provisions of the COFEPOSA as

amended by the Amending Act of 1984. Section 3(1) empowers

the authority specified therein -

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"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."

Section 8 provides for the Constitution of Advisory

Boards, prescribes their function and specifies their

procedure. For the purposes of the present case we are

concerned with clauses (b).(c) and (f) which are as follows

:-

"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)..............................................

(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

the 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

1066

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, to 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;

(d).....................................

(e)......................................

(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

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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."

Section 9(1) empowers the authority specified therein to

make a declaration that the person against whom an order of

detention has been made

(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,

Whereupon such person may be detained without obtaining the

opinion of an Advisory Board for a period longer than three

1067

Months but not exceeding six months from the date of his

detention. Explanation 1 to S.9(1) defines 'area highly

vulnerable to smuggling'.

Section 9(2) is important and it is as follows :-

"(2) In the case of any person detained under a

detention order to which the provisions of sub-

section (1) apply, Section 8 shall have effect

subject to the following modifications, namely:-

(i) in clause (b), for the words shall, within

five weeks, the wrods "shall, within four months

and two weeks" shall be substituted:

(ii) in clause (c), -

(1) for the words the detention of the person

concerned , the words the continued detention of

the person concerned shall be substituted;

(2) for the words eleven weeks the words five

months and three weeks shall be substituted;

(iii) in clause (f), for the words for the

detention , at both the places where they occur,

the words "for the continued detention" shall be

substituted.

Section 10 stipulates the maximum period for which any

person may be detained pursuant to an order of detention to

which the provisions of section 9 do not apply and which has

been confirmed under s.8(f) as one year from the date of

detention or the specified period; and, the maximum period

for which any person may be detained pursuant to an order of

detention to which the provisions of s.9 apply and which has

been confirmed under s.8(f) read with s.9(2) as two years

from the date of detention, or the specified period. As we

see, the scheme of section 3, 8, 9 and 10 appears to be that

while generally the period for which a person may be

preventively detained under the COFEPOSA in connection with

smuggling activites, may not exceed a period of one year, in

case of certain kinds of activities of smuggling into, out

of or through 'any area highly vulnerable to smuggling', the

period may extend upto two years. In the latter event a

declaration is required to be made within five weeks of

1068

the detention of such person in the manner provided by

s.9(1) of the Act. That is not enough. In a case to which

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s.9 applies, s.8 stands suitably amended, a reference is

required to be made within four months and two weeks by the

Government to the Advisory Board and the Advisory Board is

required to state its opinion within five months and three

weeks from the order of detention whether there is

sufficient cause for the continued detention' of the person

concerned. In other words, the Advisory Board is to state

its opinion not merely whether detention is necessary but

whether 'continued detention' is necessary. The Advisory

Board will necessarily have to go behind the declaration

under s.9(1) to consider the question whether there is

sufficient cause for 'continued detention'. The two

safeguards provided to the detenu against 'continued

detention', at that stage, are the application of mind by

the specified authority before making a declaration under

s.9(1) and the consideration of the question by the Advisory

Board. Section 8 is enacted and professedly enacted for the

purpose of Art.22, clause (4), sub-clause (a) and Art.22,

clause(7), sub-clause(c) and s.9 expressly refers to Art.22,

clause (4), sub-clause(a). That is why in a case to which

s.9 applies it is important that the Advisory Board

specifically considers and answers the question whether in

its opinion there is sufficient cause for the 'continued

detention' of the person concerned. If the Advisory Board

merely states that the detention of the person is necessary

it is not for any one else to supplement the Advisory

Board's opinion and subsitute the words continued detention

for the word detention . The matter is of vital important

for that. The omission of the words continued detention in

the opinion of the Advisory Board cannot be slurred over in

the fashion we are invited to do in the counter affidavit.

Nor can we treat the omission as a mere clerical or

typographical error when that is not the express case of the

respondents. We are of the opinion that in the absence of

the Advisory Board's opinion to the effect that there is

sufficient cause to the 'continued detention' of the

detenus, their detention for period exceeding one year is

without legal sanction. It already much more than one year

since the appellants have been detained. They are directed

to be set at liberty forthwith.

N.V.K. Appeals allowe

1069