Satar Habib Hamdani Vs. K.S.
Dilipsinhji & Ors [1985] INSC 256 (20 December 1985)
REDDY, O. CHINNAPPA (J) 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 to the effect that there is sufficient cause for the 'continued
1062 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]
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 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 ;
1064 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 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
- 1065 "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 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 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.
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