Meena Jayendra
Thakur Vs. Union of India & Ors [1999] INSC 363
(22 September 1999)
G.B.Pattanaik,
N.Srinivasan, N.S.Hedge 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 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 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;
(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 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 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 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 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 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 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.
Back
