SATAR HABIB HAMDANI ETC. versus K.S. DILIPSINHJI & ORS.

OIINNAPFA 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 tepartment against Satar habib Hamdani. The grounds of detention were served on him on July 1, 1984. On July 13, 1984 the COFE.FOSA 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 Habi; hamiani 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 Fqreign 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 Hamdan! for a period of two years. The order was as follows :

p. 1063, margin B

"WiiEREAS an order F.No.673/75/84-<;us. 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 : Al\L the case of Shri ••••••• was placed before the Advisory Board who are of the opinion that there is sufficient cause for his detention ;

p. 1063, margin D

~OW, ThEREFORE, in exercise of the powers conferred by section 8(f) read with section 9(2) of the aforesaid Act, the Central GoverTIJL.ent here - by confirms the aforesaid detention order and Satar haLib 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

p. 1064

Sd/-

p. 1064, margin B

(A.N. AG~lhOTRI)

p. 1064, margin B

U1'LER SECRETARY GGVERN~£NT INDIA Shri Satar habib hamdani, Central COFEfOSA Letenu,

p. 1064, margin B

C/o Supdt. Listrict Frison Rajkot."

p. 1064, margin C

The submission of Shri Karmali learneci 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.S 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 :

p. 1064, margin C

''With reference to para lO(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

p. 1064, margin C

... 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

p. 1064, margin F

sec.8(c) of the Act."

p. 1064, margin F

In order to appreciate the submission of Shri K.armali we may refer to the relevant provisions of the COFEFOSA as amended by the Amending Act of 1%4. Section 3(1) empowers the authority specified therein - "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, o'r (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 sruuggling of goods, It is necessary so to do, make an order directing that

pp. 1064–1065, margin F

such person be detained."

p. 1065, margin D

Section o provides for the Constitution of Advisory Boards, prescribes their function and specif !es their procedure. For the purposes of the present case ~e 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)

p. 1065, margin D

............................................... (t) 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 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 concerU?d; (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 released

pp. 1065–1066, margin D

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

p. 1066, margin E

highly vulnerable to smuggling, Whereupon such person may be detained without obtaining the opinion of an Advisory Board for a period longer than three months but not exceedirlb six months from the date of his detention. Explanation 1. to S.9(1) defines 'area highly vulnerable to smuggling' .

pp. 1066–1067, margin G

Section 9(2) is important and it is as follows :- "(2) ln the case of any person detained under a detention order to which the pr.ovisions 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

p. 1067, margin A

substituted."

p. 1067, margin E

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 frOIU 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 the detention of such person in the manner provided by the Act. That is not enough. In a case to which s.9 applies, stands suitably amended, a reference is required to within four months and two weeks the Government Advisory lloard and the Advisory Board is required to opinion within five months and three weeks from the detention whether there is sufficient cause for the detention' of the person concerned. In other words, the daard is to state its opinion not merely whether detention necessary but whether 'continued detention' is necessary. Advisory lioard will necessarily have to go behind the under s.9(1) to consider the question whether there is cause for 'continued detention'. The two safeguards provided the detenu against 'continued detention', at that stage, application of mind the specified authority before declaration under s.9(1) and the consideration of the question the Advisory lloard. Section 8 is enacted and professedly for the purpose of Art.22, clause (4), sub-clause (a) and Art.22, Clause(?), sub-clause(c) and s.9 expressly refers clause (4), sub-clause(a). That is why in a case to applies it is important that the Advisory lloard specifically considers and answers the question whether in its opinion is sufficient cause for the 'continued detention' of concerned. If the Advisory Board merely states that the of the person is necessary it is not for any one else ment the Advisory lloard's opinion and subsitute "continued detention" for the word "detention". The matter vital important for that. The omission of the words ."continued detention" in the opinion of the Advisory Board cannot over in the fashion we are invited to do in the ·counter davit. Nor can we treat the omission as a mere clerical ~raphical error when that is not the express case of dents. We are of the opinion that in the absence of the Hoard's opinion to the effect that there is sufficient the 'continued detention' of the detenus, their detention period exceeding one year is without legal sanction. already much more than one year since the appellants detained. They are directed to be set at• liberty forthwith. N.V.K. Appeals allowe

pp. 1067–1068, margin E