http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 8  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 8  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 8  

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;

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 8  

     (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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 8  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 8  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 8  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 8  

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.