TMI Blog1999 (9) TMI 832X X X X Extracts X X X X X X X X Extracts X X X X ..... SA 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 accordingly reject the same. - CRL. APPEAL NO. 368 OF 1996 - - - Dated:- 22-9-1999 - G.B. PATTANAIK, M. SRINIVASAN AND N. SANTOSH HEGDE, JJ. JUDGMENT Pattanaik, J. - This appeal is directed against the judgment dated 18-1-1995 20-1-1995 of the Bombay High Court in Criminal Writ Petition No. 701 of 1994. The appellant is the wife of the detenue, Jayendra Vishnu Thakur. The State of Maharashtra issued an order of detention under section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 ( the COFEPOSA Act ) on 5-2-1992. The detenue was served with the order of detention on 13-8-1993 while he was in custody on being arrested on 23-7-1993 in some other criminal case. On 15-9-1993, a declaration was made under section 9(1) of the COFEPOSA Act thereby extending the period within which the procedural requireme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 6-2-1992 but the same not having been executed till 13-8-1993, 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 detenue having been already arrested and in custody in another criminal case and there being no consideration/reconsideration regarding the necessity of serving an order of detention by the detaining authority, the detention of the detenue 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 5-2-1992 vitiates the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inion 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 ) but where there has been a declaration under section 9(1) 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(1) has to indicate to the detenue that he has a right of representation to the declaring authority. In the case in hand, the detenue 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 in extenso: " 8. Advisory Boards. For the purposes of su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Secreta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sequently, if the detenue is not intimated of his right to make a representation to the authority issuing the declaration under section 9(1) 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, the learned senior counsel appearing for the Union of India fairly concedes this position. 9. In the case of A.K. Roy ( supra ) 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 article 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. 10. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rocedure 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(1) by the detaining authority. In view of our aforesaid conclusion, the question of setting aside the order of detention issued on 5-2-1992 does not arise and further the detenue 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 s case ( supra ) wherein the Court observed that there being no valid confirmation and continuation, the result is that the petitioner s detention after expiry of the period of three months becomes illegal since it was not in compliance with section 12(1). 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 Ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 detenue had been evading execution and with best of efforts, the order of detention could not be served upon him. After the detenue 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 aw ..... X X X X Extracts X X X X X X X X Extracts X X X X
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