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2016 (2) TMI 853 - SUPREME COURT

2016 (2) TMI 853 - SUPREME COURT - 2016 (332) E.L.T. 22 (SC) - Smuggling of gold - detention of the individual - challenge to the order passed under Sections 3(1)(i) and 3(1)(iii) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 qua the detenu Barik Biswas, brother of the appellant. - Held that:- we are unhesitatingly satisfied that adjudication on the issue of remittance of a pending representation to the Advisory Board would suffice to dispose of this ap .....

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ing the pendency of the proceedings before the Advisory Board is of no consequence to sustain the detention.

Consequently, the order of confirmation as well is rendered non est by this vitiation. In view of the determination made on the above aspect of the debate, we do not consider it necessary to dilate on the other pleas raised on behalf of the detenu. In the result, the appeal succeeds. The impugned judgment and order is set aside. The orders of detention as well as the order of .....

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asad, AOR ORDER Leave granted. In challenge is the judgment and order dated 04.03.2015 rendered by the High Court of Delhi in Writ Petition (Criminal) No.1529 of 2014 sustaining the orders of detention dated 27.05.2014 and 13.06.2014 by the appropriate authority passed under Sections 3(1)(i) and 3(1)(iii) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short, hereinafter referred to as, 'the Act') qua the detenu Barik Biswas, brother of the a .....

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d on a search thereof 44.659 kilograms of smuggled gold was recovered by the Revenue Intelligence Authorities. The detenu, though arrested, was later released on bail by the Chief Metropolitan Magistrate, Kolkata on 12.03.2014. The bail was, however, cancelled eventually on 14.05.2014 against which he preferred Special Leave Petition (Criminal) No.4387 of 2014 which was disposed of by this Court on 28.05.2014 in the following terms: We are not inclined to interfere with the order passed by the H .....

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urt without being influenced by any observation made in the impugned order by the High Court. As the text of the order would reveal, thereby this Court, while declining to interfere with the order of cancellation of bail of the detenu, required the Directorate of Revenue Intelligence to complete the investigation expeditiously and preferably within four weeks therefrom. It was further observed that the moment the investigation was complete and challan was filed in the court, he would be at liber .....

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4 had passed an order under Section 3(1) of the Act for his detention with a view to prevent him from smuggling goods and effecting transportation and concealment of the smuggled goods in future. In a separate communication dated 27.05.2014 of the Government of India, Ministry of Finance, Department of Revenue, Central Economic Intelligence Bureau (COFEPOSA Unit), signed by the Joint Secretary to the Government and addressed to the appellant, the materials taken note of in passing the said order .....

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uted till then and that in terms of the order of this Court rendered in SLP (Criminal) No.4387 of 2014, there was a likelihood of he being released on bail when the investigation was complete and challan was submitted. It was indicated in the said letter as well that in such an eventuality, there was a possibility of the appellant absconding from law and that, thus, his detention under the Act was warranted. Incorporating the above contents of the letter and citing the same to be additional grou .....

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der the Act citing different grounds. Be that as it may, it is a matter of record and the parties are not in issue that the detenu on 08.07.2014 had submitted a representation challenging the grounds of his detention, addressed to the Special Secretary-cum-Director General of CEIB, Government of India, Ministry of Finance, Department of Revenue, who was the appropriate authority to consider and decide the same on merits. This representation was received on 10.07.2014 and remained pending till th .....

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f detention. It was thereafter on 05.09.2014, the order of detention was confirmed by the Central Government. Meanwhile, on 21.07.2014, the representation which hitherto was pending before the Central Government was rejected on merits. It is contended on behalf of the respondents that after the rejection of the detnue's representation, the same was forwarded to the Advisory Board before which the proceedings were still pending. Mr. Gopal Subramaniam, learned senior counsel for the appellant, .....

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onstitutionally impermissible. To endorse this view, Mr. Subramaniam has placed reliance on two Constitution Bench decisions of this Court in Jayanarayan Sukul vs. State of West Bengal [(1970) 1 SCC 219] and K.M. Abdulla Kunhi and B.L. Abdul Khader vs. Union of India & Ors, State of Karnataka & Ors. [(1991) 1 SCC 476]. It is noticeable that the learned senior counsel for the appellant did raise two other contentions to oppugn the order of detention, namely, in the face of the first order .....

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alid. This was, as would be evident from the order dated 13.06.2014 that several letters/communications subsequent to 27.05.2014 were taken note of and relied upon by the detaining authority to derive its so called satisfaction. Per contra, Ms. Pinky Anand, learned Additional Solicitor General has urged that a plain reading of Article 22 of the Constitution of India and the relevant provision of the Act does not mandate an inflexible time frame for the Central Government to dispose of the detenu .....

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so to the decision rendered in K.M. Abdulla Kunhi and B.L. Abdul Khader (supra), that the Central Government in a given fact situation, if a representation is filed by the detenu after the order of confirmation would be within its authority to dispose of the same on merits even at that stage. This proposition, according to her, endorses the view that it would not be construed to be obligatory on its part to forward a pending representation of the detenu to the Advisory Board, even if filed and i .....

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detenu had submitted his representation on 08.07.2014 and the same was pending consideration on merit before the Central Government on 18.07.2014, the date on which the matter was remitted to the Advisory Board under the Act. The representation was rejected on 21.07.2014 when the matter was pending before the Advisory Board. The Advisory Board concluded its proceedings and gave a finding sustaining the order of detention on 27.08.2014. Unmistakably, thus, the detenu's representation which wa .....

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d and fast rules could be laid down to fix the duration therefor, the appropriate Government was to exercise its opinion and judgment thereon before sending the case of the detenu to the Advisory Board. In this context, it was observed that if the appropriate Government released the detenu, it would not be required for it to send the matter to the Advisory Board. However, if it was not so, the Government was to send the case along with the detenu's representation to the Advisory Board and, i .....

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he opinion of the Advisory Board, in our opinion, the same does not detract from the unequivocal and authoritative proposition laid down by this Court vis-a-vis the obligation of the Central Government to forward the pending representation to the Advisory Board for its consideration. The above view resonated in affirmation as well in K.M. Abdulla Kunhi and B.L. Abdul Khader (supra) wherein this Court, in paragraph 16, reiterated the above. For ready reference, we consider it appropriate to extra .....

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orwarded to the Advisory Board along with the case of the detenu. The representation may be received after the case of the detenu is referred to the Board. Even in this situation the representation should be forwarded to the Advisory Board provided the Board has not concluded the proceedings. In both the situations there is no question of consideration of the representation before the receipt of report of the Advisory Board. Nor it could be said that the government has delayed consideration of t .....

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t within eleven weeks from the date of detention. The Advisory Board may hear the detenu at his request. The Constitution of the Board shows that it consists of eminent persons who are Judges or person qualified to be Judges of The High Court. It is therefore, proper that the Government considers the representation in the aforesaid two situations only after the receipt of the report of the Board. If the representation is received by the Government after the Advisory Board has made its report, th .....

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Advisory Board along with the records of the detenu. This assumes significance, in our comprehension, in view of the binding nature of the opinion of the Advisory Board, in case, on a consideration of the materials on record, it decides to hold against the detention. In case, the Advisory Board holds that the detention order is invalid, it is not open for the appropriate Government to continue therewith and it has to essentially revoke the same though the converse may not be the same. In other w .....

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