TMI Blog2019 (8) TMI 1111X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the Advisory Board as amounting to a judgment of a criminal court; that the Advisory Board does not try the question about the propriety or validity of the citizen s detention as a court of law would, but, its function is limited. The present petition seeking to challenge the Opinion dated 22.07.2019 of the Advisory Board as not maintainable. SLP dismissed. - SPECIAL LEAVE TO APPEAL (CRL)No.7016 OF 2019, WRIT PETITION (CRL.)NO. 210 OF 2019, SPECIAL LEAVE TO APPEAL(CRL)NO.7021 OF 2019, WRIT PETITION (CRL.)NO. 220 OF 2019 - - - Dated:- 21-8-2019 - Uday Umesh Lalit And R. Subhash Reddy, JJ. JUDGMENT Uday Umesh Lalit, J. 1. This Petition for Special Leave to Appeal challenges the Opinion dated 22.07.2019 of the Advisory Board constituted under Section 8(a) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 ( the COFEPOSA Act , for short) in Reference No. 81 of 2019. The Opinion in Part-II of the Report of the Advisory Board was to the following effect:- The Advisory Board is of the opinion that there is no sufficient cause for the continued detention of the ab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Regarding detention order passed against the respondent in Criminal Appeal No.1064 of 2019 (arising out of SLP(Crl.)No. 5459 of 2019), we have passed the judgment on 18.07.2019 expressing our views. Since we have already expressed our views, we are of the view that the matter(s) has to be placed before any other Bench after obtaining necessary orders from Hon ble the Chief Justice of India. Subject to orders passed by Hon ble the Chief Justice of India, list the matter accordingly before any other Bench. The Petition was accordingly posted before us on 16.08.2019. Since it involved issues of personal liberty, the matter was heard finally, at the end of which an order was dictated in open court. The petition preferred against the opinion of the Advisory Board was dismissed and the detenu was directed to be released forthwith. The following are the reasons in support of the operative part of the order. 6. At the outset, a preliminary objection was raised by Mr. Mukul Rohatgi, learned Senior Advocate, appearing on behalf of the respondent about the maintainability of the present Petition for Special Leave to Appeal. It was submitted that under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lause (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 subclause (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 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, it considers it essential so to do or if the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate. (3) Nothing in clauses (1) and (2) shall apply- (a) to any person who for the time being is an enemy alien; or (b) to any person who is arrested or detained under any law providing for preventive detention. (4) No law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless- (a) an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention: Provided that nothing in this sub-clause shall authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament under sub-clause (b) of clause (7); or (b) such person is detained in accordance with the provisions of any law made by Parliament under su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y Board has to be in two parts. The first part is to contain the assessment made by the Advisory Board in the form of a report which is completely confidential. The second part contains the result of such assessment in the form of an opinion. It is this second part of opinion alone which is not confidential. Sub-section (f) of Section 8 obliges the appropriate government to revoke the detention order and cause the person to be released forthwith in case the Advisory Board has reported that there was, in its opinion, no sufficient cause for the detention of the person concerned. However, if the opinion is otherwise and the Advisory Board has found that there was sufficient cause for the detention of the person, the appropriate government may confirm the detention order and continue the detention. The choice is available to the appropriate government only in the latter of these two eventualities. Therefore, in case the opinion is to the effect that there was no sufficient cause for the detention of the person concerned, the appropriate government has to revoke the detention order and cause the person concerned to be released forthwith. 11. Dharam Singh Rathi AIR 195 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Board hears the person affected by the detention order in case he desires to be so heard, would not for that reason alone impose on the Board a legal obligation to communicate its decision to the detenu. Our attention has not been drawn to any provision of law or to any priciple which would imply any such obligation. In any event omission on the part of the Advisory Board to do so cannot invalidate the petitioner s detention. 5. The submission that the Advisory Board should have communicated its opinion to the petitioner so as to enable him to question its legality is also misconceived. In the first instance the Advisory Board constituted under Section 9 of the Act, as its name connotes, is only required to function in an advisory capacity. Its opinion which is merely an advice is binding on the appropriate Government only if according to it there is no sufficient cause for the detention in question: in that eventuality the detenu cannot possibly have any grievance. When the Board reports that there is sufficient cause for the detention in question the appropriate Government is not bound under the law to confirm the order of detention. It may or may not do so. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he present appeals is of a different character. A citizen may suffer loss of liberty if he is detained validly under the Act; even so, does it follow that the detention order which deprived the citizen of his liberty should also serve indirectly but effectively the purpose of depriving the said citizen of his livelihood? If the view taken by the appellant s officers who tried the disciplinary proceedings is accepted, it would follow that if a citizen is detained and his detention is confirmed by the State Government, his services would be terminated merely and solely by reason of such detention. In our opinion, such a position is obviously and demonstrably inconsistent with the elementary concept of the rule of law on which our Constitution is founded. When a citizen is detained, he may not succeed in challenging the order of detention passed against him, unless he is able to adduce grounds permissible under the Act. But we are unable to agree with Mr Sen s argument that after such a citizen is released from detention, an employer, like the appellant, can immediately start disciplinary proceedings against him and tell him in substance that he was detained for prejudicial activities ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d does not try the question about the propriety or validity of the citizen s detention as a court of law would, but, its function is limited. As stated in Akshoy Konai (1973) 1 SCC 297, the opinion is merely intended to assist the government and it is binding on the appropriate government only if it favours the detenu and not when it goes against him. It was laid down in said decision that the opinion of the Advisory Board cannot be subject matter of review or scrutiny by the judicial courts/tribunals. The element of confidentiality was also taken note of and it was observed that the Advisory Board opinion is never intended to be open to challenge on the merits before any tribunal. 16. The decisions relied upon by the learned Additional Solicitor General pertain to fields other than preventive detention. In Bharat Bank Ltd. 1950 SCR 459 = AIR 1950 SC 188 the issue was whether a decision of an Industrial Tribunal could be amenable to the appellate jurisdiction under Article 136(1) of the Constitution. The reliance was placed by the learned Additional Solicitor General on the opinion of S. Fazal Ali, J. as under:- The important question to be decided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... commences on an application which in many respects is in the nature of a plaint. It has the same powers as are vested in a civil court under the Code of Civil Procedure when trying a suit, in respect of discovery, inspection, granting adjournment, reception of evidence taken on affidavit, enforcing the attendance of witnesses, compelling the production of documents, issuing commissions etc. It is to be deemed to be a civil court within the meaning of Sections 480 and 482 of the Criminal Procedure Code, 1898. It may admit and call for evidence at any stage of the proceeding and has the power to administer oaths. The parties appearing before it have the right of examination, cross-examination and reexamination and of addressing it after all evidence has been called. A party may also be represented by a legal practitioner with its permission. 8. The matter does not rest there. The main function of this Tribunal is to adjudicate on industrial disputes which implies that there must be two or more parties before it with conflicting cases, and that it has also to arrive at a conclusion as to how the dispute is to be ended. Prima facie, therefore, a Tribunal like this ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Board, excepting its opinion, is strictly confidential and the nature of the power so exercised by the Advisory Board in giving its report and the opinion, has already been pronounced upon by this Court in the cases referred to above viz. Dharam Singh Rathi AIR 1958 SC 152 = 1958 SCR 996, Akshoy Konai (1973) 1 SCC 297, A.K. Roy (1982) 1 SCC 271 and Calcutta Dock Labour Board (1965) 3 SCR 453 = AIR 1966 SC 282. We follow these decisions and hold the present petition seeking to challenge the Opinion dated 22.07.2019 of the Advisory Board as not maintainable. 20. The Petition for Special Leave to Appeal is, therefore, dismissed. 21. In view of the Opinion of the Advisory Board as stated above and the dismissal of the Petition for Special Leave to Appeal (Criminal) No. 7016 of 2019, no orders are called for in Writ Petition (Criminal) No. 220 of 2019 as said Writ Petition prays for writ, order or direction quashing and setting aside the order of detention dated 17.05.2019 passed against the aforementioned respondent-detenu. The writ petition stands disposed of. 22. For the reasons as stated above, Petition for Special Lea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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