Supreme Court of India
SATAR HABIB HAMDANI ETC.versusK.S. DILIPSINHJI & ORS.
- Citation
- 1985 INSC 255
- Decided
- 20 December 1985
- Disposal
- Appeal(s) allowed
- Bench
- O CHINNAPPA REDDY
Holding
A preventive detention order under COFEPOSA cannot be extended beyond one year unless the Advisory Board expressly opines that there is sufficient cause for continued detention.
Summary
The Supreme Court examined the validity of a two‑year preventive detention order issued under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA) against S. H. Hamdani. The Additional Secretary declared that the detainee was likely to abet smuggling in a "highly vulnerable" area and, after a reference, the Advisory Board opined that there was sufficient cause for his detention, but did not expressly state that there was sufficient cause for "continued detention". The appellants argued that, for a detention to be extended beyond one year under sections 9 and 10, the Advisory Board must specifically endorse "continued detention"; otherwise the extension lacks legal sanction. The Court held that the Advisory Board’s opinion must expressly address "continued detention" and that without such a specific finding, detention beyond one year is unlawful. Consequently, the Court allowed the appeals and ordered the immediate release of the detainees. The judgment clarifies the procedural safeguards required for extended preventive detention under COFEPOSA.
Issues considered
- The Advisory Board must specifically state that there is sufficient cause for "continued detention" under section 9(2) of COFEPOSA for a detention to be extended beyond one year.
- Whether a declaration of "detention" alone, without an explicit opinion on "continued detention", suffices to lawfully extend preventive detention to two years under sections 9 and 10 of COFEPOSA.
Legislation cited
- Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974s. 10, s. 3, s. 8, s. 9, s. 9(1), s. 9(2)
Subjects
COFEPOSApreventive detentioncontinued detentionAdvisory Boardsection 9section 10foreign exchangesmugglingArticle 22detention order
Judgment
1061
SATAR EABIB HAMDA!il ETC. A
v.
K.S. DILIPSINH.il &ORS,
DF..CEMiF..R 20, l S85
[0, C!il~"!iAPF A REDDY AND V• KMLID, JJ • ] B
Conservation of Foreign Exchange and Freven~ion of Smuggl-
ing Activities Act, 1974. Section 9 - 'Detention' and 'continued
detention' - Difference between - Advisory Board - Duty of -
Specifically consider and detemine whether there is sufficient
cause for 'continued detention' of the person concerned. c
An order of detention under the COFEPOSA was made by the
Additional Secretary to the Government of India against the
·; appellant, and the grounds of detention were served on him on
July 1, 1984. On July 13, 1984 the ·coFEPOSA ·was amended.
Purporting. to act under section 9(1) of the COFEPOSA as amended D
the Additional Secretary made a declaration that he was satisfied
that the appellant was likely to abet the» smuggling of goods into
and through an area highly vulnerable to smuggling as defined in
Explanation l to section 9(1) of t.he Act. Thereafter the usual
reference to the Advisory Board was made and after obtaining its
opinion the Government of India by an order dated December 22, ·E
1984 confirmed the detention for a period of two years •
•
In the appeals to this Court, it was contended on behalf of
the appellants that in every case where it was proposed to have
recourse to s. 10 read with s. 9 i t was necessary for the
Advisory Board to state its opinion, that 'the continued deten-
tion' of the detenu was necessary and that in a case where the F
Advisory Boa•d merely opined that 'the detention' of the detenu
was necessary, recourse could not be had to s. 10 read with B• 9
.,, so as to enable the detenu to be detained for two years. This
contention was answered on behalf of the respondents through the
counter affidavit by contending, that once the Advisory lloard
gives an opinion affirming the detention it must be regarded as G
an opinion · in regard to both the aspects viz. the original
'detention' and the 'continued detention•.
Allowing the Appeals,
llElll: 1. In the· absence of the Advisory Board's opinion to
the effect that there is sufficient csuse for the 'continued H
I
1062 SUPREME COURT REPORTS [1985] SUPP. 3 s.c.R.
A detention' of the detenus, their detention for a period exceeding
one year is without legal sanction. More than one year has
lapsed since the appellants have been detained. They are directed
to be set at liberty forthwith. (1068 G]
2. The scheme of section 3,8,9 and 10 of the Act appears to
B be that while generally the period for which a person may be
preventively detained under the COFEPOSA in connection with the
slll1lggling activities may not exceed a period of one year, in case
of certain kinds of activities of swggling into, out of, or
through 'any area highly vulnerable to slll1lggling ', the period may
extend up to two years. In the latter event, a declaration is
required to be made within five weeks of the detention of such
c person in the manner provided by section 9(1) of the Act. (1067
G; 1068 A]
3. In a case to which s.9 applies, s.8 stands suitably
amended, a reference is required to be made within four months
and two weeks by the Government to the Advisory Board, and the
Advisory Board is required to state its opinion within five
u months and three weeks from the order of detention where there is
sufficient cause for the 'continued detention' of the person
concerned. (1068 B]
4. The two safeguards provided to the detenu against
'continued detention' are the application of mind by the speci-
E fied authority before making a declaration under s.9(1) and the
consideration of the question by the Advisory Board. (1068 Cl •
s. The Advisory Board is to state its opinion not merely
'whether detention is necessary, but whether 'continued detention'
is necessary. The Advisory Board will necessarily have to go
F behind the declaration under s.9 to consider the question whether
there is sufficient cause for 'continued detention'. (1068 C]
6. In a case to which s. 9 applies it is important that the
Advisory Board specifically considers and answers the question
whether in its opinion there is sufficient cause for the
G 'continued detention' of the person concerned. If the Advisory
Board merely states that the detention of the person is necessary
it is not for anyone else to supplement the Advisory Board 1 s
opinion and substitute the words 'continued detention' for the
word 'detention'. (1068 E]
CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 371 •
H
of 1985 etc.
S.H.!W:LANI v. K.S. LlUPSit-.GBJI [ChINIWPAiU.LLY, J.] 1063
From the Judgment and Order dated l&.12.19&4 of the Gujarat A
High Court in Special Criminal Application ~o. 494 of 1984.
M.G. Karmali, U.R. Lalit, Vineet Kumar and !'<.D.B •. Raju for
the Appellants.
V.c. ~.ahajan, R.N. Poddar, Miss Sushma )'ahlan and Girl.sh B
Chandra for the Respondents.
The Judgment of the Court was delivered by
OIINNAPFA REDDY, J. These several Criminal Appeals raise a
common question and may be disposed of by a single judgment. It c
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 Govern-
ment 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 D
replaced by an Amending Act. We will presently refer to the pro-
visions 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 vulner- E
able 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 : F
"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 Conserva-
tion of Foreign Exchange and Prevention of Smuggling
Act, 1974 for the detention of Shri Satar Habib G
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 w1lEBJ'.AS the case of Shri ••••••• was placed before
the Advisory Board who are of the opinion that there
is sufficient cause for his detention ; H
SJ;PRUJ: COURT REPORTS [1985] S!JFP. 3 s.c.R. ,...
A ~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
B detention i.e. from
Sd/-
(A.N. AG~lhOTRI)
U1'LER SECRETARY TO THI:. GGVERN~£NT OF INDIA
Shri Satar habib hamdani,
c Central COFEfOSA Letenu,
C/o Supdt. Listrict Frison Rajkot."
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 :
•
''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
F 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
the continued detention i.e. right from the date of
...
arrest till the date of giving opinion deny that the
G continued detention of the appellant is violative of
sec.8(c) of the Act."
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 •
H specified therein -
S.H.HANDANI v. K.S. DILIPSINGHJI [CHINNAPFA REDDY, J.] 1065
"If satisfied, with respect to any person (including a
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
B
(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
c
engaging in transporting or concealing or keeping
smuggled goods, or
(v) harbouring. persons engaged in smuggling goods or
'
in abetting the sruuggling of goods,
D
It is necessary so to do, make an order directing that
such person be detained."
Section o provides for the Constitution of Advisory Boards,
prescribes their function and specif !es their procedure. For the
E
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) ............................................... F
(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
G
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 H
for such further information as it may deem necessary
1066 SUPREME COURT REPORTS [1985] SUPP. 3 s.c.R.
A from the appropriate Government or from any person
called for the purpose through the appropriate Govern-
ment 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 speci-
B fying 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 repor-
ted that there is in its opinion sufficient cause for
D
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
1
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
E 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
F (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
G smuggling; or
(c) engages or is likely to engage in transporting or
concealing or keeping smuggled goods in any area
highly vulnerable to smuggling,
H Whereupon such person may be detained without obtaining the
opinion of an Advisory Board for a period longer than three
S.H.HAl'.LMI v. K.S. DILIPSThGHJI (CHINMPPA REDDY, J.] 1067
months but not exceedirlb six months from the date of his deten- A
tion. Explanation 1. to S.9(1) defines 'area highly vulnerable to
smuggling' .
Section 9(2) is important and it is as follows :-
"(2) ln the case of any person detained under a B
·• 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 c
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 D
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 E
detention·, at both the places where they occur, the
words "for the continued detention" shall be
• substituted."
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 F
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 G
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 H
1068 SUJ'lllil>JE COURT REPORTS [1985] SUPP. 3 s.c.R. ,. -
A the detention of such person in the manner provided by s.9(1) of
the Act. That is not enough. In a case to which s.9 applies, s.8
stands suitably amended, a reference is required to be made
within four months and two weeks by the Government to the
Advisory lloard and the Advisory Board is required to state its
opinion within five months and three weeks from the order of
detention whether there is sufficient cause for the continued
detention' of the person concerned. In other words, the Advisory
daard is to state its opinion not merely whether detention is
necessary but whether 'continued detention' is necessary. The
Advisory lioard will necessarily have to go behind the declaration
under s.9(1) to consider the question whether there is sufficient
c cause for 'continued detention'. The two safeguards provided to
the detenu against 'continued detention', at that stage, are the
application of mind by the specified authority before making a
declaration under s.9(1) and the consideration of the question by
the Advisory lloard. Section 8 is enacted and professedly enacted
for the purpose of Art.22, clause (4), sub-clause (a) and Art.22,
D Clause(?), sub-clause(c) and s.9 expressly refers to Art.22,
clause (4), sub-clause(a). That is why in a case to which s.9
1
applies it is important that the Advisory lloard specifically
considers and answers the question whether in its opinion there
is sufficient cause for the 'continued detention' of the person
concerned. If the Advisory Board merely states that the detention
E of the person is necessary it is not for any one else to supple-
ment the Advisory lloard's opinion and subsitute the words
"continued detention" for the word "detention". The matter is of
vital important for that. The omission of the words ."continued •
detention" in the opinion of the Advisory Board cannot be slurred
over in the fashion we are invited to do in the ·counter affi-
F davit. Nor can we treat the omission as a mere clerical or typo-
~raphical error when that is not the express case of the respon·
dents. We are of the opinion that in the absence of the Advisor~
Hoard's opinion to the effect that there is sufficient cause fo
the 'continued detention' of the detenus, their detention for
period exceeding one year is without legal sanction. It i "
i.; already much more than one year since the appellants have bee
detained. They are directed to be set at• liberty forthwith.
N.V.K. Appeals allowe
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "COFEPOSA"Sign in to search