Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 – s.8(a) – Competent authority passed an order of detention u/s.3(1) of the COFEPOSA Act, pursuant to which the respondent was detained – The order of detention was referred to the Advisory Board – Advisory Board gave opinion in its report that there was no sufficient cause for the continued detention of the respondent detenue u/s. 3(1) of the COFEPOSA – Aggrieved, petitioner-Union of India filed Special Leave to Appeal against the opinion of the Advisory Board – Held:The nature of opinion given by the Advisory Board is neither judicial nor quasi judicial; that it would be erroneous and unsafe to treat the opinion expressed 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 opinion is merely intended to assist the government and it is binding on the appropriate government only if it favours the detenue and not when it goes against him – Further, the opinion of the Advisory Board cannot be subject matter of review or scrutiny by the judicial courts/tribunals – Thus, petition challenging the opinion of the Advisory Board not maintainable.
Disposing of the matters, the Court
HELD : 1. In terms of clause (4) of Article 22 of the Constitution, no law providing for preventive detention shall authorise the detention of any person for a period longer than three months unless an Advisory Board had reported before the expiration of said period of three months that in its opinion there was sufficient cause for such detention. The question whether there is sufficient cause for detention or not is in the exclusive domain of the Advisory Board. In terms of clause (7) (c) of Article
22 of the Constitution the procedure to be followed by the Advisory Board can be prescribed by the Parliament by law. [Para 9] [413-G-H; 414-A-B]
2. Accordingly, in the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 enacted by the Parliament, appropriate provisions are made in Section 8. Subsection (b) of said Section 8 facilitates reference to the Advisory Board to enable it to make the report under sub-clause (a) of clause (4) of Article 22 of the Constitution while sub-sections (c),
(d) and (e) of said Section 8 deal with the procedure to be adopted by the Advisory Board. In terms of sub-section (e) of Section 8, the report of the Advisory 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. [Para 10] [414-B-F]
3. According to the aforesaid decisions the nature of opinion given by the Advisory Board is neither judicial nor quasi judicial; that it would be erroneous and unsafe to treat the opinion expressed 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. As stated in Akshoy Konai case, 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. [Para 15] [418-E-G]
Dharam Singh Rathi v. State of Punjab and others AIR 1958 SC 152 : [1958] SCR 996 ; Akshoy Konai v. State of West Bengal (1973) 1 SCC 297 ; A.K. Roy v. Union of India and others (1982) 1 SCC 271 : [1982] 2 SCR
272 ; Calcutta Dock Labour Board and others v. Jaffar Imam and others [1965] 3 SCR 453 – followed.
Bharat Bank Ltd., Delhi v. Employees of the Bharat Bank Ltd., Delhi [1950] SCR 459 ; Columbia
Sportswear Company v. Director of Income Tax,
Bangalore (2012) 11 SCC 224 : [2012] 7 SCR 187 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
This page is for informational and research purposes only and does not constitute legal advice. Consult a qualified advocate for advice specific to your situation.