SKAVITA Vs. STATE OF MAHARASHTRAS:B B GUJRAL

JUDGEMENT

(1.) These two Writ Petitions (Criminal) may be disclosed of by a single judgment as some of the questions raised are common to both. To begin with, we may refer to the facts in Writ Petition (Criminal) No. 2690 of 1981. The Government of Maharashtra, in exercise of the powers under Section 3 (1) of the COFEPOSA, directed the detention of Sunder Shankardas Devidasani by an order dated March 9, 1981, with a view to prevent him from smuggling goods and abetting the smuggling of goods. The grounds of detention, also of the same date, were duly served on the detenu. The detenu made a representation on April 14, 1981 and this was rejected by the Government on April 25, 1981. A further representation made by the detenu on April 25, 1981 was also rejected on May 2, 1981. In the meantime the Advisory Board met on April 29, 1981 and considered the case of the detenu. By a letter dated May 6, 1981 the detenu was informed by the Advisory Board that the Board had reported to the Government of Maharashtra advising them that there was sufficient material to justify his detention.

(2.) In this application for the issue of a Writ of Habeas Corpus, the first submission of Shri Jethmalani, learned counsel for the detenu, was that although it was the Government that was required by Section 8 (b) of the COFEPOSA to make the reference to the Advisory Board, in the instant case, it was not the Government but one of its subordinate officers that had made the reference. There was thus, according to Shri Jethmalani, a departure from the prescribed procedural requirement and for that reason the continued detention of the detenu for any period longer than the five weeks mentioned in Section 8 (b) was illegal. Shri Jethmalani's contention was that Section 8 (b) required the Government to make a reference to the Advisory Board within five weeks from the date of detention and this meant that the Government had first to decide that it was necessary to detain the person for more than five weeks and then to forward the reference to the Advisory Board. The learned counsel would have it that the making of a reference to the Advisory Board necessitated a decision to detain the detenu for more than five weeks and this decision could be taken by the Government only and none else.

(3.) We are unable to agree with the submission of Shri Jethmalani. Art. 22 (4) (a) of the Constitution prescribes that no law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless 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. Art. 22 (7) (c) empowers Parliament, by law, to prescribe the procedure to be followed by an Advisory Board in an enquiry under Article 22 (4) (a). Sec. 3 (1) of the COFEPOSA authorises the Central Government the State Government, an officer of the Central Government, not below the rank of a Joint Secretary specially empowered in that behalf, or an Officer of a State Government not below the rank of a Secretary specially empowered in that behalf to make an order directing that a person be detained, if satisfied, with respect to that person, that it is necessary to detain him 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 smuggling goods, Sec. 3 (3) provides for the communication of the grounds of detention to the detenu to enable him to make a representation. The communication has to be ordinarily not later than five days of the date of detention though in exceptional circumstances, for reasons to be recorded in writing, it may be fifteen days. Sec. 8 provides for the Constitution of Advisory Boards and the procedure to be followed by them. Sec. 8 (b) obliges the appropriate Government. within five weeks from the date of detention of a person under a detention order, to make a reference in respect of the detention to the Advisory Board to enable the Advisory Board to make the report under Art. 22 (4) (e) of the Constitution. Sec. 8 (c) prescribes the procedure to be followed by the Advisory Board and requires the Advisory Board to submit its report within eleven weeks from the date of detention of the person concerned. Sec. 8 (f) stipulates that the appropriate Government shall revoke the detention order and cause the person to be released forthwith if the Advisory Board has reported that there is in its opinion no sufficient cause for the detention of the person concerned. If the Advisory Board reports that there is in its opinion sufficient cause for the detention of the person, the appropriate Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit. Sec. 11 empowers the State Government to revoke an order of detention made by an Officer of the State Government, and the Central Government to revoke an Order of detention made by a State Government, an Officer of a State Government, or an Officer of the Central Government. The power of the State Government and the Central Government, under Sec. 11 of the COFEPOSA. to revoke orders of detention is in addition to the power under Sec. 21 of the General Clauses Act to revoke their own orders.