SATAR HABIB HAMDANI JASAB HAZI ISMAIL Vs. K S DILIPSINHJI:K S DALIP SINGH SECRETARY TO GOVERN MENT OF INDIA

JUDGEMENT

(1.) These several Criminal Appeals raise a common question and may be disposed of by a single judgment. It is sufficient if we state 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 Government of India, Finance Department against Satar Habib Hamdani. The grounds of detention were served on him on July 1, 1984. On July 13, 1984 the COFEPOSA was amended by an Ordinance which was replaced by an Amending Act. We will presently refer to the provisions 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 Habib Hamdani abets and is likely to abet the smuggling of goods into and through. Porbandar which is an area highly vulnerable to smuggling, as defined in Explanation 1 to Section 9(1) of the Conservation of Foreign 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 Hamdani for a period of two years. The order was as follows

(2.) The submission of Shri Karmali learned 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. 9 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:

(3.) In order to appreciate the submission of Shri Karmali we may refer to the relevant provisions of the COFEPOSA as amended by the Amending of 1984. Section 3(1) empowers the authority specified therein:-