NIRMAL KUMAR KHANDELWAL Vs. UNION OF INDIA

JUDGEMENT

(1.) This is a petition under Art. 32 of the Constitution for the grant of a writ of habeas corpus. The petitioner has been detained with effect from October 24, 1977 by an order passed by the Secretary to the Government of Maharashtra under S. 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short called COFEPOSA). Reference was made to the Advisory Board on 24-11-1977. At its sitting held on 23-12-1977, the Board rejected the representation of the detenu and opined that there was sufficient cause for the detention.

(2.) The detention has been challenged mainly on the ground that no order under Cl. (f) of S. 8 of the Act confirming the detention was passed by the appropriate Government within three months of the commencement of the detention and, as such, the continuance of the detention beyond the initial period of three months was violative of the mandate of Art. 22 (4) of the Constitution. In support of this contention, Mr. Ashoke Sen, appearing for the petitioner, has cited five decisions of this Court - Shibapada Mukherjee v. State of West Bengal, AIR 1972 SC 1356; Ujjal Mondal v. State of West Bengal, AIR 1972 SC 1446; Deb Sadhan Roy v. State of West Bengal, (1972) 2 SCR 787; Micki Khan v. The State of West Bengal 1972 SC 2262 and Satyadeo Prashad Gupta v. State of Bihar, (1975) 2 SCR 854.

(3.) As against the above, Mr. Phadke, appearing for the State of Maharashtra, contends that the view taken in the aforesaid decisions of this Court, is not in confirmity with the plain language of Art. 22 (4). In the counsel"s view, what Art. 22 (4). requires is 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 having the qualifications specified therein, reports before the expiration of the said period of three months that there is, in its opinion, sufficient cause for such detention. This requirement - proceeds the argument - was fully complied with in the instant case because the Advisory Board had made such a report within three months of the date of detention and within 11 weeks of the receipt of the Reference from the Government. It is stressed that there is nothing in the language of Art. 22 (4) or in COFEPOSA which requires that the confirmation of the detention on the basis of the report of the Advisory Board, should also be within three months from the commencement of the detention.