AKHILESH KUMAR TYAGI Vs. UNION OF INDIA

JUDGEMENT

(1.) THE petitioner seeks issuance of a writ of habeas corpus. He was detained on 6th December, 1994 pursuant to a detention order dated 2nd December, 1994 issued under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974. The matter came up before us on 28th August, 1995 when counsel for the petitioner contended that declaration issued under Section 9 of the Act was unconstitutional as it did not inform the detenu that he had right to submit a representation against the declaration, not only to the Advisory Board and Central Government but also to the declaring authority on the analogy of the Supreme Court judgment in Kamlesh kumar Ishwardas Patel v. Union of India, : 1996(53)ECC123 , rendered in the context of Section 3(1). Counsel relied upon the judgment in Charanjit Singh Gaba v. Union of India , (1995) 3 AD (Delhi) 406, of Division Bench of this Court for the aforesaid purpose. The next contention was that if Section 9 declaration was bad, the enlarged periods in Section 9(2) for making a reference to the Advisory Board and for the Board to give its report ceased to be operative and if either or both of them were beyond the respective periods prescribed in Section 8, the detention would be illegal. For this purpose, counsel also relied upon another judgment of a Division Bench in Maqudoom Meera Hameem v. Joint Secretary to Government of India, (Crl.W.P. No. 83/95) decided on 17 -8 -1995 by two of us (the Chief Justice and Justice Anil Dev Singh) wherein on the assumption that the Supreme Court judgment rendered under Section 3 applied to Section 9 also, we held that the declaration was bad and in cases where the reference to the Advisory Board was made beyond 5 weeks and the Advisory Board gave its opinion beyond 11 weeks we held that the continued detention also became bad. As the matter was not fully argued when Maqdoom Meera Hameem's case was decided and the point was arising in a large number of cases, we referred the question to a Full Bench on 28th August, 1995.

(2.) BEFORE us, the learned Additional Solicitor General of India, Shri K. T. S. Tulsi raised a preliminary contention that the decision of the Supreme Court given under Section 3 did not in fact apply to Section 9. That would mean that his contention also is that the judgment of the Division Bench in Charnjit Singh Gaba's, case was wrongly decided. He also alternatively contended that even if it applied to Section 9, the declaration which did not inform the detenu of his right to represent to the declaring authority was valid till it was quashed and hence the respective periods of 5 weeks and 11 weeks referred to above, which got extended to 4 months and 2 weeks and 5 months and 3 weeks respectively, did not get contracted or reduced back to 5 weeks and 11 weeks respectively once - again upon the quashing of Section 9 declaration. He contended that Therefore the detention beyond 3 months did not become illegal. This contention would mean that Maqudoom Meera Hameem's case was wrongly decided. Incidentally, it was argued for the respondent that even in case we hold that the extended periods do not remain and the detention beyond three months would be invalid, the detention would still hold good for 1 year. But as contended for petitioner, we do not think it is necessary to decide this question raised by the respondents for purpose of this reference.

(3.) TAKING the preliminary contention also into account and the question referred to the Full Bench, the following points arise for consideration : -