BHAVNA CHANDRAKANT ACHARYA Vs. UNION OF INDIA

JUDGEMENT

(1.) This matter comes up before this Full Bench on a reference made by a Division Bench of this Honourable Court by its order dated 1-5-1986 passed in Special Criminal Application No. 93 of 1986. The question referred to this Bench is as follows: Whether when a declaration under sec. 9(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974 is found to be bad on any ground the original detention under sec. 3(1) unaided by such declaration also falls to the ground and the detenu is required to be released even though the detenu has not undergone detention for a period of one year which he would be required to undergo in absence of the declaration under sec. 9(1) of the Act ?

(2.) The short facts of this case for the purpose of appreciating the reference are as follows: The petitioner in the Special Criminal Application is the wife of the detenu by name Chandrakant Ishwarlal Acharya. On 9-10-1985 the Deputy Secretary to the Government of Gujarat Home Department in exercise of the power conferred by sub- sec. (1) of sec. 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974 detained Shri Chandrakant Ishwarlal Ramanandi alias Chandrakant Ishwarlal Acharya and kept him in the Central Prison Ahmedabad in pursuance of sec. 5 of the said Act. The grounds of detention were served on the detenu on 10-10-1985 and a list of documents were also served on the detenu. On 4-11-1985 the Additional Secretary to the Government of India declared under sec. 9(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974 that he is satisfied that the detenu is likely to smuggle goods into and through the coast of Gujarat which is an area highly vulnerable to smuggling as defined in Explanation to sec. 9(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974 The said declaration was served on the detenu on 18-11-1985. On 11-12-1985 the detenu made representation both to the State Government and to the Central Government. The State Government rejected the representation of 20-12-1985 while the Central Government rejected the representation on 23-12-1985. The Advisory Board constituted under sec. 8 of the said Act has reported under sec. 8(f) of the said Act that there was and there is in its opinion sufficient cause for the continued detention of Shri Chandrakant Ishwarlal Acharya who has been detained under order No. SB IV PSA/ 1185 dated 9-10-1985 made by the Government of Gujarat Home Department. On the strength of this Report the Government of Gujarat in exercise of its power conferred under sub-sec. (f) of sec. 8 of the said Act confirmed the said detention order and continued the detention of Chandrakant Ishwarlal Acharya. The wife of the detenu has questioned the impugned order of detention the impugned declaration and the impugned order of confirmation by a writ of habeas corpus praying that the detenu be released from detention forthwith and be set at liberty. While considering the said writ petition a Bench of our High Court found that the declaration under sec. 9(1) of the Act cannot stand on the facts and circumstances of the present case If that be so the question arose as to whether the original detention of the detenu as per Annexure A is also vitiated on account of the declaration under sec. 9(1) having been found to be bad. Mr. M. G. Karmali the learned counsel appearing for the petitioner in that writ petition contended that there is substitution of the period of detention for one year by two years and not extension for one year more when a declaration under sec. 9(1) is issued though the effect thereof is to extend the period from one year to two years.He further contended that the representation which the detenu made was against the detention and he would not have a second opportunity to make a representation as regards the original detention separately once it is found that the declaration under sec. 9(1) is bad. The learned counsel the submitted that the detention is one and integrated and not in two parts and therefore once a declaration under sec. 9(1) is found to be bad the detention is required to be quashed and the detenu is required to be released forthwith. Finally the learned counsel contended before the Division Bench that for detention under sec 3(1) and sec 9(1) joint representation is made. This has been rejected. If such a detention under sec. 9(1) is bad the whole of detention falls to the ground as per sec. 8(f). The Bench after considering all these objections and also referring to certain decisions cited on behalf of the petitioner and the Government thought it fit to refer the matter to a Full Bench.

(3.) Mr. Karmali the learned counsel appearing for the petitioner reiterated the arguments which we have extracted above. We do not think it is necessary for us to consider as to whether detention as such can be sustained or not. To answer the reference made to the Full Bench it is necessary to consider the relevant provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974 Section 3 reads as follows: