JETHMAL KAPURCHAND KOTHARI Vs. UNION OF INDIA

JUDGEMENT

(1.) This is a petition for a writ of habeas corpus under Art. 226 of the Constitution challenging the validity of the detention of Kishormal Jethmal Kothari under an order of detention dt. July 16, 1984, passed by the Government of Maharashtra under sub-sec. (1) of S. 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, (hereinafter referred to as 'the Act'). The grounds together with the material relied on by the detaining authority were served on the detenu two days thereafter i.e. on July 18, 1984. On Aug. 9, 1984, Mr. M. V. N. Rao, Addl. Secretary to the Government of India respondent 2 herein, issued a declaration under sub-sec. (1) of S. 9 of the Act as amended, declaring that he was satisfied that the aforesaid Kishormal Jethmal Kothari abets and is likely to abet the smuggling of goods into and out of Bombay which is an area highly vulnerable to smuggling as defined in Explanation (1) to S. 9(1) of the Act. On Aug. 22, 1984, the State Government made a reference to the Advisory Board under S. 8 for its opinion. The opinion of the Advisory Board dt. Nov., 17, 1984, that there is sufficient cause for the detention of Kishormal Jethmal Kothari under S. 3(1) of the Act was received by the Government and soon thereafter in exercise of the powers conferred by Cl. (f) of S. 8 of the said Act, the State Government passed an order confirming the detention order and continuing the detention of the said Kishormal Jethmal Kothari and further directing that he will be released from detention after the completion of two years from July 18, 1984. It appears that in the meantime while the reference was pending with the Advisory Board, the detenu had made a representation dt. Aug. 13, 1984. This representation was rejected and the Government informed the detenu about it by their letter dt. Sept. 3, 1984. This is the second Writ Petition filed on behalf of the detenu. Earlier, the detention was challenged by the present petitioner who is the father of the detenu in Criminal Writ Petition No. 440 of the 1984 in this Court. A Division Bench of this Court dismissed this petition on Dec., 18, 1984. Some contentions urged before the Division Bench were rejected by the Division Bench. It is not necessary to elaborately mention the nature of the contentions urged in that petition. Suffice it to say that the contentions raised in the present petition were not urged or argued before the Bench in the earlier petition. Since the challenge in the present petition is based on different grounds altogether, the dismissal of the earlier petition would not be a bar for filing the present petition. It has been held by the Supreme Court in Lallubhai Jogibhai Patel v. Union of India, AIR 1981 SC 728, that the doctrine of constructive res judicata is entirely inapplicable to illegal detention and does not bar a subsequent petition for a writ of habeas corpus on fresh grounds which were not taken in the earlier petition for the same relief. Mr. Govilkar appearing for the respondents 1 and 2 and Mr. Hombalkar, the learned counsel, appearing for respondents 3 to 5 have in the view of the Supreme Court decision fairly stated that the present petition which covers a different range of grounds of challenge is not barred.

(2.) A number of contentions have been urged in the petition. However, we do not think it necessary to refer to all of them since we are satisfied that the petitioner is entitled to succeed on three counts viz. (1) that since the Advisory Board has given its opinion as to the sufficiency of cause for the detention of the detenu after the expiry of the period of eleven months from the date of detention, the order can be sustained only on the basis of declaration issued by respondent 2 under S. 9(1) of the Act, but the opinion rendered by the Advisory Board does not on the face of it indicate that the opinion is given with reference to the facts justifying the necessity of declaration under S. 9(1) of the Act, (2) that the order of confirmation of detention issued by the detaining authority discloses a non-application of mind inasmuch as the working of the order does not indicate that the confirmation was made on the basis of the declaration issued under S. 9(1) and lastly (3) that the declaration itself is invalid since there is no material from which an inference can be drawn that the detenu is abetting the smuggling of goods 'into Bombay' as stated in the declaration and since the opinion of the Advisory Board as well as the confirmation are after the expiry of three months, the same can be sustained only on the basis that the declaration under S. 9(1) is valid.

(3.) In order to appreciate the contentions it would be pertinent to refer to the relevant provisions of the Act and the amendments made therein. Under sub-sec. (1) of S. 3 it is inter alia provided that the authorities mentioned therein may, if satisfied, with respect to any person (including a foreigner), that, 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 (i) smuggling goods, or (ii) abetting the smuggling of goods, or (iii) engaging in transporting or concealing or keeping smuggled goods, or (iv) dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods, or (v) harbouring persons engaged in smuggling goods or in abetting the smuggling of goods, it is necessary so to do, make an order directing that such persons be detained. In other words, it is in the case of any one or more of these five prejudicial activities, that the powers of detention can be exercised under S. 3(1). S, 8 relates to the function and the procedure of the Advisory Board. Under Cl. (b) of S. 8 it is provided that save as otherwise provided in S. 9, the Government shall within five weeks from the date of detention of a person under a detention order make a reference in respect thereof to the Advisory Board constituted under Cl. (a) to enable the Advisory Board to make the report under sub-cl. (a) of Cl. (4) of Art. 22 of the Constitution. Under Cl. (c) of S. 8 the Advisory Board is required to prepare its report specifying in a separate paragraph thereof its opinion as to whether or not there is sufficient cause for the detention of the person concerned and submit the same within eleven weeks from the date of detention of the person concerned and lastly sub-cl. (f) of S. 8 provides that in every case where the Advisory Board has reported that there is in its opinion sufficient cause for the detention of a person, the Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit and in every case where the Advisory Board has reported that there is in its opinion no sufficient cause for the detention of the person concerned, the Government shall revoke the detention order and cause the person to be released forthwith. It is necessary to mention at this stage that the provisions of Cls. (b), (c) and (f) of S. 8 stand amended by the Conservation of Foreign Exchange and Prevention of Smuggling Activities (Amendment) Act, 1984, to a limited extent in the sense that the amendments are operative in cases where a declaration under S. 9(1) is issued and the confirmation of detention takes place within a period of three months, but less than five months and three weeks. These amendments are important and relevant for our cause since a declaration under S. 9(1) has been issued in the present case and presumably acting on the basis of this declaration issued under S. 9(1) the Advisory Board gave its opinion beyond a period of three months, but well within the period of five months and three weeks as per the amendment.