(1.) THE petitioner is a business man dealing in cloth having his shop at Abdul Rehman Street, Bombay, His premises were searched by the Customs Officers on September 27, 1974, At that time the petitioner was not in this shop and, therefore, the shop premises were sealed. The search yielded textiles and wearing apparel of foreign origin totally valued at Rs. 8,957. The petitioner attended the Customs Office on October 8, 1974 and admitted that the goods seized belonged to him. The petitioner was prosecuted in criminal case No. 865/CW of 1974 and he pleaded guilty to the charges in that case. His shop was again raided on January 24, 1975 and textiles bearing foreign markings of the market value of Rs. 8,450 were seized. A prosecution was launched against him and during the pendency of the prosecution, an order of detention dated March 81, 1975 issued under Section 8 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as the 'COFEPOSA Act'), came to be passed by the Secretary to the Government of Maharashtra, Home Department. Grounds were supplied to the petitioner. These grounds referred to the searches and the conviction in criminal case No. 365/CW of 1974 in which he was sentenced to one day's simple imprisonment and to pay a fine of Rs. 2,000. It was also stated that liability of the foreign textiles seized on September 27, 1974 to confiscation and the liability to penalty were the subject -mattar of departmental proceedings. The other ground referred to the search dated January 24, 1975 and a reference was made to the petitioner's statement of the same date in which, according to the detaining authority, he had stated that he was the owner of the said shop and he did not possess any purchase bill or document for the legal importation or acquisition of the foreign textiles found. Thus, according to the detaining authority, the petitioner was indulging in smuggled activities. The petitioner's case was referred to the Advisory Board on May 24, 1975. An order of confirmation of the said detention order came to be passed by the State Government on July 14, 1975. These are the only material facts necessary to be stated having regard to the nature of the challenge which is made by the petitioner to the order of detention.
(2.) MR . Merchant appearing on behalf of the petitioner has raised two contentions. The first contention is that the reference to the Advisory Board was made beyond the period of five weeks as provided by Clause (6) of Section 8 of the COFEPOSA Act and, according to the learned Counsel, the provisions of Section 8(6) being mandatory in nature, the order of detention was liable to be quashed on the ground of non -compliance with the mandatory provisions of Section 8, Clause (b). The second contention raised is that the order of detention was confirmed admittedly beyond the period of three months and this order of confirmation made on July 14, 1975 was, therefore, bad in law and the detention of the petitioner being illegal, ha was entitled to be set at liberty. In support of the second proposition that if the order of confirmation is not made within the period of three months the detention is illegal the learned Counsel for the petitioner relied on two decisions of the Supreme Court in Madan Malik t. State of W.B. : AIR1972SC1878 and D.S. Roy v. State of W.B. : 1973CriLJ446 . In the first case the Supreme Court was dealing with the detention order under Section 8 of the West Bengal (Prevention of Violent Activities) Act and the Supreme Court observed (p. 1879) :.There is a string of authorities -wherein this Court has held, after referring to Article 22(4) of the Constitution, that unless., on December 20, 1074 (Nagpur Bench) on February 5, 1976 (Unrep.). (Unrep. the State Government exercises its power of confirming the detention order within three months from the date of detention, the detention after the expiry of that period would be without the authority of law. In the second case also, the Supreme Court was dealing with a detention order under the same Act and it was observed that the confirmation of the opinion of the Advisory Board to continue the detention beyond three months must ha within three months from the date of detention in conformity with the mandate in Clause (4) of Article 22. Mr. Gumaste, the learned Government Pleader could not dispute the proposition that if the detenu had a right to approach the Court to enforce his right under Article 22 of the Constitution, then admittedly the detention order not having been confirmed within a period of three months, the continued detention of the petitioner would become bad. He, however, raised a contention that the provisions of Section 8(6) were not mandatory and, according to him, the delay in submitting the case of the petitioner to the Advisory Board was due to reasons beyond the control of the State Government inasmuch as there was a strike of Government servants with effect from April 18, 1975 which ended on May 26, 1975 and the Government servant resumed work on May 27, 1975. Thus, according to the learned Counsel, though there was a delay, that delay has been properly explained and since it was impossible in the circumstances of the ease to make a reference to the Advisory Board within a period of five weeks from the date of detention, that delay should be condoned and in any case, according to the learned Counsel, since the Advisory Board had submitted it a report on June 18, 1975, that is, well within the period prescribed by Section 8, the petitioner was not entitled to challenge his continued detention as illegal. It was further contended that when the petitioner seeks to have his order of detention quashed because of non -compliance with the provisions of Section 8 of the COFEPOSA Act or because the order of detention was not confirmed within three months, he is in substance enforcing his right under Article 22 and in view of the Presidential orders dated December 28, 1974 and June 27, 1975, such a contention is not open to him.
(3.) NOW , the scheme of Section 8 is that reference has to be made to the Advisory Board constituted under Clause (a) of Section 8 within five weeks from the date of detention and within eleven weeks from the date of detention the Advisory Board has to submit its report. Now, what is contended by the learned Counsel for the petitioner is that Section 8 gives an independent right apart from the constitutional right under Article 22 and the right under Section 8 is to have the case of the detenu submitted to the Advisory Board within a period of five weeks and to have the report of the Advisory Board within a period of eleven weeks from the date of detention. The question which, therefore, arises is whether having regard to the opening words of Section 8, Section 8 can be said to be a repository of a special statutory right of a detenu to have the matter referred to the Advisory Board within the prescribed period or whether the provisions in Section 8 are correlated, to the provisions of Article 22 of the Constitution. The material provisions referred to in the opening words of Section 8 are Clauses (4) and (7) of Article 22. These material provisions of the Constitution run as follows :