SUKHDEV SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) The petitioner was detained under S.3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as the 'COFEPOSA') vide order dt.2nd April, 1985, which was served on him on Ist May, 1985. The Advisory Board on 9th Oct., 1985, gave its recommendation to the Government approving the detention. The Government then passed the requisite order confirming the detention on 30th Oct., 1985 (Annexure P-2). It is to challenge the detention and those orders that the present writ petition has been filed.

(2.) The case has taken a turn which has obviated the necessity of detailing here the grounds of detention, (indisputably, the order of detention was referred to the Advisory Board under S.8(c) of the COFEPOSA and the Board was required to submit its opinion within 11 weeks of the detention as to whether or not there was sufficient ground for the detention of the petitioner. In the instant case, the Advisory Board did not give the opinion within those 11 weeks because the Government had invoked within the statutory period of 5 weeks the provisions of S.8(b) and S.9 and made a declaration to that effect within that period from the date of the detention of the petitioner. As averred in the return, the Advisory Board was com-declaration under S.9 made by the Government on 6th June, 1985. And the very fact that the Advisory Board gave its opinion more than five months after the detention was by itself statedly a significant fact as the Advisory Board was cognizant that to the case of the petitioner S.9(1) had been made applicable.

(3.) The argument turns round on the opinion expressed by the Advisory Board. It only said that the detention was in order. The opinion is silent on the question whether the detention was in order as asked from it under S.8(c) of the COFEPOSA or under S.9 justifying a larger detention. The detailed order of the Advisory Board has been placed before me for perusal. Nothing therefrom is suggestive to the fact whether the Board was cognizant about the applicability of S.9(1) of the Act. The mere circumstance that the Board had passed the order after the statutory period of 11 weeks requisite under S.8(c) by itself is not enough to conclude that the Board was aware that it had in hand a detention of the kind as envisaged under S.9 for a continued detention. The Government in that situation while accepting the opinion of the Board rather assumedly observed that the order of detention stood confirmed and that the petitioner shall continue to be in detention in the State of Punjab for a period of two years from the date of the detention. Though the Government seemingly has all along proceeded on the basis that S.9(1) for detaining the petitioner for two years had rightly been invoked and remained applicable till the result finale, the Advisory Board ex facie did not draw the distinction. In this situation, the following observations made by this Court in Bakshish Singh v. State of Punjab, Criminal Writ Petn.No.82 of 1986 decided on 13th May, 1986, become relevant : Reported in (1986) 2 Rec Cri R 319.