Sukhdev Singh vs State of Punjab and Another

M.M. Punchhi, J.—The petitioner was detained u/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 1st 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.

The case has taken a turn which has obviated the necessity of detailing here the grounds of detention. Undisputably, the order of detention was referred to the Advisory Board u/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 Section 8(b) and Section 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 corn-declaration u/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 Section 9(1) had been made applicable.

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 u/s 8(c) of the COFEPOSA or u/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 Section 9(1) of the Act. The mere circumstance that the Board had passed the order after the statutory period of 11 weeks requisite u/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 u/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 Section 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, (Reported in (1986) 2 R Cri R 319) become relevant:

The learned Counsel for the petitioner has then contended that there is nothing to suggest in the order of the Government, Annexure-P2 that Section 9 of the COFEPOSA was ever employed and that the detention of the petitioner u/s 8 of the COFEPOSA could in no case be more than one year. Reliance has been placed on a decision of the Supreme Court in Satar Habib Hamdani Vs. K.S. Dilipsinhji and Others, . The Advisory Board, in the instant case, as observed earlier, opined that there is sufficient cause for the detention of the petitioner, but has nowhere given the opinion that there is sufficient cause for the continued detention of the petitioner. In other words, the Advisory Board seemingly was not made cognizant of the applicability of Section 9(1) of the COFEPOSA. Had it been so, order Annexure P-2 should have shown that ex facie.

There is no mention of Section 9 in the said order. Rather for continued detention of the petitioner for two years, Section 8(f) of COFEPOSA has been employed. Thus, the detention of the petitioner on the strength of Satar Habib Hamdani Vs. K.S. Dilipsinhji and Others, , cannot be for a term of more than one year. Accordingly, the period of detention is reduced to one year.

Undisputably, in the impugned order of the Government, Annexure P-2, there is no mention of Section 9. This even violates the spirit of Section 10 of the COFEPOSA, which requires that a detention order, to which the provisions of Section 9 apply, must be confirmed under Clause (f) of Section 8 read with Sub-section (2) of Section 9 of the COFEPOSA so as to be operative for a period of two years from the date of the detention. The learned Additional Advocate-General has almost conceded that neither is the order in accordance with the rule laid down by this Court in Bakshish Singh''s case 1986 2 R Cri R 319 (supra) nor in the spirit and language of Section 9 of the Act.

Thus, this petition succeeds, for the petitioner could not have been detained for a period beyond one year and since that period is over, he is ordered to be released forthwith unless wanted in any other case.