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2017 DIGILAW 1867 (SC)

Dinesh Mohanlal Punjabi v. Union Of India

2017-12-12

R.BANUMATHI, RANJAN GOGOI

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ORDER : 1. We have heard the learned counsels for the parties. 2. Application for substitution of petitioner in Special Leave Petition (Criminal) No.751 of 2017 is allowed subject to all just exceptions by condoning the delay in filing the application for substitution and setting aside abatement, if any. 3. Delay condoned in Special Leave Petition (Criminal) No.751 of 2017. 4. Leave granted in both the Special Leave Petitions. 5. The challenge in the present appeals is to the order of the High Court of Bombay by which the detention of the appellants made as far back as on 26th August, 1994 has been found to be valid and permissible in law. There was a consequential proceeding for forfeiture of the property of the appellants under the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (hereinafter referred to as “SAFEMA”) based upon the validity/legality of the detention order passed under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as “COFEPOSA Act”). This is why the validity of the impugned detention order is still a live issue. 6. We have perused the provisions of the COFEPOSA Act, particularly, Section 8 thereof which mandates that the case of the detenu will be referred to an Advisory Board for its opinion within five weeks from the date of detention and thereafter the Advisory Board is required to give its opinion within eleven (11) weeks form the said date (i.e. date of detention of the person concerned). Under Section 8(f) of the COFEPOSA Act, on the basis of the opinion of the Advisory Board, if the same is in favour of the detention, the appropriate Government is required to take a decision on confirmation of the detention order, a conclusion that can be drawn from the use of the expression “may confirm the detention order” appearing in the aforesaid clause (f) of Section 8 of the COFEPOSA Act. 7. The short question in this case is whether such confirmation on the basis of the opinion of the Advisory Board to the effect that the detention was justified had been made by the appropriate Government i.e. the Central Government within the stipulated period i.e. three months. 7. The short question in this case is whether such confirmation on the basis of the opinion of the Advisory Board to the effect that the detention was justified had been made by the appropriate Government i.e. the Central Government within the stipulated period i.e. three months. If such confirmation had not been made within a period of three months, under Article 22(4) of the Constitution of India read with Section 9 of the COFEPOSA Act the detention would be void and illegal and inoperative in law. The opinion of the Advisory Board in favour of the detention order, by itself, cannot be a basis for continuation of the detention unless of course there is an order of confirmation of the detention specifying the period thereof by the appropriate Government. This is the mandate of Section 8(f) of the COFEPOSA Act. 8. There is no statement either in the counter affidavit filed before this Court or in any pleadings before the High Court to the effect that such confirmation order exists. To verify the same, we have called for the original record by order dated 1st December, 2012, which is in the following terms: “The opinion of the Advisory Board as communicated to the detenue as well as the order of confirmation of detention in-original passed by the State Government, if any, be placed before the Court on 12th December, 2017. List the matter on 12th December, 2017.” 9. Pursuant to the aforesaid order, the original record has been placed before the Court which would go to show that the opinion of the Advisory Board in favour of the detention is dated 7th November, 1994. However, the said record does not contain any order of confirmation by the appropriate Government. Learned counsel for the State has not been able to explain the position. In the absence of any order showing confirmation of detention of the detenu for any specific period, detention beyond the period of three months would be contrary to Article 22(4) of the Constitution of India and also to the provisions of the COFEPOSA Act. The State not having been able to satisfy the Court with regard to the existence of any such order of confirmation of the detention, nothing further needs to be gone into in the present proceeding. The State not having been able to satisfy the Court with regard to the existence of any such order of confirmation of the detention, nothing further needs to be gone into in the present proceeding. The detention of the appellants beyond three months from the date of detention i.e. 26th August, 1994 has to be construed to be without authority of law. The detention, therefore, had lapsed on the expiry of three months from the date of detention i.e. 26th August, 1994. Consequently, we are unable to agree with the conclusion recorded by the High Court. 10. Consequently and in the light of the above we allow the present appeals; set aside the order of the High Court. Necessary and consequential orders with regard to the proceedings under the SAFEMA will now be passed by the appropriate Authority as expeditiously as possible.