UNION OF INDIA v. NISAR PALLATHUKADAVIL ALIYAR

#2. Accordingly, in the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 enacted by the Parliament, appropriate provisions are made in Section 8. Sub- section (b) of said Section 8 facilitates reference to the Advisory Board to enable it to make the report under sub-clause (a) of clause (4) of Article 22 of the Constitution while sub-sections (c), (d) and (e) of said Section 8 deal with the procedure to be adopted by the Advisory Board. In terms of sub-section (e) of Section 8, the report of the Advisory Board has to be in two parts. The first part is to contain the assessment made by the Advisory Board in the form of a report which is completely confidential. The second part contains the result of such assessment in the form of an opinion. It is this second part of opinion alone which is not confidential. Sub-section (f) of Section 8 obliges the appropriate government to revoke the detention order and cause the person to be released forthwith in case the Advisory Board has reported that there was, in its opinion, no sufficient cause for the detention of the person concerned. However, if the opinion is otherwise and the Advisory Board has found that there was sufficient cause for the detention of the person, the appropriate government ‘may confirm’ the detention order and continue the detention. The choice is available to the appropriate government only in the latter of these two eventualities. Therefore, in case the opinion is to the effect that there was no sufficient cause for the detention of the person concerned, the appropriate government has to revoke the detention order and cause the person concerned to be released forthwith. [Para 10] [414-B-F]

#3. According to the aforesaid decisions the nature of opinion given by the Advisory Board is neither judicial nor quasi judicial; that it would be erroneous and unsafe to treat the opinion expressed by the Advisory Board as amounting to a judgment of a criminal court; that the Advisory Board does not try the question about the propriety or validity of the citizen’s detention as a court of law would, but, its function is limited. As stated in Akshoy A B C D E F G H UNION OF INDIA v. NISAR PALLATHUKADAVIL ALIYAR 407 Konai case, the opinion is merely intended to assist the government and it is binding on the appropriate government only if it favours the detenu and not when it goes against him. It was laid down in said decision that the opinion of the Advisory Board cannot be subject matter of review or scrutiny by the judicial courts/tribunals. The element of confidentiality was also taken note of and it was observed that the Advisory Board opinion is never intended to be open to challenge on the merits before any tribunal. [Para 15] [418-E-G] Dharam Singh Rathi v. State of Punjab and others AIR 1958 SC 152 : [1958] SCR 996 ; Akshoy Konai v. State of West Bengal (1973) 1 SCC 297 ; A.K. Roy v. Union of India and others (1982) 1 SCC 271 : [1982] 2 SCR 272 ; Calcutta Dock Labour Board and others v. Jaffar Imam and others [1965] 3 SCR 453 – followed. Bharat Bank Ltd., Delhi v. Employees of the Bharat Bank Ltd., Delhi [1950] SCR 459 ; Columbia Sportswear Company v. Director of Income Tax, Bangalore (2012) 11 SCC 224 : [2012] 7 SCR 187 – referred to. Case Law Reference [1958] SCR 996 (1973) 1 SCC 297 [1982] 2 SCR 272 [1965] 3 SCR 453 [1950] SCR 459 [2012] 7 SCR 187 followed followed followed followed referred to referred to Para 6 Para 6 Para 6 Para 6 Para 7 Para 7 CRIMINAL APPELLATE/ORIGINAL JURISDICTION : Special Leave Petition (Criminal) No. 7016 of 2019. From the Judgment and Order dated 22.07.2019 of the Advisory Board, Constituted under Section 8(a) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities, 1974 in Reference No. 81 of 2019. A B C D E F G H 408 SUPREME COURT REPORTS [2019] 11 S.C.R. A With S.L.P.(Crl.) No. 7021 of 2019, W.P.(Crl.) Nos. 210 and 220 of 2019 K. M. Nataraj, ASG, Vikram Chaudhri, Mukul Rohatgi, Sr. Advs., Ms. Binu Tamta, Dhruv Tamta, Ms. Kanu Agarwal, Sharath N. Nambiar, Vinayak Sharma, B. Krishna Prasad, Sanjay Agarwal, Ashish Batra, Wattan Sharma, Harshit Sethi, Rishi Sehgal, Vamshi Rao, Keshavam Choudhri, Amit K. Nain, Sarthak Sachdev, P. Vanshi Rao, Anzu. K. Varkey, Advs. for the appearing parties. The Judgment of the Court was delivered by UDAY UMESH LALIT, J.

#1. This Petition for Special Leave to Appeal challenges the Opinion dated 22.07.2019 of the Advisory Board constituted under Section 8(a) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (‘the COFEPOSA Act’, for short) in Reference No. 81 of 2019. The Opinion in Part-II of the Report of the Advisory Board was to the following effect:- “The Advisory Board is of the opinion that there is no sufficient cause for the continued detention of the above named detenu under Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (55 of 1974).”

#2. In the present case, an order of detention under Section 3(1) of the COFEPOSA Act was passed by the competent authority on 17.05.2019, pursuant to which the respondent herein was detained. The documents and the grounds were served within the statutory period. Writ Petition (Criminal) No.2843 of 2019 was thereafter filed by the respondent in the High Court of Judicature at Bombay challenging the order of detention on certain grounds. After the response was filed by the present petitioner, the High Court by its order dated 25.06.2019 allowed said Writ Petition and quashed the order of detention. However, on the request of the learned counsel for the petitioner, the High Court stayed the operation of its own order to enable the petitioner to approach this Court and challenge the judgment rendered by the High Court. Accordingly, Special Leave Petition (Criminal) No.5459 of 2019 was filed in this Court by the petitioner. B C D E F G H UNION OF INDIA v. NISAR PALLATHUKADAVIL ALIYAR [UDAY UMESH LALIT, J.] 409

#3. By its Judgment and Order dated 18.07.2019 passed in Criminal Appeal No.1064 of 2019 arising out of aforesaid Special Leave Petition (Criminal) No.5459 of 2019 and in other connected Appeals, this Court allowed said Appeals and set aside the judgment of the High Court dated 25.06.2019.

#4. In the meantime, in terms of Section 8(b) of the COFEPOSA Act, the case of the respondent-detenu, pursuant to the order of detention mentioned above was referred to the Advisory Board. It is a matter of record that the decision of this Court dated 18.07.2019 was brought to the notice of the Advisory Board pursuant to the requisition made by the Joint Director, Ministry of Finance, Directorate of Revenue Intelligence, Government of India. On 22.07.2019 the Advisory Board found that there was no sufficient cause for the continued detention of the respondent-detenu and rendered its Opinion as stated above.

#5. The petitioner being aggrieved has filed the present Petition for Special Leave to Appeal against the aforesaid Opinion of the Advisory Board. On 08.08.2019 the following Order was passed by a Bench of this Court:- “In this special leave petition, Union of India has challenged the opinion of the Advisory Board dated 22.07.2019. Regarding detention order passed against the respondent in Criminal Appeal No.1064 of 2019 (arising out of SLP(Crl.)No. 5459 of 2019), we have passed the judgment on 18.07.2019 expressing our views. Since we have already expressed our views, we are of the view that the matter(s) has to be placed before any other Bench after obtaining necessary orders from Hon’ble the Chief Justice of India. Subject to orders passed by Hon’ble the Chief Justice of India, list the matter accordingly before any other Bench.” The Petition was accordingly posted before us on 16.08.2019. Since it involved issues of personal liberty, the matter was heard finally, at the end of which an order was dictated in open court. The petition preferred against the opinion of the Advisory Board was dismissed and the detenu was directed to be released forthwith. The following are the reasons in support of the operative part of the order. A B C D E F G H 410 SUPREME COURT REPORTS [2019] 11 S.C.R. A B C D E F G H

#6. At the outset, a preliminary objection was raised by Mr. Mukul Rohatgi, learned Senior Advocate, appearing on behalf of the respondent about the maintainability of the present Petition for Special Leave to Appeal. It was submitted that under sub-section (c) of Section 8 of the COFEPOSA Act the Advisory Board has to prepare its report specifying in a separate paragraph of said report its opinion as to whether or not there is sufficient cause for the detention of the person concerned; that excepting that part of the report in which the opinion of the Advisory Board is specified, rest of the report is confidential; and that in terms of sub-section (f) of Section 8, if the Advisory Board has reported that there is in its opinion no sufficient cause for the detention of a person, the appropriate Government is obliged to revoke the order of detention and cause the person to be released forthwith. It was submitted that the reasoning which weighed with the Advisory Board in its report would be non-justiciable and mere opinion cannot be subject matter of any challenge in a court of law and that a petition under Article 136(1) would not be maintainable. Mr. Rohatgi, learned Senior Advocate, relied upon decisions of this Court in Dharam Singh Rathi vs. State of Punjab and others1, Akshoy Konai vs. State of West Bengal2, A.K. Roy vs. Union of India and others3 and Calcutta Dock Labour Board and others vs. Jaffar Imam and others4.

#7. On the other hand, Mr. K.M. Natraj, learned Additional Solicitor General, submitted that if the opinion of the Advisory Board were to be against the person detained, there could be no challenge to the opinion and/or report of the Advisory Board and to that extent the opinion would be non-justiciable. However, in his submission, if the opinion of the Advisory Board were to the effect that there was no sufficient cause for the detention of the person concerned, the challenge was still available to the appropriate government and the capacity of the Advisory Board while rendering such opinion would be that of a Tribunal and therefore the opinion could be subject matter of a challenge. He relied upon decisions of this Court in Bharat Bank Ltd., Delhi vs. Employees of the Bharat Bank Ltd., Delhi5 and in Columbia Sportswear Company vs. Director of Income Tax, Bangalore6.