Assa Singh vs State of Punjab

Pritpal Singh, J.

The petitioner Assa Singh has been detained under Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, (hereinafter referred to as `the Act'') vide an order of the State Government dated January 3, 1986 (Annexure P.1). Initially he was detained for a period of one year. However, subsequently vide an order dated August 14, 1986 (Annexure P.2) the period of detention was enhanced to two years on the opinion of the Advisory Board. He has assailed the validity of the detention in this writ petition.

The detention order Annexure P.1 indicates that the petitioner was allegedly indulging in smuggling of goods in the months of November and December, 1984. The detention order was passed more than one year therafter on January 3, 1986 and it is, therefore, contended that there is no nexus between the petitioner''s activities and the impugned order of detention. The reply of the State Government in this respect is that the nexus between the prejudicial activities of the petitioner and the detention order remained alive till the passing of the detention order and the delay was occasioned because of nonavailability of the petitioner''s associates for a long period whose interrogation was necessary to come to a conclusion whether it was a fit case in which the petitioner should be detained under the Act. It is said that only after the link material was obtained, the District Authorities sponsored the case on November 26, 1985 and in pursuance thereof the impugned detention order was passed. I am satisfied from this explanation that the matter was examined thoroughly and the detaining authority applied its mind fully and satisfactorily to the question whether the petitioner should be detained under the Act. The delay in the making of the order of detention was not occasioned by any laxity of the part of the State Government but was the result of a full and detailed consideration of the facts and circumstances of the case. I am, therefore, unable to hold that there was any unexplained delay on the part of the detaining authority in passing the detention order. The impugned order (Annexure P.1) is consequently upheld.

The subsequent order of continued detention for two years (Annexure P.2) however, cannot be sustained. According to Section 10 of the Act, maximum period for which a person can be detained in pursuance of an order of detention to which the provisions of Section 9 do not apply and which has been confirmed under Section 8(f) is one year from the date of detention or the specified period. However, the maximum period for which a person may be detained pursuant to an order of detention to which Section 9 of the Act applies and which has been confirmed under Section 8(f) read with Section 9(2) is two years from the date of detention or the specified period. It is held in Satar Habib Hamdani v. K.S. Dilip Sinhji and others, 1986(2) RCR(Crl.) 306 (SC) : AIR 1986 Supreme Court 418 , that seen in the light of Section 3, 8, 9 and 10, it appears that while generally the period for which a person may be preventively detained under the Act may not exceed a period of one year, in case of certain kinds of activities the period may extend up to two years. This continued detention can only be on the opinion of the Advisory Board. In other words the Advisory Board is to state its opinion not merely whether detention is necessary but whether continued detention is necessary. This Supreme Court held :

"The Advisory Board will necessarily have to go behind the declaration under Section 9(1) to consider the question whether there is sufficient ground for continued detention. The two safeguards provided to the detenu against `continued detention'', at that stage, are the application of mind by the specified authority before making a declaration under Section 9(1) and the consideration of the question by the Advisory Board."

It was observed that it is important that the Advisory Board specifically considers and answers the question whether in its opinion there is sufficient cause for the continued detention of the person concerned. In the light of this judgment of the Supreme Court a Division Bench of the Gujarat High Court held in Abdula Mamad Mithani and etc. v. State of Gujarat and others, 1986 Crl. L.J. 1880, that since the Advisory Board can go behind the declaration, it stands to reason to hold that the detenu must have an opportunity to represent against his continued detention by pointing out that the material on the basis whereof the declaration was made was not sufficient for reaching the subjective satisfaction required for making the declaration. If the detenu desires to be heard in person, the Advisory Board is obliged under Section 8(c) to give him an audience. The purpose of the hearing will be obviously to give the person concerned an opportunity to satisfy the Advisory Board that there is no cause for his continued detention. He would not be able to make an effective representation before the Advisory Board in regard to this continued detention unless he is supplied the material on the basis of which the declaration under Section 9(1) came to be made. It was held that nonsupply of the basic material on which the subjective satisfaction for declaration was reached would deprive the detenu of his right to make an effective representation before the Advisory Board with a view to persuading it to the view that there did not exist sufficient cause for his continued detention. It was, therefore, laid down that the nonsupply of the basic material for the declaration is fatal to the detention. A Full Bench of the Supreme Court in Smt. Bhavna Chandrakant Acharya v. Union of India and others, 1988(1) RCR(Crl.) 184 (Gujarat) : 1987(1) RCR(Crl.) 99 (Gujarat) : 1986 Crl. L.J. 1888 , clarified that even if it is found that the declaration under Section 9(1) of the Act is found to be bad, the original detention under Section 3(1) will not fall to the ground. The view taken by the High Court of Gujarat in these two judgments in unexceptionable with which I concur.

In the instant case it is not disputed that the material in support of the declaration of continued detention under Section 9(1) was never supplied to the petitioner. Thus, the petitioner was deprived of his right to make an effective representation before the Advisory Board to say that there did not exist sufficient cause for his continued detention.

For aforesaid reasons, the detention order under Section 3(1) of the Act for a period of one year (Annexure P.1) is upheld but the subsequent order of continued detention for two years (Annexure P.2) is quashed. This petition is disposed of in these terms.