Mohinder Singh vs State of Punjab

Pritpal Singh, J.

The petitioner Mohinder Singh was 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 dated December 27, 1985 (Annexure P.1). Initially he was detained for a period of one year, but subsequently vide an order dated July 23, 1986 (Annexure P.3), the period of detention was enhanced to two years on the opinion of the Advisory Board. In the present writ petition he has assailed the validity of his detention.

In pursuance of detention order dated December 27, 1985 (Annexure P.1) the petitioner was arrested and detained on January 27, 1986 for one year. This period has already expired, therefore, the validity of the said order has not been challenged before me by the learned petitioner''s counsel. It is the subsequent order dated July 23, 1986 (Annexure P.3) for continued detention of the petitioner for two years which has been strenuously assailed by the learned Counsel. This order in my view cannot be sustained.

According to Section 10 of the Act, maximum period for which a person can be detained in pursuance to of an order of detention which the provisions of Section 9 do not apply and which has bee 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 Sections 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 the case of certain kinds of activities the period may extend upto 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. The 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 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 his 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 the 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 same Court in Smt. Bhavna Chandrakant Acharya v. Union of India and others, 1988(1) RCR(Crl.) 184 (Gujarat) : 1986 Cri. 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 is 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 order of continued detention for two years (Annexure P.3) is hereby quashed. Since the period of his detention under order Annexure P.1 has already expired, it is directed that he may be released forthwith.

JUDGMENT accordingly.