KAVITA W/O SUNDER SHANKARDAS DEVIDASANI ETC. versus STATE OF MAHARASHTRA & ORS. ETC. ETC.

Citation: [1982] 1 S.C.R. 138 · Decided: 28-07-1981 · Supreme Court of India · Bench: O. CHINNAPPA REDDY · Disposal: Dismissed

Cited by 4 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

A 
8 
c 
138 
KA VITA W/O SUNDER SHANKARDAS 
DEVIDASANI ETC. 
v. 
STATE OF MAHARASHTRA & ORS. ETC. ETC. 
July 28, 1981 
(0. CHINNAPPA REDDY, A.P. SEN AND BAHARUL ISLAM, JJ.] 
Constitution of India 1950, Articles 21 and 22 and Conservation of Foreign 
Exchange and Prevention of Smuggling Activities Act, 1974-S. 8(b}, (c), (e) 
and (f). 
Order of detention under Act-Specification of period of detention-To be 
done at final stage after consideration of report of Advisory Board. 
Representation of detenu-Whether to be considered by the same individual 
who made the initial order of detention. 
D 
Detenu-Whether has a right to be represented by lawyer before Advisory 
F 
G 
Board. 
Maharashtra. Government Rules of Business, Rule 6 and Conservation of 
Foreign Exchange and Prevention of Smuggling Activities-Maharashtra Detention 
Order 1974. 
Representation of Detenu-Minister of State for Home Affairs-Whether 
competent to deal and dispose of representation. 
The husband of the petitioner was Cetained by the State Government 
under section 3(1) of the Conservation of Foreign Exchange and Prevention 
,of Smuggling Activities Act 1974 with a view to prevent him from smuggling 
goods and abetting the smuggling of goods. His representation to the State 
Government was rejected. The Ad,•isory Board informed him by a letter that 
the Board had reported to the Government advising them that there was sufficient 
material io justify his detention. 
In the writ petition filed in this Court it was contended on behalf of the 
detenu: (1) although it~was the Government that was required by section 8(b) 
of the COFEPOSA to make the reference to the Advisory Board, it was not the 
Government but one of its subordinate officer that had made : the reference, and 
that this departure from the prescribed procedural requirement had made the 
continued detention of the detenu for any period longer than the five weeks 
mentioned in section 8{b) illegal; {2) the representation was disposed of 
by the Minister of State of Home 
Affairs 
of the 
State 
Government 
without any authority to do so; (3) the 
detenu was not 
permitted to 
be represented by a lawyer despite his request that he might be allowed 
to engage the services of a lawyer before the Advisory Board; (4) there was a 
non·application of the mind of the detaining authority first in making the 
-
I 
KA V!T A V. MAHARASHTRA 
139 
order of detention and later in considering the representation of the detenu ; 
and (5) that it was the Assistant Secretary to the State Government who signed 
at the bottom of the grounds that he thought it was against the public interest 
to disclose the source of intelligence and the facts contained therein. 
In the connected writ petition, only the first two of the aforestated con-
tentions were raised. 
Dismissing the writ petitions, 
HELD : 1.(i) The order of detention has not to specify the proposed 
period of detention at that stage. Within five days of the detention, detenu is 
required to be furnished with the grounds of detention so as to enable him to 
make a representation to the detaining authority. (Article 22(5) of the Constitu-
tion and section 3(3), COFEPOSA). Thereafter, within three months from the date 
of detention1 the Advisory Board has to report on the sufficiency of cause 
for such detention. This is a constitutional mandate (Article 22(4) of the 
Constitution). In order to enable the Advisory Board to discharge its 
constitu~ 
tional obligation the Government is required to make a reference to the Advisory 
Board within five weeks from the date of detention. 
(Section 8(b) of 
COFEPOSA). The Advisory Board in its turn is charged with the task of 
submitting a report within eleven weeks from the date of detention, specifying 
its opinion as to whether or not there is sufficient cause for the detention of the 
person concerned (Section S(c) COFEPOSA). The period of eleven weeks is to 
enable compliance with the Constitutional time-limit of three months. On receipt 
of the report the Government has to revoke the d<;itention, if the Board has 
reported that there is no 'iufficient cause for the detention or, to confirm the 
order of detention and specify the period of d:tention if the Board has reported 
there is sufficient cause (or the detention. (Section 8(fJ COFEPOSA). In the 
meanwhile at any time lhe Central Government in 'iny case, and the State 
Government if the order of detention was m ide by the State Government or by 
an Offi

Excerpt shown. Read the full judgment & AI analysis in Lexace.