NIRMAL KUMAR KHANDELWAL versus UNION OF INDIA AND ORS.

Citation: [1978] 3 S.C.R. 817 · Decided: 01-05-1978 · Supreme Court of India · Bench: R.S. SARKARIA · Disposal: Case Allowed

cites 2 · see the full citation network in Lexace

Judgment (excerpt)

817 
NIRMAL KUMAR KHANDELWAL 
v. 
UNION OF INDIA AND ORS. 
May 1, 1978 
(R. S. SARKARIA AND P. S. KAILASAM, JJ.] 
Conserration of Foreign Exchange and Prevention of Smuggling Activities 
Act, 1974, Section 8, clause (f)-No order confirming the detention passed by 
the appropriate Governnient within three months of the commencement of the 
detention-JVhether violates Art, 22(4) of the Constitution. 
A 
B 
The petitioner was detained with effect from October 24, 1977 by an order 
C 
JXtssed by the Secretary to the Government of Maharashtra under Section 3(1) 
of COFEPOSA. 
The Advisory Board reported on 
23-12-77 that there was 
sufficent cause for the detention but the Government did not pass any order 
confirming the detention within three months from the date of detention. 
The 
petitioner assailed it as violative of Art. 22(4) of the Constitution. 
Allowing the petition the Court. 
IIELD : 1. Sjuce no order of confirmation of the detention was made under 
clause (f) of Section 8 within three months of the date of detention by the 
appropriate Government, further detention of the petitioner after the expiry of 
that periud is without the authority of law. [822 C] 
2. The Ja\v does not lend its authority to the continuance of the detention 
even for a day more than the initial period of three months if the Government 
does not take a decision for that purpose on the report of the Advisory Board 
within three months of the commencement of the detention. (822 A-B] 
3. The expression "may confirm" in clause (f) of Section 8 of COFEPOSA, 
is significant. It imports a discretion. Even where the Advisory Board makes 
a report that in its opinion, there is sufficient cause for the detention of the 
detenu concerned, the Government may not confirm the detention order. Read 
in the light of Article 22(4) of the Constitufion and the context of the words 
"continue the detention", the expression definitely leads to the conclusion that 
the sine qua non for continuing the detention made· beyond the period of three 
months. is the confirmation of the detention order by the appropriate Govern-
ment. Conversely, non-confirmation of the initial order by 
th~ a·pproprfate 
Government before the expiry of the- period of three. months detention, shall 
automaticaliy result in revocation and termination of the legal authority for its 
continuance. This position is further clear from the language· of Section 
10, 
which provides : "The n1aximum period for \vhich any person may be detained 
in pursuance of any detention order ...... which has been confirmed under 
clause (f) of Section 8, shall be one year from the date of detention." 11le 
crucial words in the Section are : "which has been confirmed under clause ( f) 
of Section 8." They underscore the S3'11e policy which underlies the constitu-
tional n1andate in Article 22(4). These words put it beyond doubt that if the 
initial order of detention is not confifmed by the appropriate Government with-
in three montils of the date of the detention, the detention after the expiry of 
that period ipso facto becomes unauthorised and illegal. 
[821 C-FJ 
E 
F 
G 
Ujjal Manda! v. State of West Bengal, 
AIR 1972 SC 1446 
reiterated; 
Shibapada Mukherjee v. State of West Bengal, AIR 1972 SC 1356, Deb Sadhan 
H: 
Roy v. Stale of West Bengal, [1972] 2 SCR 787; Micki Khan etc. 
etc. v. 
The State of West Bengal. AIR 1972 SC 2262; and Satyadeo Parslwd Gupta v. 
3taf<' of Bihar, [1975.1 2 SCR 854 refemd to. 
A 
B 
c 
D 
E 
F 
G 
1118 
SUPREME COURT REPORTS 
[1978] 3 S.C.R. 
CRIMINAL ORIGINAL JURISDICTION: 
Criminal Writ Petition No. 
1238 of 1978. 
Under Article 32 of the Constitution for grant of a 
Writ of 
habeas corpus. 
A. K. Sen, and Herginder Singh for the Petitioner. 
E. C. Agarwal and (Miss) A. Subhashini for Respondent No. 1 
M. N. Plzadke and M. N. Shroff for Respondent No. 2 
The J udgrnent of the Court was delivered by 
SARKARIA, J.-This is a petition under Article 32 of the Constitu-
tion for the grant of a writ of habeas corpus. 
The petitioner has 
been detained with effect from October 24, 1977 by an order passed 
by the Secretary to the Government of Maharashtra under Section 3 ( 1) 
of the Conservatiion of Foreign Exchange and Prevention of Smuggling 
Activities Act, 1974 (for short called 
COFEPOSA). 
Reference 
was made to the Advisory Board on 24-11-1977. At its sitting held 
on 23-12-1977, the Board rejected the representation of the detcnu 
and opined that there wns sufficient

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