SATAR HABIB HAMDANI ETC. versus K.S. DILIPSINHJI & ORS.

Citation: [1985] SUPP. 3 S.C.R. 1061 · Decided: 20-12-1985 · Supreme Court of India · Bench: O. CHINNAPPA REDDY · Disposal: Appeal(s) allowed

Judgment (excerpt)

·; 
• 
1061 
SATAR EABIB HAMDA!il ETC. 
v. 
K.S. DILIPSINH.il & ORS, 
DF..CEMiF..R 20, l S85 
[ 0, C!il~"!iAPF A REDDY AND V • KMLID, JJ • ] 
Conservation of Foreign Exchange and Freven~ion of Smuggl-
ing Activities Act, 1974. Section 9 -
'Detention' and 'continued 
detention' -
Difference between -
Advisory Board -
Duty of -
Specifically consider and detemine whether there is sufficient 
cause for 'continued detention' of the person concerned. 
An order of detention under the COFEPOSA was made by the 
Additional Secretary to the Government of India against the 
appellant, and the grounds of detention were served on him on 
July 1, 1984. On July 13, 1984 the ·coFEPOSA ·was amended. 
Purporting. to act under section 9(1) of the COFEPOSA as amended 
the Additional Secretary made a declaration that he was satisfied 
that the appellant was likely to abet the» smuggling of goods into 
and through an area highly vulnerable to smuggling as defined in 
Explanation l to section 9(1) of t.he Act. Thereafter the usual 
reference to the Advisory Board was made and after obtaining its 
opinion the Government of India by an order dated December 22, 
1984 confirmed the detention for a period of two years • 
In the appeals to this Court, it was contended on behalf of 
the appellants that in every case where it was proposed to have 
recourse to s. 10 read with s. 9 it was necessary for the 
Advisory Board to state its opinion, that 'the continued deten-
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tion' of the detenu was necessary and that in a case where the 
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Advisory Boa•d merely opined that 'the detention' of the detenu 
was necessary, recourse could not be had to s. 10 read with B• 
9 
.,, 
so as to enable the detenu to be detained for two years. This 
contention was answered on behalf of the respondents through the 
counter affidavit by contending, that once the Advisory lloard 
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gives an opinion affirming the detention it must be regarded as 
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an opinion · in regard to both the aspects viz. the original 
'detention' and the 'continued detention•. 
Allowing the Appeals, 
llElll: 1. In the· absence of the Advisory Board's opinion to 
the effect that there is sufficient csuse for the 'continued 
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1062 
SUPREME COURT REPORTS 
[1985] SUPP. 3 s.c.R. 
A 
detention' of the detenus, their detention for a period exceeding 
one year is without legal sanction. More than one year 
has 
lapsed since the appellants have been detained. They are directed 
to be set at liberty forthwith. (1068 G] 
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2. The scheme of section 3,8,9 and 10 of the Act appears to 
be that while generally the period for which a person may be 
preventively detained under the COFEPOSA in connection with the 
slll1lggling activities may not exceed a period of one year, in case 
of certain kinds of activities of swggling into, out of, or 
through 'any area highly vulnerable to slll1lggling ', the period may 
extend up to two years. In the latter event, a declaration is 
required to be made within five weeks of the detention of such 
person in the manner provided by section 9(1) of the Act. (1067 
G; 1068 A] 
3. In a case to which s.9 applies, s.8 stands suitably 
amended, a reference is required to be made within four months 
and two weeks by the Government to the Advisory Board, and the 
Advisory Board is required to state its opinion within five 
months and three weeks from the order of detention where there is 
sufficient cause for the 'continued detention' of the person 
concerned. (1068 B] 
4. The two safeguards provided to the detenu against 
'continued detention' are the application of mind by the speci-
fied authority before making a declaration under s.9(1) and the 
consideration of the question by the Advisory Board. (1068 Cl 
s. The Advisory Board is to state its opinion not merely 
'whether detention is necessary, but whether 'continued detention' 
is necessary. The Advisory Board will necessarily have to go 
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behind the declaration under s.9 to consider the question whether 
there is sufficient cause for 'continued detention'. (1068 C] 
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6. In a case to which s. 9 applies 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. If the Advisory 
Board merely states that the detention of the person is necessary 
it is not for anyone else to supplement the Advisory Board 1 s 
opinion and substitute the words 'continued detention' 

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