UNION OF INDIA versus NISAR PALLATHUKADAVIL ALIYAR

Citation: [2019] 11 S.C.R. 405 · Decided: 21-08-2019 · Supreme Court of India · Bench: UDAY UMESH LALIT

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Judgment (excerpt)

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UNION OF INDIA
v.
NISAR PALLATHUKADAVIL ALIYAR
(Petition For Special Leave to Appeal (Crl.) No. 7016 of 2019)
AUGUST 21, 2019
[UDAY UMESH LALIT AND R. SUBHASH REDDY, JJ.]
Conservation of Foreign Exchange and Prevention of
Smuggling Activities Act, 1974 – s.8(a) – Competent authority passed
an order of detention u/s.3(1) of the COFEPOSA Act, pursuant to
which the respondent was detained – The order of detention was
referred to the Advisory Board – Advisory Board gave opinion in its
report that there was no sufficient cause for the continued detention
of the respondent detenue u/s. 3(1) of the COFEPOSA – Aggrieved,
petitioner-Union of India filed Special Leave to Appeal against the
opinion of the Advisory Board – Held:The nature of opinion given
by the Advisory Board is neither judicial nor quasi judicial; that it
would be erroneous and unsafe to treat the opinion expressed by
the Advisory Board as amounting to a judgment of a criminal Court;
that the Advisory Board does not try the question about the propriety
or validity of the citizen’s detention as a court of law would, but, its
function is limited – The opinion is merely intended to assist the
government and it is binding on the appropriate government only if
it favours the detenue and not when it goes against him – Further,
the opinion of the Advisory Board cannot be subject matter of review
or scrutiny by the judicial courts/tribunals – Thus, petition
challenging the opinion of the Advisory Board not maintainable.
Disposing of the matters, the Court
HELD : 1. In terms of clause (4) of Article 22 of the
Constitution, no law providing for preventive detention shall
authorise the detention of any person for a period longer than
three months unless an Advisory Board had reported before the
expiration of said period of three months that in its opinion there
was sufficient cause for such detention.  The question whether
there is sufficient cause for detention or not is in the exclusive
domain of the Advisory Board.   In terms of clause (7) (c) of Article
   [2019] 11 S.C.R. 405
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SUPREME COURT REPORTS
[2019] 11 S.C.R.
22 of the Constitution the procedure to be followed by the
Advisory Board can be prescribed by the Parliament by law.
[Para 9] [413-G-H; 414-A-B]
2. Accordingly, in the Conservation of Foreign Exchange
and Prevention of Smuggling Activities Act, 1974 enacted by the
Parliament, appropriate provisions are made in Section 8.   Sub-
section (b) of said Section 8 facilitates reference to the Advisory
Board to enable it to make the report under sub-clause (a) of
clause (4) of Article 22 of the Constitution while sub-sections (c),
(d) and (e) of said Section 8 deal with the procedure to be adopted
by the Advisory Board. In terms of sub-section (e) of Section 8,
the report of the Advisory Board has to be in two parts.  The first
part is to contain the assessment made by the Advisory Board in
the form of a report which is completely confidential.  The second
part contains the result of such assessment in the form of an
opinion. It is this second part of opinion alone which is not
confidential.  Sub-section (f) of Section 8 obliges the appropriate
government to revoke the detention order and cause the person
to be released forthwith in case the Advisory Board has reported
that there was, in its opinion, no sufficient cause for the detention
of the person concerned. However, if the opinion is otherwise
and the Advisory Board has found that there was sufficient cause
for the detention of the person, the appropriate government ‘may
confirm’ the detention order and continue the detention.  The
choice is available to the appropriate government only in the latter
of these two eventualities. Therefore, in case the opinion is to
the effect that there was no sufficient cause for the detention of
the person concerned, the appropriate government has to revoke
the detention order and cause the person concerned to be released
forthwith. [Para 10] [414-B-F]
3. According to the aforesaid decisions the nature of opinion
given by the Advisory Board is neither judicial nor quasi judicial;
that it would be erroneous and unsafe to treat the opinion
expressed by the Advisory Board as amounting to a judgment of
a criminal court; that the Advisory Board does not try the question
about the propriety or validity of the citizen’s detention as a court
of law would, but, its function is limited.  As stated in Akshoy
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Konai case, th

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