CHANDURKAR, J. - (1.) THE petitioner is a business man dealing in cloth having his shop at Abdul Rehman Street, Bombay, His premises were searched by the Customs Officers on September 27, 1974, At that time the petitioner was not in this shop and, therefore, the shop premises were sealed. The search yielded textiles and wearing apparel of foreign origin totally valued at Rs. 8,957. The petitioner attended the Customs Office on October 8, 1974 and admitted that the goods seized belonged to him. The petitioner was prosecuted in criminal case No. 865/CW of 1974 and he pleaded guilty to the charges in that case. His shop was again raided on January 24, 1975 and textiles bearing foreign markings of the market value of Rs. 8,450 were seized. A prosecution was launched against him and during the pendency of the prosecution, an order of detention dated March 81, 1975 issued under Section 8 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as the 'COFEPOSA Act'), came to be passed by the Secretary to the Government of Maharashtra, Home Department. Grounds were supplied to the petitioner. These grounds referred to the searches and the conviction in criminal case No. 365/CW of 1974 in which he was sentenced to one day's simple imprisonment and to pay a fine of Rs. 2,000. It was also stated that liability of the foreign textiles seized on September 27, 1974 to confiscation and the liability to penalty were the subject -mattar of departmental proceedings. The other ground referred to the search dated January 24, 1975 and a reference was made to the petitioner's statement of the same date in which, according to the detaining authority, he had stated that he was the owner of the said shop and he did not possess any purchase bill or document for the legal importation or acquisition of the foreign textiles found. Thus, according to the detaining authority, the petitioner was indulging in smuggled activities. The petitioner's case was referred to the Advisory Board on May 24, 1975. An order of confirmation of the said detention order came to be passed by the State Government on July 14, 1975. These are the only material facts necessary to be stated having regard to the nature of the challenge which is made by the petitioner to the order of detention.
(2.) MR . Merchant appearing on behalf of the petitioner has raised two contentions. The first contention is that the reference to the Advisory Board was made beyond the period of five weeks as provided by Clause (6) of Section 8 of the COFEPOSA Act and, according to the learned Counsel, the provisions of Section 8(6) being mandatory in nature, the order of detention was liable to be quashed on the ground of non -compliance with the mandatory provisions of Section 8, Clause (b). The second contention raised is that the order of detention was confirmed admittedly beyond the period of three months and this order of confirmation made on July 14, 1975 was, therefore, bad in law and the detention of the petitioner being illegal, ha was entitled to be set at liberty. In support of the second proposition that if the order of confirmation is not made within the period of three months the detention is illegal the learned Counsel for the petitioner relied on two decisions of the Supreme Court in Madan Malik t. State of W.B. : AIR1972SC1878 and D.S. Roy v. State of W.B. : 1973CriLJ446 . In the first case the Supreme Court was dealing with the detention order under Section 8 of the West Bengal (Prevention of Violent Activities) Act and the Supreme Court observed (p. 1879) :.There is a string of authorities -wherein this Court has held, after referring to Article 22(4) of the Constitution, that unless., on December 20, 1074 (Nagpur Bench) on February 5, 1976 (Unrep.). (Unrep. the State Government exercises its power of confirming the detention order within three months from the date of detention, the detention after the expiry of that period would be without the authority of law. In the second case also, the Supreme Court was dealing with a detention order under the same Act and it was observed that the confirmation of the opinion of the Advisory Board to continue the detention beyond three months must ha within three months from the date of detention in conformity with the mandate in Clause (4) of Article 22. Mr. Gumaste, the learned Government Pleader could not dispute the proposition that if the detenu had a right to approach the Court to enforce his right under Article 22 of the Constitution, then admittedly the detention order not having been confirmed within a period of three months, the continued detention of the petitioner would become bad. He, however, raised a contention that the provisions of Section 8(6) were not mandatory and, according to him, the delay in submitting the case of the petitioner to the Advisory Board was due to reasons beyond the control of the State Government inasmuch as there was a strike of Government servants with effect from April 18, 1975 which ended on May 26, 1975 and the Government servant resumed work on May 27, 1975. Thus, according to the learned Counsel, though there was a delay, that delay has been properly explained and since it was impossible in the circumstances of the ease to make a reference to the Advisory Board within a period of five weeks from the date of detention, that delay should be condoned and in any case, according to the learned Counsel, since the Advisory Board had submitted it a report on June 18, 1975, that is, well within the period prescribed by Section 8, the petitioner was not entitled to challenge his continued detention as illegal. It was further contended that when the petitioner seeks to have his order of detention quashed because of non -compliance with the provisions of Section 8 of the COFEPOSA Act or because the order of detention was not confirmed within three months, he is in substance enforcing his right under Article 22 and in view of the Presidential orders dated December 28, 1974 and June 27, 1975, such a contention is not open to him. It appears to us that this contention is well founded - Section 8 of the COFEPOSA Act of which a breach is alleged to have been committed by not referring the case of the petitioner to the Advisory Board run as follows : 8. Advisory Boards. -For the purposes of Sub -clause (o) of Clause (4), and Sub -clause (c) of Clause (7), of Article 22 of the Constitution,; - (a) the Central Government and each State Government shall, whenever necessary, constitute one or more Advisory Boards each of which shall consist of a Chairman and two other persons possessing the qualifications specified in Sub -clause (o) of Clause (4) of Article 22 of the Constitution; (b) save as otherwise provided in Section 9, the appropriate Government shall, within five weeks from the date of detention of a person under a detention order make a reference in respect thereof to the Advisory Board constituted under Clause (a) to enable the Advisory Board to make the report under Sub -clause (a) of Clause (4) of Article 22 of the Constitution ; (c) the Advisory Board to which a reference is made under Clause (6) shall after considering the reference and the materials placed therefore it and after calling for such further information as it may deem necessary from the appropriate Government or from any person called for the purpose through the appropriate Government or from the person concerned, and if, any particular case, it considers it essential so to do or if the person concerned desires to be heard in person, after hearing him is person, prepare its report specifying in a separate paragraph thereof its opinion as to -whether or not there is sufficient cause for the detention of the person non -corned and submit the same within eleven weeks from the date of detention of the person concerned ; (d) when there is a difference of opinion among the members forming the Advisory Board, the opinion of the majority of such members shall be deemed to the opinion of the Board; (e) a person against -whom an order of detention has been made under this Act shall not be entitled to appear by any legal practitioner in any matter connected with the reference to the Advisory Board, and the proceedings of the Advisory Board and its report, excepting that part of the report in which the opinion of the Advisory Board is specified, shall be confidential; (f) in every case where the Advisory Board has reported that there is in its opinion sufficient cause for the detention of a person, the appropriate Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit and in every case where the Advisory Board has reported that there is in its opinion no sufficient cause for the detention of the person concerned, the appropriate Government shall revoke the detention order and cause the person to be released forthwith.
(3.) NOW , the scheme of Section 8 is that reference has to be made to the Advisory Board constituted under Clause (a) of Section 8 within five weeks from the date of detention and within eleven weeks from the date of detention the Advisory Board has to submit its report. Now, what is contended by the learned Counsel for the petitioner is that Section 8 gives an independent right apart from the constitutional right under Article 22 and the right under Section 8 is to have the case of the detenu submitted to the Advisory Board within a period of five weeks and to have the report of the Advisory Board within a period of eleven weeks from the date of detention. The question which, therefore, arises is whether having regard to the opening words of Section 8, Section 8 can be said to be a repository of a special statutory right of a detenu to have the matter referred to the Advisory Board within the prescribed period or whether the provisions in Section 8 are correlated, to the provisions of Article 22 of the Constitution. The material provisions referred to in the opening words of Section 8 are Clauses (4) and (7) of Article 22. These material provisions of the Constitution run as follows : 22. Protection against arrest and detention in certain cases.... (4) No law providing for preventive detention shall authorise the detention of a person for a longer period than throe months unless - (a) an Advisory Board consisting of persons who arc, or have been, or ore qualified to be appointed as, Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention : Provided that nothing in this sub -clause shall authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament under Sub -clause (6) of Clause (7); or(b) such person is detained in accordance with the provisions of any law made by Parliament under Sub -clauses (a) and (6) of Clause (70).... (7) Parliament may be law prescribe (a) the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months under any law providing for a preventive detention without obtaining the opinion of an Advisory Board in accordance with the provisions of Sub -clause (a) of Clause (4); (b) the maximum period for which any person may in any class or classes of eases be detained under any law providing for preventive detention; and (c) the procedure to be followed by an Advisory Board in an inquiry under Sub -clause (a) of Clause (4). Thus, Clause (4) of Article 22 makes it obligatory that if a law has to be made authorising the detention of a person for a longer period than throe months, then the law must provide for an Advisory Board and that Advisory Board must report before the expiration of a period of three months that there is in its opinion sufficient cause for such detention. There is power given to the Parliament under Article 22(7) to make a law prescribing the procedure to be followed by an Advisory Board in an enquiry under Sub -clause (a) of Clause (4). It is because of this constitutional imperative requiring a reference to be made to an Advisory Board that in the COFE -POSA Act, which provides for a power to make orders detaining certain persons under Section 8 of the said Act, a provision for an Advisory Board has been made in Section 8. There can be no doubt that the opening words of Section 8 were put there only with a view to correlate the provisions of Section 8 to the provisions of Article 22(4)(a) and Article 22(7)(c). Indeed it is clear that the provisions of Section 8 of the COFEPOSA Act have been enacted in order to carry out and give effect to the constitutional protection in the matter of detention contained in Article 22(4) of the Constitution of India. Section 8 of the COFEFOSA Act, therefore, does not create any independent right because the right to have the detenu's matter referred to the Advisory Board is a right which is created by the Constitution itself and it is only to work out that right that detailed provisions have been made providing for the constitution of the Advisory Board, making reference of the case of the detenu to the Advisory Board and getting the opinion of the Advisory Board within the prescribed period on the question as to whether there is sufficient cause for the detention of the detenu as contemplated by Article 22(4). ;