Chinnappa Reddy, J. - (1.) These several Criminal Appeals raise a common question and may be disposed of by a single judgment. It is sufficient if we state the facts in one case:Criminal Appeal No. 371 of 1985. On 29-6-84 an order of detention under the COFEPOSA was made by the, Additional Secretary to the Government of India, Finance Department against Satar Habib Hamdani. The grounds of detention were served on him on July 1, 1984. On July 13, 1984 the COFEPOSA was amended by an Ordinance which was replaced by an Amending Act. We will presently refer to the provisions of the Act. Purporting to act under S. 9(1) of the COFEPOSA as amended, the Additional Secretary to the Government of India made a declaration that he was satisfied that 'Shri Satar Habib Hamdani abets and is likely to abet the smuggling of goods into and through. Porbandar which is an area highly vulnerable to smuggling, as defined in Explanation 1 to Section 9(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. Thereafter the usual reference to the Advisory Board was made and after obtaining the opinion of the Advisory Board, the Government of India, by an order dated December 22, 1984 confirmed the detention of Satar Habib Hamdani for a period of two years. The order was as follows"Whereas an order F.No. 673/84-Cus. VIII dated 28/29 June, 1984 has been passed by the Additional Secretary to the Government of India u/s. 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 for the detention of Shri Satar Habib Hamdani whereas a declaration u/s 9(1) ibid has been made against him by the Additional Secretary to the Government of India: And Whereas the case of Shri ........was placed before the Advisory Board who are of the opinion that there is sufficient cause for his detention; Now, Therefore, in exercise (if the powers conferred by Section 8(f) read with Section 9(2) of the aforesaid Act, the Central Government here by confirms the aforesaid detention order and Satar Habib Hamdani u/s 10 of the said Act, the said Shri............be detained for a period 1-7-84 two years from the date of his detention i.e. from Sd/ (A. N. Agnihotri) Under Secretary To The Government Of India Shri Satar Habib Hamdani, Central COFEPOSA Detenu C/o Supdt. District Prison, Rajkot."
(2.) The submission of Shri Karmali learned counsel for the appellants who presented the case neatly and with precision, was 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 detention' of the detenu was necessary and that in a case where the Advisory Board merely opined that 'the detention' of the detenu was necessary, recourse could not be had to S. 10 read with S. 9 so as to enable the detenu to be detained for two years. The answer to the claim of the appellant was stated in the counter affidavit as follows: "With reference to para. 10(xv) I submit that it is not incumbent upon the Advisory Board to send its report to the effect that there is sufficient cause for continued detention once having observed and reported that there was sufficient cause for detention. Once the Advisory Board gives an opinion affirming the detention it must be regarded as an opinion in regard to both the aspects viz. the original detention. and the continued detention i.e. right from the date of arrest till the date of giving opinion deny that the continued detention of the appellant is violative of S. 8(c) of the Act."
(3.) In order to appreciate the submission of Shri Karmali we may refer to the relevant provisions of the COFEPOSA as amended by the Amending of 1984. Section 3(1) empowers the authority specified therein:- "if satisfied, with respect to any person (including a foreigner), that with a view to preventing him from acting in any manner prejudicial to the conservation or augmentation of foreign exchange or with a view to preventing him from - (i) smuggling goods, or (ii) abetting the smuggling of goods, or (iii) engaging in transporting or concealing or keeping smuggled goods, or (iv) dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods, or (v) harbouring persons engaged in smuggling goods or in abetting the smuggling of goods, it is necessary so to do, make an order directing that such person be detained.";