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Union of India vs. Nisar Pallathukadavil Aliyar
IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
PETITION FOR SPECIAL LEAVE TO APPEAL (CRL)No.7016 OF 2019
UNION OF INDIA …Petitioner
MAYANK DHHAKAD …Petitioner
AND
PETITION FOR SPECIAL LEAVE TO APPEAL(CRL)NO.7021 OF 2019
UNION OF INDIA …Petitioner
AND
WRIT PETITION (CRL.)NO. 220 OF 2019
ASHARAF A.U. …Petitioner
JUDGMENT
1. This Petition for Special Leave to Appeal challenges the Opinion dated 22.07.2019 of the Advisory Board constituted under Section 8(a) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (‘the COFEPOSA Act’, for short) in Reference No. 81 of 2019. The Opinion in Part-II of the Report of the Advisory Board was to the following effect:- “The Advisory Board is of the opinion that there is no sufficient cause for the continued detention of the above named detenu under Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (55 of 1974).”
2. In the present case, an order of detention under Section 3(1) of the COFEPOSA Act was passed by the competent authority on 17.05.2019, pursuant to which the respondent herein was detained. The documents and the grounds were served within the statutory period. Writ Petition (Criminal) No.2843 of 2019 was thereafter filed by the respondent in the High Court of Judicature at Bombay challenging the order of detention on certain grounds. After the response was filed by the present petitioner, the High Court by its order dated 25.06.2019 allowed said Writ Petition and quashed the order of detention. However, on the request of the learned counsel for the petitioner, the High Court stayed the operation of its own order to enable the petitioner to approach this Court and challenge the judgment rendered by the High Court. Accordingly, Special Leave Petition (Criminal) No.5459 of 2019 was filed in this Court by the petitioner.
3. By its Judgment and Order dated 18.07.2019 passed in Criminal Appeal No.1064 of 2019 arising out of aforesaid Special Leave Petition (Criminal) No.5459 of 2019 and in other connected Appeals, this Court allowed said Appeals and set aside the judgment of the High Court dated 25.06.2019.
4. In the meantime, in terms of Section 8(b) of the COFEPOSA Act, the case of the respondent-detenu, pursuant to the order of detention mentioned above was referred to the Advisory Board. It is a matter of record that the decision of this Court dated 18.07.2019 was brought to the notice of the Advisory Board pursuant to the requisition made by the Joint Director, Ministry of Finance, Directorate of Revenue Intelligence, Government of India. On 22.07.2019 the Advisory Board found that there was no sufficient cause for the continued detention of the respondentdetenu and rendered its Opinion as stated above.
5. The petitioner being aggrieved has filed the present Petition for Special Leave to Appeal against the aforesaid Opinion of the Advisory Board. On 08.08.2019 the following Order was passed by a Bench of this Court:- “In this special leave petition, Union of India has challenged the opinion of the Advisory Board dated 22.07.2019. Regarding detention order passed against the respondent in Criminal Appeal No.1064 of 2019 (arising out of SLP(Crl.)No. 5459 of 2019), we have passed the judgment on 18.07.2019 expressing our views. Since we have already expressed our views, we are of the view that the matter(s) has to be placed before any other Bench after obtaining necessary orders from Hon’ble the Chief Justice of India. Subject to orders passed by Hon’ble the Chief Justice of India, list the matter accordingly before any other Bench.” The Petition was accordingly posted before us on 16.08.2019. Since it involved issues of personal liberty, the matter was heard finally, at the end of which an order was dictated in open court. The petition preferred against the opinion of the Advisory Board was dismissed and the detenu was directed to be released forthwith. The following are the reasons in support of the operative part of the order.
6. At the outset, a preliminary objection was raised by Mr. Mukul Rohatgi, learned Senior Advocate, appearing on behalf of the respondent about the maintainability of the present Petition for Special Leave to Appeal. It was submitted that under sub-section (c) of Section 8 of the COFEPOSA Act the Advisory Board has to prepare its report specifying in a separate paragraph of said report its opinion as to whether or not there is sufficient cause for the detention of the person concerned; that excepting that part of the report in which the opinion of the Advisory Board is specified, rest of the report is confidential; and that in terms of sub-section (f) of Section 8, if the Advisory Board has reported that there is in its opinion no sufficient cause for the detention of a person, the appropriate Government is obliged to revoke the order of detention and cause the person to be released forthwith. It was submitted that the reasoning which weighed with the Advisory Board in its report would be non-justiciable and mere opinion cannot be subject matter of any challenge in a court of law and that a petition under Article 136(1) would not be maintainable. Mr. Rohatgi, learned Senior Advocate, relied upon decisions of this Court in Dharam Singh Rathi vs. State of Punjab and others[1], Akshoy Konai vs. 1 AIR 1958 SC 152 = 1958 SCR 996 State of West Bengal[2], A.K. Roy vs. Union of India and others[3] and Calcutta Dock Labour Board and others vs. Jaffar Imam and others[4].
7. On the other hand, Mr. K.M. Natraj, learned Additional Solicitor General, submitted that if the opinion of the Advisory Board were to be against the person detained, there could be no challenge to the opinion and/or report of the Advisory Board and to that extent the opinion would be non-justiciable. However, in his submission, if the opinion of the Advisory Board were to the effect that there was no sufficient cause for the detention of the person concerned, the challenge was still available to the appropriate government and the capacity of the Advisory Board while rendering such opinion would be that of a Tribunal and therefore the opinion could be subject matter of a challenge. He relied upon decisions of this Court in Bharat Bank Ltd., Delhi vs. Employees of the Bharat Bank Ltd., Delhi[5] and in Columbia Sportswear Company vs. Director of Income Tax, Bangalore[6].
8. Section 8 of the COFEPOSAAct is as under:-
Concluding that there was non-compliance of the procedure laid down in Section 10 of the Preventive Detention Act, 1950, the petition was allowed and the detenu was directed to be set at liberty forthwith. Mr. Rohatgi, learned Senior Advocate, however relied upon the sentence which stated that the Advisory Board had no power to make any order to continue or discontinue of the detention but its duty was only to submit a report to the State Government.
12. In Akshoy Konai[2] the submission raised on behalf of the detenu was that the decision of the Advisory Board was never communicated to him. The further submission was that the opinion of the Advisory Board should have been communicated to the detenu so as to enable him to question the legality of said opinion. These submissions were rejected by a Bench of three Judges of this Court as under:-
13. A.K. Roy[3] was also a decision of the Constitution Bench of this Court. It was observed in para 98 as under:-
98. … …In proceedings before the Advisory Board, the question for consideration of the Board is not whether the detenu is guilty of any charge but whether there is sufficient cause for the detention of the person concerned. The detention, it must be remembered, is based not on facts proved either by applying the test of preponderance of probabilities or of reasonable doubt. The detention is based on the subjective satisfaction of the detaining authority that it is necessary to detain a particular person in order to prevent him from acting in a manner prejudicial to certain stated objects. The proceeding of the Advisory Board has therefore to be structured differently from the proceeding of judicial or quasi-judicial tribunals, before which there is a lis to adjudicate upon.”
14. In Calcutta Dock Labour Board[4] the question was whether after having suffered an order of detention under Section 3(1)(a)(ii) of the Prevention Detention Act, 1950, the services of the concerned person could be terminated by the employer merely on the ground that there was an order of detention. In that context a Bench of three Judges of this Court observed:-
15. 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, the opinion is merely intended to assist the government and it is binding on the appropriate government only if it favours the detenu and not when it goes against him. It was laid down in said decision that the opinion of the Advisory Board cannot be subject matter of review or scrutiny by the judicial courts/tribunals. The element of confidentiality was also taken note of and it was observed that the Advisory Board opinion is never intended to be open to challenge on the merits before any tribunal.
16. The decisions relied upon by the learned Additional Solicitor General pertain to fields other than preventive detention. In Bharat Bank Ltd.[5] the issue was whether a decision of an Industrial Tribunal could be amenable to the appellate jurisdiction under Article 136(1) of the Constitution. The reliance was placed by the learned Additional Solicitor General on the opinion of S. Fazal Ali, J. as under:- “The important question to be decided in this case is whether the present appeal lies at all to this Court. The question is not free from difficulty, but on the whole I am inclined to think that the appeal does lie. It is fully recognized that the scope of Article 136 of the Constitution is very wide, but the significance of the language used in the section can be appreciated only by comparing it with the articles which precede it. Article 132 deals with the appellate jurisdiction of the Supreme Court in cases involving a substantial question of law as to the interpretation of the Constitution, and the words used in that article are: “appeal... from any judgment, decree or final order”. Article 133 deals with appeals in civil matters and the same words are used here also. Article 134 deals with appeals in criminal matters, and the words used in it are: “appeal... from any judgment, final order or sentence”. In Article 136, the words “judgment” and “decree,” which are used in Articles 132 and 133 are retained. Similarly, the words “judgment” and “sentence” occurring in Article 134 are also retained. But the expression “final order” becomes “order,” and, instead of the High Court, reference is made to “any court.” Certain other words are also used in the article which seem to me to have a special significance, these being “determination,” “cause or matter” and “tribunal”. It is obvious that these words greatly widen the scope of Article 136. They show that an appeal will lie also from a determination or order of “any tribunal” in any cause or matter.
6. Can we then say that an Industrial Tribunal does not fall within the scope of Article 136? If we go by a mere label, the answer must be in the affirmative. But we have to look further and see what are the main functions of the Tribunal and how it proceeds to discharge those functions. This is necessary because I take it to be implied that before an appeal can lie to this Court from a tribunal it must perform some kind of judicial function and partake to some extent of the character of a Court.
7. Now there can be no doubt that the Industrial Tribunal has, to use a well-known expression, “all the trappings of a court” and performs functions which cannot but be regarded as judicial. This is evident from the rules by which the proceedings before the Tribunal are regulated. It appears that the proceeding before it commences on an application which in many respects is in the nature of a plaint. It has the same powers as are vested in a civil court under the Code of Civil Procedure when trying a suit, in respect of discovery, inspection, granting adjournment, reception of evidence taken on affidavit, enforcing the attendance of witnesses, compelling the production of documents, issuing commissions etc. It is to be deemed to be a civil court within the meaning of Sections 480 and 482 of the Criminal Procedure Code, 1898. It may admit and call for evidence at any stage of the proceeding and has the power to administer oaths. The parties appearing before it have the right of examination, cross-examination and reexamination and of addressing it after all evidence has been called. A party may also be represented by a legal practitioner with its permission.
8. The matter does not rest there. The main function of this Tribunal is to adjudicate on industrial disputes which implies that there must be two or more parties before it with conflicting cases, and that it has also to arrive at a conclusion as to how the dispute is to be ended. Prima facie, therefore, a Tribunal like this cannot be excluded from the scope of Article 136, but before any final conclusion can be expressed on the subject certain contentions which have been put forward on behalf of the respondents have to be disposed of.”
17. Similarly, reliance was also placed on the decision in Columbia In that case the issue was whether an Advance Ruling pronounced by the Authority for Advance Rulings (Income Tax) constituted under Chapter XIX-B of the Income Tax Act, 1961 could be challenged under Articles 226 and 227 of the Constitution before the High Court or under Article 136 of the Constitution before this Court. Reliance was placed by the learned Additional Solicitor General on para 15 of the decision, which was to the following effect:- “As Section 245-S expressly makes the advance ruling binding on the applicant, in respect of the transaction and on the Commissioner and the income tax authorities subordinate to him, the Authority is a body acting in judicial capacity. H.M. Seervai in his book Constitutional Law of India (4th Edn.) while discussing the tests for identifying judicial functions in Para 16.99 quotes the following passage from Prof. de Smith’s Judicial Review on p. 1502: “An authority acts in a judicial capacity when, after investigation and deliberation, it performs an act or makes a decision that is binding and conclusive and imposes obligation upon or affects the rights of individuals.” We have, therefore, no doubt in our mind that the Authority is a body exercising judicial power conferred on it by Chapter XIX-B of the Act and is a tribunal within the meaning of the expression in Articles 136 and 227 of the Constitution.”
18. Both these decisions on which reliance was placed by the learned Additional Solicitor General were completely in different context. It is well settled that wherever a body is exercising judicial/quasi judicial power and is a tribunal within the meaning of the expressions in Article 136 and 227 of the Constitution, the decisions so rendered are amenable to challenge.
19. But the basic issue in the present matter is the nature of power exercised by the Advisory Board when an opinion is given by it pursuant to a reference made to it under Section 8(b) of the COFEPOSA Act. The report of the Advisory Board, excepting its opinion, is strictly confidential and the nature of the power so exercised by the Advisory Board in giving its report and the opinion, has already been pronounced upon by this Court in the cases referred to above viz. Dharam Singh Rathi[1], Akshoy Konai[2], A.K. Roy[3] and Calcutta Dock Labour Board[4]. We follow these decisions and hold the present petition seeking to challenge the Opinion dated 22.07.2019 of the Advisory Board as not maintainable.
20. The Petition for Special Leave to Appeal is, therefore, dismissed.
21. In view of the Opinion of the Advisory Board as stated above and the dismissal of the Petition for Special Leave to Appeal (Criminal) NO. 7016 of 2019, no orders are called for in Writ Petition (Criminal) No. 220 of 2019 as said Writ Petition prays for writ, order or direction quashing and setting aside the order of detention dated 17.05.2019 passed against the aforementioned respondent-detenu. The writ petition stands disposed of.
22. For the reasons as stated above, Petition for Special Leave to Appeal (Criminal) No. 7021 of 2019 preferred by the petitioner against the Opinion dated 22.07.2019 passed by the Advisory Board in Reference NO. 87 of 2019 in connection with the detenu named ‘Happy Arvind Kumar Dhakad’ is also found to be not maintainable. The Petition for Special Leave to Appeal is, therefore, dismissed.
23. Writ Petition (Criminal) No. 210 of 2019 inter alia prayed for writ order or direction seeking quashing of the order of detention dated 17.05.2019 passed against aforesaid detenu ‘Happy Arvind Kumar Dhakad’. Again, in view of the Opinion of the Advisory Board in Reference No.87 of 2019 and the dismissal of Special Leave Petition (Criminal) No. 7021 of 2019 no separate orders are called for. This Writ Petition is, therefore, disposed of. ……………………………….J. [Uday Umesh Lalit] ……………………………….J. [R. Subhash Reddy] New Delhi; August 21, 2019.