UNION OF INDIA versus NISAR PALLATHUKADAVIL ALIYAR on 21 August 2019

[2019] 11 S.C.R. 405

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 ofSmuggling Activities Act, 1974 – s.8(a) – Competent authority passedan order of detention u/s.3(1) of the COFEPOSA Act, pursuant towhich the respondent was detained – The order of detention wasreferred to the Advisory Board – Advisory Board gave opinion in itsreport that there was no sufficient cause for the continued detentionof the respondent detenue u/s. 3(1) of the COFEPOSA – Aggrieved,petitioner-Union of India filed Special Leave to Appeal against theopinion of the Advisory Board – Held:The nature of opinion givenby the Advisory Board is neither judicial nor quasi judicial; that itwould be erroneous and unsafe to treat the opinion expressed bythe Advisory Board as amounting to a judgment of a criminal Court;that the Advisory Board does not try the question about the proprietyor validity of the citizen’s detention as a court of law would, but, itsfunction is limited – The opinion is merely intended to assist thegovernment and it is binding on the appropriate government only ifit favours the detenue and not when it goes against him – Further,the opinion of the Advisory Board cannot be subject matter of reviewor scrutiny by the judicial courts/tribunals – Thus, petitionchallenging 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 theConstitution, no law providing for preventive detention shallauthorise the detention of any person for a period longer thanthree months unless an Advisory Board had reported before theexpiration of said period of three months that in its opinion therewas sufficient cause for such detention. The question whetherthere is sufficient cause for detention or not is in the exclusivedomain of the Advisory Board. In terms of clause (7) (c) of Article

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A22 of the Constitution the procedure to be followed by theAdvisory Board can be prescribed by the Parliament by law.[Para 9] [413-G-H; 414-A-B]

2. Accordingly, in the Conservation of Foreign Exchangeand Prevention of Smuggling Activities Act, 1974 enacted by theBParliament, appropriate provisions are made in Section 8. Sub-section (b) of said Section 8 facilitates reference to the AdvisoryBoard to enable it to make the report under sub-clause (a) ofclause (4) of Article 22 of the Constitution while sub-sections (c),(d) and (e) of said Section 8 deal with the procedure to be adoptedby the Advisory Board. In terms of sub-section (e) of Section 8,Cthe report of the Advisory Board has to be in two parts. The firstpart is to contain the assessment made by the Advisory Board inthe form of a report which is completely confidential. The secondpart contains the result of such assessment in the form of anopinion. It is this second part of opinion alone which is notDconfidential. Sub-section (f) of Section 8 obliges the appropriategovernment to revoke the detention order and cause the personto be released forthwith in case the Advisory Board has reportedthat there was, in its opinion, no sufficient cause for the detentionof the person concerned. However, if the opinion is otherwiseand the Advisory Board has found that there was sufficient causeEfor the detention of the person, the appropriate government ‘mayconfirm’ the detention order and continue the detention. Thechoice is available to the appropriate government only in the latterof these two eventualities. Therefore, in case the opinion is tothe effect that there was no sufficient cause for the detention of Fthe person concerned, the appropriate government has to revokethe detention order and cause the person concerned to be releasedforthwith. [Para 10] [414-B-F]

3. According to the aforesaid decisions the nature of opiniongiven by the Advisory Board is neither judicial nor quasi judicial;Gthat it would be erroneous and unsafe to treat the opinionexpressed by the Advisory Board as amounting to a judgment ofa criminal court; that the Advisory Board does not try the questionabout the propriety or validity of the citizen’s detention as a courtof law would, but, its function is limited. As stated in Akshoy H

Konai case, the opinion is merely intended to assist thegovernment and it is binding on the appropriate government onlyif it favours the detenu and not when it goes against him. It waslaid down in said decision that the opinion of the Advisory Boardcannot be subject matter of review or scrutiny by the judicialcourts/tribunals. The element of confidentiality was also takennote of and it was observed that the Advisory Board opinion isnever intended to be open to challenge on the merits before anytribunal. [Para 15] [418-E-G]

Dharam Singh Rathi v. State of Punjab and others AIR1958 SC 152 : [1958] SCR 996 ; Akshoy Konai v. Stateof West Bengal (1973) 1 SCC 297 ; A.K. Roy v. Unionof India and others (1982) 1 SCC 271 : [1982] 2 SCR272 ; Calcutta Dock Labour Board and others v. JaffarImam and others [1965] 3 SCR 453 – followed.

Bharat Bank Ltd., Delhi v. Employees of the BharatBank Ltd., Delhi [1950] SCR 459 ; ColumbiaSportswear Company v. Director of Income Tax,Bangalore (2012) 11 SCC 224 : [2012] 7 SCR 187– referred to.

CRIMINAL APPELLATE/ORIGINAL JURISDICTION :Special Leave Petition (Criminal) No. 7016 of 2019.

From the Judgment and Order dated 22.07.2019 of the AdvisoryBoard, Constituted under Section 8(a) of the Conservation of ForeignExchange and Prevention of Smuggling Activities, 1974 in ReferenceNo. 81 of 2019.

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S.L.P.(Crl.) No. 7021 of 2019, W.P.(Crl.) Nos. 210 and 220 of

K. M. Nataraj, ASG, Vikram Chaudhri, Mukul Rohatgi, Sr. Advs.,Ms. Binu Tamta, Dhruv Tamta, Ms. Kanu Agarwal, Sharath N. Nambiar,BVinayak Sharma, B. Krishna Prasad, Sanjay Agarwal, Ashish Batra,Wattan Sharma, Harshit Sethi, Rishi Sehgal, Vamshi Rao, KeshavamChoudhri, Amit K. Nain, Sarthak Sachdev, P. Vanshi Rao, Anzu. K.Varkey, Advs. for the appearing parties.

The Judgment of the Court was delivered byC

UDAY UMESH LALIT, J.

1. This Petition for Special Leave to Appeal challenges the Opiniondated 22.07.2019 of the Advisory Board constituted under Section 8(a)of the Conservation of Foreign Exchange and Prevention of SmugglingDActivities Act, 1974 (‘the COFEPOSA Act’, for short) in ReferenceNo. 81 of 2019. The Opinion in Part-II of the Report of the AdvisoryBoard was to the following effect:- “The Advisory Board is of the opinion that there is no sufficientcause for the continued detention of the above named detenuunder Section 3 of the Conservation of Foreign Exchange andEPrevention of Smuggling Activities Act, 1974 (55 of 1974).”

2. In the present case, an order of detention under Section 3(1) ofthe COFEPOSA Act was passed by the competent authority on17.05.2019, pursuant to which the respondent herein was detained. Thedocuments and the grounds were served within the statutory period.FWrit Petition (Criminal) No.2843 of 2019 was thereafter filed by therespondent in the High Court of Judicature at Bombay challenging theorder of detention on certain grounds. After the response was filed bythe present petitioner, the High Court by its order dated 25.06.2019 allowedsaid Writ Petition and quashed the order of detention. However, on theGrequest of the learned counsel for the petitioner, the High Court stayedthe operation of its own order to enable the petitioner to approach thisCourt and challenge the judgment rendered by the High Court.Accordingly, Special Leave Petition (Criminal) No.5459 of 2019 wasfiled in this Court by the petitioner.

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3. By its Judgment and Order dated 18.07.2019 passed in CriminalAppeal No.1064 of 2019 arising out of aforesaid Special Leave Petition(Criminal) No.5459 of 2019 and in other connected Appeals, this Courtallowed said Appeals and set aside the judgment of the High Court dated25.06.2019.

4. In the meantime, in terms of Section 8(b) of the COFEPOSAAct, the case of the respondent-detenu, pursuant to the order of detentionmentioned above was referred to the Advisory Board. It is a matter ofrecord that the decision of this Court dated 18.07.2019 was brought tothe notice of the Advisory Board pursuant to the requisition made by theJoint Director, Ministry of Finance, Directorate of Revenue Intelligence,Government of India. On 22.07.2019 the Advisory Board found thatthere was no sufficient cause for the continued detention of therespondent-detenu and rendered its Opinion as stated above.

5. The petitioner being aggrieved has filed the present Petition forSpecial Leave to Appeal against the aforesaid Opinion of the AdvisoryBoard. On 08.08.2019 the following Order was passed by a Bench ofthis Court:- “In this special leave petition, Union of India has challenged theopinion of the Advisory Board dated 22.07.2019.

Regarding detention order passed against the respondent inCriminal Appeal No.1064 of 2019 (arising out of SLP(Crl.)No.5459 of 2019), we have passed the judgment on 18.07.2019expressing our views. Since we have already expressed our views,we are of the view that the matter(s) has to be placed before anyother Bench after obtaining necessary orders from Hon’ble theChief Justice of India. Subject to orders passed by Hon’ble theChief Justice of India, list the matter accordingly before any otherBench.”

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 petitionpreferred against the opinion of the Advisory Board was dismissed andthe detenu was directed to be released forthwith. The following are thereasons in support of the operative part of the order.

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A6. At the outset, a preliminary objection was raised by Mr. MukulRohatgi, learned Senior Advocate, appearing on behalf of the respondentabout the maintainability of the present Petition for Special Leave toAppeal. It was submitted that under sub-section (c) of Section 8 of theCOFEPOSA Act the Advisory Board has to prepare its report specifyingin a separate paragraph of said report its opinion as to whether or notBthere is sufficient cause for the detention of the person concerned; thatexcepting that part of the report in which the opinion of the AdvisoryBoard is specified, rest of the report is confidential; and that in terms ofsub-section (f) of Section 8, if the Advisory Board has reported thatthere is in its opinion no sufficient cause for the detention of a person,Cthe appropriate Government is obliged to revoke the order of detentionand cause the person to be released forthwith. It was submitted thatthe reasoning which weighed with the Advisory Board in its report wouldbe non-justiciable and mere opinion cannot be subject matter of anychallenge in a court of law and that a petition under Article 136(1)would not be maintainable. Mr. Rohatgi, learned Senior Advocate, reliedDupon decisions of this Court in Dharam Singh Rathi vs. State ofPunjab and others[1], Akshoy Konai vs. State of West Bengal[2], A.K.Roy vs. Union of India and others[3] and Calcutta Dock LabourBoard and others vs. Jaffar Imam and others[4].

7. On the other hand, Mr. K.M. Natraj, learned Additional SolicitorEGeneral, submitted that if the opinion of the Advisory Board were to beagainst the person detained, there could be no challenge to the opinionand/or report of the Advisory Board and to that extent the opinion wouldbe non-justiciable. However, in his submission, if the opinion of theAdvisory Board were to the effect that there was no sufficient cause

Ffor the detention of the person concerned, the challenge was still availableto the appropriate government and the capacity of the Advisory Boardwhile rendering such opinion would be that of a Tribunal and thereforethe opinion could be subject matter of a challenge. He relied upondecisions of this Court in Bharat Bank Ltd., Delhi vs. Employees of the Bharat Bank Ltd., Delhi[5]and in Columbia Sportswear CompanyGvs. Director of Income Tax, Bangalore[6].

1 AIR 1958 SC 152 = 1958 SCR 9962 (1973) 1 SCC 297

3 (1982) 1 SCC 271

4 (1965) 3 SCR 453 = AIR 1966 SC 282

5 1950 SCR 459 = AIR 1950 SC 188H6 (2012) 11 SCC 224

8. Section 8 of the COFEPOSA Act is as under:- “8. Advisory Board. - For the purposes of sub-clause (a) ofclause (4), and sub-clause (c) of clause (7), of article 22 of theConstitution,—

(a) the Central Government and each State Government shall,whenever necessary, constitute one or more Advisory Boards eachof which shall consist of a Chairman and two other personspossessing the qualifications specified in sub-clause (a) of clause(4) of article 22 of the Constitution; (b) save as otherwise provided in section 9, the appropriateGovernment shall, within five weeks from the date of detention ofa person under a detention order make a reference in respectthereof to the Advisory Board constituted under clause (a) to enablethe Advisory Board to make the report under sub-clause (a) ofclause (4) of article 22 of the Constitution;

(c) the Advisory Board to which a reference is made under clause(b) shall after considering the reference and the materials placedbefore it and after calling for such further information as it maydeem necessary from the appropriate Government or from anyperson called for the purpose through the appropriate Governmentor from the person concerned, and if, in any particular case, itconsiders it essential so to do or if the person concerned desiresto be heard in person, after hearing him in person, prepare itsreport specifying in a separate paragraph thereof its opinion as towhether or not there is sufficient cause for the detention of theperson concerned and submit the same within eleven weeks fromthe date of detention of the person concerned; (d) when there is a difference of opinion among the membersforming the Advisory Board, the opinion of the majority of suchmembers shall be deemed to be the opinion of the Board; (e) a person against whom an order of detention has been madeunder this Act shall not be entitled to appear by any legalpractitioner in any matter connected with the reference to theAdvisory Board, and the proceedings of the Advisory Board andits report, excepting that part of the report in which the opinion ofthe Advisory Board is specified, shall be confidential; A

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A(f) in every case where the Advisory Board has reported thatthere is in its opinion sufficient cause for the detention of a person,the appropriate Government may confirm the detention order andcontinue the detention of the person concerned for such period asit thinks fit and in every case where the Advisory Board hasreported that there is in its opinion no sufficient cause for theBdetention of the person concerned, the appropriate Governmentshall revoke the detention order and cause the person to bereleased forthwith.”

This Section refers to provisions of sub-clause (a) of clause (4)and sub-clause (c) of clause (7) of Article 22 of the Constitution andCstates so in sub-section (b) that a reference is made to the AdvisoryBoard to enable the Board to make a report under sub-clause (a) ofclause (4) of Article 22 of the Constitution. The text of Article 22 may,therefore, be considered at this stage:- “22. Protection against arrest and detention in certainDcases.—(1) No person who is arrested shall be detained in custodywithout being informed, as soon as may be, of the grounds forsuch arrest nor shall he be denied the right to consult, and to bedefended by, a legal practitioner of his choice.

(2) Every person who is arrested and detained in custody shall beEproduced before the nearest magistrate within a period of twenty-four hours of such arrest excluding the time necessary for thejourney from the place of arrest to the court of the magistrate andno such person shall be detained in custody beyond the said periodwithout the authority of a magistrate.

F(3) Nothing in clauses (1) and (2) shall apply—

(a) to any person who for the time being is an enemy alien; or(b) to any person who is arrested or detained under any lawproviding for preventive detention.

G(4) No law providing for preventive detention shall authorise thedetention of a person for a longer period than three monthsunless—

(a) an Advisory Board consisting of persons who are, or havebeen, or are qualified to be appointed as, Judges of a High H

Court has reported before the expiration of the said period ofthree months that there is in its opinion sufficient cause forsuch detention:

Provided that nothing in this sub-clause shall authorise thedetention of any person beyond the maximum period prescribedby any law made by Parliament under sub-clause (b) of clause(7); or (b) such person is detained in accordance with the provisionsof any law made by Parliament under sub-clauses (a) and (b)of clause (7).

(5) When any person is detained in pursuance of an order madeunder any law providing for preventive detention, the authoritymaking the order shall, as soon as may be, communicate to suchperson the grounds on which the order has been made and shallafford him the earliest opportunity of making a representationagainst the order.

(6) Nothing in clause (5) shall require the authority making anysuch order as is referred to in that clause to disclose facts whichsuch authority considers to be against the public interest to disclose.

(7) Parliament may by law prescribe—

(a) the circumstances under which, and the class or classes ofcases in which, a person may be detained for a period longerthan three months under any law providing for preventivedetention without obtaining the opinion of an Advisory Boardin accordance with the provisions of sub-clause (a) of clause(4); (b) the maximum period for which any person may in any classor classes of cases be detained under any law providing forpreventive detention; and

(c) the procedure to be followed by an Advisory Board in aninquiry under sub-clause (a) of clause (4).

9. In terms of clause (4) of Article 22 of the Constitution, no lawproviding for preventive detention shall authorise the detention of anyperson for a period longer than three months unless an Advisory Boardhad reported before the expiration of said period of three months that in A

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Aits opinion there was sufficient cause for such detention. The questionwhether there is sufficient cause for detention or not is in the exclusivedomain of the Advisory Board. In terms of clause (7) (c) of Article 22of the Constitution the procedure to be followed by the Advisory Boardcan be prescribed by the Parliament by law.

B10. Accordingly, in the COFEPOSA Act enacted by the Parliament,appropriate provisions are made in Section 8. Sub-section (b) of saidSection 8 facilitates reference to the Advisory Board to enable it tomake the report under sub-clause (a) of clause (4) of Article 22 of theConstitution while sub-sections (c), (d) and (e) of said Section 8 dealwith the procedure to be adopted by the Advisory Board. In terms ofCsub-section (e) of Section 8, the report of the Advisory Board has to bein two parts. The first part is to contain the assessment made by theAdvisory Board in the form of a report which is completely confidential.The second part contains the result of such assessment in the form of anopinion. It is this second part of opinion alone which is not confidential.DSub-section (f) of Section 8 obliges the appropriate government to revokethe detention order and cause the person to be released forthwith incase the Advisory Board has reported that there was, in its opinion, nosufficient cause for the detention of the person concerned. However, ifthe opinion is otherwise and the Advisory Board has found that therewas sufficient cause for the detention of the person, the appropriateEgovernment ‘may confirm’ the detention order and continue the detention.The choice is available to the appropriate government only in the latterof these two eventualities. Therefore, in case the opinion is to theeffect that there was no sufficient cause for the detention of the personconcerned, the appropriate government has to revoke the detentionForder and cause the person concerned to be released forthwith.

11. Dharam Singh Rathi[1]was a decision of the ConstitutionBench of this Court, in which it was alleged that the Advisory Board hadnot made any report within the prescribed period. The submission inthat behalf was noted as under:- G

“3. … …Under Section 10 of the Act the Board has no power tomake any order to continue or discontinue the detention, but isonly under a duty to submit its report to the State Government. Inthis context, therefore, a plain reading of para 10(xii) indicatesthat the grievance of the petitioner, in substance, is that the Board H

has not submitted its report within the prescribed period and that,therefore, his detention has become illegal. … …”

Concluding that there was non-compliance of the procedure laiddown in Section 10 of the Preventive Detention Act, 1950, the petitionwas allowed and the detenu was directed to be set at liberty forthwith.Mr. Rohatgi, learned Senior Advocate, however relied upon the sentencewhich stated that the Advisory Board had no power to make any orderto continue or discontinue of the detention but its duty was only to submita report to the State Government.

12. In Akshoy Konai[2] the submission raised on behalf of thedetenu was that the decision of the Advisory Board was nevercommunicated to him. The further submission was that the opinion ofthe Advisory Board should have been communicated to the detenu so asto enable him to question the legality of said opinion. These submissionswere rejected by a Bench of three Judges of this Court as under:-

“4. The first objection against the petitioner’s detention raised byShri B. Dutta, the learned counsel appearing as amicus curiae insupport of the writ petition, is that though the petitioner had beenheard in person by the Advisory Board the decision of the Boardwas never communicated to him. This omission, according to thecounsel, invalidates the petitioner’s detention as he was not ableto take any step to have this opinion scrutinised by any judicialtribunal. This submission is, in our opinion, difficult to accept. UnderSection 11 of the Act the Advisory Board is required only to submitits report to the appropriate Government. There is no obligationimposed by the Act on the Board to communicate its decision tothe detenu. The mere fact that under Section 11 the Board hearsthe person affected by the detention order in case he desires tobe so heard, would not for that reason alone impose on the Boarda legal obligation to communicate its decision to the detenu. Ourattention has not been drawn to any provision of law or to anypriciple which would imply any such obligation. In any eventomission on the part of the Advisory Board to do so cannotinvalidate the petitioner’s detention. … …

5. The submission that the Advisory Board should havecommunicated its opinion to the petitioner so as to enable him toquestion its legality is also misconceived. In the first instance the A

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AAdvisory Board constituted under Section 9 of the Act, as itsname connotes, is only required to function in an advisory capacity.Its opinion which is merely an advice is binding on the appropriateGovernment only if according to it there is no sufficient cause forthe detention in question: in that eventuality the detenu cannotpossibly have any grievance. When the Board reports that thereBis sufficient cause for the detention in question the appropriateGovernment is not bound under the law to confirm the order ofdetention. It may or may not do so. The advisory opinion of theBoard is merely intended to assist the appropriate Government indetermining the question of confirming the detention order andCcontinuing the detention. It is binding on the appropriateGovernment only when it favours the detenu and not when it goesagainst him. Such advisory opinion can scarcely be an appropriatesubject-matter of review or scrutiny by the judicial courts ortribunals. Secondly the proceedings of the Board and its reportare expressly declared by Section 11 (4) of the Act to beDconfidential except that part of the report in which its opinion isspecified. This provision clearly indicates that the advisory opinionis never intended to be open to challenge on the merits before anytribunal. So far as the final opinion of the Board is concerned thecommunication of the confirmation of the detention order by theEState Government clearly informed the petitioner that the opinionof the Board was against him.”

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13. A.K. Roy[3] was also a decision of the Constitution Bench ofthis Court. It was observed in para 98 as under:-

98. … …In proceedings before the Advisory Board, the questionfor consideration of the Board is not whether the detenu is guiltyof any charge but whether there is sufficient cause for the detentionof the person concerned. The detention, it must be remembered,is based not on facts proved either by applying the test ofpreponderance of probabilities or of reasonable doubt. Thedetention is based on the subjective satisfaction of the detainingauthority that it is necessary to detain a particular person in orderto prevent him from acting in a manner prejudicial to certain statedobjects. The proceeding of the Advisory Board has therefore tobe structured differently from the proceeding of judicial or quasi-judicial tribunals, before which there is a lis to adjudicate upon.”

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14. In Calcutta Dock Labour Board[4]the question was whetherafter having suffered an order of detention under Section 3(1)(a)(ii) ofthe Prevention Detention Act, 1950, the services of the concerned personcould be terminated by the employer merely on the ground that therewas an order of detention. In that context a Bench of three Judges ofthis Court observed:- “12. But the question which we have to consider in the presentappeals is of a different character. A citizen may suffer loss ofliberty if he is detained validly under the Act; even so, does itfollow that the detention order which deprived the citizen of hisliberty should also serve indirectly but effectively the purpose ofdepriving the said citizen of his livelihood? If the view taken bythe appellant’s officers who tried the disciplinary proceedings isaccepted, it would follow that if a citizen is detained and his detentionis confirmed by the State Government, his services would beterminated merely and solely by reason of such detention. In ouropinion, such a position is obviously and demonstrably inconsistentwith the elementary concept of the rule of law on which ourConstitution is founded. When a citizen is detained, he may notsucceed in challenging the order of detention passed against him,unless he is able to adduce grounds permissible under the Act.But we are unable to agree with Mr Sen’s argument that aftersuch a citizen is released from detention, an employer, like theappellant, can immediately start disciplinary proceedings againsthim and tell him in substance that he was detained for prejudicialactivities which amount to misconduct and that the detention orderwas confirmed by the State Government after consultation withthe Advisory Board, and so, he is liable to be dismissed from hisemployment. It is obvious that the Advisory Board does not trythe question about the propriety or validity of the citizen’s detentionas a court of law would; indeed, its function is limited to considerthe relevant material placed before it and the representationreceived from the detenu, and then submit its report, to the StateGovernment within the time specified by Section 10(1) of the Act.It is not disputed that the Advisory Board considers evidenceagainst the detenu which has not been tested in the normal wayby cross-examination; its decision is essentially different incharacter from a judicial or quasi-judicial decision. In some cases,a detenu may be given a hearing; but such a hearing is often, if A

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Anot always, likely to be ineffective, because the detenu is deprivedof an opportunity to cross-examine the evidence on which thedetaining authorities rely and may not be able to adduce evidencebefore the Advisory Board to rebut the allegations made againsthim. Having regard to the nature of the enquiry which the AdvisoryBoard is authorised or permitted to hold before expressing itsBapproval to the detention of a detenu, it would, we think, be entirelyerroneous and wholly unsafe to treat the opinion expressed by theAdvisory Board as amounting to a judgment of a criminal court.The main infirmity which has vitiated the impugned orders arisesfrom the fact that the said orders equate detention of a detenuCwith his conviction by a criminal court. We are, therefore, satisfiedthat the court of appeal was right in taking the view that in adepartmental enquiry which the appellant held against therespondents it was not open to the appellant to act on suspicion,and inasmuch as the appellant’s decision is clearly based upon thedetention orders and nothing else, there can be little doubt that, inDsubstance, the said conclusion is based on suspicion and nothingmore.”

15. According to the aforesaid decisions the nature of opiniongiven by the Advisory Board is neither judicial nor quasi judicial; that itwould be erroneous and unsafe to treat the opinion expressed by theEAdvisory Board as amounting to a judgment of a criminal court; that theAdvisory Board does not try the question about the propriety or validityof the citizen’s detention as a court of law would, but, its function islimited. As stated in Akshoy Konai[2], the opinion is merely intended toassist the government and it is binding on the appropriate governmentFonly if it favours the detenu and not when it goes against him. It was laiddown in said decision that the opinion of the Advisory Board cannot besubject matter of review or scrutiny by the judicial courts/tribunals. Theelement of confidentiality was also taken note of and it was observedthat the Advisory Board opinion is never intended to be open to challengeon the merits before any tribunal.G

16. The decisions relied upon by the learned Additional SolicitorGeneral pertain to fields other than preventive detention. In BharatBank Ltd.[5] the issue was whether a decision of an Industrial Tribunalcould be amenable to the appellate jurisdiction under Article 136(1) of UNION OF INDIA v. NISAR PALLATHUKADAVIL ALIYAR[UDAY UMESH LALIT, J.]

the Constitution. The reliance was placed by the learned AdditionalSolicitor General on the opinion of S. Fazal Ali, J. as under:-

“The important question to be decided in this case is whether thepresent appeal lies at all to this Court. The question is not freefrom difficulty, but on the whole I am inclined to think that theappeal does lie. It is fully recognized that the scope of Article 136of the Constitution is very wide, but the significance of thelanguage used in the section can be appreciated only by comparingit with the articles which precede it. Article 132 deals with theappellate jurisdiction of the Supreme Court in cases involving asubstantial question of law as to the interpretation of theConstitution, and the words used in that article are: “appeal ...from any judgment, decree or final order”. Article 133 deals withappeals in civil matters and the same words are used here also.Article 134 deals with appeals in criminal matters, and the wordsused in it are: “appeal ... from any judgment, final order orsentence”. In Article 136, the words “judgment” and “decree,”which are used in Articles 132 and 133 are retained. Similarly, thewords “judgment” and “sentence” occurring in Article 134 arealso 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 meto have a special significance, these being “determination,” “causeor matter” and “tribunal”. It is obvious that these words greatlywiden the scope of Article 136. They show that an appeal will liealso from a determination or order of “any tribunal” in any causeor matter.

6. Can we then say that an Industrial Tribunal does not fall withinthe scope of Article 136? If we go by a mere label, the answermust be in the affirmative. But we have to look further and seewhat are the main functions of the Tribunal and how it proceedsto discharge those functions. This is necessary because I take itto be implied that before an appeal can lie to this Court from atribunal it must perform some kind of judicial function and partaketo some extent of the character of a Court.

7. Now there can be no doubt that the Industrial Tribunal has, touse a well-known expression, “all the trappings of a court” andperforms functions which cannot but be regarded as judicial. This A

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is evident from the rules by which the proceedings before theTribunal are regulated. It appears that the proceeding before itcommences on an application which in many respects is in thenature of a plaint. It has the same powers as are vested in a civilcourt under the Code of Civil Procedure when trying a suit, inrespect of discovery, inspection, granting adjournment, receptionof evidence taken on affidavit, enforcing the attendance ofwitnesses, compelling the production of documents, issuingcommissions etc. It is to be deemed to be a civil court within themeaning of Sections 480 and 482 of the Criminal Procedure Code,1898. It may admit and call for evidence at any stage of theproceeding and has the power to administer oaths. The partiesappearing before it have the right of examination, cross-examination and re-examination and of addressing it after allevidence has been called. A party may also be represented by alegal practitioner with its permission.

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8. The matter does not rest there. The main function of this Tribunalis to adjudicate on industrial disputes which implies that there mustbe two or more parties before it with conflicting cases, and that ithas also to arrive at a conclusion as to how the dispute is to beended. Prima facie, therefore, a Tribunal like this cannot beexcluded from the scope of Article 136, but before any finalconclusion can be expressed on the subject certain contentionswhich have been put forward on behalf of the respondents haveto be disposed of.”

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17. Similarly, reliance was also placed on the decision in ColumbiaSportswear Company[6][. ] In that case the issue was whether an AdvanceFRuling pronounced by the Authority for Advance Rulings (Income Tax)constituted under Chapter XIX-B of the Income Tax Act, 1961 could bechallenged under Articles 226 and 227 of the Constitution before theHigh Court or under Article 136 of the Constitution before this Court.Reliance was placed by the learned Additional Solicitor General on paraG15 of the decision, which was to the following effect:- “As Section 245-S expressly makes the advance ruling binding onthe applicant, in respect of the transaction and on the Commissionerand the income tax authorities subordinate to him, the Authority isa body acting in judicial capacity. H.M. Seervai in his bookConstitutional Law of India (4th Edn.) while discussing the tests H

for identifying judicial functions in Para 16.99 quotes the followingpassage from Prof. de Smith’s Judicial Review on p. 1502:

“An authority acts in a judicial capacity when, after investigationand deliberation, it performs an act or makes a decision that isbinding and conclusive and imposes obligation upon or affectsthe rights of individuals.”

We have, therefore, no doubt in our mind that the Authority is abody exercising judicial power conferred on it by Chapter XIX-Bof the Act and is a tribunal within the meaning of the expression inArticles 136 and 227 of the Constitution.”

18. Both these decisions on which reliance was placed by thelearned Additional Solicitor General were completely in different context.It is well settled that wherever a body is exercising judicial/quasi judicialpower and is a tribunal within the meaning of the expressions in Article136 and 227 of the Constitution, the decisions so rendered are amenableto challenge.

19. But the basic issue in the present matter is the nature of powerexercised by the Advisory Board when an opinion is given by it pursuantto a reference made to it under Section 8(b) of the COFEPOSA Act.The report of the Advisory Board, excepting its opinion, is strictlyconfidential and the nature of the power so exercised by the AdvisoryBoard in giving its report and the opinion, has already been pronouncedupon by this Court in the cases referred to above viz. Dharam SinghRathi[1], Akshoy Konai[2], A.K. Roy[3]and Calcutta Dock Labour Board[4].

We follow these decisions and hold the present petition seeking tochallenge the Opinion dated 22.07.2019 of the Advisory Board as notmaintainable.

20. The Petition for Special Leave to Appeal is, therefore,dismissed.

21. In view of the Opinion of the Advisory Board as stated aboveand 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 directionquashing and setting aside the order of detention dated 17.05.2019 passedagainst the aforementioned respondent-detenu. The writ petition standsdisposed of.

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A22. For the reasons as stated above, Petition for Special Leave toAppeal (Criminal) No. 7021 of 2019 preferred by the petitioner againstthe Opinion dated 22.07.2019 passed by the Advisory Board in ReferenceNo. 87 of 2019 in connection with the detenu named ‘Happy ArvindKumar Dhakad’ is also found to be not maintainable. The Petition forSpecial Leave to Appeal is, therefore, dismissed.B

23. Writ Petition (Criminal) No. 210 of 2019 inter alia prayed forwrit order or direction seeking quashing of the order of detention dated17.05.2019 passed against aforesaid detenu ‘Happy Arvind KumarDhakad’. Again, in view of the Opinion of the Advisory Board inReference No.87 of 2019 and the dismissal of Special Leave PetitionC(Criminal) No. 7021 of 2019 no separate orders are called for. This WritPetition is, therefore, disposed of.

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Ankit Gyan

Matters disposed of.

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