JUDGMENT
G.T. Nanavati, J.
1. By this common judgment we propose to dispose of this batch of 13 petitions.
2. The Government of Gujarat being satisfied with respect to the petitioner in each of these petitions, that with a view to preventing them from smuggling goods it was necessary so to do, made orders for their detention under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereafter referred to as “the Act”) on 1-6-1985. The Government was so satisfied because the petitioners who were crew of the vessel MSV Laxmi had, on their return trip from Dubai smuggled into India contraband gold, wrist watches and other articles approximately valued at Rs. 26,00,000. The declarations under Section 9 of Act the were made by the Additional Secretary to the Government of India, specially empowered in that behalf by the Central Government, with respect to the petitioners on 5-7-1985. All the petitioners had challenged the orders of their detention, declarations and their continued detention by filing habeas corpus petitions in this Court. The said orders of detention were, however, revoked by the State Government on 3-9-1985, a day prior to the date on which those petitions were fixed for final hearing. The petitioners had, therefore, withdrawn their petitions on 4-9-1985 as they had then become infructuous. Thereafter on 11-10-1985, fresh orders of detention were passed against the petitioners by the State Government. Except in two cases, declarations under Section 9 of the Act were made with respect to the concerned petitioners on 11-11-1985 by the Additional Secretary to the Government of India specially empowered in that behalf. In the case of the petitioners in Special Criminal Applications Nos. 82 and 86 of 1986, such declarations were made on 29-11-1985. These fresh orders of detention, the declarations and the continued detention of the petitioners are challenged in these petitions on various grounds. As we propose to allow all these petitions on the points . which make reference to the grounds of detention and the material unnecessary, we are not referring to them in this judgment.
3. The first contention raised on behalf of the petitioners is that all the petitioners were not supplied with or informed about the material on the basis of which the Additional Secretary had made the declarations with the result that they were deprived of the opportunity of making effective representations against the declarations not only to the Advisory Board but also to the authority making the declarations or the Central Government; and, therefore, their continued detention has become illegal. It is pointed out by the learned Counsel for the petitioners that in the declarations, what the Additional Secretary to the Government of India has stated is that he was making the declarations on the basis of the material having a bearing on the matter and in his possession. In order to appreciate this contention, it will be worthwhile to reproduce the relevant portion of the declaration made by the Additional Secretary with respect to the petitioner in Special Criminal Application No. 75 of 1986. It reads as under;–
Where as Shri Haji Noormamad Jusab Mithani has been detained on 15-10-1985 in pursuance of Order No. S.B. IV/PSA/1485/153 (i) dated 11-10-1985 of the Government of Gujarat made under Section 3(2) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, with view to preventing him from smuggling goods;
And whereas I, the under signed, specially empowered in this behalf by the Central Government, have carefully considered the material bearing on the matter in my possession;
Now, therefore, I, the undersigned, hereby declare that I am satisfied that the aforesaid Shri Haji Noormamad Jusab Mithani is likely to smuggle goods into the coast of Gujarat, which is an area highly vulnerable to smuggling, as defined in Explanation I to Section 9(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974.
4. What is contended on behalf of the petitioners is that it was incumbent upon the Additional Secretary to inform the petitioners what material was in his possession; and merely stating that he has made the declarations on the basis of the material in his possession is not sufficient. The reason given is that in the absence of a definite statement as to what material was in possession of the Additional Secretary, the petitioners would not have known what material was in possession of the authority making the declarations, and obviously that had prejudicially affected the right of the petitioners of making representation against the said, declarations. It was also urged that informing the detenu after his representation is rejected that the declaration was made on the basis of the same material on the basis of which the order of his detention was passed is not enough. In support of this contention, the learned Counsel for the petitioners relied upon certain decisions which we will presently examine.
5. Our attention was first invited to the decision of the Supreme Court in Satar Habib v. K.S. Dilip Sinhji . Though that decision is not directly on the point, it has a great bearing on the point under consideration. While considering the effect of a declaration under Section 9(1) of the Act, the Supreme Court has made the following observations at page 429 (page 138 of 8 ECC):
In other words, the Advisory Board is to state its opinion not merely whether detention is necessary but whether ‘continued detention’ is necessary. The Advisory Board will necessarily have to go behind the declaration under Section 9(1) to consider the question whether there is sufficient cause for ‘continued detention’. The two safeguards provided to the detenu against ‘continued detention’, at that stage, are the application of mind by the specified authority before making a declaration under Section 9(1) and the consideration of the question by the Advisory Board….
6. Reliance was placed upon these observations to show that the Advisory Board is required to go behind the declaration made under Section 9(1) of the Act. It was urged that if this is the duty of the Advisory Board and if this is the scope of enquiry before it, then by necessary implication, a right in favour of the detenu to make a representation against the declaration must be held to be flowing from such obligation. It was also urged that if the detenu has such a right, then in order to make that right an effective one, it must be held, again by necessary implication, that the authority making the declaration is under a duty to inform the detenu as to the material on the basis of which he made the declaration.
7. The learned Counsel for the petitioners then relied upon a decision of the Bombay High Court in Smt. Veronica Caitaminho D’Souza v. The Union of India and Ors. (Criminal Writ Petition No. 14 of 1985 decided on 27-11-1985), wherein the point with which we are concerned in these petitioners arose directly. The Bombay High Court after considering the effect of a declaration made under Section 9 observed as under:-
Bearing in mind these consequences, viz., the continuance of detention, the detenu has a right to be afforded with the earliest opportunity of making an effective representation against the declaration under Section 9(1). The detenu’s right to be furnished with the material considered and relied on by the authority for the purpose of reaching the satisfaction of the necessity of issuing a declaration cannot be thwarted by informing him later that the samematerial was considered and relied…. It is, therefore, possible that a different material which was not present before the detaining authority might be taken into consideration by the authority issuing the declaration. The order in the present case does not give any idea whatsoever to the detenu as to what material has been relied on by the second respondent. It is not for the detenu to assume or imagine on his own that the material must be the same and proceed to make a representation. In our view it is the bounden duty of the authority issuing the declaration to furnish the material on which he has based his satisfaction…. The mere fact that it is subsequently disclosed to the detenu that the material is the same will not be enough in law….
8. Reliance was also placed upon a decision of the Bombay High Court in Mohmed Baneef Umar v. The Union of India and Ors. (Criminal Writ Petition No. 69 of 1986 decided on 28-2-1986), wherein also same view has been taken by the Bombay High Court; and it is further observed that non-supply of the material on the basis of which declaration under Section 9 is made necessarily affects the right of the detenu to make representation against his detention, and that would render his continued detention illegal.
9. The learned Counsel for the petitioners also relied upon two decisions of this Court in Special Criminal Application No. 691 of 1985 decided on 10-2-1986 Abdul Mamad Mithani and Ors. v. The State of Gujarat and Ors. [1987] 11 ECC 318 (Guj) and Special Criminal Application No. 721 of 1985 decided on 3-3-1986. In both these petitions, similar view has been taken; and it is held that if the detenu is not supplied with the material on the basis of which the declaration is made or is not informed that the declaration is made on the basis of the same material, then his right to make an effective representation gets adversely affected.
10. Following the aforesaid decision, we hold that the petitioners in this case were deprived of their right of making effective representations to the Advisory Board.
11. It was also urged that besides the right to make representation to the Advisory Board, the detenu has also a right to make a representation against the declaration made under Section 9(1) of the Act to the authority making the declaration. It was urged that this right flows from Article 22 of the Constitution. We do not think it necessary to go into the larger question whether such a right flows from Article 22 of the Constitution or not. We are of the opinion that such a right flows from Section 9 itself. The authority making the declaration has the power to cancel the same. Therefore, if in an appropriate case it is brought to the notice of that authority that the declaration made by it deserves to be cancelled, it will be the duty of that authority to cancel the same. This obligation creates a corresponding right in favour of the detenu to approach that authority and convince it that the declaration made by it deserves to be quashed. In order to make that right an effective one, it must be held that the detenu must be supplied with or informed about the material on the basis of which the declaration is made. If the material on the basis of which the declaration is made is not supplied to the detenu nor is he informed that the declaration is made relying upon the same material on the basis of which the order of detention was passed, then his right to make an effective representation against the declaration will be prejudicially affected; and that would also make his continued detention pursuant to such a declaration illegal.
12. There was some controversy as regards the effect of deprivation of such a right. It was contended on behalf of the petitioners that that would render the detention of the petitioners illegal right from the dates on which the declarations were made. On the other hand, it was contended on behalf of the respondents that the only effect it would have would be to render their detention beyond the period of one year illegal. It is not necessary to go into this question in these petitions, as we are of the view that because of another reason, the continued detention of the petitioners has become illegal.
13. It was contended by the learned Counsel for the petitioners that in these cases, even though the declarations were made under Section 9(1) of the Act and the Advisory Board was informed about the same, it merely expressed its opinion as regards “sufficient cause for the detention” of the petitioners and not as regards “continued detention” of the petitioners. It was submitted that as the opinion of the Advisory Board was not in terms of the mandate of Section 9(1) of the Act, any further detention of the petitioners should be regarded as illegal and they should be ordered to be set at liberty forthwith. On the other hand, it was contended on behalf of the respondents that in these cases, the reference was made to the Advisory Board on 8-11-1985, i.e., before the date the declarations under Section 9(1) were made. Thus, the Advisory Board was called upon to express its opinion only with respect to “the detention” of the petitioners and not with respect to their “continued detention”. It is really for that reason, that the Advisory Board has, in its opinion in each of these cases, stated that “there was and there is sufficient cause for the detention” of each of the petitioners. It was; however, fairly conceded by the learned Counsel for the respondents that on 5-12-1985, a letter was sent by the State Government to the Advisory Board informing it about the declarations made under Section 9(1) of the Act and also forwarding copies of the declarations to it. Though the Additional Secretary to the Government of India who had made the declarations has denied in his reply affidavit that in the representation the petitioners had made any grievance regarding the declarations made under Section 9(1) of the Act, at the time of hearing of these petitions, on the copies of the representations being shown to the learned Counsel for the respondents, it was conceded that the petitioners had not only challenged the validity of the declarations but had also made a grievance that they were not supplied with the material on the basis of which the said declarations were made. The files containing the opinion of the Advisory Board were also shown to us; and we find that the Advisory Board has recorded a finding that the declarations made under Section 9(1) in these cases are legal and valid. It is, therefore, not possible to agree with the contention raised on behalf of the respondents that the respondents, inspite of the declarations made under Section 9(1) of the Act, did not want to obtain opinion of the Advisory Board as regards the “continued detention” of the petitioners, and, therefore, the Advisory Board had rightly not considered that question. While the State Government wrote a letter on 6-12-1985 to the Advisory Board and forwarded copies of the declarations made under Section 9(1) of the Act, surely that was not done only with a view to keep the Advisory Board well informed. Merely because no formal reference in this behalf was made in each of these cases, it cannot be said that no opinion of the Advisory Board was solicited with respect to the “continued detention” of each of the petitioners. Moreover, when a declaration is made under Section 9(1) of the Act, with respect to such a person, Section 8 of the Act applies subject to the modifications specified in Sub-section (2). Since declarations under Section 9(1) were made in these cases, Section 8(f) as modified, became applicable in their cases; and thus, the Advisory Board was under a legal obligation to give its opinion as to whether there is sufficient cause for the continued detention of the petitioners. Having held that the declarations made under Section 9 are legal and valid, the Advisory Board could not have ignored the effect thereof on Section 8(f) of the Act. It became the duty of the Advisory Board, once it was brought to its notice that the declarations under Section 9(1) were made, and more so, when it came to the conclusion that those declarations are legal and valid, to go into the question as to whether there is sufficient cause for the continued detention of the petitioners. The enquiry which was not open earlier, as held by the Supreme Court in the case of A.K. Roy v. Union of India , now is required to be made by the Advisory Board and unless the opinion as contemplated by Section 8(f) is given by it, it will not be legal for the appropriate Government to confirm the order of detention and continue the detention for such period as it thinks fit; and the continued detention of the person concerned after the date of the report must be regarded as illegal. Once a declaration is made under Section 9(1) of the Act, the provisions of Sub-section (2) of Section 9 must have their effect; and the matter is not thereafter left to the discretion either of the appropriate Government or of the Advisory Board. As the Advisory Board in these cases did not give its opinion in terms of the mandate of Section 8(f) of the Act, it must be held that the continued detention of the petitioners after the date of the report of the Advisory Board in each of these cases is illegal.
14. In the result, all these 13 petitions are allowed. The impugned orders of detention are quashed and set aside; and each of the petitioners in these petition is ordered to be set at liberty forthwith unless he is required to be detained in connection with some other case. Rule is made absolute, in each of the petitions.