Case Note & Summary
The case involves a challenge by the Union of India against the opinion of the Advisory Board constituted under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA Act). The respondent, Nisar Pallathukadavil Aliyar, was detained under Section 3(1) of the COFEPOSA Act on 17 May 2019. He challenged the detention order before the Bombay High Court, which initially quashed the order on 25 June 2019 but stayed its operation. The Union of India appealed to the Supreme Court, which on 18 July 2019 set aside the High Court's judgment and upheld the detention. Meanwhile, the case was referred to the Advisory Board under Section 8(b) of the COFEPOSA Act. On 22 July 2019, the Advisory Board opined that there was no sufficient cause for the continued detention of the detenu. The Union of India then filed a Special Leave Petition under Article 136 challenging this opinion. The Supreme Court heard the matter and dismissed the petition, holding that the Advisory Board's opinion is non-justiciable and not subject to challenge under Article 136. The Court reasoned that under Section 8(f) of the COFEPOSA Act, if the Advisory Board reports no sufficient cause for detention, the appropriate Government is obliged to revoke the detention order and release the detenu forthwith. The opinion of the Advisory Board is final and binding, and no appeal lies against it. The Court also noted that the Advisory Board is not a tribunal and its proceedings are confidential except for the opinion. Therefore, the petition was dismissed, and the detenu was directed to be released forthwith.
Headnote
A) Preventive Detention Law - Advisory Board Opinion - Non-Justiciability - Section 8(c) and 8(f) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA Act) - The Advisory Board's opinion that there is no sufficient cause for detention is not subject to challenge under Article 136 of the Constitution; the appropriate Government is bound to revoke the detention order and release the detenu forthwith. (Paras 6-10) B) Constitutional Law - Article 22(4) and (7) - Advisory Board's Role - The Advisory Board's report, except the part specifying its opinion, is confidential; the opinion itself is final and binding on the Government, and no appeal lies against it. (Paras 8-10) C) Criminal Procedure - Special Leave Petition - Maintainability - Article 136 of the Constitution - A petition under Article 136 is not maintainable against the opinion of an Advisory Board under the COFEPOSA Act, as the Board is not a tribunal and its opinion is not a judicial or quasi-judicial order. (Paras 6-10)
Issue of Consideration
Whether a petition under Article 136 of the Constitution is maintainable against the opinion of the Advisory Board constituted under Section 8(a) of the COFEPOSA Act, where the Board has opined that there is no sufficient cause for the continued detention of the detenu.
Final Decision
The Supreme Court dismissed the Special Leave Petition, holding that the Advisory Board's opinion is non-justiciable and not subject to challenge under Article 136. The detenu was directed to be released forthwith.
Law Points
- Advisory Board opinion under Section 8(c) COFEPOSA Act is non-justiciable
- Section 8(f) mandates release if Board finds no sufficient cause
- Article 136 not available against Advisory Board opinion
