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2019 (8) TMI 1111 - SC - Indian LawsScope and validity of opinion of the Advisory Board - Continued detention of detenue - Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 - 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 - On 22.07.2019 the Advisory Board found that there was no sufficient cause for the continued detention of the respondent detenu and rendered its Opinion. HELD THAT - 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. According to various 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. The present petition seeking to challenge the Opinion dated 22.07.2019 of the Advisory Board as not maintainable. SLP dismissed.
Issues Involved:
1. Maintainability of the Petition for Special Leave to Appeal. 2. Nature of the Advisory Board's opinion under the COFEPOSA Act. 3. Confidentiality and judicial review of the Advisory Board's report. Issue-wise Detailed Analysis: 1. Maintainability of the Petition for Special Leave to Appeal: The primary issue was whether the petition challenging the Advisory Board's opinion was maintainable. The respondent's counsel argued that under Section 8(f) of the COFEPOSA Act, if the Advisory Board finds no sufficient cause for detention, the government must revoke the detention order, making the opinion non-justiciable. The petitioner contended that if the opinion was against detention, it could be challenged as the Advisory Board acts as a tribunal. The Supreme Court, referencing past decisions, concluded that the Advisory Board's opinion is not subject to judicial review, thus deeming the petition not maintainable. 2. Nature of the Advisory Board's Opinion under the COFEPOSA Act: The Court examined Section 8 of the COFEPOSA Act and Article 22 of the Constitution. It noted that the Advisory Board's role is to determine if there is sufficient cause for detention. The Board's opinion is binding on the government only if it favors the detenu. The Court emphasized that the Advisory Board's function is not judicial or quasi-judicial but advisory, meant to assist the government. This distinction was crucial in determining that the opinion cannot be equated to a judicial judgment. 3. Confidentiality and Judicial Review of the Advisory Board's Report: The Court highlighted that the Advisory Board's report, except for its opinion, is confidential. Citing previous judgments, it reiterated that the opinion is not intended to be open to challenge on merits before any tribunal. The confidentiality aspect ensures that the Board's proceedings and assessments remain protected, reinforcing the non-justiciable nature of its opinion. Conclusion: The Supreme Court dismissed the Petition for Special Leave to Appeal, affirming that the Advisory Board's opinion under the COFEPOSA Act is non-justiciable and confidential. Consequently, any petitions seeking to challenge the Advisory Board's opinion or the detention orders based on such opinions were also dismissed. The Court's decision underscores the limited scope of judicial review concerning the Advisory Board's advisory role in preventive detention cases.
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