Preventive detention and customs inquiry powers upheld as uncommenced constitutional amendment and factual challenges failed.

An uncommenced constitutional amendment under the Forty-Fourth Amendment could not be treated as operative, so the Advisory Board under the existing preventive detention framework remained valid and no mandamus could compel commencement. Section 108 of the Customs Act was upheld because it only authorised customs inquiry by summons and did not itself create unconstitutional custody or coercive detention; statements recorded under it did not invalidate detention merely on that basis. The factual objections concerning alleged prolonged interrogation, identification procedure, non-supply of photographs and forensic material, and an earlier restraint order were also rejected for want of proof of prejudice or illegality, and the detention orders were sustained.

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Issues: (i) Whether the Advisory Board mechanism under section 8(a) of the COFEPOSA Act was invalid for not conforming to the uncommenced amended clause 4 of Article 22 of the Constitution and whether a writ of mandamus could compel the Central Government to bring section 3 of the Forty-Fourth Amendment Act into force; (ii) Whether section 108 of the Customs Act, 1962 was unconstitutional as offending Article 21 of the Constitution and whether statements recorded under that provision could invalidate detention; (iii) Whether the factual complaints regarding prolonged custody during interrogation, identification procedure, non-supply of photographs and forensic material, and the earlier restraint order concerning one detenu vitiated the detention orders.

Issue (i): Whether the Advisory Board mechanism under section 8(a) of the COFEPOSA Act was invalid for not conforming to the uncommenced amended clause 4 of Article 22 of the Constitution and whether a writ of mandamus could compel the Central Government to bring section 3 of the Forty-Fourth Amendment Act into force.

Analysis: The existing constitutional text governing preventive detention continued to permit an Advisory Board consisting of persons qualified to be appointed as High Court Judges, and the petitioners' challenge rested on the substituted clause in section 3 of the Forty-Fourth Amendment Act, which had not been brought into force under section 1(2) of that Act. The delay in commencement did not authorize the Court to treat the unnotified amendment as operative, nor could the Court compel the executive to enforce a provision whose commencement Parliament had left to governmental discretion. The constitutional validity of the Advisory Board under the existing law therefore remained intact.

Conclusion: The challenge failed and no mandamus could be issued to compel commencement of section 3 of the Forty-Fourth Amendment Act.

Issue (ii): Whether section 108 of the Customs Act, 1962 was unconstitutional as offending Article 21 of the Constitution and whether statements recorded under that provision could invalidate detention.

Analysis: Section 108 merely empowered a gazetted customs officer to summon persons to give evidence or produce documents in an inquiry relating to smuggling; it did not itself authorize custodial detention or coercive extraction of statements. A statement obtained under coercion could be challenged on its own facts as involuntary, but that possibility did not render the statutory provision itself unreasonable or unconstitutional. The Court also relied on the accepted position that customs officers conducting such inquiries are not police officers for the purpose of the evidentiary exclusion rule, and that customs questioning, without more, does not amount to unlawful custody.

Conclusion: Section 108 was held not to violate Article 21, and the detention could not be invalidated on that ground.

Issue (iii): Whether the factual complaints regarding prolonged custody during interrogation, identification procedure, non-supply of photographs and forensic material, and the earlier restraint order concerning one detenu vitiated the detention orders.

Analysis: On the records, the detenus were examined on different days within reasonable hours, and the materials did not establish forced or prolonged night custody. The identification process by witnesses, the use of photographs, and the supply of forensic report material were found not to have violated Article 22(5) or the principles of natural justice, because the detenus had sufficient notice of the relied upon materials and had not shown prejudice. The earlier interim order concerning interrogation in another proceeding did not govern the separate inquiry connected with the later seizure, and the statement recorded in that inquiry did not vitiate the detention.

Conclusion: None of the factual challenges was accepted, and the detention orders remained valid.

Final Conclusion: The Court upheld the detention regime and the detention orders, rejected the constitutional and factual challenges, and declined leave to appeal.

Ratio Decidendi: A statutory or constitutional amendment left uncommenced under an express commencement clause cannot be treated as operative by judicial fiat, and customs interrogation under section 108 is not unconstitutional merely because it authorizes summons for inquiry in smuggling matters rather than custodial coercion.

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