TaxTMI 
TaxTMI 
1999 (5) TMI 578
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....Act, 1976 (SAFEMA). The appellant had earlier filed a writ petition in the High Court of Madras in W. P. No. 3259 of 1999 challenging the order of detention dated December 19, 1974. The said writ petition was dismissed by the High Court by an order dated March 1, 1999, observing "moreover, the order passed by the Competent Authority dated September 29, 1995, is only consequential to the Government order dated December 19, 1974. Learned senior counsel has not even placed any authority to show that the Tribunal has no jurisdiction to deal with the issue. At this stage, this court cannot entertain the writ petition after 24 years. Therefore, it is for the petitioner to agitate the same in accordance with law before the Tribunal". Based on t....
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....tention, as required by sections 5, 8(f) and 10 of the COFEPOSA Act (Act No. 52 of 1974). The Supreme Court held as follows (page 1157) : "Read in the light of article 22(4) of the Constitution and the context of the words 'continue the detention', they definitely lead to the conclusion that the sine qua non for continuing the detention made beyond the period of three months, is the confirmation of the detention order by the appropriate Government. Conversely, the non-confirmation of the initial order by the appropriate Government before the expiry of the period of three months' detention, shall automatically result in revocation and ter mination of the legal authority for its continuance." (emphasis supplied) From a reading of the ab....
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....2 of the Constitution under which no law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless a Board consisting of persons who are or have been or are qualified to be appointed as judges of the High Court, as referred to above, has reported within three months that there is in its opinion sufficient cause for such detention . . . In cases where the law provides for a reference to the Board or the receipt of its affirmative opinion the initial detention is only tentative for three months and only when the Board reports that there is sufficient cause for detention that the question of confirmation and extension of the period beyond three months will arise . . . The State Go....
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....t keep a person under detention for a day longer than three months if the report of the Board does not justify the detention . . . If there is no such decision to confirm the order and to continue the detention thereunder, detention has to come to an end on the expiry of three months from the date of detention." From a conspectus of the decisions of the Supreme Court, it is clear that it is incumbent on the part of the appropriate Government to refer to the Advisory Board for its opinion with regard to the correctness of the order of detention. It is also incumbent on the part of the appropriate Government to release the detenu if in the opinion of the Advisory Board, the detention was not justified. Even if the Advisory Board opines tha....
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....y to obtain such an opinion, when follow-up action was proposed to be taken under the provisions of the SAFEMA. It is apt to refer to a passage in Maxwell on the Interpretation of Statutes, 12th edition, at page 251, which is as follows : Encroachment on rights : "Statutes which encroach on the rights of the subject, whether as regards person or property, are subject to a strict construction in the same way as penal Acts. It is a recognised rule that they should be interpreted, if possible, so as to respect such rights, and if there is any ambiguity the construction which is in favour of the freedom of the individual should be adopted." This view is based on the decisions in Walsh v. Secretary of State for India [1863] 10 H.L.C. 36....
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....ight of having the opinion of the Advisory Board with regard to sufficiency of the cause for detention. This Tribunal has no jurisdiction to go into the question of the validity of an order of detention, nor are we addressing ourselves to the said question. We have to examine whether the order of detention stood revoked within the meaning of clause (i) to the proviso to section 2(2) of the Act in the light of the decision of the Supreme Court in Nirmal Kumar Khandelwal v. Union of India, AIR 1978 SC 1155. If we take the view that the order of detention stood automatically revoked, the appellant cannot be considered as a person to whom the provisions of the Act are applicable and no further proceedings of forfeiture of the properties can ....