TaxTMI 
TaxTMI 
2019 (8) TMI 1111
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....es Act, 1974 (55 of 1974)." 2. In the present case, an order of detention under Section 3(1) of the COFEPOSA Act was passed by the competent authority on 17.05.2019, pursuant to which the respondent herein was detained. The documents and the grounds were served within the statutory period. Writ Petition (Criminal) No.2843 of 2019 was thereafter filed by the respondent in the High Court of Judicature at Bombay challenging the order of detention on certain grounds. After the response was filed by the present petitioner, the High Court by its order dated 25.06.2019 allowed said Writ Petition and quashed the order of detention. However, on the request of the learned counsel for the petitioner, the High Court stayed the operation of its own order to enable the petitioner to approach this Court and challenge the judgment rendered by the High Court. Accordingly, Special Leave Petition (Criminal) No.5459 of 2019 was filed in this Court by the petitioner. 3. By its Judgment and Order dated 18.07.2019 passed in Criminal Appeal No.1064 of 2019 arising out of aforesaid Special Leave Petition (Criminal) No.5459 of 2019 and in other connected Appeals, this Court allowed said Appeals and se....
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.... the detention of the person concerned; that excepting that part of the report in which the opinion of the Advisory Board is specified, rest of the report is confidential; and that in terms of sub-section (f) of Section 8, if the Advisory Board has reported that there is in its opinion no sufficient cause for the detention of a person, the appropriate Government is obliged to revoke the order of detention and cause the person to be released forthwith. It was submitted that the reasoning which weighed with the Advisory Board in its report would be non-justiciable and mere opinion cannot be subject matter of any challenge in a court of law and that a petition under Article 136(1) would not be maintainable. Mr. Rohatgi, learned Senior Advocate, relied upon decisions of this Court in Dharam Singh Rathi vs. State of Punjab and others AIR 1958 SC 152 = 1958 SCR 996, Akshoy Konai vs. State of West Bengal (1973) 1 SCC 297, A.K. Roy vs. Union of India and others (1982) 1 SCC 271 and Calcutta Dock Labour Board and others vs. Jaffar Imam and others (1965) 3 SCR 453 = AIR 1966 SC 282. 7. On the other hand, Mr. K.M. Natraj, learned Additional Solicitor General, submitted that if the opinion ....
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....leven weeks from the date of detention of the person concerned; (d) when there is a difference of opinion among the members forming the Advisory Board, the opinion of the majority of such members shall be deemed to be the opinion of the Board; (e) a person against whom an order of detention has been made under this Act shall not be entitled to appear by any legal practitioner in any matter connected with the reference to the Advisory Board, and the proceedings of the Advisory Board and its report, excepting that part of the report in which the opinion of the Advisory Board is specified, shall be confidential; (f) in every case where the Advisory Board has reported that there is in its opinion sufficient cause for the detention of a person, the appropriate Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit and in every case where the Advisory Board has reported that there is in its opinion no sufficient cause for the detention of the person concerned, the appropriate Government shall revoke the detention order and cause the person to be released forthwith." This Section refers t....
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....(6) Nothing in clause (5) shall require the authority making any such order as is referred to in that clause to disclose facts which such authority considers to be against the public interest to disclose. (7) Parliament may by law prescribe- (a) the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an Advisory Board in accordance with the provisions of sub-clause (a) of clause (4); (b) the maximum period for which any person may in any class or classes of cases be detained under any law providing for preventive detention; and (c) the procedure to be followed by an Advisory Board in an inquiry under sub-clause (a) of clause (4). 9. In terms of clause (4) of Article 22 of the Constitution, no law providing for preventive detention shall authorise the detention of any person for a period longer than three months unless an Advisory Board had reported before the expiration of said period of three months that in its opinion there was sufficient cause for such detention. The question whe....
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....para 10(xii) indicates that the grievance of the petitioner, in substance, is that the Board has not submitted its report within the prescribed period and that, therefore, his detention has become illegal. ... ..." Concluding that there was non-compliance of the procedure laid down in Section 10 of the Preventive Detention Act, 1950, the petition was allowed and the detenu was directed to be set at liberty forthwith. Mr. Rohatgi, learned Senior Advocate, however relied upon the sentence which stated that the Advisory Board had no power to make any order to continue or discontinue of the detention but its duty was only to submit a report to the State Government. 12. In Akshoy Konai (1973) 1 SCC 297 the submission raised on behalf of the detenu was that the decision of the Advisory Board was never communicated to him. The further submission was that the opinion of the Advisory Board should have been communicated to the detenu so as to enable him to question the legality of said opinion. These submissions were rejected by a Bench of three Judges of this Court as under:- "4. The first objection against the petitioner's detention raised by Shri B. Dutta, the learned couns....
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....ct to be confidential except that part of the report in which its opinion is specified. This provision clearly indicates that the advisory opinion is never intended to be open to challenge on the merits before any tribunal. So far as the final opinion of the Board is concerned the communication of the confirmation of the detention order by the State Government clearly informed the petitioner that the opinion of the Board was against him." 13. A.K. Roy (1982) 1 SCC 271 was also a decision of the Constitution Bench of this Court. It was observed in para 98 as under:- 98. ... ...In proceedings before the Advisory Board, the question for consideration of the Board is not whether the detenu is guilty of any charge but whether there is sufficient cause for the detention of the person concerned. The detention, it must be remembered, is based not on facts proved either by applying the test of preponderance of probabilities or of reasonable doubt. The detention is based on the subjective satisfaction of the detaining authority that it is necessary to detain a particular person in order to prevent him from acting in a manner prejudicial to certain stated objects. The proceeding o....
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....ion 10(1) of the Act. It is not disputed that the Advisory Board considers evidence against the detenu which has not been tested in the normal way by cross-examination; its decision is essentially different in character from a judicial or quasijudicial decision. In some cases, a detenu may be given a hearing; but such a hearing is often, if not always, likely to be ineffective, because the detenu is deprived of an opportunity to cross-examine the evidence on which the detaining authorities rely and may not be able to adduce evidence before the Advisory Board to rebut the allegations made against him. Having regard to the nature of the enquiry which the Advisory Board is authorised or permitted to hold before expressing its approval to the detention of a detenu, it would, we think, be entirely erroneous and wholly unsafe to treat the opinion expressed by the Advisory Board as amounting to a judgment of a criminal court. The main infirmity which has vitiated the impugned orders arises from the fact that the said orders equate detention of a detenu with his conviction by a criminal court. We are, therefore, satisfied that the court of appeal was right in taking the view that in a depa....
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....le are: "appeal ... from any judgment, decree or final order". Article 133 deals with appeals in civil matters and the same words are used here also. Article 134 deals with appeals in criminal matters, and the words used in it are: "appeal ... from any judgment, final order or sentence". In Article 136, the words "judgment" and "decree," which are used in Articles 132 and 133 are retained. Similarly, the words "judgment" and "sentence" occurring in Article 134 are also retained. But the expression "final order" becomes "order," and, instead of the High Court, reference is made to "any court." Certain other words are also used in the article which seem to me to have a special significance, these being "determination," "cause or matter" and "tribunal". It is obvious that these words greatly widen the scope of Article 136. They show that an appeal will lie also from a determination or order of "any tribunal" in any cause or matter. 6. Can we then say that an Industrial Tribunal does not fall within the scope of Article 136? If we go by a mere label, the answer must be in the affirmative. But we have to look further and see what are the main functions of the Tribunal and how i....
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....on before this Court. Reliance was placed by the learned Additional Solicitor General on para 15 of the decision, which was to the following effect:- "As Section 245-S expressly makes the advance ruling binding on the applicant, in respect of the transaction and on the Commissioner and the income tax authorities subordinate to him, the Authority is a body acting in judicial capacity. H.M. Seervai in his book Constitutional Law of India (4th Edn.) while discussing the tests for identifying judicial functions in Para 16.99 quotes the following passage from Prof. de Smith's Judicial Review on p. 1502: "An authority acts in a judicial capacity when, after investigation and deliberation, it performs an act or makes a decision that is binding and conclusive and imposes obligation upon or affects the rights of individuals." We have, therefore, no doubt in our mind that the Authority is a body exercising judicial power conferred on it by Chapter XIX-B of the Act and is a tribunal within the meaning of the expression in Articles 136 and 227 of the Constitution." 18. Both these decisions on which reliance was placed by the learned Additional Solicitor General we....