SLP(Criminal)No.7016 of 2019  etc. etc. Union of India  vs.  Nisar Pallathukadavil Aliyar

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Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION/ CRIMINAL ORIGINAL JURISDICTION

PETITION FOR SPECIAL LEAVE TO APPEAL (CRL)No.7016 OF 2019

UNION OF INDIA     …Petitioner VERSUS

NISAR PALLATHUKADAVIL ALIYAR    …Respondent

WITH

WRIT PETITION (CRL.)NO. 210 OF 2019

MAYANK DHHAKAD     …Petitioner VERSUS

UNION OF INDIA AND ORS.             …Respondents

AND

PETITION FOR SPECIAL LEAVE TO APPEAL(CRL)NO.7021 OF 2019

UNION OF INDIA     …Petitioner VERSUS

HAPPY ARVIND KUMAR DHAKAD    …Respondent

AND

WRIT PETITION (CRL.)NO. 220 OF 2019

ASHARAF A.U.     …Petitioner VERSUS

UNION OF INDIA AND ORS.          …Respondents

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J U D G M E N T

Uday Umesh Lalit, J.

1. This Petition for Special Leave to Appeal challenges the Opinion

dated 22.07.2019 of the Advisory Board constituted under Section 8(a) of

the  Conservation  of  Foreign  Exchange  and  Prevention  of  Smuggling

Activities Act, 1974 (‘the COFEPOSA Act’, for short) in Reference No. 81

of 2019.  The Opinion in Part-II of the Report of the Advisory Board was to

the following effect:-

“The  Advisory  Board  is  of  the  opinion  that  there  is  no sufficient cause for the continued detention of  the above named  detenu  under  Section  3  of  the  Conservation  of Foreign Exchange and Prevention of Smuggling Activities 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

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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 set aside the judgment of the High Court dated

25.06.2019.

4. In the meantime, in terms of Section 8(b) of the COFEPOSA Act,

the  case  of  the  respondent-detenu,  pursuant  to  the  order  of  detention

mentioned above was referred to the Advisory Board.   It  is  a matter  of

record that the decision of this Court dated 18.07.2019 was brought to the

notice of the Advisory Board pursuant to the requisition made by the Joint

Director,  Ministry  of  Finance,  Directorate  of  Revenue  Intelligence,

Government of India.  On 22.07.2019 the Advisory Board found that there

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was  no  sufficient  cause  for  the  continued  detention  of  the  respondent-

detenu and rendered its Opinion as stated above.   

5. The petitioner  being aggrieved has  filed  the present  Petition for

Special  Leave to  Appeal  against  the  aforesaid  Opinion of  the  Advisory

Board.  On 08.08.2019 the following Order was passed by a Bench of this

Court:-

“In  this  special  leave  petition,  Union  of  India  has challenged the opinion of the Advisory Board dated 22.07.2019. Regarding  detention  order  passed  against  the respondent  in  Criminal  Appeal  No.1064  of  2019 (arising out of SLP(Crl.)No. 5459 of 2019), we have passed  the  judgment  on  18.07.2019  expressing  our views.  Since we have already expressed our views, we are of the view that the matter(s) has to be placed before  any  other  Bench  after  obtaining  necessary orders  from  Hon’ble  the  Chief  Justice  of  India. Subject to orders passed by Hon’ble the Chief Justice of India, list the matter accordingly before any other Bench.”

The  Petition  was  accordingly  posted  before  us  on  16.08.2019.

Since it involved issues of personal liberty, the matter was heard finally, at

the  end  of  which  an  order  was  dictated  in  open  court.   The  petition

preferred against the opinion of the Advisory Board was dismissed and the

detenu was directed to be released forthwith.  The following are the reasons

in support of the operative part of the order.

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6. At  the outset,  a  preliminary objection was raised  by Mr.  Mukul

Rohatgi, learned Senior Advocate, appearing on behalf of the respondent

about  the  maintainability  of  the  present  Petition  for  Special  Leave  to

Appeal.  It was submitted that under sub-section (c) of Section 8 of the

COFEPOSA Act the Advisory Board has to prepare its report specifying in

a separate paragraph of said report its opinion as to whether or not there is

sufficient cause for 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 others1, Akshoy Konai  vs.

1 AIR 1958 SC 152 = 1958 SCR 996

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State of West  Bengal2,  A.K. Roy  vs.   Union of India and others3 and

Calcutta Dock Labour Board and others  vs.  Jaffar Imam and others4.   

7. On the other hand, Mr. K.M. Natraj, learned Additional Solicitor

General, submitted that if the opinion of the Advisory Board were to be

against  the  person detained,  there  could be no challenge  to  the opinion

and/or report of the Advisory Board and to that extent the opinion would be

non-justiciable.  However, in his submission, if the opinion of the Advisory

Board were to the effect that there was no sufficient cause for the detention

of the person concerned, the challenge was still available to the appropriate

government and the capacity of the Advisory Board while rendering such

opinion would be that  of  a Tribunal  and therefore the opinion could be

subject matter of a challenge.  He relied upon decisions of this Court in

Bharat Bank Ltd., Delhi   vs.  Employees of the Bharat Bank Ltd., Delhi5

and in  Columbia  Sportswear  Company   vs.   Director  of  Income Tax,

Bangalore6.   

8. Section 8 of the COFEPOSA Act is as under:-

“8. Advisory Board. - For the purposes of sub-clause (a) of clause (4), and sub-clause (c) of clause (7), of article 22 of the Constitution,—

2 (1973) 1 SCC 297 3 (1982) 1 SCC 271 4 (1965) 3 SCR 453 = AIR 1966 SC 282 5 1950 SCR 459 = AIR 1950 SC 188 6 (2012) 11 SCC 224

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(a)  the  Central  Government  and  each  State  Government shall, whenever necessary, constitute one or more Advisory Boards each of which shall consist of a Chairman and two other persons possessing the qualifications specified in sub- clause (a) of clause (4) of article 22 of the Constitution;

(b) save as otherwise provided in section 9, the appropriate Government  shall,  within  five  weeks  from  the  date  of detention  of  a  person  under  a  detention  order  make  a reference  in  respect  thereof  to  the  Advisory  Board constituted under clause (a) to enable the Advisory Board to make the  report  under  sub-clause (a)  of  clause  (4)  of article 22 of the Constitution;

(c) the Advisory Board to which a reference is made under clause  (b)  shall  after  considering  the  reference  and  the materials placed before it and after calling for such further information as it may deem necessary from the appropriate Government  or  from  any  person  called  for  the  purpose through  the  appropriate  Government  or  from the  person concerned,  and  if,  in  any  particular  case,  it  considers  it essential so to do or if the person concerned desires to be heard in  person,  after  hearing him in person,  prepare  its report specifying in a separate paragraph thereof its opinion as  to  whether  or  not  there  is  sufficient  cause  for  the detention  of  the  person  concerned  and  submit  the  same within  eleven  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

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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 to provisions of sub-clause (a) of clause (4)  and

sub-clause (c) of clause (7) of Article 22 of the Constitution and states so in

sub-section (b) that a reference is made to the Advisory Board to enable the

Board to make a report under sub-clause (a) of clause (4) of Article 22 of

the Constitution.  The text of Article 22 may, therefore, be considered at

this stage:-

“22. Protection against arrest and detention in certain cases.—(1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice. (2) Every person who is arrested and detained in custody shall  be  produced before  the  nearest  magistrate  within  a period  of  twenty-four  hours  of  such arrest  excluding the time necessary for the journey from the place of arrest to the  court  of  the  magistrate  and no such person shall  be detained  in  custody  beyond  the  said  period  without  the authority of a magistrate. (3) Nothing in clauses (1) and (2) shall apply—

(a) to any person who for the time being is an enemy alien; or (b) to any person who is arrested or detained under any law providing for preventive detention.

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(4)  No  law  providing  for  preventive  detention  shall authorise the detention of a person for a longer period than three months unless—

(a)  an  Advisory  Board  consisting  of  persons  who are, or have been, or are qualified to be appointed as, Judges  of  a  High  Court  has  reported  before  the expiration  of  the  said period  of  three  months  that there  is  in  its  opinion  sufficient  cause  for  such detention: Provided  that  nothing  in  this  sub-clause  shall authorise  the  detention  of  any  person  beyond  the maximum period  prescribed  by  any  law made  by Parliament under sub-clause (b) of clause (7); or (b) such person is detained in accordance with the provisions  of  any  law  made  by  Parliament  under sub-clauses (a) and (b) of clause (7).

(5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority  making  the  order  shall,  as  soon  as  may  be, communicate  to  such  person  the  grounds  on  which  the order  has  been  made  and  shall  afford  him  the  earliest opportunity of making a representation against the order. (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).

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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

whether there is sufficient cause for detention or not is in the exclusive

domain of the Advisory Board.   In terms of clause (7) (c) of Article 22 of

the Constitution the procedure to be followed by the Advisory Board can be

prescribed by the Parliament by law.   

10. Accordingly,  in  the  COFEPOSA Act  enacted  by the  Parliament,

appropriate  provisions  are  made in  Section 8.    Sub-section (b)  of  said

Section 8 facilitates reference to the Advisory Board to enable it to make

the  report  under  sub-clause  (a)  of  clause  (4)  of  Article  22  of  the

Constitution while sub-sections (c), (d) and (e) of said Section 8 deal with

the procedure to be adopted by the Advisory Board.    In terms of  sub-

section (e) of Section 8, the report of the Advisory Board has to be in two

parts.   The first part is to contain the assessment made by the Advisory

Board in the form of a report which is completely confidential.  The second

part contains the result of such assessment in the form of an opinion.  It is

this second part of opinion alone which is not confidential.  Sub-section (f)

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of Section 8 obliges the appropriate government to revoke the detention

order and cause the person to be released forthwith in case the Advisory

Board has reported that there was, in its opinion, no sufficient cause for the

detention of the person concerned.  However, if the opinion is otherwise

and the Advisory Board has found that there was sufficient cause for the

detention  of  the  person,  the  appropriate  government  ‘may  confirm’ the

detention order and continue the detention.  The choice is available to the

appropriate  government  only  in  the  latter  of  these  two  eventualities.

Therefore, in case the opinion is to the effect that there was no sufficient

cause  for  the  detention  of  the  person  concerned,  the  appropriate

government  has  to  revoke the  detention  order  and  cause  the  person

concerned to be released forthwith.

11. Dharam Singh Rathi1 was a decision of the Constitution Bench of

this Court, in which it was alleged that the Advisory Board had not made

any report within the prescribed period.  The submission in that behalf was

noted as under:-

“3. … …Under Section 10 of the Act the Board has no power  to  make any order  to  continue or  discontinue the detention, but is only under a duty to submit its report to the  State  Government.  In  this  context,  therefore,  a  plain reading of 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. … …”

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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 Konai2  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 counsel appearing as amicus curiae in support of the writ petition, is that though the petitioner  had been heard in  person by the  Advisory Board the decision of the Board was never communicated to him. This omission, according to the counsel, invalidates the petitioner’s  detention as he was not able to take any step  to  have  this  opinion  scrutinised  by  any  judicial tribunal.  This  submission  is,  in  our  opinion,  difficult  to accept. Under Section 11 of the Act the Advisory Board is required  only  to  submit  its  report  to  the  appropriate

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Government. There is no obligation imposed by the Act on the Board to communicate its decision to the detenu. The mere fact that under Section 11 the Board hears the person affected by the detention order in case he desires to be so heard, would not for that reason alone impose on the Board a  legal  obligation  to  communicate  its  decision  to  the detenu. Our attention has not been drawn to any provision of  law  or  to  any  priciple  which  would  imply  any  such obligation.  In  any  event  omission  on  the  part  of  the Advisory Board to do so cannot invalidate the petitioner’s detention. … …

5. The  submission  that  the  Advisory  Board  should  have communicated its opinion to the petitioner so as to enable him to question its legality is also misconceived. In the first instance the Advisory Board constituted under Section 9 of the Act, as its name connotes, is only required to function in  an  advisory  capacity.  Its  opinion  which  is  merely  an advice is  binding on the appropriate Government only if according to it there is no sufficient cause for the detention in question: in that eventuality the detenu cannot possibly have any grievance. When the Board reports that there is sufficient  cause  for  the  detention  in  question  the appropriate  Government  is  not  bound  under  the  law  to confirm the order of detention. It may or may not do so. The advisory opinion of the Board is merely intended to assist  the  appropriate  Government  in  determining  the question of confirming the detention order and continuing the detention. It is binding on the appropriate Government only  when  it  favours  the  detenu  and  not  when  it  goes against  him.  Such  advisory  opinion  can  scarcely  be  an appropriate  subject-matter  of  review  or  scrutiny  by  the judicial courts or tribunals. Secondly the proceedings of the Board and its report are expressly declared by Section 11 (4)  of  the  Act  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.”

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13. A.K. Roy3  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 of the Advisory Board has therefore to be structured differently from the proceeding of judicial or quasi-judicial tribunals, before which there is a lis to adjudicate upon.”

14. In  Calcutta Dock Labour Board4 the question was whether after

having  suffered  an  order  of  detention  under  Section  3(1)(a)(ii)   of  the

Prevention Detention Act, 1950, the services of the concerned person could

be terminated by the employer merely on the ground that  there was an

order of detention.  In that context a Bench of three Judges of this Court

observed:-

“12. But  the  question which we have to  consider  in  the present appeals is  of a different character.  A citizen may suffer loss of liberty if he is detained validly under the Act; even  so,  does  it  follow  that  the  detention  order  which deprived  the  citizen  of  his  liberty  should  also  serve indirectly but effectively the purpose of depriving the said citizen  of  his  livelihood?  If  the  view  taken  by  the

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appellant’s officers who tried the disciplinary proceedings is accepted, it would follow that if a citizen is detained and his  detention  is  confirmed by the  State  Government,  his services would be terminated merely and solely by reason of  such  detention.  In  our  opinion,  such  a  position  is obviously  and  demonstrably  inconsistent  with  the elementary  concept  of  the  rule  of  law  on  which  our Constitution is founded. When a citizen is detained, he may not succeed in  challenging the  order  of detention passed against  him,  unless  he  is  able  to  adduce  grounds permissible under the Act. But we are unable to agree with Mr Sen’s argument that after such a citizen is released from detention, an employer, like the appellant, can immediately start disciplinary proceedings against him and tell him in substance  that  he  was  detained  for  prejudicial  activities which amount to misconduct and that the detention order was confirmed by the State Government after consultation with  the  Advisory  Board,  and  so,  he  is  liable  to  be dismissed  from  his  employment.  It  is  obvious  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; indeed, its function is limited to consider the relevant  material  placed  before  it  and  the  representation received from the detenu, and then submit its report, to the State  Government  within  the  time  specified  by  Section 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 quasi- judicial 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

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criminal court. We are, therefore, satisfied that the court of appeal was right in taking the view that in a departmental enquiry which the appellant held against the respondents it was  not  open  to  the  appellant  to  act  on  suspicion,  and inasmuch as the appellant’s decision is clearly based upon the detention orders  and nothing else,  there  can be little doubt that,  in substance,  the said conclusion is  based on suspicion and nothing more.”

15. According to the aforesaid 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.  As stated in

Akshoy Konai2,  the opinion is merely intended to assist the government

and it is binding on the appropriate government only if it favours the detenu

and not when it goes against him.  It was laid down in said decision that the

opinion  of  the  Advisory  Board  cannot  be  subject  matter  of  review  or

scrutiny by the judicial courts/tribunals.  The element of confidentiality was

also taken note of and it was observed that the Advisory Board opinion is

never intended to be open to challenge on the merits before any tribunal.  

16. The  decisions  relied  upon  by  the  learned  Additional  Solicitor

General pertain to fields other than preventive detention.  In Bharat Bank

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Ltd.5  the issue was whether a decision of an Industrial Tribunal could be

amenable  to  the  appellate  jurisdiction  under  Article  136(1)  of  the

Constitution.  The reliance was placed by the learned Additional Solicitor

General on the opinion of S. Fazal Ali, J. as under:-

“The  important  question  to  be  decided  in  this  case  is whether  the  present  appeal  lies  at  all  to  this  Court.  The question is not free from difficulty, but on the whole I am inclined  to  think  that  the  appeal  does  lie.  It  is  fully recognized that the scope of Article 136 of the Constitution is very wide, but the significance of the language used in the section can be appreciated only by comparing it with the  articles  which  precede  it.  Article  132 deals  with  the appellate  jurisdiction  of  the  Supreme  Court  in  cases involving  a  substantial  question  of  law  as  to  the interpretation of  the  Constitution,  and the  words  used in that article 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 it proceeds to discharge those functions. This is

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necessary because  I  take it  to  be  implied that  before  an appeal can lie to this Court from a tribunal it must perform some kind of judicial function and partake to some extent of the character of a Court.

7. Now there can be no doubt that the Industrial Tribunal has, to use a well-known expression, “all the trappings of a court”  and  performs  functions  which  cannot  but  be regarded  as  judicial.  This  is  evident  from  the  rules  by which the proceedings before the Tribunal are regulated. It appears  that  the  proceeding  before  it  commences  on  an application which in many respects  is  in the  nature  of  a plaint. It has the same powers as are vested in a civil court under the Code of Civil Procedure when trying a suit,  in respect  of  discovery,  inspection,  granting  adjournment, reception  of  evidence  taken  on  affidavit,  enforcing  the attendance  of  witnesses,  compelling  the  production  of documents, issuing commissions etc. It is to be deemed to be a civil court within the meaning of Sections 480 and 482 of the Criminal Procedure Code, 1898. It  may admit and call for evidence at any stage of the proceeding and has the power to administer oaths. The parties appearing before it have the right of  examination,  cross-examination and re- examination and of addressing it after all evidence has been called.  A  party  may  also  be  represented  by  a  legal practitioner with its permission.

8. The matter does not rest there. The main function of this Tribunal  is  to  adjudicate  on  industrial  disputes  which implies  that  there  must  be  two or  more parties  before  it with conflicting cases,  and that  it  has also to arrive at  a conclusion  as  to  how the  dispute  is  to  be  ended.  Prima facie,  therefore,  a  Tribunal  like  this  cannot  be  excluded from  the  scope  of  Article  136,  but  before  any  final conclusion  can  be  expressed  on  the  subject  certain contentions which have been put forward on behalf of the respondents have to be disposed of.”

17. Similarly,  reliance was also placed on the decision in  Columbia

Sportswear Company6.   In  that  case  the issue was whether  an Advance

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Ruling pronounced by the Authority for  Advance Rulings (Income Tax)

constituted under Chapter XIX-B of the Income Tax Act, 1961 could be

challenged under Articles 226 and 227 of the Constitution before the High

Court or under Article 136 of the Constitution 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  were completely in  different  context.   It  is

well settled that wherever a body is exercising judicial/quasi judicial power

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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.   

19. But  the basic  issue in  the present  matter  is  the 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.  The

report of the Advisory Board, excepting its opinion, is strictly confidential

and the nature of the power so exercised by the Advisory Board in giving

its report and the opinion, has already been pronounced upon by this Court

in the cases referred to above viz. Dharam Singh Rathi1, Akshoy Konai2,

A.K. Roy3 and Calcutta Dock Labour Board4.

 We follow these decisions and hold the present petition seeking to

challenge  the  Opinion  dated  22.07.2019  of  the  Advisory  Board  as  not

maintainable.   

20. The Petition for Special Leave to Appeal is, therefore, dismissed.

21. In view of the Opinion of the Advisory Board as stated above and

the   dismissal of the Petition for Special Leave to Appeal (Criminal) No.

7016 of 2019, no orders are called for in Writ Petition (Criminal) No. 220

of 2019 as said Writ Petition prays for writ, order or direction quashing and

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setting aside the order of  detention dated 17.05.2019 passed against  the

aforementioned respondent-detenu.  The writ petition stands disposed of.

22. For  the  reasons  as  stated  above,  Petition  for  Special  Leave  to

Appeal (Criminal) No. 7021 of 2019 preferred by the petitioner against the

Opinion dated 22.07.2019 passed by the Advisory Board in Reference No.

87 of 2019 in connection with the detenu named ‘Happy Arvind Kumar

Dhakad’ is also found to be not maintainable.   The Petition for Special

Leave to Appeal is, therefore, dismissed.

23. Writ Petition (Criminal) No. 210 of 2019 inter alia prayed for writ

order  or  direction  seeking  quashing  of  the  order  of  detention  dated

17.05.2019  passed  against  aforesaid  detenu  ‘Happy  Arvind  Kumar

Dhakad’.   Again,  in  view  of  the  Opinion  of  the  Advisory  Board  in

Reference  No.87  of  2019  and  the  dismissal  of  Special  Leave  Petition

(Criminal) No. 7021 of 2019 no separate orders are called for.  This Writ

Petition is, therefore, disposed of.

……………………………….J. [Uday Umesh Lalit]

……………………………….J. [R. Subhash Reddy]

New Delhi; August 21, 2019.