Union Of India vs Nisar Pallathukadavil Aliyar

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 SLP(Criminal)No.7016 of 2019 etc. etc. Union of India vs. Nisar Pallathukadavil Aliyar 3 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.

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.

(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;

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.”

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 SLP(Criminal)No.7016 of 2019 etc. etc. Union of India vs. Nisar Pallathukadavil Aliyar 21 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.

August 21, 2019.