K.S. Radhakrishnan, J.
1. This writ of habeas corpus has been filed by the brother of the detenu challenging the order of detention passed under the provisions of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (in short COFEPOSA) to revoke order of detention dated 23.8.2001 and to set him free.
2. The order of detention was passed under Section 3(1)(i), 3(1)(ii) and 3(1)(iii) of the COFEPOSA by which one Siddique was detained based on his involvement in the seizure of illegal export of foreign currencies and Indian currencies totally valued at Rs. 2,55,86,013.85. The Kerala Regional Unit of the Directorate of Revenue Intelligence intercepted Siddique from Trivandrum International Airport on 3.5.2001. On search of his registered baggage resulted in the seizure of above mentioned foreign currencies and Indian currencies along with other incriminating materials. Statements were recorded under Section 108 of the Customs Act and he was arrested and produced before the Chief Judicial Magistrate, Thiruvananthapuram on 4.5.2001, whereupon he was remanded to judicial custody. A case was also registered as O.R.No.DRI/IVM/1/2001. Various applications for bail were filed by the detenu before the Sessions Judge, Ernakulam as well as before this Court, but without success. Investigation was not complete within sixty days and no complaint was filed and hence he moved this Court for bail and bail was granted on execution of necessary bonds and was released from the judicial custody.
3. A detailed investigation was conducted by the authorities and it was revealed that one George Koshy and Sudhakaran were involved in the smuggling of gold biscuits to India. It was also revealed that the detenu had assisted them in various trips from Sharjah/Dubai to Nedumbassery/Calicut for smuggling gold biscuits to India and that the detenu was promised an amount of Rs. 5000/- and flight ticket per trip. Detailed investigation revealed that detenu had deliberately and intentionally attempted to smuggle by transporting foreign and Indian currencies totally valued at Rs. 2,55,86,013.85 out of India by concealment with the help of George Koshy and Sudhakaran and without declaring before the Customs Authorities and abetted in the smuggling of gold biscuits into India by acting as an aid to George Koshy and Sundharan who had smuggled gold biscuits to India. It was therefore reasonably apprehended that the detenu would continue to smuggle by transporting foreign and Indian currencies out of India and abet in the smuggling gold biscuits to India unless prevented from doing so by detaining him under the provisions of COFEPOSA. Consequently order of detention dated 23.8.2001 was passed. Ground of detention as well as materials under which detention order was passed were also served on the detenu. Detenu filed a detailed representation against the order of detention on 10.10.2001. The representation was rejected by the Government of India vide its communication dated 31.10.2001. State Government also rejected his representation vide order dated 11.10.2001. Detenu's case was presented before the Advisory Board. The Advisory Board vide its report dated 23.10.2001 found there was sufficient cause for detention under the COFEPOSA. The State Government later vide order dated 30.10.2001 confirmed the order of detention.
4. Detenu later filed representation dated 24.12.2001, a copy of which was not made available to us. Counsel stated he had retracted from the earlier statements given by him dated 3.5.2001, 4.5.2001 and 16.7.2001 and consequently the State Government was bound to refer the matter once again to the Advisory Board for considering the question whether the retraction statement would amount to a fresh material which will come within the scope of Section 11 of the COFEPOSA read with Section 21 of the General Clauses Act. Counsel submitted a duty is cast on the Government to refer the matter to the Advisory Board to get its second opinion. Counsel placed reliance on the decision of the Apex Court in Ram Ball Rajbhar v. State of West Bengal and Ors., (1975) 4 SCC 47 and also in Makhan Lal Gokul Chand v. Administrator, Union Territory of Delhi, (1999) 9 SCC 504. Counsel also placed reliance on Exts. P7 and P8 communication received from the Commissioner of Central Excise and Customs and contended that those communications would indicate that the show cause notice could not be issued within the stipulated period of six months from the date of seizure and further investigation was found necessary. Those materials according to the counsel are fresh materials and therefore to be gone into by the authorities as well as Advisory Board. Counsel appearing for the respondents submitted no fresh grounds or fresh materials were raised so as to take up the matter by the Advisory Board again. It was stated that the statement given on 3.5.01, 4.5.01 and 16.7.2001 and other materials would clearly narrate the incident and the detenu's involvement in the smuggling activities and the retraction statement is only an afterthought.
5. We may at the outset point out that the detenu had not made any request to the State Government to again refer the matter to the Advisory Board on the basis of the retraction statement or on the basis of Exts. P7 and P8 communications received from the Commissioner of Central Excise and Customs. Contention of the counsel is that even without moving the State Government the Government is duty bound to refer the matter again to the Advisory Board as and when fresh materials are brought to its notice. Counsel submitted the retraction statement and P7 and P8 are fresh materials based on which the State Government ought to have referred the matter to the Advisory Board for second time. The Supreme Court in Ram Ball Rajbhar (supra) while dealing with Section 14 of the Maintenance of Internal Security Act read with Section 21 of the General Clauses Act held as follows:
'The State Government can revoke or modify a detention order it is satisfied, on new or supervening conditions or facts coming to light, that a revocation or modification had become necessary. Section 14 of the Act apparently vests a wider power than that which the State Government may have possessed under the provisions of Section 21 of the General Clauses Act, 1897 which is, by having been specifically mentioned in Section 14 of the Act, made applicable in such cases. The language or Section 14 of the Act, however, makes it clear that the power under Section 14 is not necessarily subject to the provisions of Section 21 of the General Clauses Act. This means that a revocation or modification of an order of the State Government is possible even without complying with the restrictions laid down in Section 21 of the General Clauses Act. Nevertheless, as the wider power under Section 14 of the Act does not over-ride but exists 'without prejudice to the provisions of Section 21 of the General Clauses Act', we think that the correct interpretation of the provisions, read together, would be that it is left to the State Government in the exercise of its discretion, either to exercise the power read with the provisions of Section 21 of the General Clauses Act or without the aid of Section 21 of the General Clauses Act'.
A three Judges Bench of Supreme Court in Makhan Lal Gokul Chand case (supra) doubted the correctness of the 'wide observations' made in the case of Ram Bali Rajbhar v. State of W.B. referred the matter to a larger Bench. The larger Bench of the Supreme Court held the view expressed in Rajbnar case lays down the correct law and does not call for any reconsideration.
6. In Makhan Lal Gokul Chand case the Apex Court was considering the scope of Section 21 of the General Clauses Act read with Section 11 of the COFEPOSA Act. The question whether there was any obligation on the State to get a representation considered by a fresh Advisory Board and also the question whether there was any conflict between the Supreme Court's decision in Ram Ball Rajbhar v. State of W.B. (1975) 4 SCC 47 and Pushpa v. Union of India, 1980 Supp. SCC 391 was considered in Makhan Lal Gokul Chand case (supra). Counsel for the petitioner submitted in this case the detenu has retracted from the earlier statements and made a representation to revoke the continuation of detention and therefore the State is bound to refer matter again to the Advisory Board. Counsel submitted on the basis of the retraction statement so made as well as on the basis of Exts. P7 and P8 the State is duty bound to seek opinion of the Advisory Board afresh. We have indicated that the detenu had never moved the State Government for the purpose of getting opinion from the Advisory Board afresh on the basis of the retraction statement as well as on the basis of Exts. P7 and P8.
7. The power under Section 11 of the Act read with Section 21 of the General Clauses Act, which is specifically mentioned in Section 11 of the Act, could import or imply a power of the State Government to refer a second representation likewise to the Advisory Board, if the State Government so decides in an analogous situation, in the event of which Advisory Board could entertain the said request and submit its report. Obviously there is no specific or separate provision for calling for the opinion of the Advisory Board from time to time. Nevertheless, if the power under Section 11 of the Act can be exercised in the like manner and subject to the like sanctions and conditions, if any, to use the language employed by Section 21 of the General Clauses Act, we can only interpret like manner and subjection to like conditions to mean similar and not identical manner and conditions. The situation in which the power of revocation or modification of a detention order is invoked by a second or subsequent representation, can, after making allowance for intervening events which cannot be wiped out of existence, be compared to and resembles a situation in which the opinion of the Advisory Board is sought after an approval or a preliminary confirmation of detention order by the State Government, awaiting the opinion of the Advisory Board, which is expected to function quite impartially and independently before the Government makes a final order of detention.
8. The above is the view expressed by the Apex Court while dealing with the provisions of Maintenance of Internal Security Act which equally apply when we consider the scope of Section 11 of the COFEPOSA Act read with Section 21 of the General Clauses Act, so found by the Apex Court in Makhan Lal Gokul Chand case as well. In fact there is no obligation on the State Government to get opinion of the fresh Advisory Board unless there are fresh grounds or fresh materials or subsequent events brought out in the representation. The State Government can revoke or modify a detention order if it is satisfied on new or supervening conditions or facts coming to light. If the detenu feels that the retraction statement and Exts. P7 and P8 are relevant materials to obtain a second opinion from the Advisory Board or to revoke the continued detention the detenu has to move the State Government and it is for the State Government to take a decision on individual merits of each case. In this case the detenu has never moved the State Government seeking a fresh report from the Advisory Board. Therefore we find no reason to grant the relief prayed for in this Writ Petition.
Writ Petition lacks merits and the same is dismissed.