Section 8. Advisory Boards
For the purposes of sub-clause (a) of clause (4), and sub-clause (c) of clause (7), of article 22 of the Constitution,--
(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 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.
How courts have applied section 8
- Unexplained and inordinate delay in executing a detention order renders continued detention impermissible, but delay explained by the detenu's evasion or investigation is excused.1,2,3,4
- Only documents relied upon by the detaining authority must be supplied; casual or passing references need not be, and non-supply of other documents does not vitiate the order.5,2,6
- Under Section 8(e), a detenu has no right to appear through a legal practitioner before the Advisory Board unless the Detaining Authority chooses to do so.7
- The government's obligation to consider representations is independent of the Advisory Board's report, and unexplained delay in considering representations is fatal.8,9
- A detention order that lapses under Section 8(f) by efflux of time does not become void ab initio, and SAFEMA forfeiture orders remain valid.10,11,12
- The State Advisory Board is competent to consider a detention order even where the detaining authority is the Central Government.13,14
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The judgements here primarily concern compliance with the procedural safeguards in Section 8 and Article 22(5) of the Constitution in preventive detention cases under the COFEPOSA Act. Courts repeatedly decided on the consequences of delay: delay in executing a detention order is fatal unless adequately explained, and unexplained and inordinate delay renders continued detention impermissible. Delay between the prejudicial activity and the detention order is similarly excused only if explained, for instance by a voluminous investigation, and a detenu who evaded the process of law cannot rely on execution delay to invalidate the order.9,1,4,2,3
A recurring question is the obligation to supply documents. Courts held that every document relied upon by the detaining authority which affects the right to make an effective representation must be supplied, while documents casually or passingly referred to need not be. Non-supply of documents not relied upon does not vitiate the order. The right extends only to materials relied upon, and non-production of a representation already substantially placed before the Advisory Board is immaterial. In one case, physical supply of a pen drive was not mandatory when the detenu could view the contents on a device within prison facilities.5,2,14,6,13,7
The confidential nature of Advisory Board proceedings under Section 8(e) was applied to deny detenus a right to appear through a legal practitioner unless the detaining authority chose to do so, since permitting it would render Section 8(e) otiose. However, the government's obligation to consider representations is distinct from and independent of the Advisory Board's report, and delay in considering representations is fatal when unexplained. Where a representation follows the reference to the Advisory Board, the government shall await the board's report, and there is no mandate to consider representations from different persons simultaneously. A related holding was that an official merely acting as a conduit in communicating rejection does not vitiate the order.7,8,9,3
Other judgements concern the effect of a lapsed detention order on forfeiture proceedings under SAFEMA. The consistent view is that a detention order lapsing under Section 8(f) by efflux of time without confirmation does not become void ab initio, and forfeiture orders under SAFEMA remain valid and operative since the detention was valid until it lapsed. Courts also rejected collateral attacks on concluded detention orders in forfeiture proceedings, and upheld detention where the State Advisory Board was competent even when the detaining authority was the Central Government. Non-seizure of contraband from the specific accused does not preclude detention if there is abetting, and statements under Section 108 of the Customs Act are valid material if not retracted.12,10,11,15,13,6,4
By court
Outcomes
Judgements applying section 8
K.M. Abdulla Kunhi and B.L. Abdul Khader versus Union of India and Ors., State of Karnataka and Ors.
Outcome: DisposedK.M.A. Kunhi v. U.O.I., Supreme Court of India, Constitution Bench (Ray, Kania, Shetty, Sharma, Verma JJ.), judgment by K. Jagannatha Shetty J., January 23, 1991; W.P. (Crl.) No. 508 of 1989 etc. under Article 32. COFEPOSA 1974 (ss.
DisposedOpenThe Supreme Court dismissed special leave petitions challenging detention orders passed against two individuals under the COFEPOSA Act for involvement in smuggling foreign-marked gold.
Jaseela Shaji v. The Union of India & Ors., Criminal Appeal No. 3083 of 2024, Supreme Court of India, 12 September 2024 ([2024] 9 S.C.R. 313 : 2024 INSC 683), B.R. Gavai, Prashant Kumar Mishra and K.V. Viswanathan, JJ. Appeal allowed;
AllowedOpenShabna Abdulla, sister-in-law of COFEPOSA detenue Abdul Raoof, appealed against the Kerala High Court Division Bench judgment dated 24.01.2023 dismissing her writ petition challenging the detention order dated 24.08.2021 and its confirmation dated 24.05.2022.
AllowedOpenIn a habeas corpus petition challenging a preventive detention order under COFEPOSA, the High Court quashed the order due to an unexplained delay. The Court held that the appropriate government acted negligently by waiting for the detaining authority's decision before transmitting representations and comments to…
AllowedOpenKunal Kishore Vs the Union of India through the Director General Central Economic Intelligence Bureau
Outcome: DismissedCOFEPOSA preventive detention; Section 3(1) COFEPOSA detention order; detention of person already in custody; pending prosecution no bar to preventive detention; delay in communication/confirmation of detention order; Advisory Board Section 8(b) COFEPOSA; Section 108 Customs Act statement;
DismissedOpen
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Challenge by the wife of a detenu to his detention and confirmation orders under the COFEPOSA Act, on grounds of withheld documents, inordinate delay in executing the detention order, non-placement of representations before the Advisory Board and denial of documents needed for an effective representation.
DismissedOpenPetitioner challenged detention under COFEPOSA Act executed thirty years after the original order due to alleged non-service. Court held unexplained delay rendered detention invalid, distinguishing precedents allowing shorter delays, and allowed the writ petition.
AllowedOpenLegal heirs sought to reopen concluded SAFEMA property forfeiture proceedings by disputing the underlying detention and challenging Section 2(2)(b). The court rejected both challenges and dismissed the appeal, finding no jurisdictional error or legal infirmity warranting interference.
DismissedOpenPreventive detention under COFEPOSA for alleged gold smuggling was upheld. The court rejected challenges concerning omitted documents, non-supply of materials, delay in issuing and executing the order, and disposal of representations. The writ petition was dismissed.
DismissedOpenPreventive detention under COFEPOSA arising from gold smuggling was upheld. The court rejected challenges concerning document supply, an allegedly emailed representation, delay, judicial custody, subsequent bail rejection and Advisory Board competence.
DismissedOpenThe court upheld COFEPOSA detention orders arising from a gold smuggling racket run from Dubai. It held the delay was explained by the voluminous investigation, rejected the plea that retracted Section 108 Customs Act statements vitiated the orders, found the material documents supplied, and held parity with…
DismissedOpen
Five appeals challenging property forfeiture orders under SAFEMA. The Tribunal held that the lapse of detention orders due to failure of confirmation under COFEPOSA does not invalidate prior forfeiture orders under SAFEMA, as the Act applies to persons against whom detention orders were validly made.
The Tribunal held that the forfeiture order passed under Section 7 of the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 remains valid even if the underlying detention order under COFEPOSA lapsed by efflux of time due to lack of Government confirmation.
Few appeals challenged forfeiture of properties and bank accounts ordered by the Competent Authority under the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976.
M/S. Platinum Theatre and Others versus Competent Authority Smugglers & Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 and Another
Outcome: DismissedSAFEM(FOP) Act 1976 forfeiture of M/s. Platinum Theatre; burden of proof under s.8 on person affected; s.9 fine in lieu of forfeiture only if unexplained portion less than one-half; COFEPOSA detenu's partnership firm and associates under s.2(2)(b) and (d) with Explanation 3; unexplained investment Rs.13.12 lakhs;
DismissedOpenHigh Court of Kerala dismissed habeas corpus petitions challenging detention orders passed under COFEPOSA against domestic gps tum ee spouse of smugglers. Court held that Customs Act statements under Section 108, CCTV footage, and prison custody were valid bases for subjective satisfaction, rejecting claims of illegal…
DismissedOpenPetitioner challenged preventive detention order under COFEPOSA Act via habeas corpus. High Court held no delay invalidated order, sufficiency of materials supplied was adequate given statutory basis of evidence, and State Advisory Board was competent to hear Central Government detention cases under Article 22(4).
DismissedOpen
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The Kerala HC dismissed a writ petition challenging an order of preventive detention under the COFEPOSA Act. The court held that there is no obligation to forward an Advisory Board representation to the Government and dismissed challenges regarding delay and the detenu's bail status.
DismissedOpenThree COFEPOSA detenus challenged preventive detention orders arising from a gold-smuggling racket allegedly operating since 2014. The court rejected grounds of unexplained delay, non-supply of documents, reliance on retracted statements and delay in deciding representations, holding the detentions preventive and…
DismissedOpenCOFEPOSA preventive detention; representation to Detaining Authority; specially empowered officer under s.3(1); consideration of representation without awaiting Advisory Board report; Article 22(5); K.M. Abdulla Kunhi distinguished by majority and relied on by dissent; unexplained delay vitiating detention;
AllowedOpenIn a petition seeking quashing of detention orders under COFEPOSA, the Court rejected arguments based on value thresholds, custody status, and passport possession. The Court upheld the detention, finding the detenu a repeat offender kingpin actionable under exceptions and with continuing propensity to smuggle.
Writ Petition (Criminal)Open