V. RAMASWAMI, J.


One Chainraj, son of Haretful Nandalal, by an order dt. 3-1-1984, under S. 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as the Act), was directed to be detained and kept in custody in the Central Prison, Madras, on the ground that it was necessary with a view to prevent him from engaging in transporting smuggled goods. Since the detenu was absconding he could not be detained immediately and he was arrested and detained only on 23-8-1984. The detenu was furnished with the grounds of detention on 29-8-1984. The detenu made his representations against the order of detention on 25-9-1984, and that was rejected by the Government on 12-10-1984. He again made another representation dt. 9-10-1984, and that was also rejected on 24-10-1984.


2. The detenu's case was referred to the Advisory Board on 5-9-1984. The Advisory Board held the first meeting on 27-9-1984 and again on 1-2-1985, and sent its report on 5-2-1985. The second respondent had confirmed the detention order on 12-2-1985. In the meanwhile, Conservation of Foreign Exchange and Prevention of Smuggling Activities Amendment Ordinance, 1984 was promulgated on 13-7-1984 and later the Ordinance was replaced by an Act and the Act came into force with effect from 13-7-1984. This amending Act substituted a new S. 9 in the place of the original S. 9.


3. On 20-9-1984, the competent authority, who is the Additional Secretary to the Government of India, on being satisfied that the detenu is likely to engage in transporting smuggled goods in Madras, which is an area highly vulnerable to smuggling, has made the declaration under S. 9(1) of the Act, as substituted by Act 58 of 1984.


4. The point raised in this petition for the issue of Habeas Corpus to release the detenu and set him at liberty was that under S. 8(c), the Advisory Board, to which a reference is made, shall after considering the reference and the materials placed before it and after following the procedure prescribed prepare its report and submit the same within eleven weeks from the date of detention of the person concerned. In this case, as already stated, the report of the Advisory Board was sent only on 5-2-1985, long after the expiry of eleven weeks from 23-8-1984 which is the date of detention of the detenu. The order of detention as well as the confirmation are therefore illegal and contrary to law.


5. On the other hand, it was contended on behalf of the respondents that S. 9 was substituted by a new sub-section by the Amending Act 58 of 1984 and under that section a declaration could be made with reference to any order of detention made under the Act at any time before 31-7-1987 and in this case a declaration in exercise of the provision, as amended, was actually made on 20-9-1984. The consequence of such declaration under the provisions of the Act is that in the place of 'eleven weeks from the date of detention prescribed under S. 8(c) of the Act' the words 'five months and three weeks' shall be substituted. If this period of 'five months and three weeks' is to be computed from the date of detention, viz, 23-8-1984, the report of the Advisory Board, received on 5-2-1985 was in time and the order of detention is not vitiated.


6. The question therefore that arises for consideration is whether the provisions of the substituted S. 9 could be invoked by the Government in this case.


7. In order to understand the substituted Section 9 it is necessary to trace the legislative history of S. 9 itself. At the time when the original Act 52 of 1974 was enacted, the relevant portion of S. 9 read as follows -


"Notwithstanding anything contained in this Act, any person (including a foreigner) in respect of whom an order of detention is made under this Act at any time before the 31st day of December 1975 may be detained without obtaining, in accordance with the provision of sub-cl. (a) of Cl. (4) of Art. 22 of the Constitution, the opinion of an Advisory Board for a period longer than three months but not exceeding one year from the date of his detention, where the order of detention has been made against such person with a view to preventing him from smuggling of goods or abetting the smuggling of goods or engaging in transporting or concealing or keeping smuggled goods and the Central Government, or any officer of the Central Government not below the rank of the Additional Secretary to that Government especially empowered for the purposes of this section by that Government, is satisfied that such person -(i) smuggles or is likely to smuggle goods into, out of or through any area highly vulnerable to smuggling; or.


(ii) abets or is likely to abet the smuggling of goods into, or out of or through any area highly vulnerable to smuggling; or.


(iii) engages or is likely to engage in transporting or concealing or keeping smuggled goods in any area highly vulnerable to smuggling.


and makes a declaration to that effect within five weeks of the detention of such person.


Explanation :- In this sub-section 'area highly vulnerable to smuggling' means -


(i) the Indian customs waters;


(ii) the inland area fifty kilometres in width from the coast of India falling within the territories of the States of Gujarat, Karnataka Kerala, Maharashtra, Tamil Nadu and the Union Territories of Goa, Daman and Diu and Pondicherry; and


(iii) such further or other inland area not exceeding one hundred kilometres in width from any coast or other border of India, as the Central Government may, having regard to this vulnerability of that area to smuggling, by notification in the Official Gazette specify in this behalf."


Clause (2) of this S. 9 provided -


" In the case of any person detained under a detention order to which the provisions of sub-section (1) apply, S. 8 shall have effect subject to the following notifications, namely -


(i) in Cl. (b) for the words "shall, within five weeks" the words 'may at any time prior to but in no case later than three months before the expiration of one year' shall be substituted;


(ii) in Cl. (c) for the words 'from the date of detention of the person concerned' the words 'from the date on which the reference is made to it' shall be substituted." *


8. By the Conservation of Foreign Exchange and Prevention of Smuggling Activities Second Amendment Ordinance 1975, which later became the Conservation of Foreign Exchange and Prevention of Smuggling Activities Amendment Act 20 of 1976, among other amendments, the date '31st December, 1977' was substituted for the date '31st December, 1975' in S. 9. However, there was no further continuance of the provisions of S. 9, after 31st December, 1977 till 13th July, 1984, when S. 9 was substituted by a new section, as already stated. The new section reads as follows -

"Cases in which and the circumstance under which persons may be detained for periods longer than three months without obtaining the opinion of Advisory Board -


1. Notwithstanding anything contained in this Act, any person (including a foreigner) in respect of whom an order of detention is made under this Act at any time before the 31st day of July, 1987 may be detained without obtaining in accordance with the provisions of sub-cl. (a) of Cl. 4 of Art. 22 of the Constitution the opinion of Advisory Board for a period longer than three months, but not exceeding six months from the date of his detention, where the order of detention has been made against such person with a view to preventing him from smuggling goods or abetting the smuggling of goods, or engaging in transporting or concealing or keeping smuggled goods and the Central Government or any Officer of the Central Government, not below the rank of an Additional Secretary to that Government, specially empowered for the purposes of this section by that Government, is satisfied that such person -


(a) smuggles or is likely to smuggle goods into, out of or through any area highly vulnerable to smuggling; or


(b) abets or is likely to abet the smuggling of goods into, out of or through any area highly vulnerable to smuggling; or


(c) engages or is likely to engage in transporting or concealing or keeping smuggled goods in any area highly vulnerable to smuggling, and makes a declaration to that effect within five weeks of the detention of each person" *


9. In the place of cl. 2 of S. 9 the following cl. (2) was substituted -


"(2) In the case of any person detained under a detention order to which the provisions of sub-section (1) apply, S. 8 shall have effect subject to the following modifications namely :-(i) In cl. (b) for the words 'shall, within five weeks' the words 'shall within four months and two weeks' shall be substituted


(ii) In cl. (c) -


(i) for the words 'detention of the person concerned' the Words 'the continued detention of the person concerned' shall be substituted;


(ii) for the words 'eleven weeks' the words 'five months and three weeks' shall be substituted;


(iii) In clause (f), for the words 'for the detention' at both the places where they occur, the words 'for the continued detention' shall be substituted." *


10. If the substituted S. 9 is applicable to the instant case, as contended by the learned counsel for the respondents, then the enlarged period of five months and three weeks from the date of actual detention would be available for submitting the report by the Advisory Board. However learned counsel for the petitioner contended that on the language, of S. 9 and on a proper interpretation of the provisions, the substituted S. 9 would be applicable only in respect of an order of detention made under the Act on 13th July 1984 or at any time thereafter, but before the 31st day of July 1987.


11. As may be seen from the history of S. 9, the original S. 9 was not applicable and could not have been invoked with reference to any order made subsequent to 31-12-1977, S. 9 being in the nature of a penal provision, it is doubtful as to whether an amendment to the original S. 9 could have been made subsequent to 31-12-1977 giving retrospective operation covering any orders made subsequent to that date. Presumably because of that reason the Amending Act 58 of 1984 did not substitute merely the date 31-7-1987 the place of 31-12-1977, but substituted the entire provision itself, though the substituted provision also is identical with the earlier provision, except for the change in the date. Clause (2) of the substituted section does not in any way affect the construction of cl. (1) of S. 9 itself and it stands independently of cl. (1). Though the words 'in respect of whom an order of detention is made under this Act at any time before 31-7-1987' may possibly include any order made 'at any time' before 31-7-1987, we cannot give such a wide interpretation. If such an interpretation is possible it may amount to giving retrospective operation and making it applicable to orders made between 31-12-1977 and 13-7-1984, though the Act expressly did not cover that period. Whenever it was intended to give a continuity to the provisions of Section 9, it was amended even during the period when it was in force and not after the lapse of the provisions. In fact, we are of the view that the original S. 9 became inoperative on 31-12-1977, and it was in the statute only for the purpose of applying it to those orders made under the Act prior to that date.


12. A somewhat similar question came up for consideration with reference to interpretation of Art. 22(1) of the Constitution in the decision reported in Deodat Rai v. State 52 CrLJ 1251 : 1951 AIR(All) 718). In that case certain persons were ordered to give security for good behaviour and in default to be arrested under S. 3(1) of the Prevention of Crimes (Special Powers) Act (5 of 1959). The orders were made prior to the Constitution came into force. But they were questioned subsequent to the coming into force of the Constitution in petitions under Art. 226 of the Constitution. One of the contentions was that the provision of the Act was ultra vires the provisions of Art. 22 of the Constitution. The detention being in the nature of preventive detention on behalf of the petitioners, Art. 22 invoked. On behalf of the State it was contended that the applicants were arrested and detained under the Act, which provides for preventive detention and individuals had no right to be defended by a legal practitioner and that the right of being defended by a legal practitioner rests in a person who is not only arrested but also detained in custody. It was also contended on behalf of the Government that Art. 22 has no retrospective effect and does not apply to a person who was arrested before 26-1-1950, when the Constitution came into force. This contention of the government was accepted by the Division Bench of the Allahabad High Court on the ground that the words used in Art. 22(1) are 'who is arrested' and not 'who has been arrested. They also observed that the words 'shall be detained' and not 'who has been arrested' and 'shall ...... be denied' used in Art. 22(1) suggested futurity. The provision that the arrested person must be informed of the grounds of arrest as soon as possible was also held to apply only to a person arrested in future, because it cannot be applied to a person who was arrested in the past as it would be impossible to comply with it. The language substituted in S. 9 is also similar. It says 'in respect of whom an order of detention is made under this Act'. If a literal interpretation sought to be placed by the learned counsel for respondents is accepted even with respect to a case where the period prescribed under S. 8(c) was already over, it would be possible to invoke the provisions of S. 9. In fact, if in this case, the petitioner had been arrested on 3-1-1984, itself it could not have been contended by the learned counsel for respondents that after the section was substituted, the matter could have been referred to the Advisory Board and opinion sought though under the provisions then existed on 3-1-1984, the eleven weeks' period would have been over long before the Act 58 of 1984 was contemplated or passed. It may also be mentioned that a declaration under S. 9(1) itself was not possible before 13-7-1984, as the original Section 9 was not in force and a new substituted section came into force only on 13-7-1984. If Section 9 was not applicable with reference to a detention made on 3-1-1984, then we have to look upon Section 8(c). The report should have been received from the Advisory Board eleven weeks from the date of detention. That would be long before the section was substituted. It is not possible to give life to that order of detention when it is already dead by reason of non-compliance of the direction prescribed under S. 8(c). In the circumstances, therefore, we are of the view that the substituted S. 9 could be invoked only with reference to an order of detention passed on 13-7-1984 or subsequently thereafter, but before 31-7-1987. In this case, there is no dispute that if the substituted Section 9 is not applicable the report was not received in time. In fact, the declaration itself was made only on 20-9-1984 under the substituted provision and not under the original S. 9 itself.


13. The decision reported in State

of J. and K. v. Trilokinath Khosa relied on by the learned counsel for the department is not applicable as that related to the conditions of service of a government servant and the retrospective nature of the service rules. 14. We may also refer to the decision in Ashok Kumar v. State of J. and K. where the Supreme Court had held that if the report by the Advisory Board was received after the expiry of the period it must be held that the further detention is invalid. 15. Learned counsel for the respondents relied on the Statement of Objects and Reasons of the Act. We have gone through the same, but we do not think that the Statement of Objects and Reasons are in any way helpful for the interpretation of the provision 16. For the foregoing reasons, we set aside the order of detention and direct the respondents to set the detenu at liberty forthwith. 17. With reference to Art. 134A of the Constitution learned Public Prosecutor and the learned counsel for the department prayed for leave to appeal to the Supreme Court on the ground that there may be other cases in which also the applicability of Section 9 may be involved and an authoritative pronouncement by the Supreme Court is necessary. We are not, however, satisfied that the case involves a substantial question of law of general importance or that the question needs to be decided by the Supreme Court. No conflicting view on this question has been brought to our notice. An interpretation of a provision may not also be considered as a substantial question of law of general importance though it may amount to a question of law. In the circumstances, therefore, we reject this request for leave to appeal to the Supreme Court.