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Criminal Lawyer: The opinion of Advisory Board u/s 8(b) of COFEPOSA Act in favour of detenu cannot be challenged by UOI; SC.

Supreme Court of India

Justice U U Lalit and Justice R. Subhash Reddy

The SC { UNION OF INDIA v. NISAR PALLATHUKADAVIL ALIYAR } holds that 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 is neither judicial nor quasi judicial. 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 the SC in the cases, that is, Dharam Singh Rathi, Akshoy Konai, A.K. Roy and Calcutta Dock Labour Board.

It was held that 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. It was held that 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 further held 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.

It was held that in view of the earlier decisions of SC, the present petition seeking to challenge the Opinion dated 22.07.2019 of the Advisory Board is not maintainable before the SC. In the present case, on 22.07.2019 the Advisory Board found that there was no sufficient cause for the continued detention of the respondent detenu and rendered its Opinion. The petitioner / UOI being aggrieved has filed the present Petition for Special Leave to Appeal against the aforesaid Opinion of the Advisory Board before the SC - which stands dismissed as not maintainable. It was held that the order of the Board is neither judicial nor quasi judicial, therefore, the challenge thereto does not lie under Article 136 to the SC.

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