ORIGINAL JURISDICTION : Writ Petition (Crl.) No. 1107 of 1985.
(Under Article 32 of the Constitution of India)
Ram Jethmalani, Ms. Rani Jethmalani and Ms. Madhusoodanan for the Petitioner.
O.P. Rana, M.N. Shroff, C.V. Subba Rao and R.N. Poddar for the Respondents.
The Judgment of the Court was delivered by
RANGANATH MISRA, J.The Petitioner, the wife of a detenu under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (’Act’ for short), in this application under Article 32 of the Constitution assails the order of detention as also the subsequent declaration under section 9 of the Act. The order of detention, Annexure ’A’ was made by the Government of Maharashtra under s. 3(1) of the Act on November 20, 1984. The order directed his detention in the Bombay Central Prison at Bombay for one week from the date of detention and in Nasik Road Central Prison thereafter. On the same day the grounds of detention were also served on the detenu. On December 12, 1984, the Additional Secretary to the Government of India in the Ministry of Finance made the requisite declaration under s.9(1) of the Act, Annexure ’B’.
Petitioner, at the instance of the detenu, made a representation to the Chief Minister on November 24, 1984, against the detention and the said representation was received in the office of the Chief Minister on November 28, 1984. This representation was rejected on January 28, 1985, two months after its receipt as alleged by the petitioner. Detenu appeared before the Advisory Board on April 17, 1985. When he appeared before the Board he asked for the assistance of a lawyer or alternatively of a non-lawyer friend. The request was not acceded to and the Board made an adverse report to the State Government. The petitioner had challenged the detention of her husband by filing a writ petition before the Bombay High Court being Criminal Writ Petition No. 50 of 1985. By judgment dated April 29, 1985 the High Court dismissed the said petition. This writ application has thereafter been filed in July 1985 for the reliefs indicated already. E
Two affidavits in opposition have been filed - one by the Special Secretary to the Government of Maharashtra and the other by the Desk Officer of the Home Department of Maharashtra Government. The Special Secretary in his affidavit explained the basis of his satisfaction regarding the necessity to detain the detenu and the reasons for which the declaration under s. 9(1) was later made. He also explained in answer to specific allegations contained in the writ petition that there was no separate intelligence report which had been placed before him and/or taken into consideration in making of the order of detention. In the other counter affidavit, apart from indicating the justification for detention, reference was made to the petitioner’s representation against the detention made to the Chief Minister. It has been pointed out that the order was dated January 23, 1985, and the reasoning adopted by the Bombay High Court in regard to the delay in disposal of the representation has been adverted to. Reference has also been made in regard to the detenu’s request for representation by a lawyer or alternatively a non-lawyer friend. Dealing with that aspect, the affidavit indicates:
"I say that in his representation, which was
handed over to the Advisory Board, the detenu
asked to be represented by a lawyer or otherwise
by his next friend. I say that the Advisory Board,
after considering the detailed representation made
and after talking to the detenu, came to the
conclusion that since the detenu was in good
health and also that he has studied upto 8th
standard in Khambala Hill Municipal School and
thereafter in Social High School and since he was
the owner/part owner, manager of number of
business enterprises and he has been active in
politics, there was no necessity for permitting
the detenu to have his case represented through
the lawyer. These facts were mentioned by the
Advisory Board to the detenu. I say that whenever a request is made by the detenu to have his case represented through his friend, such a request has invariably been granted and he is always allowed to represent his case by his next friend who is not a lawyer. I say that the Advisory Board had informed this to the detenu and asked the detenu whether he had brought any friend with him Since the Board always permits the detenu to be assisted by his next friend. I say that the detenu replied that he had not brought any friend to represent his case. I say that the fact that the detenu had not brought any friend despite the request made in the representation, is noted in the Minutes which are regularly kept by the Chairman, Advisory Board."
On more or less similar allegations the Bombay High Court had been moved for quashing of petitioner’s husband’s detention. The High Court examined the contention at great length and ultimately concluded that on the facts of the case continued detention of the petitioner’s husband was not vitiated.
Though raised in the writ application the challenge against the declaration under s. 9(1) of the Act has not been canvassed at the hearing by Mr. Jethmalani appearing for the petitioner. It was stated to us that the challenge to the vires of the section is pending before this Court for consideration by a larger Bench and as the petitioner is anxious to have her writ petition disposed of expeditiously, petitioner does not press the relief against the declaration and would remain content by confining the challenge to the order of detention. In view of counsel’s statement and in the circumstances stated, we proceed to consider A the challenge to the order of detention, Annexure ’A’ without entering into controversy over the vires of the section. Four points have been raised by Mr. Jethmalani in support of his stand that the detenu’s detention is bad :
1. Petitioner made a representation against the
detention of her husband on November 24, 1984, and it
was admittedly received in the Secretariat of the Chief
Minister on November 28, 1984. It, however, was not
disposed of till January 28, 1985. The delay vitiates
the detention and the detenu became entitled to be set
at liberty by quashing of the order;
2. The order of detention is liable to be set aside
inasmuch as it has been made without proper application
of mind. The link between the alleged transaction and
the detenu is said to have been established by a
statement made by one Sabnis to the effect that the
detenu had asked him to allow the truck to enter into
the Raj Bhavan premises with a view to transporting the
contraband materials clandestinely received there;
3. The grounds of detention disclose that the
detaining authority had relied upon contact between the
detenu and one Yusuf Herro and the source of
information for ascertaining the existence of
relationship was described as intelligence report. The
same had not been furnished to the detenu;
4. The detenu had been prejudiced in the hearing by
the Advisory Board as his request for representation by
counsel or by a non-lawyer friend had not been
entertained by the Board. This, it is alleged, affected
the guarantee of limited defence available to d detenu
as held by this Court in A.K. Roy v. Union of India,
[1982] 2 S.C.R.272.
Two of these grounds had been clearly raised before the High Court but the Court was not impressed with these submissions and, therefore, dismissed the petition. The petitioner has not chosen to come in appeal against the decision of the High Court and relying upon some observations of this Court in a case of this type, a writ petition has been filed in this Court under Article 32 of the Constitution. As objection to the maintainability of the writ petition has not been raised at the hearing by counsel for the opposite parties, we are not examining the question of maintainability of this application and propose to deal with the submissions made on behalf of the petitioner.
It is a fact that a representation was made by the petitioner on behalf of the detenu which was received in the office of the Chief Minister on November 28, 1984, and Mr. Jethmalani has accepted the position that orders on the representation were passed on January 2, 1985, and the said orders were received on January 28, 1985. In the representation made by the petitioner to the Chief Minister, the order of detention was casually impugned but lot of attention appears to have been bestowed on the necessity of keeping the detenu in a Bombay Jail instead of sending him to Nasik Road Prison as directed in the order of detention. A detailed representation was made by Secretary, Khed Taluka Maratha Seva Sangh challenging the detention. It appears that the detenu belonged to the Khed Taluka and his case was espoused by the Sangh. It is not disputed before us that the said representation was received on November 29, 1984, in the Secretariat of the Chief Minister and was forwarded to the Home Department on December 3, 1984, and was finally disposed of on December 12, 1984, and the rejection thereof was communicated on December 13, 1984. This representation was a detailed one and on a due consideration thereof the representation had been expeditiously disposed of. The High Court looked into the two representations - one made by the Sangh and the other by the petitioner and on considering the contents thereof and the manner in which the Sangh’s representation had been disposed of, came to hold that the representation made by the petitioner was a second one on the same score and delay in disposing of that representation did not really prejudice the detenu’s case. On the facts and circumstances appearing in the record and as found by the High Court, we are inclined to agree with the submission made before us that the petitioner is not entitled to make any tenable submission on the score of delay in disposal of the representation.
In paragraph 3(H) of the writ petition petitioner alleged:
"That the detention of the detenu is based on the
statement of a self-confessed accomplice one
Sabnis who claims that it was the detenu who had
told him to allow the truck to enter the Raj
Bhavan. The detaining
authority is aware that on such flimsy material it
is A impossible to get a conviction in a regular
Court of law. The detaining authority has failed
to apply its mind to this aspect of the matter." In the return made by the Special Secretary to Government of Maharashtra, it has been averred :
’With reference to para 3(H), I say that I was
aware that prosecution against the detenu and his
co-detenus were under contemplation yet I have
come to the conclusion that departmental
adjudication and prosecution proceedings under
Customs Act, were not sufficient to prevent the
detenu from indulging in criminality in future
considering the role of the detenu and the
attending circumstances. Moreover, the prosecution
under Customs Act cannot overlap action under
It is interesting to note that the contraband articles alleged to be worth more than l/2 crore of rupees had been received on the sea-shore at the back of the Raj Bhavan of Bombay. Access to this place was only through the Raj Bhavan. Sabnis was an employee of the Raj Bhavan at the relevant time and the detenu had asked Sabnis to allow the truck to enter into the Raj Bhavan compound for the purpose of transporting the contraband articles. It was up to the detaining authority to accept the statement of Sabnis and to be satisfied that such statement provided the link between the detenu and the receipt of the contraband articles and the bundle of facts relating thereto. This satisfaction under the law is subjective and it is not for the Court to test the adequacy of the material on which satisfaction is reached. It is quite possible as suggested in the writ application and reiterated in the submission of learned counsel that at a trial conviction may not have been secured on the basis of the statement of Sabnis. But that argument is not available for challenging an order of detention if the satisfaction of the detaining authority has been reached on bona fide basis. We do not think there is any force in this submission advanced on behalf of the petitioner and, therefore, attack on that ground has to be rejected.
The third submission advanced by counsel is a reiteration of the allegation in paragraph 3(I) of the writ petition. There it was all eged :
"..... the grounds of detention disclosed that the
detaining authority has relied upon some alleged
contact between the detenu and one Yusuf Herro. In
para 12 of the grounds of detention, the detaining
authority states : ’Intelligence gathered reveals
that the main person behind the said smuggling
racket is one Yusuf Herro. Since he has figured in
many big cases detected by the Customs Deptt. his
photograph was available with the Customs
Department.’ The grounds of detention then
continue to allege that the detenu was in the
company of this Yusuf Herro on the 16th October,
1984, as stated by Sabnis in his statement of
22.10.84. It was incumbent under these
circumstances on the detaining authority to
disclose the role of Yusuf Herro in the smuggling
in hand, as well as, his involvement in other big
cases. No privilege was claimed in respect of this
material. Under the circumstances, there has been
a failure to comply with Article 22 of the
Constitution and the petitionr’s constitutional
rights have been violated.’ In the return of the Special Secretary it has been stated :
"....I say that it was not necessary to supply the
copy of the intelligence report. I say that as a
matter of fact, no independent intelligence report
was ever placed before me and I have neither
referred to nor relied upon the said report. I say
that It is a fact that the detenu was engaged In
criminal activity with Yusuf Herro and was In his
company, which fact his co-accused Sabnis has
brought to light in his confessional statement
dated 22nd October 1984 recorded by the Customs
under section 108 of the Customs Act.
Before the High Court this submission had been pressed into service and the High Court found no force in the point relying upon a decition of this Court in Wasi Uddin Ahmed v. District Magistrate, Aligarh, L1981] 4 S.C.C. 521. That was a case, as rightly indicated by Mr. Jethmalani, where privilege had been claimed against disclosure of the source as also the contents of the information. In view of the privilege claimed this Court took the view that supply of intelligence report of secret nature cannot be insisted upon and non-disclosure of such information does not provide a basis for challenging the detention. In this case no privilege was claimed. On the facts we are, however, satisfied that adequate material had been disclosed and no prejudice appears to have been caused for want of further disclosure. It may be that the exact information received from the intelligence source had not been made available to the petitioner or placed on record but sufficient material with reference to the intelligence report had been made available. In that view of the matter, we also find no force in this submission.
We now proceed to examine the last contention. In paragraph 3(J), petitioner alleged :
"That, on the 17th April, 1985, the detenu
appeared before the Advisory Board. He handed
over to the Advisory Board his written
representation containing a prayer that the
detenu be allowed to be represented by a
lawyer, and in the alternative, by a non-
lawyer friend or a relative. These requests
were not considered by the Advisory Board and
were not disposed of as are required to be
done by Judgments of this Hon’ble Court.
Under the circumstances, the hearing before
the Advisory Board was not in accordance with
the law, the detention continued detention is
invalid." This aspect has been dealt with in the counter-affidavit of Mokal, Desk Officer of Home Department of the Government of Maharashtra and the relevant paragraph has already been extracted by us earlier. Ordinarily, in cases of this type representation by lawyer is not allowed. In A.K. Roy’s case this Court indicated:
"Thus, according to the express intendment of
the Constitution itself, no person who is
detained under any law, which provides for
preventive detention, can claim the right to
consult a legal practitioner of his choice or
to be defended by him. Ia view of this, it
seems to us difficult to hold, by the
application of abstract general principles or
on a priori considerations, that the detenu
has the right of being represented by a legal
practitioner in the proceedings before the
Advisory Board." No grievance, therefore, can be made on the score that the Advisory Board had not permitted the detenu to be represented by counsel. While reiterating the position, the learned Chief Justice stated :
"We must, therefore, hold regretfully though,
that the detenu has no right to appear
through a legal practitioner in the
proceedings before the Advisory Board.
The Court further added :
"Another aspect of this matter which needs to
be mentioned is that the embargo on the
appearance of legal practitioners should not
be extended 90 as to prevent the detenu from
being aided or assisted by a friend who, in
truth and substance, is not a legal
practitioner. Every person whose interests
are adversely affected as a result of the
proceedings which have a serious import, is
entitled to be heard in those proceedings and
be assisted by a friend. A detenu, taken
straight from his cell to the Board’s room,
may lack the ease and composure to present
his point of view. He may be ’tongue-tied,
nervous, confused or wanting in intelligence’
(see Pest v. Greyhound Racing Association
Ltd. [1969] 1 W.B. 125), and if justice is to
be done, he must at least have the help of a
friend who can assist him to give coherence
to his stray and wandering ideas.
Incarceration makes a man and his thoughts
dishevelled. Just as a person who is dumb is
entitled, as he must, to be represented by a
person who has speech, even so, a person who
finds himself unable to present his own case
is entitled to take the aid and advice of a
person who is better situated to appreciate
the facts of the case and the language of the
law."
It is on these observations of the learned Chief Justice that reliance has been placed by Mr. Jethmalani to contend that denial of representation by a friend has affected due representation of the petitioner’s case before the Advisory Board. It is the case of the State that the Advisory Board made inquiries from the detenu as to whether he had a friend available on the date of hearing to represent him and it appeared that no such person had been called by the detenu to the place of hearing. The Board was not inclined to adjourn the matter. The Board talked to the detenu and ascertained that the detenu was worldly wise, was sufficiently educated and did not suffer from any deficiency and was in a fit condition to represent his case. The rule to be applied is one of prejudice and in the facts of the case we are inclined to agree with Mr. Rana for the State that the detenu was not prejudiced in making an effective representation of his case at the hearing by the Advisory Board in the absence of a friend. There are cases where the affected person is in a better position than anyone else to place his case and in the facts and circumstances available on record, we are inclined to agree with Mr. Rana that the detenu’s is one such.
Since all the four submissions advanced by Mr. Jethmalani on behalf of the petitioner are rejected, this writ petition has to fail. We accordingly dismiss it. N.V.K. Petition dismissed.