CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.232 of 1987.
From the Judgment and order dated 23.2.1987 of the Madras High Court in W.P. No.6290 of 1986.
K.K. Venugopal, C.S. Vaidyanathan, Probir Chowdhry, S.R. Bhatt and S.R. Setia for the Appellant.
M.M. Abdul Khader and A.V. Rangam for the Respondent.
The Judgment of the Court was delivered by
RANGANATH MISRA, J. This appeal is by special leave. Appellant challenged his order of detention under section 3(1)(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA for short) by filing a writ petition before the High Court and that application, has been dismissed. As many as six contentions had been advanced before the High Court. Though raised in the writ petition, the point relating to denial of a fair hearing before the Advisory Board has not been noticed by the High Court as a contention on behalf of the appellant, but counsel for the appellant has raised the same point before this Court and since the facts on which the ground is raised are not in dispute we find no objection to entertaining this contention now specifically raised in this appeal.
The hearing of the representation of the appellant by the Advisory Board was fixed for 25th November, 1986. On that day the appellant had specifically requested the Advisory Board to permit one Mr. Sundararajan, a retired Assistant Collector of Central Excise to assist him as a friend. The Board, as appears from the counter affidavit filed in this Court, turned down the request. The counter affidavit states:-
"The Advisory Board has given its finding in
rejecting the detenu’s request for assistance of a
friend, namely, Mr. Sundararajan in paragraphs 2
and 3 of its report sent to the Government. The
Advisory Board has stated in paragraph 2 that the
detenu filed a petition requesting the assistance
of Mr. Sundararajan, a retired Assistant Collector
of Customs. The Advisory Board has stated in para-
graph 3 that Mr. Sundararajan has appeared before
it and had stated that he was formerly employed in
the customs department and he would like to assist
the detenu. In the same paragraph, the Advisory
Board has also stated that it was admitted by Mr.
Sunderarajan before the Advisory Board that he is
not a friend of the detenu and because of his
professional experience he liked to help the
detenu. In the same paragraph the Advisory Board
has given its findings and reasons for rejecting
the request of the detenu on the ground that Mr.
Sundararajan not being a friend of the detenu, the
Advisory Board did not consider it proper to allow
him to represent the case of the detenu." H It is thus clear from the allegations in the special leave petition and the counter affidavit that the appellant had requested the Board to allow him the assistance of a friend at the hearing and for the reasons and in the manner indicated in the counter affidavit the request was turned down.
In paragraph 9 of the special leave petition the appellant had alleged that on 25th November, 1986, the detaining authority was represented by customs officers of the rank of Deputy Collector of Customs and Superintendent. In the counter affidavit filed before this Court there has been no denial of this fact. Learned counsel appearing for the respondent did not dispute the allegation on the basis of the record as also the papers available with him that the department was represented at the hearing before the Advisory Board by a Deputy Collector of Customs. The position, therefore, is that on 25th November, 1986 while the detaining authority was assisted by a Deputy Collector and a Superintendent of Central Excise the detenu was denied the assistance of a retired Assistant Collector of Central Excise. On the recommendation of the Advisory Board, the detention order was confirmed.
The appellant is a clearing and forwarding agent at Madras and is said to be a young man aged around 26 or 27 years. The case before the Board involved certain facets which require acquaintance with the legal provisions and the procedure and practice adopted by the customs authorities. It is the case of the appellant that he was not very much acquainted with them and that is why he had sought the assistance of Sundararajan and even brought him before the Board that day. In the facts of the case we are not in a position to reject the contention that if Sundararajan had been permitted to assist the appellant his case would have been better placed before the Advisory Board.
In the premises indicated above, two aspects have to be examined-( 1) whether the appellant was entitled to the assistance of Sundararajan as a friend; and (2) whether when the detaining authority was assisted by a Deputy Collector and a Superintendent of Central Excise, was the request of the appellant to be assisted by a retired Assistant Collector of Central Excise unjust and should the same had been refused? A two-Judge Bench of this Court in Nand Lal Bajaj v. State of Punjab, [ 1982] 1 SCR 718 was considering the question of legal assistance for the detenu before the Advisory Board. It referred to the decision of this Court in the case of Smt. Kavita v. State of Maharashtra, [1982] 1 SCR 138 where Chinnappa Reddy, J. made the following observation:
"It is true that while section 8 (e)
disentitles a detenu from claiming as of right to
be represented by a lawyer, it does not disentitle
him from making a request for the services of a
lawyer." The learned Judge further stated:-
"As often than not adequate legal assistance
may be essential for the protection of the
Fundamental Right to life and personal liberty
guaranteed by Article 21 of the Constitution and
the right to be heard given to a detenu by section
8(e), COFEPOSA Act." It was further observed by Reddy, J. :-
"Therefore, where a detenu makes a request
for legal assistance, his request would have to be
considered on its own merit in each individual
case. In the present case, the Government merely
informed the detenu that he had no statutory right
to be represented by a lawyer before the Advisory
Board. Since it was for the Advisory Board and not
for the Government to afford legal assistance to
the detenu the latter, when he was produced before
the Advisory Board, could have, if he was so
minded, made a request to the Advisory Board for
permission to be represented by a lawyer." Sen, J. in Nand Lal’s case (supra) observed:
"...... while the detenu was not afforded
legal assistance, the detaining authority was
allowed to be represented by counsel. It is quite
clear upon the terms of sub-section (4) of section
11 of the Act that the detenu had no right to
legal assistance in the proceedings before the
Advisory Board, but it did not preclude the Board
to allow such assistance to detenu, when it
allowed the State to be represented by an array of
lawyers." A Constitution Bench of this Court in A.K. Roy etc. v. Union of India & Anr., [1982] 2 SCR 272 dealt with this aspect. Chandrachud, CJ, speaking for the Court stated:
"We must therefore, held, regretfully though,
that
the detenu has no right to appear through a legal
practitioner in the proceedings before the
Advisory Board. It is, however, necessary to add
an important caveat. The reason behind the
provisions contained in Article 22(4)(b) of the
Constitution clearly is that a legal practitioner
should not be permitted to appear before the
Advisory Board for any party. The Constitution
does not contemplate that the detaining authority
or the Government should have the facility of
appearing before the Advisory Board with the aid
of a legal practitioner but that the said facility
should be denied to the detenu. In any case, that
is not what the Constitution says and it would be
wholly inappropriate to read and such meaning into
the provisions of Article 22. Permitting the
detaining authority or the Government to appear
before the Advisory Board with the aid of a legal
practitioner or a legal adviser would be in breach
of Article 14, if a similar facility is denied to
the detenu. We must therefore make it clear that
if the detaining authority or the Government takes
the aid of a legal practitioner or a legal adviser
before the Advisory Board the detenu must be
allowed the facility of appearing before the Board
through a legal practitioner. We are informed that
officers of the Government in the concerned
departments often appear before the Board and
assist it with a view to justifying the detention
orders. If that be so, we must clarify that the
Boards should not permit the authorities to do
indirectly what they cannot do directly; and no
one should be enabled to take-shelter behind the
excuse that such officers are not "legal
practitioners" or legal advisers. Regard must be
had to the substance and not to the form since,
especially, in matters like the proceedings of
Advisory Boards, whosoever assist or advises on
facts of law must be deemed to be in the position
of a legal adviser. We do hope that Advisory
Boards will take care to ensure that the
provisions of Article 14 are not violated in any
manner in the proceedings before them .. ". Learned counsel for the respondent does not dispute that what has been stated above is the law applicable to the facts of this case. We have already found that the detaining authority had the assistance of the Deputy Collector of Central Excise and a Superintendent of Central Excise. In the words of Chandrachud, CJ, "they play the role of legal advisers". The Board had no justification to refuse assistance of Sundararajan to the appellant in such circumstances.
The rule in A. K. Roy’s case (supra) made it clear that the detenu was entitled to the assistance of a ’friend’. The word ’friend’ used there was obviously not intended to carry the meaning of the term in common parlance. One of the meanings of the word ’friend’, according to the Collins English Dictionary is "an ally in a fight or cause; supporter". The term ’friend’ used in the judgments of this Court was more in this sense than meaning ’a person known well to another and regarded with liking, affection and loyalty.’ A person not being a friend in the normal sense could be picked up for rendering assistance within the frame of the law as settled by this Court. The Advisory Board has, of course, to be careful in permitting assistance of a friend in order to ensure due observance of the policy of law that a detenu is not entitled to representation through a lawyer. As has been indicated by this Court, what cannot be permitted directly should not be allowed to be done in an indirect way. Sundararajan, in this view of the matter, was perhaps a friend prepared to assist the detenu before the Advisory Board and the refusal of such assistance to the appellant was not justified. It is not for this Court to examine and assess what prejudice has been caused to the appellant on account of such denial. This Court has reiterated the position that matters relating to preventive detention are strict proceedings and warrant full compliance with the requirements of law.
In view of the position of law and the facts of the case, we must hold that the refusal by the Advisory Board to permit the appellant to be assisted by Sundararajan as a friend was bad and continued detention of the appellant became vitiated. Accordingly, this appeal is allowed and the order of detention is quashed. The appellant is directed to be set at liberty forthwith. P.S.S. Appeal allowed.