State of Maharashtra
& Ors. Vs. Zubair Haji Qasim  INSC 1107 (11 July 2008)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL No. 1064 of 2008
(@Special Leave Petition (Crl) No.1224 of 2007) State of Maharashtra & Ors.
...Appellants Zubair Haji Qasim ...
CRIMINAL APPEAL NO.1065 of 2008 @ Special Leave Petition (Crl.) No.1975 of 2007
Abu Baker Haji Qasim, the brother of respondent No.1 herein, was placed under
detention after his arrest on 10th September, 2 2005, pursuant to an order of
detention dated 9th September, 2005, issued by the Principal Secretary (Appeals
and Security) to the Government of Maharashtra, specially empowered under
Section 3(1) of the Conservation of Foreign Exchange and Prevention of
Smuggling Activities Act of 1974 (hereinafter referred to as "the COFEPOSA
22nd September, 2005, the said Abu Baker Haji Qasim (hereinafter referred to as
"the detenu") filed Criminal Writ Petition No.2312 of 2005, through
the respondent No.1 herein, before the Bombay High Court for quashing and
setting aside the detention order dated 9th September, 2005. At the same time,
in the proceedings, before the Advisory Board, the detenu made a representation
for permission to be represented in the proceedings through a legal
practitioner. Such representation was, however, rejected by the Advisory Board
on 28th October, 2005, on the ground that under the 3 COFEPOSA Act 1974, a
detenu was not entitled to be represented by a legal practitioner and
consequently it was not necessary to consider such prayer. In fact, the
Advisory Board rejected the prayer made on behalf of the detenu for permission
to be represented by a legal practitioner upon holding that such prayer could
not be considered "for some obvious reasons".
the writ petition came up for hearing, the High Court upon considering the
submissions made on behalf of the respective parties and upon placing reliance
on a Division Bench Judgment of the Bombay High Court in Kekalwa Samuele Kongwa
vs. Union of India [1985 (1) Bom. 742 C.R. 742] allowed the writ petition and
quashed the detention order holding that the prayer of the detenu for
permission to be represented by a legal practitioner was not rejected after
proper consideration but on erroneous grounds. It may not be out of place 4 to
mention that in Kekalwa Samuele Kongwa's case (supra) the Division Bench of the
Bombay High Court held as follows :- "A request made by a detenu for being
represented by a legal practioner must be considered on merits and cannot be
turned down on the ground (i) that the law does not give such a right to the
detenue, or (ii) that it was the practice of the Board not to allow
representation of a detenue by a legal practitioner."
said judgment and order of the Bombay High Court allowing the writ petition and
quashing the detention order is under challenge in this appeal.
the life of the detention order came to an end on 9th September, 2006, Mr.
Adsure, appearing for the appellant - State of Maharashtra, submitted that the
ground on which the High Court had quashed the detention order was erroneous
and was required to be corrected.
to clause (3)(b) of Article 22 of the Constitution, Mr. Adsure submitted that a
person placed under preventive detention was not entitled to be represented by
a legal practitioner before the Advisory Board. In this regard, Mr. Adsure also
referred to Section 8(e) of the COFEPOSA Act, 1974, which reads as follows:-
"8(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
Adsure submitted that both Article 22(3)(b) of the Constitution as well as
Section 8(e) of the COFEPOSA Act, 1974, makes it quite clear that a detenu
under any of the preventive detention enactments would not be entitled to be
represented by a legal practitioner before the Advisory Board.
support of his submissions, Mr. Adsure placed reliance on certain passages from
the decision of this Court in Smt. Kavita vs. State of Maharashtra and Ors.
[1981 (3) SCC 558), where along with certain other questions, the question
relating to a detenu's request for being represented by lawyer before the Advisory
Board in view of the provisions of Section 8(e) of the COFEPOSA Act, 1974, fell
for consideration. In the said case, a similar question arose on account of the
rejection by the Government of the detenu's request to be permitted to be
represented by a lawyer before the Advisory Board. The detenu was informed by
the Government that under the provisions of Section 8(e) of the COFEPOSA Act,
1974, he was not entitled to be represented by a lawyer before the Advisory
Board, and, therefore, it was not possible to grant his request. The
three-Judge Bench, while considering the reply of the State Government,
observed as follows:- 7 "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."
was observed further that without adequate legal assistance the personal
liberty of the detenu guaranteed by Article 21 of the Constitution could be
jeopardized and rendered meaningless. The request by a detenu for legal
assistance would have to be considered on its own merits in each individual
case. However, since in the said case, the detenu had not applied to the
Advisory Board, it was held that it could not be said that the detenu had been
wrongly denied the assistance of counsel. What Mr. Adsure tried to emphasise
was that no legal right vested in the detenu for being allowed to be
represented by a legal practitioner before the Advisory Board.
Adsure also referred to the Constitution Bench decision of this Court in A.K.
Roy vs. Union of India [1982 (1) SCC 271], wherein the questions raised in this
appeal had also been considered in detail in the light of the provisions of the
Maintenance of Internal Security Act, 1971 and the National Security Act and it
was held, with regret, that the detenu had no right to appear through a legal
practitioner in the proceedings before the Advisory Board.
other decisions on the same issue were also referred to by Mr. Adsure in
support of his contention that the order of the High Court quashing the
detention order issued against the brother of respondent No.1, was erroneous
and was liable to be set aside.
behalf of the respondent No.1, the views expressed before the High Court were
reiterated and it was urged that no interference was 9 warranted with the
order of the High Court impugned in the instant appeal.
considered the submissions made on behalf of the respective parties, we are of
the view that the order of the High Court impugned in this appeal does not
warrant interference. In Smt. Kavita's case (supra) on which reliance was
placed by Mr. Adsure, it was also laid down that, although, a detenu has no
right under Section 8(e) of the COFEPOSA Act, 1974, to legal assistance in
proceedings before the Advisory Board, he is entitled to make such a request to
the Board and the Board is bound to consider such request when made.
the instant case, the detenu's prayer for being allowed to be represented by a
legal practitioner was rejected by the Advisory Board upon observing that such
prayer could not be considered "for some obvious reasons". The said
reasoning runs counter to the decision of 10 this Court in Smt. Kavita's case
(supra) and cannot, therefore, be sustained. The decision of the Division Bench
of the Bombay High Court, relied upon by the High Court in quashing the
detention order, says much the same thing as has been stated by this Court in
Smt. Kavita's case (supra) and also in the case of Nand Lal Bajaj vs. State of
Punjab [1981 (4) SCCF 327]. It is quite clear that while rejecting the detenu's
representation the Advisory Board took refuge in vague verbiage without really
applying its mind as it was required to do, to the merits thereof.
of a citizen under any of the preventive detention enactments is a serious and
severe invasion on the Fundamental Rights guaranteed to citizens under Articles
19 and 21 of the Constitution. Recognising such detention to be an evil
necessity, various safeguards have been placed at different stages of the
detention proceedings to ensure that 11 such powers were not used
indiscriminately to settle scores or to short-circuit the process of
investigation and trial of an alleged offence. In Smt. Kavita's case (supra)
and also in Nand Lal Bajaj's case (supra) this Court held that even if the
detenu had no right to appear through a legal practitioner in the proceedings
before the Advisory Board he was entitled to make a representation for the
services of a lawyer to appear before the said Board which was under an
obligation to consider the same dispassionately in the facts of the particular
case. The representation made by a detenu for legal assistance before the
Advisory Board, has, therefore, to be considered not perfunctorily, as has been
done in this case, but with due application of mind, since in each case of
detention the liberty of an individual is involved.
therefore, see no reason to interfere with the judgment and order of the High
Court 12 impugned in this appeal and the appeal is accordingly dismissed.
judgment would also govern Criminal Appeal NO._______ (@ Special Leave Petition
(Criminal) No.1975 of 2007) titled State of Maharashtra vs. Sheetal Manoj Gore.