Smt. Asha Keshavrao Bhosale Vs. Union of
India & ANR [1985] INSC 222 (4 October 1985)
MISRA RANGNATH MISRA RANGNATH PATHAK, R.S.
CITATION: 1986 AIR 283 1985 SCR Supl. (3) 252
1985 SCC (4) 361 1985 SCALE (2)634
CITATOR INFO: D 1987 SC2377 (9) D 1990 SC 231
(18)
ACT:
Conservation of Foreign Exchange &
Prevention of Smuggling Activities Act 1974, sections 3(1) and 9.
Detenu assailing order of detention - Delay
in consideration of representation by Government - Advisory Board rejecting
request of detenu for representation by counsel or non-lawyer friend -
Detention order Whether liable to be quashed - Court not to test adequacy of
material on which satisfaction of detaining authority is based.
HEADNOTE:
The petitioner's husband was detained by an
order dated November 20, 1984 under Section 3(1) of the Conservation of Foreign
Exchange & Prevention of Smuggling Activities Act, 1974 on the ground, that
contraband articles alleged to be worth more than 1/2 crore of rupees had been
received on the sea-shore at the back of Raj Bhavan, Bombay, that access to
this place was only through the Raj; Bhavan, and that he had asked an employee
of the Raj Bhavan compound for the purpose of transporting the contraband
articles.
The petitioner in her writ petition to this
Court assailed the order of detention as also the subsequent declaration dated
December 12, 1984 under section 9 of the Act. Earlier the petitioner had
challenged the detention order by filing a writ petition before the High Court
but the same was dismissed.
It was contended on behalf of the petitioner
that:
(1) the petitioner made a representation
against the detention of her husband on November 24, 1984 and it was received
in the Secretariat of the Chief Minister on November 28, 1984 and that it was
not disposed of till January 28, 1985 and that this delay in disposal vitiated
the detention and the detenu became entitled to be set at liberty by the
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 253 alleged transaction of transporting the contraband materials
and A the detenu is said to have been established by a statement made by an
employee of Raj Bhavan to the effect that the Detenu had asked him to allow the
truck to enter into the Raj Bhavan premises. (3) The grounds of detention
disclose that the detaining authority had relied upon the contact between the
detenu and another person, and the source of information for ascertaining the
existence of this relationship was as intelligence report, and that 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.
Dismissing the writ petition, ^
HELD: l. The petitioner had made a
representation and the same was received in the office of the Chief Minister on
November 28, 1984 and orders were passed thereon on January 28, 1985. There was
also another representation made on behalf of the detenu by the Khed Taluka
Maratha Seva Sangh, and this representation was a detailed one and this was
received in the Secretariat on November 29, 1984 and finally disposed of on
December 12, 1984. The High Court looked into the two representations one made
by the Sangh and the other by the petitioner and having regard to the manner in
which the Sangh's representation had been disposed of, held 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.
The petitioner is not entitled therefore to
make any submission on the score of delay in disposal of the representation.
[258 B-F]
2. 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 was up to the detaining authority in the instant
case, to accept the statement made by the employee of Raj Bhavan about the link
between the detenu and the receipt of the contraband articles and the bundle of
facts relating thereto. [259 F]
3. In the instant case, no privilege against
disclosure of source as well as contents of the information was claimed.
Adequate material had been disclosed and no prejudice appears to have been
caused for want of further disclosure of the intelligence report. The exact
information received from the 254 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. [260 H - 261 B]
Wesi Uddin Ahmed v. District Magistrate, Aligarh, [1981] 4 S.C.C. 521.,
distinguished.
4. The Advisory Board mate 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.
The detenu was not prejudiced in mocking 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 before the Advisory Board. [262 - 263 B] A.K. Roy v. Union of India,
[1982] 2 S.C.R. 272, referred
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 255 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:
256 "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 257 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 258 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 259 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 COFEPOSA.......
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 :
260 "..... 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 261 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 :
262 "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 263 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.
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