Harbans Lal V. M.L. Wadhawan & Ors
[1986] INSC 255 (4 December 1986)
KHALID, V. (J) KHALID, V. (J) PATHAK, R.S.
CITATION: 1987 AIR 217 1987 SCR (1) 425 1987
SCC (1) 151 JT 1986 960 1986 SCALE (2)925
ACT:
Section 3(1) and 8--Detenu--Right of--To lead
evidence in rebuttal of allegations against him before Advisory Board-- To
choose between affidavit evidence and oral evi- dence.
HEADNOTE:
The petitioner's son was detained under s.
3(1) of the COFEPOSA Act, 1974 pursuant to a detention order passed on March
31, 1986. He was found in possession of a large quan- tity of contraband goods
worth over Rs. 21 lacs, hidden in his premises, which he had brought from
Hongkong.
On April 29, 1986, before the Advisory Board
the detenu wanted to prove that the premises in which the contraband goods were
found was not in his possession and in support thereof he wanted to examine
five witnesses, who were present when the matter was being heard by the
Advisory Board. The Board declined to examine the witnesses, but permitted the
detenu to produce their affidavits. Since it was net possible to secure the
affidavits, on the next hearing date, an application was made for their
examination, but the Board decline this request and forwarded its pro- ceedings
to the Central Government who confirmed the deten- tion order.
The detenu filed a petition under Article 226
of the Constitution challenging the detention order. The High Court dismissed
the petition holding that the witnesses were not required under the law to be
subjected to crossexamination, that the Advisory Board was right in suggesting
to file the affidavits of the witnesses, that the plea that the witness- es
declined to file their affidavits was flimsy and without any valid reason, that
the plea that evidence in the shape of affidavits is an inferior type of
evidence hardly de- serves any worthwhile consideration, that if on perusal of
the affidavits the Advisory Board considered to call any of the deponents it
could have been done and that it cannot be said that the detenu was deprived of
his right of defence before the Advisory Board.
In the Special Leave Petition and the Writ
Petition before this Court on behalf of the detenu it was contended (i) that
the Advisory Board acted in violation of law in denying the detenu his right to
examine witnesses in rebut- tal, who were readily available and present on the
dates of hearing; (ii)that the 426 Advisory Board was bound under law to send
the entire re- cords of the proceedings to the Central Government for applying
its mind before making the order of confirmation;
and (iii)that the Central Government, in this
case, was not informed about the presence of five witnesses before the Advisory
Board, ready to be examined and the Board's refusal to record their evidence.
Allowing the petitions, the Court,
HELD: 1. The Advisory Board committed an
error in law in denying to the detenu the fight to examine the witnesses,
rendering his continued detention bad. The detention order is quashed, the
judgment of the High Court set aside and the detenu directed to be released
forthwith. [434 E-F]
2. The "trinity of rights"
available to the detenu before the Advisory Board are: (i) the fight of legal
repre- sentation; (ii)the right of crossexamination; and (iii)the right to
present his evidence in rebuttal. [429 E-F]
3. The law recognises the right in a detenu
to lead evidence in rebuttal of the allegation against him before the Advisory
Board. All that is necessary is that the detenu should keep the witnesses ready
for examination at the appointed time. There is no obligation cast on the
Advisory Board to summon them. The Advisory Board is competent to regulate its
own procedure within the constraints of the Constitution and the statute and
this procedure is referable to the time limit within which the Advisory Board
must complete its inquiry. [430 D-E]
4. The right to adduce oral evidence by
examining wit- nesses is a right available to a detenu under the decision of
this Court in A. K. Roy's case 1982, 2 S.C.R. 272 and this should be deemed to
be incorporated in the statute dealing with detention without trial. Therefore,
the right in a detenu to adduce oral evidence in rebuttal being a right in the
nature of Constitutional safeguard embodied in Article 22(5) of the
Constitution as construed by this Court in A.K. Roy's case (supra) has
necessarily to be read into section 8(b) and (c) of the COFEPOSA Act. If this
right is denied to a detenu, the necessary consequence must follow.
[430 G, 431C] A.K. Roy v. Union of India,
[1982] 2 S.C.R. 272 and Narendra Purshotam Umrao v. B.B. Gujral& Ors.,
[1979] 2 S.C.C. 637, followed.
5. Article 22(7)(e) enables Parliament to
prescribe by law the procedure to be followed by an Advisory Board in an
inquiry under Article 22(4)(a). Section 8 of the COFEPOSA Act is sequel to this
prescription. There is nothing in s. 8 prohibiting oral evidence of witnesses
tendered by a detenu being taken. The 427 concept of inquiry by the Advisory
Board takes within its ambit this aspect of 'hearing' also. [431 D]
6. The High Court was wrong in saying that
the witnesses were not required under law to be subjected to cross-exami-
nation "admittedly". This Court has only laid down that witnesses on
behalf of the detaining authority cannot be cross-examined by the detenu. It
has nowhere been held that the witnesses on behalf of the detenu produced in
rebuttal of the allegation against him cannot be cross-examined.
Cross-examination of such witnesses has to be
by the detain- ing authority and that right cannot be denied to them.
7. Unless there is any legal bar for oral
evidence of the detenu being adduced before 'the Advisory Board it should be
left to the detenu to choose between affidavit evidence and oral evidence
subject of course to the rigorous limitation placed upon this right relating to
constraints of time [433 C]
8. In the instant case in deying the right to
examine witnesses present before the Advisory Board, the Board acted in
violation of the law. [433 D]
9. The complaint that the report of the
Advisory Board did not contain all the necessary information regarding the
availability of the witnesses on 29.4.1986 and 1.5.1986, the readiness of the
detenu to examine them, rejection of the requests to examine them and directing
instead filing of the affidavits cannot be said to be wholly unjustified. [434
D]
10. The Central Government is under an
obligation to apply its mind to the entire material before Confirming the order
of detention.
CRIMINAL APPELLATE JURISDICTION Special Leave
petition (Criminal) No. 2466 of 1986 From the Judgment and Order dated
26.8.1986 of the Delhi High Court in Crl. Writ No. 170 of 1986.
and Writ Petition (Criminal) No. 530 of 1986
(Under Article 32 of the Constitution of India) Ram Jethmalani, A.K. Sharma and
Ms. Rani Jethmalani for the Petitioner.
428 V.C. Mahajan, A.S. Rao, Ms. Halida Khatun
and C.V. Subba Rao for the Respondents.
The Judgment of the Court was delivered by
KHALID, J. The Special Leave Petition is directed against the Judgment dated
26.8.1986 of a Single Judge of the Delhi High Court in Criminal Writ No. 170/86
filed by Shri Harbans Lal father of the detenu Om Prakash. The Writ Petition is
also by the same person. Both these matters are being disposed of by this
common Judgment. Special Leave granted.
The cases relate to the detention of Shri Om
Prakash under Section 3(1) of the COFEPOSA Act. An order of deten- tion was
passed against him on 31st March, 1986 by the Additional Secretary to the
Government of India, Ministry of Finance, Department of Revenue--the Respondent
No. 1 herein.
The detenu was served with the grounds of
detention on the same date. The case against the detenu is that he was in
possession of a large quantity of contraband good.s hidden in his premises--No.
5/23, West Patel Nagar, New Delhi.
These premises were searched by the officers
of the Direc- torate of Revenue Intelligence in the early hours of 20/3/1986,
as a result of which foreign goods worth Rupees Twentyone lakhs and odd were
recovered. The accusation against the detenu is that he brought these articles
during the various trips that he made to Hong Kong between 10/12/1985 and
19/3/1986.
On 29th of April, 1986, the Advisory Board
met to con- sider the propriety of the detention order. The detenu wanted to
prove that the premises in which the alleged contraband goods were found was
not in his possession and that in fact he lived at some other place. In support
of this case he wanted to examine five witnesses before the Advisory Board.
These 5 witnesses were present when the matter was to be heard by the Advisory
Board on 29th April, 1986. This fact was made known to the Advisory Board. The
Board intimated the detenu's legal Adviser that it would not examine the said
witnesses but would instead permit the detenu to produce their affidavits. Thus
an opportunity was lost to him that day to examine the witnesses in rebuttal.
It is the detenu's case that despite best
efforts by his legal Adviser it was not possible to secure the affidavits of
the witnesses. The said witnesses were therefore brought again on the 1st of
May, 1986, when the Board resumed its hearing and an application was made to
the Board to examine them. Annexure-C attached to the Writ Petition shows that
the detenu filed an application before the Advisory Board on 29th April, 1986,
requesting the Board to examine the wit- nesses brought in his defence both on
29-4-1986 and 1-5-1986 and without making any request for an adjournment. The
Advisory Board declined this request. The High Court consid- ered this aspect
of the case and justified the rejection of this request on the 429 plea that
the detenu could not waste the time of the Adviso- ry Board by asking the Board
to record oral evidence. The records of proceedings of the Advisory Board were
forwarded to the Central Government and the order of detention was confirmed.
The learned counsel for the detenu raised two
questions of law, for our consideration, in his attempt to persuade us to
accept his plea that the detention in question had to be quashed: (i) the
Advisory Board acted in violation of law as mandated by a Constitution Bench
Judgment of this Court in denying to the detenu his right to examine witnesses,
who were readily available and present on the dates of hearing before the
Advisory Board, in rebuttal of the ease of the detaining authority, (ii) the
Advisory Board was bound under law to send the entire records of the
proceedings before it to the Central Government and the Central Government in
turn bound to apply its mind to the entire materials before proceeding to make the
order of confirmation. The Central Government, in this case, was not informed
about the presence of 5 witnesses before the Advisory Board, ready to be
examined and the Board's refusal to record their evi- dence.
In support of the first contention, the
learned counsel for the petitioner relied upon the following observation by a
Constitution Bench of this Court in K. Roy v. Union of India, [1982] 2 S.C.R.
272. In that case this Court had to consider the extent of the "trinity of
rights" which was available to the detenu before the Advisory Board. These
fights are:
(i) The right of legal representation, (ii)
The right of cross-examination and (iii) The right to present his evidence in
rebuttal.
We are here concerned with the third right,
namely the fight of the detenu to lead evidence in rebuttal before the Advisory
Board. The Constitution Bench repelled the plea that the detenu had a right to
cross-examine either the persons on the basis of whose statements the order of
deten- tion was made or the detaining authority but observed as follows on the
third right:
"The last of the three rights for which
Shri Jethmalani contends is the right of the detenu to lead evidence in
rebuttal before the Advi- sory Board. We do not see any objection to this right
being granted to the detenu. Nei- ther the Constitution nor the National
Securi- ty Act contains any provisions denying to the detenu the right to
present his own evidence in rebuttal of the aliegations 430 made against him.
The detenu may therefore offer oral and documentary evidence before the
Advisory Board in order to rebut the allegations which are made against him. We
would only like to add that if the detenu desires to examine any witness, he
shah have to keep them present at the appointed time and no obligation can be
cast on the Advisory Board to summon them. The Advisory Board, like any other
tribunal, is free to regulate its own procedure within the constraints of the
Constitution and the statute. It would be open to it, in the exercise of that
power, to limit the time within which the detenu must complete his evidence. We
consider it necessary to make this observation particularly in view of the fact
that the Advisory Board is under an obligation under section 11(1) of the Act
to submit its report to the appropriate Govern- ment within seven weeks from
the date of detention of the person concerned. The pro- ceedings before the
Advisory Board have there- fore to be completed with the utmost expedi-
tion." (Emphasis supplied).
The law laid down thus recognises the fight
in a detenu to lead evidence in rebuttal of the allegation against him before
the Advisory Board. All that is necessary is that the detenu should keep the
witnesses ready for examination at the appointed time. There is no obligation
cast on the Advisory Board to summon them. This Court recognises a fight in the
Advisory Board to regulate its own procedure within the constraints of the
Constitution and the statute and this procedure is referable to the time limit
within which the Advisory Board must complete its enquiry. It is in the light
of the law laid down by this Court in the above decision that the first
question, raised by the learned counsel, has to be considered.
We have not. been told that the Advisory
Board has regulated any procedure that oral evidence will not be permitted when
it enquires into orders of detention. Even if there is any such procedure it
will be of no legal conse- quence after the law in this behalf had been laid
down by this Court in A.K. Roy case (supra). The fight to adduce oral evidence
by examining witnesses is a fight available to a detenu under the above
decision and this should be deemed to be incorporated in the statute dealing
with detention without trial. Support for this position was sought by the learned
counsel for the petitioner from a decision of this Court in Norendra Purshotam
Umrao v. B.B. Gujral & Ors., [1979] 2 S.C.C. 637. In that case, this Court
was dealing with the absence of any express provision in Section 8(b) of the
COFEPOSA Act placing an obligation to forward the repre- sentation made by a
detenu alongwith the reference to 'the Advisory Board unlike those contained in
Section 9 of the Preventive Detention Act, 1950 and Section 10 of the 431 Maintenance
of Internal Security Act, 1971. It was contended in that case that in the
absence of an express provision in this behalf no obligation was cast on the
Government to consider the representation made by the detenu before for-
warding it to the Advisory Board or to forward the same to the Advisory Board.
After discussing the scope of Article 22(5), this Court held "the
constitutional safeguards em- bodied in Article 22(5) of the Constitution, as
construed by this Court, must, therefore, be read into the provisions of
Section 8(b) of Conservation of Foreign Exchange and Preven- tion of Smuggling
Activities Act, 1974 to prevent any arbi- trary Executive action." This
decision rendered by a three Judge Bench of this Court has laid down that the
Constitutional safeguards embodied in Article 22(5) of the Constitution as
understood by this Court must be read into Section 8(b) of the COFEPOSA Act.
Therefore, the fight in a detenu to adduce oral evi- dence in rebuttal, being a
right in the nature of a Consti- tutional safeguard embodied in Article 22(5)
of the Consti- tution as construed by this Court in A.K. Roy's case (supra) has
necessarily to be read into Section 8(b) and (c) of the COFEPOSA Act. If this
fight is denied to a detenu, the necessary consequence must follow. Article
22(7) enables Parliament to prescribe by law the procedure to be followed by an
Advisory Board an enquiry under Article 22(4)(a).
Section 8 of the COFEPOSA Act is a sequel to
this prescrip- tion. There is nothing in Section 8 prohibiting oral evi- dence
of the witnesses tendered by a detenu being taken. The concept of enquiry by
the Advisory Board takes within its ambit this aspect of 'hearing' also. This
fight has received the seal of approval in A.K. Roy's case.
The facts are not very much in dispute in
this case. The Advisory Board met on 29th April, 1986. on that day an
application (Annexure-C) was made to the Advisory Board by the detenu,
requesting examination of witnesses to rebut the evidence against him. It was
'mentioned therein that his witnesses were present at the time of hearing
before the Advisory Board. A further request was made that the witness- es may
be permitted to be examined on the next hearing date, that is 1-5-1986.
Annexure-C is a communication from the detenu to the Chairman and members of
the Advisory Board.
This Annexure gives the names of the 5
witnesses whom he proposed to be examined.
In the Counter Affidavit filed in the Writ
Petition by the Under Secretary, Ministry of Finance, Department of Revenue, it
is stated that the Advisory Board gave opportu- nity to the detenu to file
affidavits of the witnesses present, that the detenu agreed to file the affidavits
and obtained time till 1-5-1986. On that day a statement was made that these
witnesses were not willing to file affida- vits. "Therefore, the Advisory
Board is justified in stating that it is not necessary to record evidence of
the persons who were not prepared to give affidavits". There is some
factual dispute in the two versions, 432 one by the detenu and the other seen
in the Counter Affida- vit. The petitioner's case is that the witnesses were
present both on 29-4-1986 & 1-5-1986. No request for any adjournment was
made,The Counter Affidavit would indicate that time was sought for by the
detenu to file affidavits and the matter was adjourned to 1-5-1986 on this
request.
For the purpose of this case we will accept
the version in the Counter Affidavit. Two facts that are not in dispute are
that the witnesses were present on both the days and that on 1-5-1986, they
were not permitted to be examined.
This aspect of the case is seen discussed by
the High Court as follows:
"Admittedly, these witnesses were not
required under the law to be subjected to cross-exami- nation, the Advisory
Board was right in sug- gesting to the learned counsel for the detenu to file
the affidavits of those witnesses.
Whatever those witnesses were to depose to by
them in the affidavits and that could have saved the hard-pressed time of the
Advisory Board. The detenu could not gain anything further by producing the
witnesses before the Advisory Board for their statements. Even though the
detenu was in custody, his father Harbans Lal-petitioner could not procure the
affidavits of the witnesses and file the same before the Advisory Board. The
plea that the witnesses declined to file their affidavits is just flimsy and
without any valid reason. The further contention of the learned counsel for the
petitioner that evidence in the shape of affidavits which are not subjected to
cross examination or close scrutiny by questions asked by the Advisory Board,
is an inferior type of evidence and that honest witnesses may create much more
favourable impression by deposing before the Advisory Board than by reducing
their testimony in the form of affi- davits, hardly deserves any worthwhile
consid- eration. If on perusal of the affidavits the Advisory Board considered
to call any of those deponents before them it could have been done.
The matter of any more favourable impression
by deposing before the Advisory Board is a factor quite far-fetched. As already
pointed out above cross examination of these witnesses is not permissible under
the law. For these reasons it cannot be said that the detenu was deprived of
his right of defence :before the Advisory Board." In our view the High
Court has committed a few mistakes in the above discussion. One fails to
understand how the High Court says that the witnesses were not required under
law to be subjected to cross-examination "admittedly".
433 In A.K. Roy's case all that this Court
has laid down is that the witnesses on behalf of the detaining authority cannot
be cross examined by the detenu. It is not stated in that Judgment nor in any
other Judgment of this Court that the witnesses on behalf of the detenu
produced in rebuttal of the allegation against him cannot be cross-examined.
Cross- examination of such witnesses has to be by the detaining authority and
that right cannot be denied to them. The second mistake committed by the High
Court is in its assess- ment of the worth of the affidavit evidence and the
oral evidence. This is a matter to be decided by the detenu.
Unless there is any legal bar for oral
evidence of the detenu being adduced before the Advisory Board it should be
left to the detenu to choose between affidavit evidence and' oral evidence
subject of course to the rigorous limitation placed upon this right by this
Court in A.K. Roy's case relating to constraints of time. The High Court
disbelieved the case of the detenu that the witnesses declined to file their
affidavits and has characterised it as "just flimsy and without any valid
reason." We do not agree with the wide statement made by the High Court
that by denying oral evidence it cannot be said that the detenu was deprived of
his fight of defence before the Advisory Board. On the strength of the law laid
down by this Court, there is no escape from the conclusion that by deny- ing the
right to examine witnesses present before the Advi- sory Board, the Board acted
in violation of the law laid down by this Court in A.K. Roy's case.
The second contention raised on behalf of the
detenu is that the Advisory Board failed to send the entire records of
proceeding before it to the Central Government. The gravamen of the charge is
that the Central Government should have been made aware of the fact that the
detenu had got ready witnesses to be examined on 29-4-1986 and 1-5-1986 and
that the Advisory Board denied the right of examination of wit- nesses but only
permitted affidavits to be filed which could not ultimately be filed. The
Central Government was under an obligation to apply its mind to the entire
material before making the order of confirmation of the detention order.
The petitioner's learned counsel suggested
that the report to the Advisory Board contained factual mistakes. The learned
counsel for the respondents made available to us the records of the proceedings
of the Advisory Board. They are confidential. However, relevant portions were
shown to the petitioner's Advocate. He persisted that the report did not
reflect what really happened before the Advisory Board. If the Central
Government was told that the witnesses were present and that they were not
permitted to be examined, argues the counsel, different consequences might have
en- sued. In Nand Lal Bajaj v. State of Punjab & Anr., [1981] 4 S.C.C. 327.
A similar question arose and this Court observed as follows in para 11 of its
Judgment:
434 "The matter can be viewed from
another angle.
we were informed that the Advisory Board did
not forward the record of its proceedings to the State Government. If that be
so, then the procedure adopted was not in consonance with the procedure established
by law. The State Government while confirming the detention order under Section
12 of the Act has not only to persue the report of the Advisory Board, but also
to apply its mind to the material on record. If the record itself was not
before the State Government, it follows that the order passed by the State
Government under Section 12 of the Act was without due applica- tion of mind.
This is a serious infirmity in the case which makes the continued detention of
the detenu illegal." In view of our finding on the first contention we do
not think it necessary to resolve this dispute and enter into a finding of the
second ground urged before us. Suffice it to say that the complaint by the
petitioner's counsel that the report did not contain all the necessary
information regard- ing the availability of the witnesses on 29-4-1986 and 1-5-
1986, the readiness of the detenu to examine them, rejection of the request to
examine them and directing instead filing of the affidavits, cannot be said to
be wholly unjustified.
After giving our careful consideration on the
important question of law involved in this case, we hold that, as we are bound
by the law laid down by the Constitution Bench of this Court in A.K. Rov's
case, the Advisory Board committed an error in law in denying to the detenu the
right to exam- ine the witnesses, rendering his continued detention bad.
Upon the particular facts and circumstances
of this case, we quash the order of detention, set aside the Judgment of the
Delhi High Court and direct that the petitioner's son be released forthwith.
A.P.J. Petitions allowed.
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