Johney
D' Couto Vs. State of Tamil Nadu [1987] INSC 316 (4 November 1987)
MISRA
RANGNATH MISRA RANGNATH RANGNATHAN, S.
CITATION:
1988 AIR 109 1988 SCR (1) 787 1988 SCC (1) 116 JT 1987 (4) 248 1987 SCALE
(2)943
CITATOR
INFO :
APL
1989 SC 389 (9) R 1991 SC 979 (7)
ACT:
Conservation
of Foreign Exchange and Prevention of Smuggling Activities Act, 1974: s.
8(e)-Detenu's representation-Consideration of by Advisory Board-Detenu whether
entitled to the assistance of a friend.
HEADNOTE:
%
The detenu, a clearing and forwarding agent aged around 26 or 27 years, was
detained under s. 3(1)(i) of the COFEPOSA Act. On the day the representation
was heard by the Advisory Board the detaining authority was being assisted by a
Deputy Collector and a Superintendent of Central Excise. A specific request of
the detenu to permit a retired Assistant Collector of Central Excise to assist
him as a friend was turned down on the ground that he was not a friend of the
detenu, though the person was inclined to assist the detenu because of his
professional experience. The detention order was confirmed on the
recommendation of the Advisory Board.
In
the writ petition under Art. 226 of the Constitution challenging the order of
detention it was contended for the detenu that he had sought the assistance of
the retired officer because the case before the Board involved certain facets
which required acquaintance with the legal provisions and the procedure and
practice adopted by the Customs authorities, with which he was not well versed.
The writ petition having been dismissed, the father of the detenu filed special
leave to appeal to this Court.
Allowing
the appeal, ^ HELD: 1.1 The detenu was entitled to the assistance of a friend.
The refusal of the Advisory Board to permit him to be assisted by the retired
officer was bad and his continued detention became vitiated. [793E-F]
1.2
The detenu was not very much acquainted with the legal provisions and the
procedure and practice adopted by the customs authorities. If the retired
officer had been permitted to assist him, 788 his case would have been better
placed before the Advisory Board. A Moreover, when the detaining authority had
the assistance of the Deputy Collector and a Superintendent of Central Excise,
who play the role of legal advisers, the Board had no justification to refuse
the assistance sought for by the detenu. There was, therefore, denial of a fair
hearing before the Advisory Board. [792G-H] Nand Lal Bajaj v. State of Punjab,
[1982] 1 SCR 718;
Smt.
Kavita v. State of Maharashtra, [ 1982] 1 SCR 138 and A.K. Roy etc. v. Union of
India & Anr., [1982] 2 SCR 272, applied.
2.1
The term 'friend' used in the judgments of this Court was more in the sense of
'an ally in a fight or cause, or a supporter', 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 by a detenu for rendering
assistance before the Advisory Board within the frame of the law as settled by
this Court.1793B-C]
2.2
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. What cannot be permitted
directly should not be allowed to be done in an indirect way. [793C-D]
3.
Matters relating to preventive detention are strict proceedings and warrant
full compliance with the requirements of law. It is not for this Court to
examine and assess what prejudice has been caused to the detenu on account of
denial of assistance.[1793D-E]
4.
The order of detention is quashed. The detenu be set at liberty forthwith.
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.
789
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 790 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:
791
"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 792 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 793 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.
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