1987 JTR(SC) 829
1988 AIR(SC) 109 ; 1988 63 CompCas 781 ; 1988 CriLR 36 ; 1987 3 Crimes(SC) 894 ; 1988 CrLJ 178 ; 1987 32 ELT 225 ; 1987 4 JT 248 ; 1987 5 JT 248 ; 1988 1 RCR(Cri) 22 ; 1987 2 Scale 943 ; 1988 1 SCC 116 ; 1988 SCC(Cri) 70 ; 1988 1 SCR 787 ; 1988 KHC 859
SUPREME COURT OF INDIA
RANGANATH MISRA AND S. RANGANATHAN, JJ.
Johney DCouto, Appellant
Versus
State of T.N., Respondent.
Criminal Appeal No. 232 of 1987, D/- 4-11-1987.
Act Referred :CONSERVATION OF FOREIGN EXCHANGE AND PREVENTION OF SMUGGLING ACTIVITIES ACT : S.8(c)
(A) The provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA), specifically Section 3(1)(i), governed the order of detention under challenge. The statutory scheme, read in conjunction with the constitutional safeguards under Article 22(4), contemplates a quasi-judicial Advisory Board proceeding where the detained person is entitled to a fair hearing. The Act does not expressly provide for legal representation, but the principles of natural justice and the right to be heard under Article 21 and Article 14 necessitate that the detenu be allowed such assistance as may be required to present their case, provided it does not equate to legal representation by a lawyer, which is expressly disallowed.
(B) The core legal principles are: (i) A detenu is not entitled to legal representation by a lawyer before the Advisory Board under S. 8(e) of COFEPOSA, per A.K. Roy v. Union of India; (ii) However, the detenu has the right to be assisted by a friend or supporter to present their case, as mandated by the combined reading of Article 14, Article 22(4), and the statutory framework; (iii) The Advisory Board must act fairly and cannot deny such assistance if it places the detenu at a disadvantage, especially when the detaining authority is legally represented; (iv) The Board must ensure parity of arms, and denying a capable assistant when the state is represented by counsel vitiates the proceeding and renders the detention order unsustainable.
Facts of the case:
The appellant, a clearing and forwarding agent, was detained under S.3(1)(i) of COFEPOSA. His representation before the Advisory Board was scheduled for 25th November 1986. He requested the assistance of a retired Assistant Collector of Central Excise to help present his case. The Advisory Board denied the request, while the detaining authority was represented by a Deputy Collector and a Superintendent of Central Excise. The Board subsequently confirmed the detention order.
Findings of Court:
The Court found that the appellant was denied fair hearing as he was not provided assistance equivalent to the legal team representing the detaining authority. The refusal to allow the retired officer, who was capable of assisting with factual and legal nuances of the case, was deemed unjust and against the principles of natural justice. The Court held that the detenu must be allowed such assistance to ensure compliance with Article 14 and the mandatory requirements of COFEPOSA.
Issues:
(1) Whether a detenu is entitled to the assistance of a friend or supporter before the Advisory Board? (2) Whether the denial of assistance to the appellant, when the detaining authority was legally represented, constituted a denial of fair hearing and vitiated the detention order?
Ratio Decidendi:
The denial of the appellants request to be assisted by a friend, when the detaining authority was represented by a Deputy Collector and a Superintendent, was bad in law. The Advisory Board was required to ensure parity of arms; refusing such assistance in those circumstances prejudiced the appellants right to a fair hearing under Article 14 and rendered the detention order void.
Result:
The appeal was allowed. The order of detention under S.3(1)(i) of COFEPOSA was quashed, and the appellant was directed to be set at liberty forthwith.
(A) The provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA), specifically Section 3(1)(i), governed the order of detention under challenge. The statutory scheme, read in conjunction with the constitutional safeguards under Article 22(4), contemplates a quasi-judicial Advisory Board proceeding where the detained person is entitled to a fair hearing. The Act does not expressly provide for legal representation, but the principles of natural justice and the right to be heard under Article 21 and Article 14 necessitate that the detenu be allowed such assistance as may be required to present their case, provided it does not equate to legal representation by a lawyer, which is expressly disallowed.
(B) The core legal principles are: (i) A detenu is not entitled to legal representation by a lawyer before the Advisory Board under S. 8(e) of COFEPOSA, per A.K. Roy v. Union of India; (ii) However, the detenu has the right to be assisted by a friend or supporter to present their case, as mandated by the combined reading of Article 14, Article 22(4), and the statutory framework; (iii) The Advisory Board must act fairly and cannot deny such assistance if it places the detenu at a disadvantage, especially when the detaining authority is legally represented; (iv) The Board must ensure parity of arms, and denying a capable assistant when the state is represented by counsel vitiates the proceeding and renders the detention order unsustainable.
Facts of the case:
The appellant, a clearing and forwarding agent, was detained under S.3(1)(i) of COFEPOSA. His representation before the Advisory Board was scheduled for 25th November 1986. He requested the assistance of a retired Assistant Collector of Central Excise to help present his case. The Advisory Board denied the request, while the detaining authority was represented by a Deputy Collector and a Superintendent of Central Excise. The Board subsequently confirmed the detention order.
Findings of Court:
The Court found that the appellant was denied fair hearing as he was not provided assistance equivalent to the legal team representing the detaining authority. The refusal to allow the retired officer, who was capable of assisting with factual and legal nuances of the case, was deemed unjust and against the principles of natural justice. The Court held that the detenu must be allowed such assistance to ensure compliance with Article 14 and the mandatory requirements of COFEPOSA.
Issues:
(1) Whether a detenu is entitled to the assistance of a friend or supporter before the Advisory Board? (2) Whether the denial of assistance to the appellant, when the detaining authority was legally represented, constituted a denial of fair hearing and vitiated the detention order?
Ratio Decidendi:
The denial of the appellants request to be assisted by a friend, when the detaining authority was represented by a Deputy Collector and a Superintendent, was bad in law. The Advisory Board was required to ensure parity of arms; refusing such assistance in those circumstances prejudiced the appellants right to a fair hearing under Article 14 and rendered the detention order void.
Result:
The appeal was allowed. The order of detention under S.3(1)(i) of COFEPOSA was quashed, and the appellant was directed to be set at liberty forthwith.
A.V.RANGAM, C.S.VAIDYANATHAN, K.K.VENUGOPAL, M.M.ABDUL KHADER, Promila Chaudhary, S.R.Bhatt, S.R.Setia
Judgment
RANGANATH MISRA, J.:- This appeal is by special leave. Appellant challenged his order of detention under S.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.
2. The hearing of the representation of the appellant by the Advisory Board was fixed for 25 th Nov. 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 detenus request for assistance of a friend, namely, Mr. Sundararajan in paras 2 and 3 of its report sent to the Government. The Advisory Board has stated in para 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 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 para the Advisory Board has also stated that it was admitted by Mr. Sundararajan 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 para 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."
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.
3. In para 9 of the special leave petition the appellant had alleged that on 25th Nov. 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 Nov. 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.
4. The appellant is a clearing and forwarding agent at Madras and is said to be a youngman 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.
5. 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 S. 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 (at p. 1645)
"As often than not adequate legal assistance may be essential for the protection of the Fundamental Right to life and personal liberty guaranteed by Art. 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. (at pp. 1645-46) :
"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 Lals case (supra) observed (at p. 2045 of AIR) :
"..............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-sec. (4) of S. 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 v. Union of India, (1982) 2 SCR 272 dealt with this aspect. Chandrachud, C. J., speaking for the Court stated (at p. 747 of AIR) :-
"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. It is, however, necessary to add an important caveat. The reason behind the provisions contained in Art. 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 any such meaning into the provisions of Art. 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 Art. 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 Art. 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.
6. The rule in A. K. Roys 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 loyality. 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 facs 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.
Appeal allowed.
For Citation : AIR 1988 SC 109=1988 Cri. L.J. 178=(1988) I SCC 116=(1987) 3 SCJ 616.