(Paras 1 to 13 not being material to this report are not reported herein)
14. Mr. Jethmalani, the learned Advocate appearing for the petitioner, has further challenged the order of detention by contending that there are certain procedural irregularities and illegalities in the instant case. The procedural illegality on which Mr. Jethmalani has concentrated his attack is the denial of opportunity to the petitioner to plead his case before the Advisory Board in the manner permitted by law. In order to appreciate the contentions of Mr. Jethmalani in this regard it would be advantageous to notice the relevant provisions of law as well as the law declared by the Supreme Court on the question of the procedure which is to be followed by the Advisory Boards. Section 8(e) of the COFEPOSA Act provides that -
'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.'
From the aforesaid provision contained in the COFEPOSA Act this much is clear that a detenu cannot by way of right insist that he should be allowed to be represented before the Advisory Board by a legal practitioner. But one must not fail to notice that the said provision does not debar the Advisory Board from permitting the detenu in a given case to be represented by a legal practitioner. Unlike in certain other laws, there is no total bar against the appearance of legal practitioners in the proceedings before the Advisory Board.
15. In Kavita v. State of Maharashtra. : 1SCR138 , it was pointed out that where a detenu makes a request for legal assistance, his request would have to be considered on its own merit. While S. 8(e) disentitles a detenu from claiming as of right to be represented by a lawyer, it was pointed out by the Supreme Court, the said provision does not disentitle him from making a request for the services of a lawyer. The importance of legal assistance could never be overstated and 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 S. 8(e) of the COFEPOSA Act. On the facts of Kavita's case, however, it was found that the Government had 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 detenu could have, when he was produced before the Advisory Board, made a request to the Advisory Board for permission to be represented by a lawyer. Reading this judgment as a whole, therefore, it is clear to us that the Supreme Court recognised the fact that a detenu had no legal right to be represented by a legal practitioner. But it also noticed that the provision contained in S. 8(e) of the COFEPOSA Act did not disentitle a detenu from making a request to the Advisory Board which request has to be considered by the Advisory Board on its own merit.
16. In A. K. Roy v. Union of India, : 1982CriLJ340 , the Supreme Court regretfully noted that a detenu had no right to appear through a legal practitioner in the proceedings before the Advisory Board. In para 95 of the judgment, the travails of a detenu who is suddenly taken before the Advisory Board have been graphically described. Relying upon certain observations made in this para Mr. Jethmalani suggested that in the instant case the Advisory Board should have informed the petitioner of his right to be represented by a friend. The Advisory Board having not done so the right of the detenu to make his representation effectively before the Advisory Board has been seriously impaired. The last mentioned submissions does not itself commend to us. It is now well-settled that the authorities exercising powers under the COFEPOSA Act, or for that matter under any law of preventive detention, need not tell the law to a detenu. However, it is not necessary for us to dwell on this point any longer because as we will show presently we are inclined to accept, on the facts of this case, that the right of the petitioner to make a proper representation before the Advisory Board has been otherwise considerably detected. Before we proceed to notice the foundation of this submission we may also note another aspect of the representation that has been brought out by the Supreme Court in A. K. Roy's case and that is to be found in para 105 of the judgment.
17. It has been pointed out by the Supreme Court that it did not see any objection to the right of the detenu to lead evidence in rebuttal before the Advisory Board. 'Neither the Constitution nor the National Security Act contains any provision denying to the detenu the right to present his own evidence in rebuttal of the allegations 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.' The Supreme Court, however, uttered the caution that if the detenu desired to examine any witnesses he should himself keep them present at the appointed time and there was no obligation cast upon the Advisory Board to summon those witnesses. This necessarily means that if the detenu wants to lead oral evidence he should be allowed to do so.
18. We may also at this stage profitably refer to another judgment of the Supreme Court in Nand Lal v. State of Punjab, : 1981CriLJ1501 . The facts of Nand Lal's case disclosed that the Advisory Board disallowed the detenu's request for legal assistance though the detaining authority himself was allowed to be represented by a counsel. The Supreme Court stated : 'It appears that the Advisory Board blindly applied the provisions of sub-section (4) of S. 11 of (Prevention of Black-marketing and Maintenance of Supplies of Essential Commodities) Act to the case of the detenu failing to appreciate that it could not allow legal assistance to the detaining authority and deny the same to the detenu.' In this procedure adopted by the Advisory Board the Supreme Court found an arbitrariness. This position was affirmed in A. K. Roy's case page 747 (of AIR) : (at p. 377 of Cri LJ) of the report by saying that 'if the detaining authority or the Govt. 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.' The Supreme Court was informed that the 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 this was the case, the Supreme Court said, then the Board should not permit the authorities to do indirectly what they could not do directly. It frowned upon the attempt to take shelter behind the excuse that such officers were not 'legal practitioners' or legal advisers. Regard must be had to the substance and not to the from since, especially, in matters like the proceedings before the Advisory Board, whosoever assists or advises on facts or law must be deemed to be in the position of a legal adviser. The Supreme Court hoped that Advisory Board will take care to ensure that the provisions of Art. 14 were not violated in any manner in the proceedings before them.
19. From the examination of the judgments of the Supreme Court referred to above, the following propositions, in our opinion emerge :-
(1) There is neither a constitutional right nor a legal right available to a detenu to be represented by a legal practitioner.
(2) Where, however, the department is represented by a legal practitioner or a legal adviser, then the detenu cannot be denied the right to be similarly represented.
(3) If the department is represented by an official before the Advisory Board to assist the latter, then that official must be regarded as a legal adviser or a legal practitioner for the purpose of deciding whether the detenu is entitled to be represented by a legal practitioner.
(4) Though there is no constitutional or legal right available to a detenu to be represented by a legal practitioner, there is no legal bar to the detenu being so represented.
(5) A request may be made by the detenu for being represented by a legal practitioner and the Advisory Board may grant such a request.
(6) A request made by a detenu for being represented by a legal practitioner 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 detenu, or (ii) that it was the practice of the Board not to allow representation of a detenu by a legal practitioner.
(7) A detenu has a right to produce and examine witnesses before the Advisory Board in support of his case though the Advisory Board is under no obligation to summon such witnesses on the date fixed for the hearing of the detenu's case.
20. We now turn to the facts of this case. On behalf of the petitioner a letter had been written to the Advisory Board on 28th July, 1984 requesting therein that he should be allowed to represent his case through a lawyer of his choice at the meeting and also to produce, assist and cross-examine Shri Murli Punjab and Mr. Lawrence and the Bell Boy Captain of Holiday Inn. In reply to this letter, the Secretary of the Advisory Board, by order of the Chairman, wrote a letter dated 16th August, 1984 to the detenu wherein he drew the attention of the detenu to the provisions contained in S. 8(e) of the COFEPOSA Act. Proceeding further, the Secretary stated as follows :-
'The present Advisory Board under the COFEPOSA Act for the State of Maharashtra has so far not permitted any legal practitioner to appear in any reference made to it by the Government under the Act. Therefore, your request to allow you to plead your case through a lawyer of your choice, it is regretted, cannot be acceded to.'
It is clear from this letter that it was stated on behalf of the Advisory Board that it was the practice of the Advisory Board not to permit any legal practitioner to appear for any detenu and on that account the petitioner's request for being represented by a legal practitioner was turned down. The request was not turned down on its merits by examining the facts of the petitioner's case. This, in our opinion, is clean contrary to the legal position laid down by the Supreme Court.
21. From the letter written by the Secretary of the Board there seems to be a rejection of the petitioner's request without examining whether on the facts of the petitioner's case he should or should not be given the facility of being represented by a legal practitioner. We have already noticed that the petitioner is a foreign national. Normally such a person would think of being represented by a legal practitioner of the country in which he is facing legal proceedings. May be, after examining this aspect of the case the Advisory Board could have considered his case sympathetically. But this was not done. His request for being represented by a legal practitioner was turned down on two grounds, namely that the provisions of S. 8(e) of the COFEPOSA Act do not bestow a right upon the detenu to be represented by a legal practitioner and secondly, that it was the practice of the Advisory Board not to permit a legal practitioner to appear in any proceedings before it. This, in our opinion, is not the correct method of deciding the question. An element of arbitrariness is necessarily involved in the procedure adopted by the Advisory Board vis-a-vis the petitioner before us. He has, therefore, been denied the right to make adequate or proper representation of his case before the Advisory Board.
22. On the second question, it has not been pressed by Mr. Jethmalani that the petitioner had a right to cross examine the three witnesses on whose statements the detaining authority had relied. However, Mr. Jethmalani contended that the petitioner's request was to allow him to produce his witnesses before the Advisory Board and it was so understood by the Advisory Board itself because in para 3 of the letter Dt. 16th August, 1984 sent by the Secretary of the Board it has been stated as follows :
'If you want to tender evidence of any witnesses, you may do so in the form of an affidavit an send four copies of such affidavit to the Advisory Board, well in advance.'
Mr. Jethmalani says that by informing the petitioner that he could produce the oral testimony only through the affidavits, the Advisory Board has denied the opportunity to the petitioner to produce his witnesses and examine them before the Advisory Board. This, according to him, is the denial of the right which we have mentioned in proposition (7) above. We do not think it necessary to examine this question at length because oral evidence could be tendered by examining the witnesses themselves; it could also be tendered in the form of affidavits. It is for the authority or the court receiving the evidence to decide in a given case or generally in what way that oral evidence should be received by it. However, we do not express any final opinion on the same. In view of the fact that we have found that the petitioner was prevented from representing his case before the Advisory Board in a manner permitted by law, the continued detention of the petitioner must be held to be rendered illegal.
23. Before we proceed to pass the final order in this petition we may only note one feature of the letter written by the Secretary of the Advisory Board to the petitioner. At the foot of the said letter it has been mentioned that the Secretary has written this letter 'by order of the Chairman.' We presume that the decision communicated by the Secretary to the petitioner was taken by the Board as a whole and communicated by the Chairman.
24. In the result, this petition is allowed. The order of detention dt. 29th June, 1984 passed by the Government of Maharashtra against the petitioner under S. 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act is set aside. We have also held that the continued detention of the petitioner is rendered illegal. On both these grounds, the petitioner is entitled to be set at liberty and he shall be set at liberty forthwith, unless required in any other case.
25. Petition allowed.