Prakash Narain, C.J.
(1) One Suresh Kumar Sood has been detained by virtue of an order dated March 30, 1983 passed by the Government of Maharashtra under Sub-section (1) of Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 as the detaining authority was of the view that it was necessary to detain him for preventing him from smuggling goods. Grounds of detention also of the same date were duly served on Sood.
(2) His wife is the petitioner before us. She challenges the detention and continued detention of her husband on diverse grounds. It is not necessary to notice all of them inasmuch as after some hearing learned counsel for the petitioner has primarily pressed only one point. The learned counsel has Urged that the continued detention of Sood is vitiated for violation of the provisions of Clauses (4) and (5) of Article 22 of the Constitution.
(3) The relevant facts for consideration of this Submission are these. Sood made representations against his detention. These representations were separately dealt with by the detaining authority and rejected. However, as required by Section 8 of the aforesaid Act and the mandate of the Constitution, reference was made to an Advisory Board at Bombay. The Advisory Board gave an opinion that the detention was justified. The contention is with regard to what happened in the proceedings of the Advisory Board. The averments in this regard are found in para 3.10 of the petition. These read as under :-
'THAT when the petitioner was produced before the Advisory Board sometime in the first week of June 1983, he was not in a fit state of mind. He had no coherence of thought being under great mental tension. The detenu had made a representation to the Advisory Board in consultation with an Advocate, and the said representation was available with the Advisory Board on the date the detenu was given the hearing. The detenu noticed that in addition to the two representatives of the Detaining Authority, two or three Customs Officers were also present at the hearing and the said Customs Officers with the help of the files which the Customs Officers have brought with them were explaining the case of the detenu to the Advisory Board.'
Again paragraph 22 of the petition reads as under :
'BECAUSE he detenu has not been given equal treatment by the Advisory Board, inasmuch as the Board allowed the detaining authority to be represented by a host of persons, where as the detenu was one person having no composure of mind.'
(4) By way of return to the rule nisi (which had been issued on December 13, 1983) two affidavits have been filed. One was filed on January 6, 1984 and the other on January 13, 1984. The first one is an affidavit sworn by Shri A.KL. Agnihotri, working as Under Secretary in the Government of India, Ministry of Finance (Department of Revenue), New Delhi. There is no return to the averments made in paragraph 3.10 and paragraph 22 of the petition. The second affidavit has been sworn by Shri D.R. Chitrem. Desk Officer, Home Department, Government of Maharashtra, Mantralya, Bombay. Paragraph 17 of this affidavit reads as under :-
'WITH reference to para 3.10 of the petition I say that the petitioner has not made the Advisory Board as a party respondent to the present petition. I say, the Advisory Board is not an entity subordinate to the Government. I say, it is not possible for the Government to deal with the contentions raised in this para.'
There is no return with regard to the averments in paragraph 22 of the petition. Learned counsel for the respondents has, however, invited our attention to paragraph 7 of this affidavit which reads as under :-
'I' say, save as expressly admitted hereinafter and save what are the matters of record each and every allegation in the petition should be deemed to have been specifically and emphatically denied unless the same have been otherwise dealt with or traversed in the paragraphs hereinafter appearing.'
(5) We have already noticed what the contention of the learned counsel for the petitioner is Detention without trial is a very serious matter. The Constitution, thereforee, has provided for very stringent safeguards. If a detenu does not get proper hearing before the Advisory Board or if a defend is placed at a disadvantage the Constitutional safeguard postulated by Article 22(4) and (5) must be held to have been violated. In the present case clearcut averments on affidavits have been made on behalf of the detenu regarding the unfair treatment meted to him during the proceedings of the Advisory Board. This is certainly a serious matter. Learned counsel for the petitioner has invited our attention to the judgment of the Supreme Court in A.K. Roy v. Union of India and another, : 1982CriLJ340 . In para 94 of the report the learned Chief Justice of India has, inter alia, observed as under:-
'WE must, thereforee, 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(3)(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 Govt. to appear before the Advisory Board with the aid of a legal practitioner or a legal advisor would be in breach of Art. 14, if a similar facility is denied to the detenu. We must thereforee make it clear that if the detaining authority or the 'Govt. takes the aid of a legal practitioner 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 the form since. Especially, in matters like the proceedings of Advisory Boards, who so-ever assists or advises on facts or law be deemed to be in the position of a legal adviser. We do hope that Advisory Board will take care to ensure that the provisions of Article 14 are not violated in any manner In the proceedings before them. Serving or retired Judges of the High Court will have no difficulty in understanding this position. Those Who are merely qualified to be appointed as High Court Judges ;may have to do a little home-work in order to appreciate it.'
(6) Mr. Handa, learned counsel for the respondents, placed as he was, in some what of a predicament, on account of the law propounded by the Supreme Court, sought permission to file additional affidavit as he said that the record of the case with him does not throw any light on whether the averments in paragraphs 3-10 and 22 of the petition are factually correct or incorrect. We decline to give him any opportunity as, in our view, in habeas corpus matters any delay, for whatever reason, in deposing of the petition, may amount to this court failing to discharge its constitutional duty. The rules of the High Court, no doubt, give seven days' time within which a. return may be filed in habeas corpus matters by the respondents. Here we find the returns were filed much after the expiry of seven days. The respondents cannot take advantage of their own leches in making a proper return and ask for further time or to have liberty to file additional affidavit. As we have said earlier, detention without trial is a serious matter. It can only be restored to by the State if the constitutional and statutory requirements are strictly observed. The onus is always on the detaining authority to show that the detention is valid. It cannot, if it fails to discharge that onus, try and procure fresh and other evidence by getting hearings postponed. The law, thereforee, appears, to be clear. The proceedings before the Advisory Board being what it is alleged to have been, the continued detention must be held to be invalid. We, thereforee, make the rule absolute and direct the respondents to set the detenu, Suresh Kumar Sood @ Suresh Sood at liberty forth with unless required to be detained under any other valid order of detention or an order of a court.