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2012 (8) TMI 941 - BOMBAY HIGH COURTSmuggling - detention with a view to prevent him from indulging into the smuggling activities in future - seizure of red sanders - right of representation - Held 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 Article 22(4) (b) of the Constitution slate 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 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. The embargo on the appearance of legal practitioner should not be extended so as to prevent the detenu from being aided or assisted by a friend who, in truth and substance, is not a legal practitioner. Every person whose interests are adversely affected as a result of the proceedings which have a serious import, is entitled to be heard in those proceedings and be assisted by a friend. What is alleged is that the detenu has been detained on the basis of illegal grounds of detention. That plea, however, is devoid of merits. For, as the order of detention gives correct detention order number, as also even the opening part of the grounds of detention gives the same number coupled with the fact that the circumstances and material referred to in the grounds of detention and the documents accompanying thereto pertain to the present detenu and none else - there is no substance in the grievance that the subjective satisfaction is vitiated because of such variation in the grounds of detention or for that matter affecting the right of detenu to make effective representation, in any manner. Is the detenu a habitual offender? - Held that: - the fact that the previous detention order passed in the year 2008 against the detenu having been quashed by the High Court, assuming that it cannot be taken into account, even then, it would not affect the subjective satisfaction reached by the Detaining Authority in its entirety. That can be extricated from consideration keeping in mind the provisions of section 5A of the Act. We would consider the alternative argument of the Advocate General raised across the Bar regarding the scope and application of section 5A of the Act a little later. Suffice it to observe that the grounds of detention, if read as a whole, in the fact situation of the present case, it is not possible to countenance the argument that the subjective satisfaction formed by the Detaining Authority is vitiated because of reference to past arrests in 2003 and 2004 and detention order in 2008. The detenu, in the perception of the Detaining Authority, is, the kingpin of the organised syndicate; and indulges in smuggling of red sanders by using forged bottles, seals of various central excise offices and shipping lines used for sealing the export containers. The red sanders is an endangered species and is covered under the Convention of International Trade and Endangered Species of Wild Fauna and Flora. Export of red sanders is prohibited under the EXIM policy. The Detaining Authority was conscious of the fact that the detenu was arrested in connection with the latest seizure of huge quantity of red sanders as also unaccounted cash but was released on bail. In that case, the Detaining Authority was aware that the ordinary law of the land was insufficient to avert the criminal activities of the organised syndicate in future which was detrimental to the national interest. Petition dismissed - decided against petitioner.
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