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2008 (7) TMI 971 - SC - Customs
Whether detention order holding that the prayer of the detenu for permission to be represented by a legal practitioner was not rejected after proper consideration but on erroneous grounds?
Issues:
1. Whether a detenu under the COFEPOSA Act, 1974 is entitled to be represented by a legal practitioner before the Advisory BoardRs.
2. Whether the High Court's decision to quash the detention order was correctRs.
Issue 1:
The case involved the detention of a person under the COFEPOSA Act, 1974, and the question arose whether a detenu was entitled to be represented by a legal practitioner before the Advisory Board. The detenu had requested representation, which was rejected by the Advisory Board citing the Act's provisions. The appellant argued that both Article 22(3)(b) of the Constitution and Section 8(e) of the COFEPOSA Act, 1974, clearly stated that a detenu was not entitled to legal representation. The appellant relied on the decision in Smt. Kavita vs. State of Maharashtra, where it was held that while a detenu could request legal assistance, there was no legal right to be represented by a lawyer before the Advisory Board. The appellant also referred to the A.K. Roy case, where it was concluded that a detenu had no right to appear through a legal practitioner before the Advisory Board. Various other decisions were cited in support of the appellant's contention.
Issue 2:
The High Court had quashed the detention order based on the detenu's prayer for legal representation being rejected on erroneous grounds. The High Court relied on a Division Bench judgment that emphasized considering a detenu's request for legal representation on merits and not rejecting it based on the law or past practices. The Supreme Court, after considering the submissions of both parties, held that the High Court's decision did not warrant interference. The Court referred to previous judgments emphasizing that even though a detenu may not have a legal right to legal assistance before the Advisory Board, the request should be considered on its merits in each case. The Court noted that the Advisory Board's rejection of the detenu's representation lacked proper consideration and was not in line with the established legal principles. The Court reiterated that the liberty of an individual in detention cases is crucial and representation requests should be considered diligently. Consequently, the appeal was dismissed, upholding the High Court's decision to quash the detention order.
This judgment sets a precedent regarding the right of a detenu under the COFEPOSA Act, 1974 to be represented by a legal practitioner before the Advisory Board. It underscores the importance of considering such requests on their merits and highlights the need for proper application of mind by the Advisory Board in detention cases.