1987 (11) TMI 75 - SC - Central Excise

Whether the appellant was entitled to the assistance of Sundararajan as a friend? 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? Held that - In view of the position of law and the facts 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.

Summary

Issues:
1. Denial of a fair hearing before the Advisory Board.
2. Refusal of assistance of a friend during the hearing.
3. Legal assistance entitlement for the detenu before the Advisory Board.
4. Compliance with the law in preventive detention proceedings.

Detailed Analysis:

Issue 1: Denial of a fair hearing before the Advisory Board
The appellant challenged his detention order under COFEPOSA by filing a writ petition before the High Court, which was dismissed. The appellant raised six contentions before the High Court, including the denial of a fair hearing before the Advisory Board. The High Court did not consider this contention, but the appellant raised it before the Supreme Court, which found no objection to entertaining this contention due to undisputed facts.

Issue 2: Refusal of assistance of a friend during the hearing
The appellant requested the Advisory Board to allow Mr. Sundararajan, a retired Assistant Collector of Central Excise, to assist him during the hearing. The Board rejected this request, citing that Mr. Sundararajan was not a friend of the detenu. The appellant argued that if Mr. Sundararajan had been permitted to assist him, his case would have been better presented before the Advisory Board. The Supreme Court found the refusal unjust, especially when the detaining authority was assisted by Customs Officers.

Issue 3: Legal assistance entitlement for the detenu before the Advisory Board
The Supreme Court referred to previous judgments emphasizing the importance of legal assistance for detenus before the Advisory Board. The Court clarified that while detenus do not have a statutory right to be represented by a lawyer, they can request legal assistance. The Court highlighted that denying legal assistance to detenus while allowing the detaining authority to be represented by counsel would be against the principles of fairness and Article 14 of the Constitution.

Issue 4: Compliance with the law in preventive detention proceedings
The Court reiterated that matters concerning preventive detention require strict compliance with legal requirements. The refusal to permit the appellant to be assisted by a friend was deemed unjustified, leading to the vitiating of the detention order. Consequently, the Court allowed the appeal, quashed the detention order, and directed the appellant to be released immediately. The judgment emphasized the need for Advisory Boards to ensure compliance with the law in preventive detention proceedings to uphold the rights of detenus.