9911796707
TMI Blog1986 (12) TMI 131X X X X Extracts X X X X X X X X Extracts X X X X ..... detention on the same date. The case against the detenue is that he was in possession of a large quantity of contraband goods hidden in his premises - No. 5/23, West Patel Nagar, New Delhi. These premises were searched by the officers of the Directorate of Revenue Intelligence in the early hours of 20-3-1986, as a result of which foreign goods worth Rupees Twenty-one lakhs and odd were recovered. The accusation against the detenue is that he brought these articles during the various trips that he made to Hong Kong between 10-12-1985 and 19-3-1986. 3. On 29th of April, 1986, the Advisory Board met to consider the propriety of the detention order. The detenue wanted to prove that the premises in which the alleged contraband goods were found was not in his possession and that in fact he lived at some other place. In support of this case he wanted to examine five witnesses before the Advisory Board. These 5 witnesses were present when the matter was to be heard by the Advisory Board on 29th April, 1986. This fact was made known to the Advisory Board. The Board intimated the detenue's legal Advisor that it would not examine the said witnesses but would instead permit the detenue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... These rights are : (i) The right of legal representation (ii) The right of cross-examination and (iii) The right to present his evidence in rebuttal. We are here concerned with the third right, namely the right of the detenue to lead evidence in rebuttal before the Advisory Board. The Constitution Bench repelled the plea that the detenue had a right to cross-examine either the persons on the basis of whose statements the order of detention was made or the detaining authority but observed as follows on the third right : "The last of the three rights for which Shri Jethmalani contends is the right of the detenue to lead evidence in rebuttal before the Advisory Board. We do not see any objection to this right being granted to the detenue. Neither the Constitution nor the National Security Act contains any provisions denying to the detenue the right to present his own evidence in rebuttal of the allegations made against him. The detenue may therefore offer oral and documentary evidence before the Advisory Board in order to rebut the allegations which are made against him. We would only like to add that if the detenue desires to examine any witness, he shall have to keep them prese ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ong with the reference to the Advisory Board unlike the use contained in Section 9 of the Preventive Detention Act, 1950 and Section 10 of the Maintenance of Internal Security Act, 1971. It was contended in that case that in the absence of an express provision in this behalf no obligation was cast on the Government to consider the representation made by the detenue before forwarding it to the Advisory Board or to forward the same to the Advisory Board. After discussing the scope of Article 22(5), this Court held "the Constitutional safeguards embodied in Article 22(5) of the Constitution, as construed by this Court, must, therefore, be read into the provisions of Section 8(b) of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 to prevent any arbitrary Executive action". 7. This decision rendered by a three Judge Bench of this Court has laid down that the Constitutional safeguards embodied in Article 22(5) of the Constitution as understood by this Court must be read into Section 8(b) of the COFEPOSA Act. Therefore, the right in a detenue to adduce oral evidence in rebuttal, being a right in the nature of a Constitutional safeguard embodied in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e will accept the version in the Counter Affidavit. Two facts that are not in dispute are that the witnesses were present on both the days and that on 1-5-1986, they were not permitted to be examined. 11. This aspect of the case is seen discussed by the High Court as follows : "Admittedly, these witnesses were not required under the law to be subjected to cross-examination, the Advisory Board was right in suggesting to the learned Counsel for the detenue to file the affidavits of those witnesses. Whatever those witnesses were to depose to by them in the affidavits and that could have saved the hard-pressed time of the Advisory Board. The detenue could not gain anything further by producing the witnesses before the Advisory Board for their statements. Even though the detenue was in custody, his father Harbans Lal - petitioner could not procure the affidavits of the witnesses and file the same before the Advisory Board. The plea that the witnesses declined to file their affidavits is just flimsy and without any valid reason. The further contention of the learned Counsel for the petitioner that evidence in the shape of affidavits which are not subjected to cross-examination or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere is no escape from the conclusion that by denying the right to examine witnesses present before the Advisory Board, the Board acted in violation of the law laid down by this Court in A.K. Roy's case. 14. The second contention raised on behalf of the detenue is that the Advisory Board failed to send the entire records of proceeding before it to the Central Government. The gravamen of the charge is that the Central Government should have been made aware of the fact that the detenue had got ready witnesses to be examined on 29-4-1986 and 1-5-1986 and that the Advisory Board denied the right of examination of witnesses but only permitted affidavits to be filed which could not ultimaely be filed. The Central Government was under an obligation to apply its mind to the entire material before making the order of confirmation of the detention order. 15. The petitioner's learned Counsel suggested that the report to the Advisory Board contained factual mistakes. The learned Counsel for the respondents made available to us the records of the proceedings of the Advisory Board. They are confidential. However, relevant portions were shown to the petitioner's Advocate. He persiste ..... 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