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2015 (12) TMI 1192 - SUPREME COURT OF INDIA

2015 (12) TMI 1192 - SUPREME COURT OF INDIA - TMI - Validity of detention order - Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA) - Held that:- Since the Detaining Authority was represented by the officers at the time of hearing of the petitioner's case before the Advisory Board, the petitioner too was entitled to be represented through legal practitioner. Since no such opportunity was afforded to the petitioner though claimed by him, he was denied an .....

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record, as alleged by the respondents, it was all the more necessary for the respondents to have followed in letter and spirit the procedure laid down in A.K. Roy’s case before passing the impugned order of detention. It was, however, not done. - impugned order of detention is quashed - Decided in favour of appellant. - WRIT PETITION (Crl.) No. 134 OF 2015, SPECIAL LEAVE PETITION (Crl.) No. 7010 of 2015 - Dated:- 20-11-2015 -

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(Appeals & Security), Government of Maharashtra, Home Department & Detaining Authority against him under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as COFEPOSA Act ). 2. Challenging the same detention order dated 16.04.2015 issued by respondent No.2 herein, the petitioner s son filed a petition bearing Writ Petition No. 2076 of 2015 before the High Court of Judicature at Bombay. By impugned judgment dated .....

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f relied upon documents was served on the petitioner and he was thereafter lodged in custody in Nashik Road Central Prison at Nashik, Maharashtra. (c) On 14.05.2015, the petitioner made a representation to the Detaining Authority as well as the Advisory Board, inter alia, praying therein to allow him to be represented through any legal practitioner/counsel of his choice before the Board. The representation dated 14.05.2015 was rejected by the Detaining Authority on 28.05.2015 and the same was co .....

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.06.2015 written by the Section Officer to the Government of Maharashtra, Home Department communicating him that after considering the report of the Advisory Board, he is directed to be detained for a period of one year from the date of detention, i.e., 20.04.2015. (g) Against the said order, the petitioner has filed this writ petition and his son has filed special leave petition against the impugned judgment dated 03.07.2015 passed by the High Court of Judicature at Bombay. 4. Mr. Saurabh Kirpa .....

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e affidavit dated 23.09.2015 filed by respondent No. 3 - Shri Deepak Kharat, Secretary, Advisory Board, COFEPOSA Act, 1974 that the Board had allowed participation and the assistance of the officials at the time of hearing of the case against the petitioner. Learned counsel submitted that it was, therefore, all the more necessary rather obligatory on the part of the Board to grant time to the petitioner for enabling him to engage any legal practitioner for representing his case as was prayed by .....

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s., (1982) 1 SCC 271. 5. In reply, learned counsel for the respondents supported the impugned order and prayed for its upholding contending that since the petitioner is a habitual offender, he is not entitled to claim any indulgence. 6. Having heard the learned counsel for the parties and on perusal of the record of the case, we find force in the submission of learned counsel for the petitioner. 7. As rightly argued by the learned counsel for the petitioner, the question as to whether the detenu .....

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Advisory Board. It is, however, necessary to add an important caveat. The reason behind the provisions contained in Article 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 t .....

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ioner or a legal adviser before the Advisory Board, 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 .....

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t 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 homework in order to appreciate it. 8. Applying this principle to the facts of the case in hand, we find that the petitioner vide his representation/application dated 13/14.05.2015 (Annexure P-5) had prayed that he be permitted to be represented by any legal practitioner/counsel of his choice before the Board. It is clear from prayer (e), which rea .....

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y respondent No.3 - Mr. Deepak Kharat that the Board did not grant any time to the petitioner and secondly, at the time of hearing of the case, officers of the sponsoring and detaining authority were present and heard in the course of proceedings. Paras 2 and 3 of the affidavit read as under: 2. At the outset I state that I am filing the present affidavit to the extent that the Petitioner has referred to the proceedings before the Advisory Board. It is true that the Petitioner had addressed a re .....

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oring Authority and Detaining Authority were present and were heard in the course of the proceedings. 10. In our considered opinion, since the Detaining Authority was represented by the officers at the time of hearing of the petitioner's case before the Advisory Board, the petitioner too was entitled to be represented through legal practitioner. Since no such opportunity was afforded to the petitioner though claimed by him, he was denied an opportunity of a fair hearing before the Advisory B .....

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#39;s case to include even the officers of the Government when they appear before the Board to assist the proceedings against the detenu, the detenu too has to be provided with equal facility of appearing before the Board through legal practitioner. 12. It is not in dispute, as would be clear from Para 3 of the counter affidavit, that the officers had appeared in the case before the Advisory Board and participated in the proceedings against the petitioner whereas the petitioner was denied such f .....

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