TMI Blog1982 (3) TMI 263X X X X Extracts X X X X X X X X Extracts X X X X ..... rounds of detention in Writ Petition No. 8070 of 1981 are that the petitioner along with Lallu Govan Tandel alias Lallu Malbari, Narsingh Vallabhbhai Tandel (the petitioners in the other two writ petitions) and Narsinghbhai Daulabhbhai (detenu since released) indulged in smuggling of foreign goods such as fabrics, speakers, cassettes, video cassettes, wrist watches, refrigerators, silver, etc. be goods in 36 packages were recovered from House No. 12/134 of Daman Municipal Area. These goods were kept there by two persons, namely; Tulsibhai Ranchhodhbhai Tandel and Mangalbhai Bhula bhai Tandel engaged by the aforesaid four detenus for lifting the said 36 packages from a vessel grounded in sea off Ghati Sheri, Nani Daman. The contraband goods recovered were worth ₹ 5,30,281.50. The aforesaid Tulsidas and Mangalbhai made certain statements on 2nd July, 1981 implicating the aforesaid four persons including the petitioner. When the Customs squad was keeping a watch on Nani Daman coast, a vessel was found in the sea and goods were being unloaded. In the process Tulsibbai Ranchhodhbhai and Mangalbhai Bhulabhai were accosted and each had a package with him and on being led by them the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s own opinion and is not bound to act on the aid and advice of his Council of Ministers .. Even, then the Administrator has considered the advice of the Chief Minister, who is the Minister in-charge of the department dealing with COFEPOSA matters . 5. Mr. Eduardo Faleiro, learned counsel appearing for Respondent No. l (the Administrator) has placed the entire records before us. On a perusal of the relevant papers, we find that the matter was routed through the Chief Minister who considered the case and sent it to the Administrator, who thereafter, passed the order of detention. There is thus a substantial compliance of Section 3 of the COFEPOSA. Even so, the legal submission of learned counsel has to be answered, as he urged it with vehemence. 6. Section 2 (f) of the COFEPOSA provides: In this Act, unless the context otherwise requires,- (f) State Government , in relation to a Union Territory, means the administrator thereof . In the Union Territories Act, 1963 (hereinafter the 'Act'), under clause (a) of sub-section (1) of Section 2, 'Administrator' has been defined as: 'Administrator' means the administrator of a Union Territory appointe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... action, to take such action or to give such direction in the matter as he deems necessary . x x x x Section 46 confers power on the President to make rules: (a) for the allocation of business to the Ministers; and (b) for the more convenient transaction of business with the Ministers including the procedure to be adopted in the case of difference of opinion between the Administrator and the Council of Ministers or a Minister. Sub-section (2) provides that save as otherwise provided in the Act, all executive action of the Administrator, whether taken on the advice of his Ministers or otherwise, shall be expressed to be taken in the name of the Administrator. The contention is that the Administrator of the Union Territory appointed under Article 239 of the Constitution by the President is in the same position as the Governor of a State or the President of India in the matter of discharge of executive functions conferred upon him and he must act on the advice of the Council of Ministers. It was accordingly further submitted that the Administrator cannot act on his own and in this case it is claimed on behalf of the Administrator in the affidavit that he can act on his own as st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ound to act according to the advice of the Council of Ministers. This becomes manifest from the proviso to Section 44 (1). It transpires from the proviso that in the event of a difference of opinion between the Administrator and his Ministers on any matter, the Administrator shall refer the matter to the President for decision and act according to the decision given thereon by the President. If the President in a given situation agrees with what the Administrator opines contrary to the advice of the Council of Ministers, the Administrator would be able to override the advice of the Council of Ministers and on a reference to the President under the proviso, obviously the President would not according to the advice of the Council of Ministers given under Article 74. Virtually, therefore, in the event of a difference of opinion between the Council of Ministers of the Union territory and the Administrator, the right to decide would vest in the Union Government and the Council of Ministers of the Union territory would be bound by the view taken be the Union Government. Further, the Administrator enjoys still some more power to act in derogation of the advice of the Council of Ministers. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere engaged for unloading packages containing contraband goods from the grounded vessel to a house in Nani Daman by the detenu and Lallu Govan; and there is no dispute that the statements of Mr. Patel and Mr. Fitter were given to the detenu. Further, the grievance made by the detenu is not warranted by the materials on record. For, in the penultimate paragraph of the grounds of detention, it was stated, copies of the statements and other documents which have been taken into consideration by the detaining authority are also enclosed as per the index attached (underline mine). Thereafter, no grievance appears to have been made by the detenu in his representation. Even from the grounds in the Writ Petition, it does not appear which documents, if any, were not supplied to the detenu. The records show that there was great tension on the date at the place of apprehension and as such no statements could be and were recorded on the date of apprehension, but subsequently recorded on 2nd July, 1981. The submission therefore has no substance. 8. The third submission of learned counsel is, that the order of detention was not properly served . The submission is that the Gujarati translati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enultimate paragraph of the grounds it bas been stated:- The Gujarati version of the grounds of detention is enclosed to enable you to understand the grounds for which detention order is passed against you . This shows that the Gujarati version of the grounds as per Annexure 'B' was sent to the detenu alongwith the ORDER as per Annexure 'A'. Admittedly, the detenu is a Gujarati speaking person. So far as the non-supply of the Gujarati version of the ORDER as per Annexure 'A' is concerned, in our opinion, there has been no violation of Article 22 (5) or any other law. The ORDER as per Annexure 'A' was a mere formal recital of section 3 (1) of the COFEPOSA, showing the provision of law under which the order of detention has been made. Although, the section of the COFEPOSA has not been mentioned in the last but two paragraphs of the grounds , it has been stated that the detenu engaged himself in smuggling goods and that there is sufficient cause to pass detention order against you with a view to preventing you from smuggling goods , which was in Gujarati. It cannot, therefore, be. said that the detenu was in any way handicapped in submitti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (.) REFERENCE YOUR LETTER DATED 1ST OCTOBER 1981 REGARDING DETENTION OF SARVASHRI DEVJI VALLABHBHAI TANDEL AND NARSINBHAI DURLABBHAI TANDEL DETAINED UNDER COFEPOSA ACT RECEIVED IN THE OFFICE OF THE ADMINISTRATOR ON 5/10/1981 (.) YOUR TELEGRAM DATED 1ST OCTOBER 1981 REFERRED THERElN HAD BEEN REPLIED UNDER THIS DEPARTMENT'S TELEGRAM OF EVEN NUMBER DATED 6TH OCTOBER 1981 AND ITS COPIES HAVE ALSO BEEN SENT To THE CONCERNED DETENUS AT CENTRAL JAIL AGUADA (.) CONTENTS OF THE SAID TELEGRAM ARE REPRODUCED BELOW (.) QUOTE (.) YOUR TELEGRAM DATED 1ST OCTOBER 1981 ADDRESSED TO THE ADMINISTRATOR GOA DAMAN AND DIU REGARDING DETENTION OF SARVASHRI DEVJI VALLABHBHAI TANDEL AND NARSINBHAI DURLABHBHAI TANDEL DETAINED UNDER COFEPOSA ACT (.) YOUR REQUEST FOR APPEARANCE BEFORE THE ADMINISTRATOR AND REPRESENT THE CASE OF THE AFORESAID DETENUS HAS BEEN CAREFULLY CONSIDERED BY THE ADMINISTRATOR AND HE HAS DECIDED THAT THE DETENUS CAN MAKE REPRESENTATION TO THE ADMINISTRATOR THROUGH CENTRAL JAIL AGUADA WHERE THEY ARE DETAINED (.) THE REPRESENTATION OF THE AFORESAID DETENUS WILL RECEIVE HIS DUE CONSIDERATION AS AND WHEN THEY ARE RECEIVED (.) UNQUOTE (.) -CHIEF SEC- It has been stated in paragra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e same day. The reply was received by the petitioner/detenu on 7th October, 1981 . In addition to the above explanation of the respondent in para 9 of the counter-affidavit, we perused the file and we are satisfied that there was no delay in disposal. On the contrary, it may be said to the credit of the administration that it was dealing with the matter with utmost promptitude. 11. Now to examine the second part of the fourth contention of learned counsel. His submission is that the Administrator committed an illegality not only by refusing the detenu to be heard through a lawyer, but, in addition, by misleading the detenu by his telegram. The detenu's counsel, Mr. Ajwani, informed the Administrator that the detenu had instructed him to represent his case before the Administrator. He made a request to the Administrator to let him know the date, time and place of his appearance before the Administrator The reply telegram quoted above has stated that his request has been carefully considered by the Administrator who, by implication, rejected the request. Besides, it was further stated in the telegram that the Administrator has decided that the detenu can make representati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Shah v. The State of Maharashtra Anr. have held; Section 8 (e) has not barred representation of a detenu by a lawyer. It only lays down that the detenu cannot claim representation by a lawyer as of right. It has given the Board a discretion to permit or not to permit representation of the detenu by counsel according to the necessity in a particular case . In the case of A.K Roy v. Union of India relied on by Mr. Jethmalani, a Constitution Bench of this Court has held. First and foremost, we must consider whether and to what extent the detenu is entitled to exercise the trinity of rights before the Advisory Board; (i) the right of legal representation; (ii) the right of cross- examination and (iii) the right to present his evidence in rebuttal. These rights undoubtedly constitute the core of just process because without them, it would be difficult for any person to disprove the allegations made against him and to establish the truth. But there are two considerations of primary importance which must be borne in mind in this regard. There is no prescribed standard of reasonableness and therefore, what kind of processual rights should be made available to a person in any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... who is detained under any law, which provides for preventive detention, can claim the right to consult a legal practitioner of his choice or to be defended by him. In view of this, it seems to us difficult to hold, by application of abstract, general principles or on a priori considerations that the detenu has the right of being represented by a legal practitioner in the proceedings before the Advisory Board.. lt is indeed true to say, after the decision in the Bank Nationalisation case, that though the subject of preventive detention is specifically dealt with in Article 22, the requirements of Article 21 have nevertheless to be satisfied. It is therefore necessary that the procedure prescribed by law for the proceedings before the Advisory Boards must be fair, just and reasonable. But then, the Constitution itself has provided a yardstick for the application of that standard, through the medium of the provisions contained in Article 22 (3) (b). Howsoever much we would have liked to hold otherwise, we experience serious difficulty in taking the view that the procedure of the Advisory Boards in which the detenu is denied the right of legal representation is unfair, unjust or unrea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esult of the proceedings which have a serious import, is entitled to be heard in those proceedings and be assisted by a friend. ............... . (para 94) (emphasis added). But the Court observed: The appearance of the legal practitioners 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. (emphasis added). In other words, a 'friend' who, in truth and substance, is a friend of the detenu may appear for the detenu but if such a 'friend' also happens to be a legal practitioner, he cannot, as of right, appear before the Advisory Board on behalf of the detenu. 12. The same reasoning will apply to appearance by an 'agent'. In other words, if an 'agent' is in 'truth and substance' an agent, the detenu may appear through him. But if the 'agent' Is a legal practitioner, appearance by him as of right will be barred. But a 'friend' or an 'agent' of the detenu who is essentially a comrade in the profession of the detenu for which he is detained, such a 'friend' or 'agent' will also be barred from appearan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nformed of the grounds of detention at the time of arrest and the right to consult and be defended by a lawyer of his choice, and any detention beyond the period of 24 hours plus the time taken in the journey, unless authorised by a magistrate to be illegal would have also been available to any one detained under the preventive detention laws but for sub-Article (3). Sub- Article (3) provides that nothing in clauses (1) and (2) shall apply (a) to any person who for the time being is an enemy alien; or (b) to any person who is arrested or detained under any law providing for preventive detention. As a necessary corollary, any law providing for preventive detention would not be unconstitutional even if it contravenes Article 22 (1) and (2). In other words, a person detained under a law providing for preventive detention cannot claim as a matter of constitutional right to consult and be defended by a lawyer of his choice. Nor can he insist upon being produced before a magistrate within 24 hours of his arrest. 14. Section 8 of the COFEPOSA soows as noticed above that a person against whom an order of detention has been made under the Act shall not be entitled to appear by any legal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... down by the jail administration under an order dated 23rd August, 1975, issued in exercise of the powers conferred under Section 5 of the COFEPOSA. The relevant condition was as under: 3. The conditions of detention in respect of classification and interviews shall be as under: (b) Interviews: Subject to the direction issued by the Administrator from time to time, permission for the grant of interviews with a detenu shall be granted by the District Magistrate, Delhi as under: (i) Interview with legal adviser: Interview with legal adviser in connection with defence of a detenu in a criminal case or in regard to writ petitions and the like, may be allowed by prior appointment, in the presence of an officer of Customs/Central Excise/Enforcement to be nominated by the local collector of Customs/Central Excise or Deputy Director of Enforcement who sponsors the case for detention. (ii) Interview with family members: monthly interview may be permitted for members of the family consisting of wife, children or parents of the detenu .. The contention was that the condition in clause 3 (b) (ii) which restricts the interview to only one in a month in case of a detenu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e right was conferred by the conditions of detention. One need not go in search of some such right implicit in Article 21 by a process of interpretation when it was expressly granted in the Conditions of Detention under the Act. Therefore, with respect, the decision in Mullin's case cannot help the petitioner to spell out right to be represented by a lawyer before the detaining authority. 15. Now the other aspect of the submission, namely; whether the respondent misled the detenu by his telegram. Objection has been taken to the following sentence of the telegram: He (administrator) has decided that the detenus can make representation to the administrator through Central jail, Aguada, where they are detained . It may be remembered that the telegram was sent to the detenus' advocate, Mr. Ajwani, and not to the detenus. The above sentence conveying an advice, albeit gratuitous, could hardly mislead a lawyer who is supposed to know how a representation of a detenu is to be sent to the detaining authority. The submission of Mr. Jethmalani was that the sentence give the impression that the representation if sent through the jail only, and in no other way, would be consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the test of preponderance of probabilities or of reasonable doubt. The detention is based on the subjective satisfaction of the detaining authority that it is necessary to detain a particular person in order to prevent him from acting in a manner prejudicial to certain stated objects. The proceeding of the Advisory Board has therefore to be structured differently from the proceeding of judicial or quasi judicial tribunals before which there is a lis to adjudicate upon. Finally, the Court observed We are therefore of the opinion, that. in the proceedings before the Advisory Board, the detenu has no right to cross-examine either the persons on the basis of whose statement the order of detention is made or the detaining authority. 17. Faced with the difficulty created by the above decision, learned counsel submits that he has not used the word 'cross-examination' in the technical sense but used it loosely in the sense that the detenu would have examined as his witnesses the persons on whose statements the order of the detention has been based, to establish his innocence particularly before the judicially trained minds of the Members of the Advisory Board. Even if the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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