DEVJI VALLABHBHAI TANDEL ETC. versus THE ADMINISTRATOR OF GOA, DAMAN & DIU & ANR.

WHEREAS, I, Jagmohan, Administrator of Goa, Daman and Biu, am satisfied with respect to, the person known as Shri Devji Vallabhbhai Tande! alias Devji Boss son of Shri Vallabhbhai Tande! residing at .H. No. 1/255, Penta Sheri, Vadi Falia, Nani Daman, t~at with a vfew · to preyenting him from smugg,ling goods: ~64 SUPltEME coUkt REl'olt'ts 982] 3 s.c.11..

pp. 563–564, margin G

!J It is necessary to make the following order :

p. 564

Now, therefore, in exercise of the powers conferred by section 3 (1) of the,Ccinservation of Foreign· Exchange and Prevention. of Smuggling Activities Act, 1974;

p. 564

I, Jagmo~an, Administrator of Goa, Daman and Diu direct that 'the said Shri Devji Vallabhbhai Tande! be detained at the Central Jail, Aguada, and the enclosed grounds of detention be served on him.

p. 564, margin B

SEAL Place :-Cabo Raj Niwas Date :-11.9.81 Encl : As above

p. 564, margin C

Sd/-

p. 564, margin D

(Jagmohan) Administrator of Goa, Daman

p. 564, margin D

and Diu. To / Shri Devji Vallabhbhai Tande! alias Oevji Boss, H. No. 1/255, Fenta Sheri,

p. 564, margin D

Vadi Falia, N~ni Daman"

p. 564, margin F

Admittedly, this 'ORDER' -as per Annexure •A' was in English but the enclosure, Annexure 'B' which contains the grounds . of detention together with the materials on which the grounds were based was in Gujarati. In paragraph 8 of the counter-affidavit filed on behalf of th.e Administrator, i~ has been stated :

p. 564, margin F

"As regards Ground D it is denied that the detaining authority bas not furnished Gujarati version of the order of detention as alleged by the petitioner ................... .. The petitioner by his own. admission kiiows Gujarati and accordingly the grounds of detention have been communicated to the petitioner in Gujarati language. The aJlegatitm is, therefore, untenable".

pp. 564–565, margin G

The above statement of the respondent is supported by the internal evidence of Annuextre 'B' itself. For, in the penultimate paragraph of the "grounds" it has been stated :

p. 565, margin A

"The Gujarati version of the grounds of detention is enclosed to enable you to understand the grounds for which detention order is passed agai!ht you".

p. 565, margin B

This shows that the Gujarati version of the grounds as per Annexute 'B' was . sent to the detenu alongwi th the ORDER as per Annexure 'A'. Admittedly,, the deten.u is a Gujarati speaking person.

p. 565, margin C

So far the non-supply of the Guj;irati version of the ORpER

p. 565, margin C

as as per Annexure 'A' is concerned, in our opinion, there has been no violation of Article 27 (5) or any other law.' The ORDER as per· Annexure 'A' was a mere formal recital of section 3 (I) of the COFEPOSA, showing the . provision of law under which the order of detention has beeni made. Although, the section of the COFE- POSA has n~t been nlentioned in the last but two paragraphs of the . "groun,ds", it has been stated that the detenu engaged himself"i!t 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 submitting his represent~tion, or there has been any violation of Article 22 (5) of the Const.itution.

p. 565, margin C

9 .. The learned couns.el, in -support of his third submission, cited before us the decision of this Court in the case' of The State Bombay v. Atma Ram Sridhar Vaidya.(') The decision is beside . the point and need not be referred to.

p. 565, margin F

,Learned Counsel for the petitioner also cited another decision of this Court reported in (1980) 4 SCC 427. 1n· that case, it .has been held that failure to supply the grounds of detention in the · language understood by the detenu violates Article 22 (5) of the Constitution. In the instant case, as we have found above the (I) [1951) ~·s.C.R. 167 • Gnjarati translation of the grounds was supplied to the detenu. The de~ision cited has not held that the.. ORDER expressed in terms of Section 3 (l) of the COFEPOSA must.also be in the language understood by the detenu. Section 3 (l) as stated above merely gives power of detention to the detaining au4hority. This submission also has no substance. .

pp. 565–566, margin G

-10. The fourth submission of learned counsel was that by a telegrari) dated lst October, 1981, the detenu requested for an immediate !hearing through his lawyer but this request was denie~. There was a delay of six days in deciding the matter. This was contrary to Jaw. That apart, the "respondent misled the detenu by indicating to him that the only way by which the Administrator could be per-· suaded would be a representation through the jail'\ The factual part of the submission is not correct. Ori !st October, 1981, one Shri Thaku Ajwani, Advocate for the pe.titioner, sent a telegram to the Administrator. It was in the following 'terms :

p. 566, margin B

"JAGMOHAN ADMINISTRATOR OF GOA DAMAN & DIU -CABO RAJ NIWAS

p. 566, margin D

CARANZALER GOA ORDINARY DETENUS DEVJI VALLABHBHAI TANDEL AND NARSINBHAI DURLABHBHAI TANDEL DETAINED UNDER COFEPOSA ORDERS DATED liTH SEPTEM- BER !981 HAVE INSTRUCTED ME TO APPEAR BEFORE YOU AND REPRESENT THEIR CASE FOR· REVOKING DETENTION ORDERS (Stop) KINDLY INTIMATE FORTHWITH DATE, TIME AND PLACE.

p. 566, margin E

THAKU AJW ANI AI'.>VOCATE 22 PANCHSHILA C ROAD CHURCHGATE BOMBAY 400 020

p. 566, margin G

There was a reply telegram by the Chief Secretary of the Union Territory in question. The post copy of the reply telegram reads thus : (material portions only) :

p. 567, margin A

"STATE TELEGRAM EXPRESS ADVOCATE SHRI THAKU AJWANI CHAMBERS C/.0 RAM JETHMALANI ADVOCATE SUPREME COJJRT 22 PANCHSHILA C ROAD, CHURCHGATE, BOMBAY-400 020 ........ No. 14/3/80/HD (G) (.) REFERENCE YOUR LETTER DATED !ST 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 TEI,EGRAM DATED !ST OCTOBER 198t REFERRED THEREIN HAD BEEN REPLIED UNDER THIS DEPARTMENT'S TELEGRAM OF EVEN NUM- BER DATED 6TH OCTOBER 1981 AND ITS COPIES HA VE ALSO BEEN SENT TO THE CONCERNED DETENUS AT (::ENTRAL JAIL AGUADA (.) CON· TENTS OF THE SAID TELEGRAM ARE REPRODUC- ED BELOW(.) QUOTE(.) YOUR TELEGRAM DATED !ST OCTOBER 1981 ADDRESSED TO THE ADMINI- STRATOR GOA DAMAN AND DIU REGARDING DETENTION OF SARY ASHRI DEV JI VALLABHBHAI TANDEL AND NARSINBHAI DURLABHBHAI TAN-

p. 567, margin A

DEL DETAINED UNDER. COFEPOSA ACT(.) YOUR · REQUEST FOR APPEARANCE BEFORE THE ADMI- NISTRATOR AND REPRESENT THE CASE OF THE AFORESAID DETENUS HAS BEEN CAREFULLY CONSIDERED BY THE ADMINISTRATOR AND HE HAS DECIDED THAT THE DETllNUS CAN .Mi\Ke

p. 567, margin G

SUPREMF COURT REPORTS ' [1982J 3 s.c.tt. 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 (.)

p. 568

--CHIEF SEC--"

p. 568, margin B

It has been stated in paragraph 9 of the counter affidavit as follows:

p. 568, margin B

" .......................... ., it is admitted that the telegram · dated !st October, 1981, purported to have been made by . the Advocate on behalf of petitioner requesting the Administrator for. grant of personal appearance' before him for'revocation of detention order was received in the office of the Administrator on 3,rCI October, 1981. This request was duly examined and it was felt that under the law, the detenu is not entitled to be represented by an Advocate and . the Detaining Authority is not legally bound to grant the prayer made on behalf of the detenu. The Advocate of the petitioner was telegraphically informed on 6th October 1981 that the request had been duly considered by the Administrator who had decided that the detenl} could m·1ke a representation to the Administrator through the Superintendeqt, Central Jail, Aguada, where he was. detained and that the same would receive his due consideration as and when it was received. A copy of the said telegram sent to the Advocate was also e11dorsed- to the detenu and the same was received by him on 7th October, 1981. A letter in confirmation of the Advocate' s telegram was received from. the Advocate of the petitioner in the office. of the Administra· tor on 5.10.193·1 and the.same was replied to telegraphically on 7th October, 1981, reiterating the earlier position as conveyed in the said telegram of 6th October. _ The allegation that IO days were. taken by the respondent in only deciding the .representation and in coming to · the conclusio11 thiit he would not permit a lawyer to plead for revocation of the order of de1ention is, therefore, not correct. To give further details, the telegram of the petitioner's Advocate was received in the Administrator's office on 3rd October, 1981, and was sent to the Joint Secretary (Home) the same day. It was referred to the law Department on 3rd October, 1981 itself and through usual channels reached the Law Secretary on 5th October, 1981, the 4th of October being a Sunday. The Law Secretary gave his opinion and referred the telegram to the Home Department on the same day Le. 5th October, 1981. In the Home Department 'it was sent by the Under Secretary (Home) to the Chief Secretary and by the latter to the Chief Minister the same day. On 6th October, 1981, it was examined by the q, Governor and the reply was sent to the petitioner on the same day. The reply was received by the petitioner/detenu on 7th October, 198)". ·

pp. 568–569, margin B

In addition to the above explanation of the respondent in para 9 of the counter-affidavit, we peruied 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.

p. 569, margin C

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 misleadiog 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. Administratorto Jet him know the date, time and place of his appearance before the Administrator. The reply telegram quoted above ha~ stated that his request has been "carefully considered by the Administrator" who, by implication, rejected the request. Besides, it was furthsr stated in the telegram that the Administrator "has decided that the detenu can make representation to the Administrator through the jailor and that the representation so s~nt would be duly considered by the Administrator to which exception has been taken. In th'ese circumstances, the following questions arise :

p. 569, margin D

(1) whether the detenu has a right to ;ippear before !he detainin~ 11u,t4oritr through a lawrer; (2) \\bether the last sentence in tte telegram has

pp. 569–570, margin G

misled the detenu.

p. 570, margin A

Mr. Jethmalani submits that Article 22 (3) enables the legislature to take away the common law right of acting through an agent generally or through a particular class of agents. Tbe statute does not deal with the general but with . a particular class, namely, the legal practitioners. The statute confines this legal disability to the matter connected with reference to the Advisory Board. So he submits that lawyers are not compeletely sought to be excluded. Under Article 22 counsel submits there are two distinct and independent rights : (I) to persuade the detaiqing authority to revoke the order of detention and (2) to-persuade the Advisory Board to disapprove the detention. It is only in the second process that the agent called lawyer is excluded. The learned counsel further submits that every person has a common law right to employ an agent and do an act through him. The detenu could, therefore, send an 'agent' or a 'friend' who might have been his law.yer.

p. 570, margin A

Let us first examine whether the detenu has a right to appear through a lawyer. This examination need not detain us long.

p. 570, margin D

Section 8 (e) of the COFEPOS A reads: (material portion only)

p. 570, margin D

"For the purposes of sub-clause (a) of clause (4) and sub-clause (c) of clause (7), ·of Article 22 of the Constitution,-(e)-a person against whom ·an order of detention· has been made under this Act shall not be entitled to appear by any legal practitioner in any matter connected with the · reference to the Advisory Board ....... " (emphasis added).

p. 570, margin E

Clause (e) in express terms disent.itles the detenu to appear through a legal practitioner in any matter connected with the reference to the Advisory Board. It is indisputable that a detention matter which is pending before the Administrator is nndoubtedly a matter connected with the reference to the Advisory Board. The detenu, therefore, has no right to appear before the detaining authority or before the Advisory Board by a legal practitioner.

p. 570, margin F

This Court in the case of Smt. Hemlata Kanti/4/ Shah ;:-The State of Maharashtra & Anr.( have held :

p. 570, margin G

(1)£(1981) 3 Sqile

p. 570, margin H

"Section 8 (e) has not barred representation of a detenu by a lawyer. It only lays down that the detenu cannot claim ropresentation by a lawyer as of right. It has given the Board a discrection tolpermit or not to permit representation of the detenu by counsel according to the necessity in a particular case".

p. 571, margin A

In the case of A.K. Roy v. Union of India(') relied on Mr. Jethmalani, a Constitution Bench of this Court has held :

p. 571, margin A

"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 m.ind 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 proceeding depends upon the nature of the proceedings in relation to which the rights are claimed. The kind of issues involved in the proceeding determine the kind of rights available to the persons who are parties to that proceeding. Secondly the question as to the availability of rights has to be decided not generally but on the basis of the statutory provisions which govern the proceeding, provided of course that those provisions are valid ......... " (para 84)

p. 571, margin A

'Turning first to the right of legal representation which is claimed by the petitioners, the relevant article of the Constitution to consider is Article 22 which bears the marginal note "protection against arrest and detention in certain cases". That article provides by clause (J) that no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall q~ Qe <lenieq the ri~ht to consult, an<! (I) (1982l 1 s.c.c. 271, to be defended by, a legal practitioner of his choice. Clause (2) requires that every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of 24 hours of such arrest and that no person shall be detained in.custody beyond the said period without the authority of a magistrate. Clause (3) provides that nothing in clauses (I) 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. It may be recalled that clause (4) (a) of Article 22 provides that no law of preven· tive detention shall authorise ·the detention of a person for a period longer than three months unless the Advisory Board has reported -before the expiry of. the said period of three months that there is in its opinion sufficient cause for such detention. By clause (7) (c) of Article 22, the Parliament is given the.power to prescribe by law the-procedure to be followed by the. Advisory Board in an inquiry under clause (4) (aJ:'. (para 85)

pp. 571–572, margin F

"On a combined reading of clauses (I) and (3) (b) of Article 22, it is clear that the .right to consult and to be defended by a legal practitioner of one's choice, which is conferred by clause (I), is denied by clause J (b) to a person who is detained under any law providing for preventive detention. Thus, according to the express intendment of the Co.nstitution itself, no person 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 practioner in the proceedings before the Advisory Board ... ,, ...... It 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 )aw for the proceedings before the Advisory Boards must be fair, just and reasonable. But then, the Constitutioq itself has providN a )'llr<lstiqk for b.v. v. ni~ (fJaharui Isiam, J.) 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 unreasonable. If article 22 were silent on the question, of the right of legal representation, it would have been possible, indeed right. and proper, to hold that the detenu cannot be denied the right of legal representation in the proceedings before the Advisory Boards. It is unfortunate that courts have been deprived of that choice by the express language of Article 22 (3) (b) read with Article 22 (I)". (para 86).

pp. 572–573, margin D

"To read the riglit of legal representation in Article · 22 (5) is straining the language of that article. Clause (5) confers upon the detenu the right to be informed of the grounds of detention and the right to be afforded the earliest opportunity of making a representation against the order of detention. That right has undoubtedly to be ' effective, but it does not carry with it the right to be represented by a legal practitioner before the Advisory Board merely because, by Section 10 of the National Security Act, the representation made by tlie detenu is required to be forwarded to the Advisory Board for its consideration. If anything, the effect of Section 11 (4) of the Act, which conforms to Article 22 (3) {b), is that the ·detenu cannot appear before the Advisory Board through a legal practitioner. The written ·representation of the detenu does not have to be expatiated upon by a legal ·practitioner". (para 88)

p. 573, margin B

"We must therefore hold, regretfully though, that the detenu has no right to uppear through a legal practitioner in the proceedings before the Advisory Board; It is, however, necessary to add an important caveat. The reason behind the provisions contrained 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 ................ , ........ ". {para 93) (underlines added) 514 sbt>kEMB cotritt RBPbl!.ts fl 982] 3 s.t.lt.

pp. 573–574, margin F

What bas been said above about appearance through lawyer before the Advisory Board under the National Security Act equally apply to appearance by lawyer before the ·Advisory Board under COFEPOSA.

p. 574, margin A

With regard to appearance through a 'friend', the Court observed :

p. 574, margin B

"Another aspect of this matter which needs to be mentioned is that the embargo on· the appearance of 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. Every person whose interests are adversely affected as a result 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 :

p. 574, margin B

"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).

p. 574, margin E

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.

p. 574, margin E

12. The same reasoning will apply to appearance by an 'agent' .. In other words, if an 'agent' is in 'truth and substance' an agent, t)le detenu .may appear through h.im. But if the 'agent' is a legal prJ1ctitioner, 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 be is detained, such a 'friend' or 'agent' will also be barred from appearance on behalf of the detenu.

p. 574, margin F

In passing it must be stated that a man has a right to appoint an agent.. One may call it a common law right: But there is no obligation on the other side io deal with the agent. The other side has an equal right to refuse to deal with an agent. In any view of the matter, in the absence of any right to give an oral hearing in the form of making a representation under Article 22 (5), the question of hearing a legal practitioner on behalf of the detenu does not. arise. It . cannot, therefore, be said that refllsal to hear Mr. Ajwani, advocate engaged by the detenu, by the Administrator has resulted in denial of constitutional right to make a representation .

p. 575, margin A

That apart, in this case, the case, the ielegram in express terms has described the sender, Thaku Ajwani, as an advocate, who in clear terms stated that he ,had been iitslr!Jcted by the detenu to appear before the detaining authority tci·represent the case of the detenti; In other words, Mr. Ajwani cleirly told the Administrator that· the detenu was his client and that Ile himself was his counsel and·tbat he desired to represent the case of the detenu in his capacity as a legal practitioner. The telegram was not sent by Mr: Ajwani telling the Administrator that he wanted to appear before the Administrator as a 'friend' or an 'agent' of the detenu in order to represent his·case. It, therefo,re, cannot be said that the Administrator refused a 'friend' or an 'agent' of the detenu to appear before him to assist the detenu.

p. 575, margin C

: · 13. Article 22 (I) and (2) confer fundamental right of protection· against arrest and detention in certain cases. Sub.Article (!) enjoins il duty on the person arfesting any person to inform the

p. 575, margin E

person arrested, as soon as may be, of the grounds for such arrest '-.before detaining him in custody and s·1ch detained person shall oot be denied the right to consult and to be defended by a legal practitioner, of his choice. Sub-Article (2) enjoins a duty on the person arresting and detaining any one to produce him before the nearest Magistrate within a period of 24 hours of such arrest excluding the time necessary fo1 the journey from .the place of arrest to the Court of the Magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate. These two fundamental rights, namely, right to be informed of the grounds of detention at the time of arrest and the right to consult and be defended by a lawyer or 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 deten· tion 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 iime being is an enemy alien; or (b) to any person w)lo is arrested or drtained under any law providing for preventive deten· tion. As a necessary corrollary, 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.

pp. 575–576, margin E

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 sha!I not be entitled . to appear by any legal practitioner in any matter connected with the reference to the Advisory Board. Assuming that the right to make a representation and tbe corres· ponding obligation cast on the detaining authority to consider the representation expeditiously is not a matter connected with· the reference to the Advisory Board and that both are independent · stages, it cannot be said that the refusal of the Administrator to hear the advocate of the detenu while considering the representation would be denial of common law right of the detenu to be represented .bY an agent. Article 22 (S) which has provided a safeguard in the matter of preventive detention confers the right on the detenu and simultaneously casts an obligation on the detaining authority, as soon as may be, after the arrest to communicate to the detenu the grounds on which the order bas been made and to afford the earliest opportunity of making a representation against the order. Representation is to be made by the detenu. Detenu is a person who is already deprived of his liberty. Giving the ordinary connotation to the expression 'earliest opportunity of making a representation' as set out in sub-Article (S) would only imply that the person can send his written representation through the jail. authorities. It would be open to him to send it by ·any other communicating media but the opportunity to make a representation does not comprehend an oral hearing. If it does, the detenu will have to be taken from the jail ·where he is detained to the detaining authoricy which in a given situation may not even be feasible and the delay in transit may be counterproductive to the earliest opportunity to be afforded to make a representation. It is, therefore, implicit in Sub-Article (5) of Article 22 that the representation has to be a written representation communicated through the jail authorities or through any other mode which the detenu thinks fit of adopting but the detaining authority is under no obligation to grant any oral hearing at the time of considering the representation. Now, if the.representation has to be a written representation, there is no question of hearing any one much less a lawyer. Reliance was, however, placed on Francis Coralie Mullin v. The Administrator, Union Territory of Delhi & Ors.,( In that case the detenu challenged the validity of clause 3 (b) (i) and (ii) of the Condition of Detention laid down by the jail administration under an order dated 23rd August, 1975, issued in exercise of the powers conferred under Section 5 of the COFE· POSA. The relevant condition was as under :

pp. 576–577, margin C

3. The conditions of detention in respect of classification and interviews shall be as under :

p. 577, margin C

(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 :

p. 577, margin C

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

p. 577, margin E

the case for detention.

p. 577, margin F

(ii) Interview with family members : (2) [1981] 2 S.C.R. 516.

p. 577, margin G

A monthly dnterview may be permitted for members of the family consisting of Wife,

p. 578, margin A

children or parents of the detenu ..... "

p. 578, margin A

The contention was that the condition in clause 3 (b) (ii) which restricts the interview.to only• o.ne in a month in case of a dete~u is · unreasonable and arbitrary ·when contrasted with an under·trial prisoner who was entitled to the faeility of interviews with friends and relatives twice in a· week and e'1en thoiigh a detenu stands on a · · higher pedestal than an:under-trial prisoner or a convict, the Jimi!atioh · of interview to one in a month is utterly ar&ittary. · This contehlion\ found fav.our wi.th the.Court oil the ground· ·that restrictions Placed on a detenu must, consistent with the effectiveness Of detention; be minimal (see Sampat Prakash v. State of Jammu & Kashmir, [1969] 3 $.C.R. 574. Proceeding further, this Court held that sµb-clause (i) of clause 3 (b) which prescribes that the detenu can have an inter· view with a legal adviser:of his choice with prior permission of the District Magistrate and the interview has to take place in the presence of a Customs/Central Excise/Enforcement officer nominated by the local Collector of Customs/Central Excise/Deputy Director of Enforcement, was unreas.,nable and hence invalid. Now, this judgment is not an authority for- the proposition that a detenu as a matter of right is entitled fo make his representation by an oral bearing before th1! detaining authority under Article 22 (5), The right to consult a lawyer was granted •by· the conditions of detention prescribed under Section 5. This right was not spelt out as an incident of Article 21 and what has· been found invalid is the presence of officers at. the interview and the number of interviews. Therefore, Francis Coralie Mullin' s case is not an authority for the proposition and frankly, cannot be one for the putpose of spelling out a right to be represented by a lawyer ..y.hile ~\)-king representa· tion before th~ detaining authority. Everfthoiign there are some observations'w!licb may imply sµch a . right, they would be comple-. tely obiter for the obvious reasd~ that a right was conferred by the Conditions of Detention and not for the first time a right was being spelt out by the expanded horizons of right to life and liberty as enshrined in Article 21 .. The attempt to read or imply something in Article 21, which is positively reflected by Article 22 (5) would be contrary to any canon of construction because it is wen settled) th.at what is expressly reflected cannot be brought in by the back door of implication. It was not necessary to spell out these rights in the facts of that case for the obvious reason that the right was conferred

p. 578, margin A

b.v. TANhEL v. TllB Ai>i.dNISTRATOR (Baharul Islam J.) 519 by the conditions of detention. One need not go in search of some such right implicit in Article 21 by a process of interpreta,tion .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 fawyer before the detaining authority.

p. 579

15. Now the other aspect oftbe submission, namely; whether the respondent misled the detenu by bis telegram. Objection has been taken to the following sentence of the telegram :

p. 579, margin B

"He (administrator) has decided that the detenus can make representation to the adminimator through Central jail, Aguada, where they are detained".

p. 579, margin C

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 gratuitious, could hardly mislead a lawyer who is supposed to know bow a representation of a detenu is to b~ 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, considered. The submission was hypothetical. The detenu was in jail. The_ representation, of necessity, had to be sent through the Superintendent of the jail where be was detained with the former's necessary endorsement and seal. It would be difficult for the detaining authority to immediately ascertain whether the representation sent otherwise than through the jailor was genuine. Even so the Administrator did not say that the detenu's representa· tion, unless sent through the jail would be considered. There is no merit in the submission.

p. 579, margin C

16. The sixth point raised by learned counsel for the peti· tioner is that illegalities were committed in dealing with the representation of the detenu in that :

p. 579, margin F

"(a) the detenu was not heard. (b), his advocate was not heard. (c) he was not told that be could be represented by a friend. (d) he wa.s not permitted cross-examination. of re,

pp. 579–580, margin F

butt al evidence." The submission of learned counsel has no substance. (a). A perusal of the record shows that the detenu was heard in person, was questioned by the Board on several points in Gujarati which was the language of the detenu, and necessary answers elecited. He does not have any right to be heard in person by the detain-

p. 580, margin A

ing authority. (b) It is true that the advocate of the detenu was not heard but the former's right to be heard either by the detaining authority or by the Advisory Board has been

p. 580, margin B

answered above. (c) The contention has been dealt with above. (d) This Court in A.K. Roy's case (supra) dealt with the detenu"s plea of cross-examination, and bas held ;

p. 580, margin C

•• ..... It seems to us difficult to bold that a detenu can claim the right of cross;examination ·in the proceeding before the Advisory Board. First and foremost; cross• examination of whom? The principle that witnesses must• be. confronted and offered for cross-examination applies generally to prop~dings in . which witnesses are examined or docmµen(s are adduced in .evidence in order to prove a poi9t. Cro:ss-examination then becomes a powerful· weapon for showing the untruthfulness of that evidence. In proceedings before the Advisory Board, the question for consideration of the Board is not whether the detenu is guilty of any charge but whether there is sufficient cause for the detention of. .the person concerned. The detention, it must be remembered, is based not onfacts. proved either by applying the test of preponderance of probabilities or of reasonable doubt. The det,ention 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 structed differently from the. proceeding of judicial° or quasi judicial tribunals, before which there is a tis to adjudicate upon." Finally, the Court observed

pp. 580–581, margin D

".We are therefore ofthe opmton, 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."

p. 581, margin B

17. Faced with the difficulty created by the above decision, learned counsel submits that he bas not used the word 'cross-examination' in the technical sense but used it loosely in the sense that the detenu would have examined as bis witnes~es the persons on whose statements the order of the detention has been based, to establish bis iooococe particularly before the judicially trained minds of the Members of the Advisory B ··ard. Even if the word 'cross- -examination' is taken in the loose sense as submitted by the learned counsel, the Advisory Board cannot be blamed; for, there was no request by the deteou for the production of those persons before the Advisory Board to examine them as bis defence witnesses. The sixth submission also bas no substance.

p. 581, margin C

18. The seventh point formulated by learned counsel was "that the Advisory Board was required decide two issues :

p. 581, margin C

(i) whether the detention was justified when made; (ii) whether it was justified on the date of the Advisory

p. 581, margin C

Board's report".

p. 581, margin F

Mr. Jethmalani did not press before us sub-point (i). But he submitted that the Board ought to have found whether or not the order of detention was justified on the date of its report. We have perused the report of the Advisory Board and find that the report covers both sub.points (i) and (ii) enumerated above.

p. 581, margin F

I~. The eight point raised by learned counsel for the petitioner is that the procedure before the Advisory Board was 'totally unjust and discriminatory'. His submission was that although the detaining 1111thoritr was not present in perso11 before the Advisory Board, bi~ representatives were present to assist the Advisory Board on issues of law and fact in support of the order of detention while there was none to assist the detenu. The submission has been b_ased on suspicion or guess, and is not borne out by records. The record shows that the detenu - was produced before the Advisory Board and necessary questions were put to him and answers elicited by the Chairman and the Member of the Advisory Board and there was none present on behalf of the detaining authority. This submission also has no substance.

pp. 581–582, margin G

20. The last point raised by Mr. Jethmalani was that the cases of the four cletenus connected with the same incident were reviewed by the Board; after having released one co-detenu, namely; Narasinghbbai Durlabhbbai, in pursuance of the Advisory Board's order, it was incumbent on the detaining authority to review the order of detention of the petitio1Jers before us namely; Devji Vallabhbhai Tande(, (petitioner in Writ Peiition No. 8070 of 1981), Narsingh Vallabhbhai Tande!, (petitioner in Writ Petition No. 23 of 1982) and Lallubhai Govanbbai Tande! (petitioner in Writ Petition No. 29 of 1982). As on a perusal of the report of the Advisory Board, it was found that Narsinh Vallabhbbai Tande! was advised to be released on the ground of tender age, learned counsel did not press the submission._

p. 582, margin B

21. These petitions have no merits and are dismissed. P.B.R. Petitions dismissed.

p. 582, margin E