SMT. ASHA KESHAVRAO BHOSALE versus UNION OF INDIA & ANR.

RANGANATH MISRA, J, The Petitioner, the wife of a detenu under the Conservation of Foreign Exchange and Smuggling Activities Act, 1974 ('Act' for short), application under Article 32 of the Constitution orde.r of detention as also the subsequent declaration section 9 of the Act. The order of detention, Annexure made by the Government of Maharashtra under s. 3(1) of the Act November 20, 1984. The order directed his detention in the Bombay Central Prison at Bombay fot one week from the date of detention and in Nasik Road Central Prison thereafter. On the same day the grounds of detention were also served on the detenu. On December 12, 1984, the Additional Secr~tary to the Government of India in the Ministry of Finance made the .requisite declaration under s.9(1) of the Act, Annexure 'B'.

pp. 254–255, margin G

Petitioner, at the instance of the detenu, made a representation to the Chief Minister on November 24, 1984, against the detention and the said representation was received in the office of the Chief Minister on November 28, 1984. This representation was rejected on January 28, 1985, two months after its receipt as alleged by the petitioner. Detenu appeared before the Advisory Board on April 17, 1985. When he appeared before the Board he asked for the assistance of a lawyer or alternatively of a non-lawyer friend. The request was not acceded to and the Board made an adverse report to the State Government. The petitioner had challenged the detention of her husband by filing a writ petitio~ before the Bombay High Court being Criminal Writ Petition No. 50 of 1985. By judgment dated April 29, 1985 the High Court dismissed the said petition. This writ application has thereafter been filed in July 1985 for the reliefs indicated already.

p. 255

Two affidavits in opposition have been filed - one by the ~pecial Secretary to the Govermnent of Maharashtra and the other by the Desk Officer of the Home Department of Maharashtra Government. The Special Secretary in his affidavit explained the basis of his satisfaction regarding the necessity to detain the detenu and the reasons for which the declaration under s, 9(1) was later made. He also explained in anRwer to specific allegations cOntained in the writ petition that there was no separate intelligence report which had been placed before him and/or taken into consideration in making of the order of detention. In the other counter affidavit, apart from indicating the justification for detention, reference was made to the petitioner's representation against the detention made to the Chief Minister. It has been pointed out that the order was dated January 23, 1985, and the reasoning adopted by the Bombay High Court in regard to the delay in disposal of the representation has been adverted to. Reference has also been made in regard to the detenu s request for representation by a lawyer or alternatively a non-lawyer friend. Dealing with that aspect, the affidavit indicates :

p. 255

"I say that in his representation, which was handed over to the Advisory Board, the detenu asked to be represented by a lawyer or otherwise by his next friend. I say that the Advisory Board, after considering the detailed representation made and after talking to the detenu, came to the conclusion that since the detenu was in good health and also that he has studied upto 8th standard in Khambala Hill Municipal School and thereafter in Social Hight High School and since he was the owner/part owoer, manager of number of business enterprises and he has been active in politics, there was no necessity for permitting the detenu to have his case represented through the lawyer. These facts were mentioned by the Advisory Board to the detenu. I say that whenever a request is made by the detenu to have his case represented through his friend, such a. request has invariably be.en granted and he is always allowed to represent his case by his next friend who is not a lawyer. I say that the Advisory Board had informed thiS' to the detenu and asked the detenu whether he had brought any friend with him since the Board always permits the detenu to be assisted by his next friend. I say that the detenu replied that he had not brought any friend to represent his case. I say that the fact that the detenu had not brought any friend despite the request made in the representation, is noted in the Minutes which are regularly kept by the Chairman,

p. 256, margin A

Advisory Board."

p. 256, margin E

more or less similar allegations the Bombay High Court had been moved for quashing of petitioner's husband's detention. The High Court examined the contention at great length and ultimately concluded that on the facts of the case continued detention of the petitioner's husband was not vitiated.

p. 256, margin E

Though raised in the writ application the challeng~ against the declaration under s. 9(1) of the Act has not been canvassed at the hearing by Mr. Jethmalani appearing for the petitioner. It was stated to us that the challenge to the vires of the section is pending before this Court for consideration by a larger Bench and as the petitioner is anxious to have her writ petition disposed of expeditiously, petitioner does not press the relief against the declaration and would remain content by confining the challenge to the order of detention. In view of counsel's statement and in the circumstances stated, we proceed to consider the challenge to the order of detention, Annexure 'A' without entering into controversy over the yires of the section.

pp. 256–257, margin F

Four points have been-raised by Mr. Jethmalani in support his stand that the detenu's detention is bad :

p. 257, margin A

l. Petitioner made a representation against the detention of her husband on_ November 24, 1984, and admittedly received in the Secretariat of the Chief Minister on November 28, 1984. It, however, was disposed of till January 28, 1985. The delay vitiates the detention and the detenu became entitled to

p. 257, margin A

at liberty by quashing of the order;

p. 257, margin C

2. The order of detention is liable to be set inasmuch as it has been made without proper application of mirui. The link between the alleged transaction the detenu is said to have been established statement made by one Sabnis to· the effect that detenu had asked him to allow the truck to enter the Raj Bhavan premises with a view to transporting

p. 257, margin C

contraband materials clandestinely received there;

p. 257, margin A

3. The -grounds of detention disclose that the detaining authority had relied upon contact between the and one Yusuf Herra and the source of information ascertaining the existence of relationship described as intelligence repor.t. ·The same.

p. 257, margin A

furnished to .the detenu;

p. 257, margin A

4. The detenu had been prejudiced in the h•~aring · Advisory Board as his request for representation counsel or a non-lawyer friend had not entertained by the Board. This, it is alleged, affected the guarantee of limite<. defence available to a as held by this Court in A.K. ll<>y v. Union of

p. 257, margin A

[1982] 2 s.c.R. 272.

p. 257, margin A

Two of these grounds had been clearly raised before the High Court but the Court was not impressed with these submissions therefore, dismissed the petition. The petitioner has not to come in appeal against the decision of the High Court relying upon some observations of this Court in a case of type, a writ petition has been filed in this Court under Article 32 of the Constitution. As objection to the maintainability the writ petition has not been raised at the hearing for the opposite parties, we are not examining the maintainability of this application and propose to deal submissions made on behalf of the petitioner.

pp. 257–258, margin A

It is a fact that a representation was made petitioner on behalf of the detenu which was received office of the Chief Minister on November 28, 1984, and Jethmalani has accepted the position that orders representation were passed on January 2, 1985, and orders were received on January 28, 1985. In the representation made by the petitioner to the Chief Minister, the detention was casually impugned but lot of attention have been bestowed on the necessity of keeping the Bombay Jail instead of sending him to Nasik Road directed in the order of detention. A detailed representation made by Secretary, Khed Taluka Maratha Seva Sangh challenging detention. It appears that the detenu belonged to the and his case was espoused by the Sangh. It is not disputed us that the said representation was received on November 1984, in the Secretariat of the Chief Minister and was to the Home Department on December 3, 1984, and disposed of on December 12, 1984, and the rejection communicated on December 13, 1984. This representation detailed one and on a due consideration thereof representation had been expeditiously disposed of. The High looked into the representations - one made by the the other by the petitioner and on considering thereof and the manner in which the Sangh' s representation been disposed of, came to hold that the representation the petitioner was a second one on the same score disposing of that representation did not really prejudice detenu 's case. the facts and circumstances appearing record and as found by the High Court, we are inclined with the submission made before us that the petitioner entitled to any tenable submission on the score disposal of the representation.

p. 258, margin A

In paragraph 3(H) of the writ petition petitioner "That the detention of the detsnu is based on statement of a self-confessed accomplice one who claims that it was the de tenu who had allow the truck to enter the Raj Bhavan. The authority is aware that on such flimsy material it is impossible to get a conviction in a regular Court of law. The detaining authority failed to apply its

pp. 258–259, margin G

mind to this aspect of the matter." In the return made by the Special Secretary to Government of Maharashtra, it has been averred :

p. 259

ll ''With reference to para 3(H), I say that I was aware that prosecution against the detenu and his co-detenus were under contemplation yet I have come to the conclusion that departmental adjudication and prosecution proceedings under Customs Act, were not sufficient to prevent· the detenu from indulging in criminality in future considering the role of the detenu and the attending circumstances. Moreover, the prosecution under Customs Act cannot overlap action

p. 259

under CO~"'EPOSA •• •••

p. 259

It is interesting to note that the contraband articles alleged to be worth more than. 1/2 crore of rupees had been received on the sea-shore at the back of the Raj Bhavan of Bombay. Access ·to this place was only through the Raj llhavan. Sabnis was an employee of the Raj J!havan at the relevant time and the detenu had asked Sabnis to allow the truck to enter into the Raj llhavan compound for the purpose of ,transporting the contraband articles. It was up to the detaining authority to accept the statement of Sabnis and to be satisfied that such statement provided the link between the detenu and the receipt of the contraband articles and the bundle of facts relating thereto. This satisfaction under the law is subjective and it is not for the Court to test the adequacy of the material on which satisfaction is reached. It is quite possible as suggested in the writ application and reiterated in the submission of learned counsel that at a trial conviction may not have been secured on the basis of the statement of Sabnis. But that argument is not available for challenging an order of detention if the satisfaction of the detaining authority been reached on bona fide basis. do not think there is any force in this submission advanced on behalf of the petitioner and, therefore, attack on that ground has to be rejected.

p. 259

The third submission advanced by counsel is a reiteration of the allegation in paragraph 3(I) of the writ petition. There it was alleged :

p. 259

" ••••• the grounds of detention disclosed that detaining authority has relied upon some alleged contact between the detenu and one Yusuf Herra. In 12 of the grounds of detention, the detaining authority states : 'Intelligence gathered reveals that the person behind the said smuggling racket is one Yusuf Herra. Since he has figured in many big cases detected by the Customs Deptt. his photograph was available the Customs Department.' The grounds of detention continue to allege that the detenu was in the company of this Yusuf Herra on the 16th October, 1984, stated by Sabnis in his statement of 22.10.84. It incumbent under these circumstances on the detaining authority to disclose the role of Yusuf Herra in smuggling in hand, as well as, his involvement in other big cases. No privilege was claimed in respect of material. Under the circumstances, there has been failure to comply with Article 22 of the Constitution and the petitioner's constitutional rights have been

p. 260, margin A

violated.' In the return of the Sepcial Secretary it has been stated :

p. 260, margin A

" •••• I say that it was not necessary to supply copy of the intelligence report. I say that as matter of fact, no independent intelligence report ever placed before me and I have neither referred nor relied upon the said report. I say that it fact that the detenu was engaged in criminal activ!ty with Yusuf Herro and was in his company, which. his co-accused Sabnis has brought to light in confessional statement dated 22nd October recoreded by the Customs under section ' 108 of

p. 260, margin D

Customs Act."

p. 260, margin F

Before the High Court this submission had been pressed service and the High Court found no force in the point relying upon a decision of this Court in Wasi Uddin Ahmed v. District Magistrate, Aligarh, [1981] 4 s.c.c. 521. That was a case, rightly indicated by Mr. Jethmalani, where privilege had been claimed against disclosure of the source as also the contents the information. In view of the privilege claimed this Court took the view that supply of intelligence report of secret nature cannot be insisted upon and non-disclosure of such information does not provide a basis for challenging the detention. In case no privilege was claimed. the facts we are, however, satisfied that adequate material had been disclosed and no prejudice appears to _have been caused for want of further disclosure. It may be that the exact information received from the intelligence source had not been made available to the petitioner or placed on record but sufficient material with reference to the intelligence report had been made'available. In that view of the matter, we also'; find no force in this B submission.

pp. 260–261, margin F

now proceed to examine the last contention. In paragraph 3(J), petitioner alleged "That, on the 17th April, 1985, the detenu appeared c before the Advisory lioard. handed over to the Advisory lioard Ms written representation containing a prayer that the detenu be allowed to be represented by a lawyer, and in the alternative, by a non-lawyer friend or a relative. These requests were not considered by the Advisory lioard and were not disposed D of as are required to be done by Judgments of this Hon•ble Court. Under the circumstances, the hearing before the Advisory Board was not in accordance with

p. 261

the law, the detenu' s continued detention is invalid." This aspect has been dealt with in the counter-affidavit of Mok.al, Desk Officer of Department of the Government of Maharashtra and the relevant paragraph has already been extracted by us earlier. Ordinarily, in cases of this type representation by lawyer is not allowed. In A.K. Hoy's case this Court indicated:

p. 261

"Thus, according to the express intendment of the Constitution itself, no pers9n 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. h view 0f this, it seems to us difficult to hold, by the 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

p. 261

before the Advisory lloard."

p. 261

grievance, therefore, can be made on the score that the Advisory lloard had not permitted the detenu to be represented by counsel. While reiterating the position, the learned Chief Justice stated :

p. 261

"We must, therefore, hold regretfully though, that the detenu has no right to appear through a legal practitioner in the proceedings before the Advisory

p. 262

Board." The Court further added "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. A detenu, taken straight from his cell to the Board's room, may lack the ease and composure to present his point of view. He may be 'tongue-tied, . nervous, confused or wanting in intelligence' (see Pest v. Greyhound Racing Association Ltd. [1969] l W.B. 125), and if justice is to be done, he llll.lSt at least have the help of a friend who can assist him to give coherence to his stray and wandering ideas. Incarceration makes a man and his thoughts dishevelled. Just as a person who is dumb is entitled, as he llll.lSt, 'to be represented by a person who has speech, even so, a person who finds himself unable to present his own case is entitled to take the aid and advice of a person who is better situated to appreciate

p. 262

the facts of the case and the language of the law."

p. 262, margin E

It is on these observations of the learned Chief Juatice that reliance has been placed by Mr. Jethmalani to contend that denial of representation by a friend has affected due representation of the petitioners's case before the Advisory Board. It is the case of the State that the Advisory Board made inquiries from the detenu as to whether he had a friend available on the date of hearing to represent him and it appeared that no such person had been called by the detenu to the place of hearing. The Board was not inclined to adjourn the matter. The Board talked to the detenu and ascertained that the detenu was worldly wise, was sufficiently educated and did not suffer from any deficiency and was in a fit condition to represent his case. The rule to be applied is one of prejudice and in the facts of the case we art inclined to agree with Mr. Rana for the State that the detenu was not prejudiced in making an effective represent?tion of his case ·at the hearing by the Advisory Board in the absence of a fri.end. There are cases where the affected person is in a better position than anyone else to place his case and in the facts and circumstances available on record, we are inclined to agree with Mr. Rana that the detenu's is one such.

pp. 262–263, margin E

Since all the four submissions advanced by Mr. Jethmalani on bahalf of the petitioner are rejected, this writ petition has to fail. accordingly dismiss it. N.V.K. Petition dismissed;

p. 263