State Of Maharashtra & Ors vs Zubair Haji Qasim

2. One Abu Baker Haji Qasim, the brother of

respondent No.1 herein, was placed under

detention after his arrest on 10th September, 2

2005, pursuant to an order of detention dated

9th September, 2005, issued by the Principal

Secretary (Appeals and Security) to the

Government of Maharashtra, specially empowered

under Section 3(1) of the Conservation of

Foreign Exchange and Prevention of Smuggling

Activities Act of 1974 (hereinafter referred to

as "the COFEPOSA Act, 1974").

3. On 22nd September, 2005, the said Abu Baker

Haji Qasim (hereinafter referred to as "the

detenu") filed Criminal Writ Petition No.2312

of 2005, through the respondent No.1 herein,

before the Bombay High Court for quashing and

setting aside the detention order dated 9th

September, 2005. At the same time, in the

proceedings, before the Advisory Board, the

detenu made a representation for permission to

be represented in the proceedings through a

legal practitioner. Such representation was,

however, rejected by the Advisory Board on 28th

October, 2005, on the ground that under the 3 COFEPOSA Act 1974, a detenu was not entitled to

be represented by a legal practitioner and

consequently it was not necessary to consider

such prayer. In fact, the Advisory Board

rejected the prayer made on behalf of the

detenu for permission to be represented by a

legal practitioner upon holding that such

prayer could not be considered "for some

obvious reasons".

4. When the writ petition came up for hearing, the

High Court upon considering the submissions

made on behalf of the respective parties and

upon placing reliance on a Division Bench

Judgment of the Bombay High Court in Kekalwa

Samuele Kongwa vs. Union of India [1985 (1)

Bom. 742 C.R. 742] allowed the writ petition

and quashed the detention order holding that

the prayer of the detenu for permission to be

represented by a legal practitioner was not

rejected after proper consideration but on

erroneous grounds. It may not be out of place 4

to mention that in Kekalwa Samuele Kongwa's

case (supra) the Division Bench of the Bombay

High Court held as follows :-

"A request made by a detenu for being represented by a legal practioner must be considered on merits and cannot be turned down on the ground

(i) that the law does not give such a right to the detenue, or (ii) that it was the practice of the Board not to allow representation of a detenue by a legal practitioner."

5. The said judgment and order of the Bombay High

Court allowing the writ petition and quashing

the detention order is under challenge in this

appeal.

6. Although, the life of the detention order came

to an end on 9th September, 2006, Mr. Adsure,

appearing for the appellant - State of

Maharashtra, submitted that the ground on which

the High Court had quashed the detention order

was erroneous and was required to be corrected. 5

7. Referring to clause (3)(b) of Article 22 of the

Constitution, Mr. Adsure submitted that a

person placed under preventive detention was

not entitled to be represented by a legal

practitioner before the Advisory Board. In

this regard, Mr. Adsure also referred to

Section 8(e) of the COFEPOSA Act, 1974, which

reads as follows:-

"8(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, and the proceedings of the Advisory Board and its report, excepting that part of the report in which the opinion of the Advisory Board is specified, shall be confidential;"

8. Mr. Adsure submitted that both Article 22(3)(b)

of the Constitution as well as Section 8(e) of

the COFEPOSA Act, 1974, makes it quite clear

that a detenu under any of the preventive

detention enactments would not be entitled to

be represented by a legal practitioner before

the Advisory Board.

6

9. In support of his submissions, Mr. Adsure

placed reliance on certain passages from the

decision of this Court in Smt. Kavita vs. State

of Maharashtra and Ors. [1981 (3) SCC 558),

where along with certain other questions, the

question relating to a detenu's request for

being represented by lawyer before the Advisory

Board in view of the provisions of Section 8(e)

of the COFEPOSA Act, 1974, fell for

consideration. In the said case, a similar

question arose on account of the rejection by

the Government of the detenu's request to be

permitted to be represented by a lawyer before

the Advisory Board. The detenu was informed by

the Government that under the provisions of

Section 8(e) of the COFEPOSA Act, 1974, he was

not entitled to be represented by a lawyer

before the Advisory Board, and, therefore, it

was not possible to grant his request. The

three-Judge Bench, while considering the reply

of the State Government, observed as follows:- 7

"It is true that while Section 8(e) disentitles a detenu from claiming as of right to be represented by a lawyer, it does not disentitle him from making a request for the services of a lawyer."

10. It was observed further that without adequate

legal assistance the personal liberty of the

detenu guaranteed by Article 21 of the

Constitution could be jeopardized and rendered

meaningless. The request by a detenu for legal

assistance would have to be considered on its

own merits in each individual case. However,

since in the said case, the detenu had not

applied to the Advisory Board, it was held that

it could not be said that the detenu had been

wrongly denied the assistance of counsel. What

Mr. Adsure tried to emphasise was that no legal

right vested in the detenu for being allowed to

be represented by a legal practitioner before

the Advisory Board.

8

11. Mr. Adsure also referred to the Constitution

Bench decision of this Court in A.K. Roy vs.

Union of India [1982 (1) SCC 271], wherein the

questions raised in this appeal had also been

considered in detail in the light of the

provisions of the Maintenance of Internal

Security Act, 1971 and the National Security

Act and it was held, with regret, that the

detenu had no right to appear through a legal

practitioner in the proceedings before the

Advisory Board.

12. Various other decisions on the same issue were

also referred to by Mr. Adsure in support of

his contention that the order of the High Court

quashing the detention order issued against the

brother of respondent No.1, was erroneous and

was liable to be set aside.

13. On behalf of the respondent No.1, the views

expressed before the High Court were reiterated

and it was urged that no interference was 9

warranted with the order of the High Court

impugned in the instant appeal.

14. Having considered the submissions made on

behalf of the respective parties, we are of the

view that the order of the High Court impugned

in this appeal does not warrant interference.

In Smt. Kavita's case (supra) on which reliance

was placed by Mr. Adsure, it was also laid down

that, although, a detenu has no right under

Section 8(e) of the COFEPOSA Act, 1974, to

legal assistance in proceedings before the

Advisory Board, he is entitled to make such a

request to the Board and the Board is bound to

consider such request when made.

15. In the instant case, the detenu's prayer for

being allowed to be represented by a legal

practitioner was rejected by the Advisory Board

upon observing that such prayer could not be

considered "for some obvious reasons". The

said reasoning runs counter to the decision of 10

this Court in Smt. Kavita's case (supra) and

cannot, therefore, be sustained. The decision

of the Division Bench of the Bombay High Court,

relied upon by the High Court in quashing the

detention order, says much the same thing as

has been stated by this Court in Smt. Kavita's

case (supra) and also in the case of Nand Lal

Bajaj vs. State of Punjab [1981 (4) SCCF 327].

It is quite clear that while rejecting the

detenu's representation the Advisory Board took

refuge in vague verbiage without really

applying its mind as it was required to do, to

the merits thereof.

16. Detention of a citizen under any of the

preventive detention enactments is a serious

and severe invasion on the Fundamental Rights

guaranteed to citizens under Articles 19 and 21

of the Constitution. Recognising such

detention to be an evil necessity, various

safeguards have been placed at different stages

of the detention proceedings to ensure that 11

such powers were not used indiscriminately to

settle scores or to short-circuit the process

of investigation and trial of an alleged

offence. In Smt. Kavita's case (supra) and also

in Nand Lal Bajaj's case (supra) this Court

held that even if the detenu had no right to

appear through a legal practitioner in the

proceedings before the Advisory Board he was

entitled to make a representation for the

services of a lawyer to appear before the said

Board which was under an obligation to

consider the same dispassionately in the facts

of the particular case. The representation made

by a detenu for legal assistance before the

Advisory Board, has, therefore, to be

considered not perfunctorily, as has been done

in this case, but with due application of mind,

since in each case of detention the liberty of

an individual is involved.

17. We, therefore, see no reason to interfere with

the judgment and order of the High Court 12

impugned in this appeal and the appeal is

accordingly dismissed.

18. This judgment would also govern Criminal Appeal

NO._______ (@ Special Leave Petition (Criminal)

No.1975 of 2007) titled State of Maharashtra

vs. Sheetal Manoj Gore.

..................J. (A.K. Mathur)

..................J. (Altamas Kabir) New Delhi,

Dated: 11th July 2008