By TIOL News Service

NEW DELHI, NOV 23, 2015: (a) ON 16.04.2015, a detention order was issued by respondent No.2 under Section 3(1) of COFEPOSA Act for detaining the petitioner herein to prevent him from smuggling of goods in future.

(b) On 20.4.2015, the detention order along with Grounds of Detention and the list of 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 communicated to the petitioner on 03.06.2015.

(d) On 05.06.2015, a letter was issued by the Advisory Board through its Secretary informing the petitioner that the date of hearing before it was scheduled on 12.06.2015. The said letter was received by the petitioner on 06.06.2015 in prison.

(e) On 12.06.2015, the petitioner submitted a written request to the Advisory Board for a short adjournment so that he can make arrangement for the counsel.

(f) On 03.07.2015, the petitioner got an order dated 29.06.2015 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.

The issue is no more res integra. The Supreme Court had in AK Roy's case held,

"93. We must therefore hold, regretfully though, that the detenu has no right to appear 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 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 the detenu. In any case, that is not what the Constitution says and it would be wholly inappropriate to read any such meaning into the provisions of Article 22. Permitting the detaining authority or the government to appear before the Advisory Board with the aid of a legal practitioner or a legal adviser would be in breach of Article 14, if a similar facility is denied to the detenu. We must therefore make it clear that if the detaining authority or the government takes the aid of a legal practitioner 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 the excuse that such officers are not "legal practitioners" or legal advisers. Regard must be had to the substance and not the form since, especially, in matters like the proceedings of Advisory Boards, whosoever assists or advises on facts or law must be deemed to be in the position of a legal adviser. We do hope that Advisory Boards will take care to ensure that the provisions of Article 14 are not violated in any manner in the proceedings before them. Serving or retired Judges of the High Court 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."

Applying this principle to the facts of the case in hand , the Supreme Court observed,

1. 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.

2. 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.

3. 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 Board, which eventually resulted in passing an adverse order.

4. if the Detaining Authority or Government takes the aid of a legal practitioner or legal advisor before the Advisory Board, the detenu must be allowed the facility of appearing before the Board through a legal practitioner. If it is denied to him then a clear case of breach of Article 14 is made out in favour of detenu. Since the expression "legal practitioner" was interpreted in A.K.Roy'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.

5. 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 facility. This infirmity, being fatal, renders the impugned order legally unsustainable.

Procedure has to be followed for even habitual offender : The Supreme Court observed, “So far as the submission of the learned counsel for the respondents that the petitioner being a habitual offender and, therefore, he should not be shown any indulgence in this case is concerned, in our considered view, firstly, this Court can not uphold the detention order on such submission and secondly, once the legal infirmity pointed out by the petitioner in the proceedings before the Advisory Board is held made out then the impugned detention order is rendered bad in law and can not be sustained. In our considered view, if the petitioner is a habitual offender and has past criminal 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".

Detention Order quashed.

(See 2015-TIOL-278-SC-COFEPOSA)