Dhanakodi Ammal vs State of Tamil Nadu

Nainar Sundaram, J.—In this writ petition, one Dhanakodi Ammal prays for the issue of a writ of habeas corpus to secure the liberty of her

son one Parirajan, who is detained under S. 3(1)(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974,

which will hereinafter be referred to as COFEPOSA if occasion arises therefor. This writ petition has the support of an affidavit filed by one K.

An-barasu, who is stated to be the brother-in-law of the detenu. We do not propose to delineate and dwell upon the facts and circumstances

which led to the detention of the detenu under COFEPOSA for Mr. B. Kumar, learned counsel for the petitioner, has successfully advanced

before us a contention which is based upon a post-detention factor. The order of detention is dt. 22-10-1982. The grounds of detention were

served on the detenu. According to the detenu, he was informed on 27-11-1982 that the Advisory Board will afford him a personal hearing on 2-

12-1982. The detenu, on the same day, namely, 27-11-1982, sent a petition to the Chief Secretary to the Government of Tamil Nadu, seeking

permission to have the assistance of a legal practitioner or if that is not possible, to permit him to have a friendly assistance at the time of the

personal hearing before the Advisory Board. The said petition was sent to the Advisory Board by the Government along with a letter dt. 29-11-

1982 and it was received by the Advisory Board on 30-11-1982 with a request that the decision of the Advisory Board on the representation of

the detenu may be intimated to the detenu. Since the detenu had been asked to appear before the Advisory Board on 2-12-1982, the Advisory

Board met on 2-12-1982 and considered the detenu''s petition before his case was taken up for personal hearing and the detenu was also heard

on his request. The detenu''s request for legal and friendly assistance was rejected by the Advisory Board and the same was communicated to the

detenu by a letter dt. 6-12-1982 through the Joint Secretary, Public (Law & Order-D) Department, Government of Tamil Nadu. The decision of

the Advisory Board on the request of the detenu for legal aid or in the alternative, for friendly assistance needs extraction and it runs as follows :

ADVISORY BOARD (COFEPOSA)

Mr. Justice G. Ramanujam, Chairman.

Mr. Justice S. Natarajan, Member.

Mr. Justice V. Sethuraman, Member.

COFEPOSA detenu No. 2113, Thiru Parirajan has sent a petition dt. 27-11-1982 to the Chief Secretary to the Government of Tamil Nadu

seeking permission to have the assistance of a legal practitioner or if that is not possible, to permit the detenu to have a friendly assistance at the

time of the personal hearing before the Advisory Board. The said petition has been sent to the Advisory Board by the Government along with their

letter No. 4221/82-4 dated 29-11-1982 which was received by the Board on 30-11-1982 with a request that the decision of the Advisory Board

on the representation of the detenu may be intimated to the detenu. Since the detenu has been asked to appear before the Advisory Board on 2-

12-1982, the Advisory Board met on 2-12-1982 and considered the detenu''s petition before his case was taken up for personal hearing. The

detenu was also heard on his request.

The detenu was asked to state on what points he is unable to represent his case before the Board and on what points he wants the assistance of a

friend. The detenu merely stated in a general way that he wants to have a friend nearby at the time of the personal hearing. The Board then

questioned the detenu to test his ability and capacity to represent his case fully before the Advisory Board. It was found from the answers given by

him that he has studied up to S.S.L.C. that he is well versed both in English and Tamil, that he is fully capable of representing his own case and he

fully knows the significance of the order of detention and the relevancy of the materials available and referred to in the order of detention which

mostly consist of statements recorded by the Customs Officers from various persons implicating the detenu with the instances referred to in the

order of reference which are in Tamil. In fact, at the earliest opportunity the detenu has taken the precaution of obtaining anticipatory bail.

Having regard to the functions of the Advisory Board which is mainly to see whether there is sufficient cause to sustain the order of detention and

there being no intricate questions of law being canvassed before the Advisory Board, the detenu''s request to have a friendly assistance cannot be

accepted. As a matter of fact the detenu''s representations before the Board were full and complete and the way in which he represented his case

indicated that he knows full well what defence he has to put forward as against the order of detention before the Advisory Board.

In these circumstances the Board was not in favour of exercising its discretion to permit the detenu to have a friendly assistance especially when

the statute says that the proceeding before the Advisory Board is confidential. Hence the detenu''s request for legal or friendly assistance is

rejected.

Sd/-

(G. Ramanujam) Chairman

Sd/-

(S. Natarajan) Member

Sd/-

(V. Sethuraman) Member

The point made by Mr. B. Kumar, learned counsel for the petitioner, is that though there may be a reservation with reference to the request of

the detenu for legal assistance and the detenu cannot, as of right, insist for being represented before the Advisory Board by a legal practitioner,

when the detenu asked for the aid of a friend, the Advisory Board must grant the facility and if there is a failure to do so, the order of detention

thereafter would become illegal and the same will have to be quashed. This proposition which the learned counsel advances has the support of the

decisions of the highest Court in the land.

In A.K. Roy and Others Vs. Union of India (UOI) and Others, , the challenge was to the validity of the National Security Ordinance, 2 of

1980, and certain provisions of the National Security Act, 65 of 1980, which replaced the Ordinance. There were very many facets of challenge

and we are not concerned with all of them. One was that the detenu is being denied the right of representation through a legal practitioner before

the Advisory Board under the provisions of the said Act. The Supreme Court held that on a combined reading of Cls. (1) and (3)(b) of Article 22

of the Constitution, 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 (1),

is denied by Clause (3)(b) to a person who is detained under any law providing for preventive detention and thus, according to the express

intendment of the Constitution 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. The Supreme Court further held :

In view of 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 before the Advisory Board. Since the Constitution, as originally enacted, itself

contemplates that such a right should not be made available to a detenu, it cannot be said that the denial of the said right is unfair, unjust or

unreasonable.

Ultimately, the Supreme Court held that the detenu has no right to appear through a legal practitioner in the proceedings before the Advisory

Board.

The dictum of the Supreme Court did not stop there and it took in another aspect and this aspect has been succinctly delineated and the

principles enunciated in paragraph 95 of the judgment, which runs as follows :

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 Pett v. Greyhound Racing Association Ltd., (1969) 1 QB 125), and if

justice is to be done, he must 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 disheveled. Just as a person who is dumb is entitled, as he must, 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 the facts of the case and the language of the law. It may be that denial of legal representation is not denial of natural justice per se, and

therefore, if a statute excludes that facility expressly, it would not be open to the Tribunal to allow it. Fairness, as said by Lord Denning M.R., in

Maynard v. Osmond, (1977) 1 QB 240, can be obtained without legal representation. But, it is not fair, and the statute does not exclude that right,

that the detenu should not even be allowed to take the aid of a friend. Whenever demanded, the Advisory Boards must grant that facility.

There are two statements in the above paragraph which go to make up the proposition that though a detenu may not, as of right, claim

representation through a legal practitioner in proceedings before the Advisory Board, he is entitled to be heard in those proceedings and assisted

by a friend and when there is a demand for such assistance, Advisory Boards have no alternative but to grant the facility. At the risk of repetition,

the two statements are once again culled out as follows :

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"" .............. But, ""Fairness, as said by Lord Denning M.R., in Maynard v. Osmond, (1977) 1 QB 240, can

be obtained without legal representation. But, it is not fair, and the statute does not exclude that right, that the detenu should not even be allowed to

take the aid of a friend. Whenever demanded, the Advisory Boards must grant that facility.

In Devji Vallabhbhai Tandel Ors. Vs. Administrator of Goa, Daman and Diu and Another, , one of the questions that came up for consideration

was as to whether the detenu has a right to appear before the detaining authority through a lawyer and it must be pointed out that the matter before

the Supreme Court was one which arose under COFEPOSA. It was pointed out that the proposition mooted out in A.K. Roy and Others Vs.

Union of India (UOI) and Others, will equally apply to appearance by a lawyer before the Advisory Board under COFEPOSA. Paras 36 to 39 of

the judgment expatiate the proposition that it is only a friend who, in truth and in 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. Paras 36

to 39 (of 1982-2 SCC) : (Paras 11-12 of Cri LJ) run in the following terms :

With regard to appearance through a ''friend'', the Court observed : A.K. Roy and Others Vs. Union of India (UOI) and Others, ,

''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......

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 ......

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.

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

appearance on behalf of the detenu.

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 to 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 refusal to hear Mr. Ajwani, Advocate engaged by the detenu, by the Administrator has

resulted in denial of constitutional right to make a representation.

Section 8(e) of COFEPOSA reads as follows :

(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.

It has already been found that the right to be defended by a legal practitioner of his choice given by Clause (1) of Article 22 of the Constitution is

expressly taken away by Clause (3)(b) thereof. Section 8(e) of COFEPOSA also by express terms, disentitles the detenu to appear as of right

through any legal practitioner in any matter connected with the reference to the Advisory Board. But, it does not mean that the Advisory Board has

no discretion in the matter. It is for the Advisory Board to consider the question with reference to the representation by the detenu through a legal

practitioner before it and either to allow it or not as per its discretion on the facts and circumstances of the case. This Court shall not interfere with

that discretion of the Advisory Board and substitute its own judgment in the place of the judgment of the Advisory Board in this regard. But here,

we are concerned with the request of the detenu to have representation before the Advisory Board through a friend. We have found that the

Advisory Board has declined this request of the detenu. Only on this basis the grievance of the detenu is projected and relying on the dictum of the

Supreme Court in A.K. Roy and Others Vs. Union of India (UOI) and Others, , the release of the detenu is coveted. We find that this dictum has

come to be laid down by five learned Judges of the Supreme Court, and the same has been referred to in a subsequent pronouncement of the

Supreme Court in Devji Vallabhbhai Tandel Ors. Vs. Administrator of Goa, Daman and Diu and Another, .

In Phillippa Anne Duke v. State of Tamil Nadu : 1982CriLJ1389 , Chinnappa Reddy, J. (Vacation Judge) was meeting a submission that the

detenus in that case had been denied the right to be represented before the Advisory Board by an advocate or at least by a friend and that they

were thus denied the right to make a proper and effective representation to the Advisory Board. The learned Judge referred to the dictum in A.K.

Roy and Others Vs. Union of India (UOI) and Others, that :

it is not fair, and the statute does not exclude that right, that the detenu should not even be allowed to take the aid of a friend, whenever

demanded, the Advisory Boards must grant that facility"",

and emphasis was supplied to the above dictum. The learned Judge further observed that

A ''friendly'' representation would certainly have been provided if it had been so demanded.

The learned Judge declined to interfere with the discretion of the Advisory Board when it disallowed legal representation to the detenus, further

found that the detenus did not ask for any friendly representation and there was no denial of the same, and repelled the argument that the Advisory

Board should offer friendly representation to the detenus even if the latter did not ask for it.

In Abdul Zabbar Vs. State of Rajasthan and Others, the question with reference to the right of the detenu for representation before the Advisory

Board through a friend came up for consideration. Two learned Judges of the Supreme Court again referred to the dictum in A.K. Roy and Others

Vs. Union of India (UOI) and Others, that ""whenever demanded, the Advisory Boards must grant that facility"" and once again emphasis was

supplied to the said dictum, and the facts of the case disclosed that the request of the detenu was turned down by the Advisory Board. The learned

Judges reiterated that the right of the detenu to be represented by a friend who, in truth and substance, is not a legal practitioner, cannot be

disputed and further held that the denial by the Advisory Board in this regard involved a denial of a valuable right to the detenu, unquestionably

vitiating the entire proceedings before it and, therefore, the continued detention of the detenu would be illegal and the same will have to be

quashed.

We are not able to find any qualification, either express or implied, for the dictum of the Supreme Court that whenever there is a demand by the

detenu for representation through a friend who, in truth and substance, is not a legal practitioner, the Advisory Boards must grant that facility. That

dictum, if applied to the facts of the present case, will naturally oblige us to order the release of the detenu.

At this stage, we must refer to two lines of thinking expressed by the learned Public Prosecutor, who appeared initially for the respondent in the

matter and by the learned Advocate-General, who appeared for the respondent at the later stage. The first is that the Advisory Board in the

present case has given valid reasons for not allowing the detenu the friendly representation sought for and they would state that where valid reasons

are given by the Advisory Board, that would form a justification for declining representation of the detenu through a friend before it. As stated

above, the categoric pronouncements of the Supreme Court leave no room for any qualification for them and it is not possible to get out of the rule

by stating that the Advisory Board could give any reasons, however valid they may be from its point of view, for declining the detenu

representation through a friend. Any reasoning by the Advisory Board could only be to find out as to whether the friend who wants to come before

it as a representative of the detenu is in truth and substance a friend and not a legal practitioner. If there is a failure on the part of the detenu to

specify initially the name of the friend, it is for the Advisory Board to ask for the details and on the same being furnished, to examine them only to

find out as to whether the friend is in truth and substance a friend or not, or a legal practitioner is seeking audience before it in the garb of a friend.

This view of ours has got the support of the decision in Abdul Zabbar Vs. State of Rajasthan and Others,

Secondly, on behalf of the respondent, it was stated that even if this Court should find that the Advisory Board wrongly rejected the request of

the detenu for friendly representation, the matter could be remitted back to the Advisory Board for it to examine the same after affording an

opportunity to the detenu to make such friendly representation. The very same argument was repelled in Abdul Zabbar Vs. State of Rajasthan and

Others, and we have to fall in line with the reasoning advanced by the learned Judges of the Supreme Court in this regard.

After we heard and reserved orders in this matter, learned Public Prosecutor brought to our notice a judgment of a Bench of the Delhi High

Court in Sh. Om Prakash Sharma v. Administrator, Delhi Admn. 1983 Cri LJ 587 to advance a proposition that there can be no general law laid

down that in every case where appearance of legal practitioners is barred either explicitly or by implication, assistance by a friend must be allowed.

This citation was made in the presence of Mr. B. Kumar, learned counsel for the petitioner, and we have examined this decision of the Bench of

the Delhi High Court. On doing so, we are not able to subscribe our support to the same. The learned Judges of the Bench of the Delhi High Court

have chosen to refer to the decision in A.K. Roy and Others Vs. Union of India (UOI) and Others, and the attention of the learned Judges was not

drawn to the subsequent pronouncements of the Supreme Court where the dictum was emphasised and reiterated, leaving no room for

qualification in its application. Furthermore, the teamed Judges of the Bench of the Delhi Court have gone under the impressions that the Supreme

Court, in A.K. Roy and Others Vs. Union of India (UOI) and Others, , was not called upon and it did not comment upon the scope of S. 8(e) of

COFEPOSA, and the Supreme Court was only dealing with the provisions of the National Security Act. The concerned provisions in both the

statutes are in pari materia the same and this has been omitted to be taken note of by the Bench of the Delhi High Court. We do not find any

qualification or an exception to the rule laid down by the Supreme Court in A.K. Roy and Others Vs. Union of India (UOI) and Others, and

which, as stated above, has been emphasised and reiterated in the subsequent pronouncements of the Supreme Court, and such being the case, we

cannot, by ourselves, qualify it. This obliges us to interfere in this writ petition and accordingly, this writ petition is allowed and we direct the release

of the detenu in question forthwith. We make no order as to costs.

Petition allowed.