Johney D' Couto v. State of Tamil Nadu
RANGANATH MISRA, J. This appeal is by special leave.
Appellant challenged his order of detention under section 3(1)(i)
of the Conservation of Foreign Exchange and Prevention of Smuggling
Activities Act, 1974 (COFEPOSA for short) by filing a writ petition
before the High Court and that application ,has been dismissed. As B
_., many as six contentions had been advanced before the High C 'Urt.
Though raised in the writ petition, the point relating to denial of a fair
hearing before the Advisory Board has not been noticed by the High
• Court as a contention on behalf of the appellant, but counsel for the
appellant has raised the same point before this Court and since the
( facts on which the ground is raised are not in dispute we find no
~. objection to entertaining this contention now specifically raised in this C
appeal.
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The hearing of the representation of the appellant by the Advi
sory Board was fixed for 25th November, l986. On that day the appel
lant had specifically requested the Advisory Board to permit one Mr. D
Sundararajan, a retired Assistant Collector of Central Excise to assist
him as a friend. The Board, as appears from the counter affidavit filed
in this Court, turned down the request. The counter affidavit states:-
"The Advisory Board has given its finding in reject- E
ing the detenu's request for assistance of a friend, namely,
Mr. Sundararajan in paragraphs 2 and 3 of its report sent to
the Government. The Advisory Board has stated in para
graph 2 that the detenu filed a petition requesting the
assistance of Mr. Sundararajan, a retired Assistant Collec-
tor of Customs. The _Advisory Board has staied in para- F
graph 3 that Mr. Sundararajan has appeared before it and
had stated that he was formerly employed in the customs
department and he would like to assist the detenu. In the
same paragraph, the Advisory Board has also stated that it
was admitted by Mr. Sunderarajan before the Advisory
Board that he is not a friend of the detenu and because of G
his professional experience he liked to help the detenu. In
the same paragraph the Advisory Board has given its ftnd
ihgs and reasons for rejecting the request of the detenu on
the ground that Mr. Sundararajan not being a friend of the
detenu, the Advisory Board did not consider it proper to
allow him to represent the case of the detenu." H
A It is thus clear from tJie allegations in the special leave petition and the -,.._
counter pffidavit that the appellant had requested the Board to allow
him the assistance of a friend at the hearing and for the reasons and in
the manner indicated in the counter affidavit the request was turned
down.
R In paragraph 9 of the special leave petition the appellant had
alleged that on 25th November, 1986, the detaining authority was
represented by customs officers of the rank of Deputy Collector of ~
Customs and Superintendent. In the counter affidavit filed before this
Court there has been no denial of this fact. Learned counsel appearing
for the respondent did not dispute the allegation on the basis of the
record as also the papers available with him that the department was
c represented at the hearing before the Advisory Board by a Deputy J
Collector of Customs. The position, therefore, is that on 25th
November, 1986 while the detaining authority was assisted by a
Deputy Collector and a Superintendent of Central Excise the detenu
was denied the assistance of a retired Assistant Collector of Central
Excise. On the recommendation of the Advisory Board, the detention
D order was confirmed.
The appellant is a clearing and forwarding agent at Madras and is
said to be a youngman aged around 26 or 27 years. The case before the
Board involved certain facets which require acquaintance with the
legal provisions and the procedure and practice adopted by the \__
E customs authorities. It is the case of the appellant that he was not very
mµch acquainted with them and that is why he had sought the assist
ance of Sundararajan and even brought him before the Board that day.
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In the facts of the case we are not in a position to reject the contention ._
that if Sundararajan had been permitted to assist the appellant his case
would have been better placed before the Advisory Board.
In the premises indicated above, two aspects have to be )
examined-( I) whether the appellant was entitled to the assistance of
St1ndararajan as a friend; and (2) whether when the detaining autho
rjty was assisted by a Deputy Collector and a Superintendent of Central
Excise, was the request of the appellant to be assisted by a retired
G Assistant Collector of Central Excise unjust and should the same had
been refused? A two-Judge Bench of this Court in Nand Lal Bajaj v.
State of Punjab, [1982] 1 SCR 718was considering the question of legal
assistance for the detenu before the Advisory Board. It referred to the Y •
decision of this Court in the case of Smt. Kavita v. State of
Maharashtra, [1982] 1 SCR 138 where Chinnappa Reddy, J. made the
H following observation:-
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JOHNEY D' COUTO v. STATE OF TAMIL NADU [MISRA, J.l 791
"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."
The learned Judge further stated:-
"As often than not adequate legal assistance may be
essential for the protection of the Fundamental Right to
life and personal liberty guaranteed by Article 21 of the
Constitution and the right to be heard given to a detenu by
section 8(e ), COFEPOSA Act."
~ It was furtherobserved by Reddy, J.:- c
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"Therefore, where a detenu makes a request for legal
assistance, his request would have to be considered on its
own merit in each individual case. In the present case, the
Government merely informed the detenu that he had no D
statutory right to be represented by a lawyer before the
Advisory Board. Since it was for the Advisory Board and
not for the Government to afford legal assistance to the
detenu the latter, when he was produced before the Advis-
ory Board, could have, if he was so minded, made a request
to the Advisory Board for permission to be represented by E
.a lawyer."
Sen, J. in Nand Lal's case (supra) observed:-
" ........ while the detenu was not afforded legal
assistance, the detaining authority was allowed to be rep- F
resented by counsel. It is quite clear upon the terms of
sub-section ( 4) of section 11 of the Act that the detenu had
no right to legal assistance in the proceedings before the
Advisory Board, but it did not preclude the Board to allow
such assistance to detenu, when it allowed the State 'to be
represented by an array of lawyers." G
A Constitution Bench of this Court in A.K. Roy etc. v. Union of India
& Anr., [ 1982] 2 SCR 272 dealt with this aspect. Chandrachud, CJ,
speaking for the Court stated:-
"We must therefore, held, regretfully though, that H
792 SUPREME COURT REPORTS [ 1988] I S.C.R.
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(4)(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 and 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 to the form since, especially, in
matters like the proceedings of Advisory Boards, who
soever assist or advises on facts of Jaw !llliSt be deemed to )
be in the position of a legal adviser. We do hope that ·
Advisory Boards will take care to ensure that the provi-
sions of Article 14 are not violated in any manner in the
proceedings before them ............... ".
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Learned counsel for the respondent does not dispute that what has
been stated above is the law applicable to the facts of this case. We
have already found that the detaining authority had the assistance of r
the Deputy Collector of Central Excise and a Superintendent of Cent-
ral Excise. In the words of Chandrachud, CJ, "they play the role of
H legal advisers". The Board had no justification to refuse assistance of
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JOHNEY D' COUTO v. STATE OF TAMIL NADU [MISRA, J.) 793
Sundararajan to the appellant in such circumstances.
The rule in A.K. Roy's case (supra) made it clear that the detenu
was entitled to the assistance of a 'friend'. The word 'friend' used there
was obviously not intended to carry the meaning of the term in com-
mon parlance. One of the meanings of the word 'friend', according to
the Collins English Dictionary is "an ally in a fight or cause; suppor-
ter". The term 'friend' used in the judgments of this Court was more in
this sense than meaning 'a person known well to another and regarded
with liking, affection and loyalty.' A person not being a friend in the
normal sense could be picked up for rendering assistance within the
frame of the law as settled by this Court. The Advisory Board has, of
course, to be careful in permitting assistance of a friend in order to
ensure due observance of the policy of law that a detenu is not entitled
to representation through a lawyer. As has been indicated by this
Court, what cannot be permitted directly should not be allowed to be
done in an indirect way. Sundararajan, in this view of the matter, was
perhaps a friend prepared to assist the detenu before the Advisory
Board and the refusal of such assistance to the appellant was not
justified. It is not for this Court to examine and assess what prejudice
has been caused to the appellant on account of such denial. This Court
has reiterated the position that matters relating to preventive deten-
tion are strict proceedings and warrant full compliance with the
requirements of law.
In view of the position of law and the facts of the case, we must
hold that the refusal by the Advisory Board to permit the appellant to
be assisted by Sundararajan as a friend was bad and continued deten
tion of the appellant became vitiated. Accordingly, this appeal is al
lowed and the order of detention is quashed. The appellant is directed
to be set at liberty forthwith.
P.S.S. Appeal allowed.