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PETITIONER: BAL CHAND CHORARIA

       Vs.

RESPONDENT: UNION OF INDIA AND ORS.

DATE OF JUDGMENT13/12/1977

BENCH: FAZALALI, SYED MURTAZA BENCH: FAZALALI, SYED MURTAZA SINGH, JASWANT

CITATION:  1978 AIR  297            1978 SCR  (2) 401  1978 SCC  (1) 161  CITATOR INFO :  RF         1990 SC 237  (23)

ACT: Constitution  of India, 1950-Art. 22(5)-Representation  made by  a Member of Parliament as counsel for the  detenu  under Conservation   of   Foreign  Exchange  and   prevention   of Smuggling  Activities  Act,  1974-Whether  a  proper  repre- sentation u/A 22/(5) of the Constitution.

HEADNOTE: The  representation  of the appellant,  detenu  through  his counsel who is a member of Parliament was not considered  by the  Advisory Board constituted under the  COFEPOSA,  1974. The  High Court of Delhi refused to quash the detention  and dismissed the writ petition. Allowing the appeal by special leave, the court. HELD  :  In  matters where the liberty  of  the  subject  is concerned  and  a highly cherished right  is  involved,  the representations  made  by  the detenu  should  be  construed liberally  and not technically so as to frustrate or  defeat the  concept of liberty which is engrained in article 21  of the Constitution. [401 H, 402 A] In the instant case : (i) as the representation has not been considered at all by the government which it was duty  bound to consider, that by itself vitiates the order of detention. (ii) The representation clearly recites that Mr.  Jethmalani acted not as a member of the Parliament but on  instructions from  his  client, namely the detenu.  The  counsel  had  no personal matter and be was only advocating the cause of  his client.   The  High  Court was in error  in  construing  the representation  made by the petitioner as having  been  made not by him but by his counsel. [401 G-H, 402 A]

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 413 of  1977. Appeal  by Special Leave from the Judgment and  Order  dated 12-8-77 of the Delhi High Court in Criminal Writ No. 37/77. Ram  Jethmalani, A. K. Sen, Harjinder Singh and M. N.  Lodha for the Appellant.

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S.   N.  Kacker, Sol.  General, R. P. Bhatt, Girish  Chandra for the Respondent. The Order of the Court was delivered by FAZAL  ALI,  J.-  In  support of  the  rule  Mr.  Jethmalani submitted  a short point before us.  It was argued that  the representation  filed by the detenu through his counsel  has not  been  considered by the Government at  all.   The  High Court was of the view that the aforesaid representation  was not given by the detenu himself but by Mr. Jethmalani in his capacity as a member of the Parliament.  The  representation has  been placed before us and it clearly recites  that  Mr. Jethmalani  acted not as a member of the Parliament  but  on instructions  from his client, namely, the detenu.   In  the circumstances  therefore,  the High Court was  in  error  in construing  the  representation made by  the  petitioner  as being  mad& not by him but by his counsel.  It  is  manifest that  the  counsel had no personal matter and  he  was  only advocating  the cause of his client.  In matters  where  the liberty 4 02 of the subject is concerned and a highly cherished right  is involved,  the representations made by the detenu should  be construed  liberally and not technically so as to  frustrate or  defeat  the  concept of liberty which  is  engrained  in article  21 of the Constitution.  As the representation  has not  been considered at all by the Government which  it  was duty bound to consider, that by itself vitiates the order of detention.  We, therefore, allow this appeal and direct  the appellant to be released forthwith.  The order of this Court releasing the appellant on parole, passed by us on the  last hearing, is vacated as having become infructuous. S.R. Appeal allowed. 403