29 March 1982
Supreme Court


Case number: Writ Petition (Civil) 8070 of 1981








CITATION:  1982 AIR 1029            1982 SCR  (3) 553  1982 SCC  (2) 222        1982 SCALE  (1)246  CITATOR INFO :  R          1983 SC 505  (3)  R          1988 SC2089  (29)

ACT:      Conservation of  Foreign  Exchange  and  Prevention  of Smuggling Activities Act-Section 3-Detention order passed by Administrator of Goa-Administrator if competent to pass such order.      Detenu-Whether has a right to be represented by a legal practitioner or friend or agent before the Advisory Board.      Union  Territories  Act  1963-Section  46(2)-Scope  of- Administrator-Whether bound  by the  advice  of  Council  of Ministers.

HEADNOTE:      In their petitions under Article 32 of the Constitution the three  petitioners who  were detained under section 3 of the Conservation  of  Foreign  Exchange  and  Prevention  of Smuggling Activities Act, 1974, contended that in the matter of discharge  of executive functions conferred upon him, the Administrator of  the Union  Territory of Goa, Daman and Diu who passed the impugned orders, is in the same position as a Governor of a State or the President who must act on the aid and advice  of the  Council of  Ministers and  that  in  the instant case  the orders  of detention having been passed by the Administrator  himself instead  of by the Chief Minister in the name of the Administrator, were invalid.      Dismissing the petitions, ^      HELD :1.  (a)  Although  section  46(2)  of  the  Union Territories Act,  1963 provides that all executive action of the Administrator,  whether  taken  on  the  advice  of  his Ministers or otherwise shall be expressed to be taken in the name of the Administrator, the Administrator is not purely a constitutional functionary who is bound to act on the advice of the  Council of  Ministers and  could not act on his own. The language  of Arts.  74 and  163 on  the one hand and the language of  section 44 of the Union Territories Act 1963 on the other shows that the Administrator is similarly situated with the  Governor but  not with The President when he is to act in  his  discretion  under  the  Act.  While  exercising



judicial or  quasi judicial functions, the Administrator has to act  on his  own unaided by the Council of Ministers like the President  who,  while  exercising  power  conferred  by Article 217(3),  discharges judicial  function  and  is  not required to act on the 554 advice of  the Council  of Ministers.  But there the analogy ends. The  Administrator, even  in matters  where he  is not required to  act in his discretion under the Act or where he is not  exercising any judicial or quasi-judicial functions, is not  bound to  act according to the advice of the Council of Ministers. In the event of difference between him and his Ministers, the  Administrator under  the proviso  to section 44(1) of  the Act,  is required  to refer  the matter to the President for  decision and  act according to that decision. Therefore in  such a  situation the right to give a decision on the  difference of  opinion between  the two vests in the Union Government  and the  Council of Ministers of the Union Territory is  bound by  the view  of the  Union  Government. There are  also  powers  in  the  Administrator  to  act  in derogation of the advice of the Council of Ministers.                                           [560 C-D, 561 A-H]      (b) The  proviso to  section  44(1)  of  the  Act  also envisages that  when a difference of opinion between him and the Council  of Ministers  is referred  to the President, if the Administrator  considers the matter urgent and necessary to take  immediate action  during the  interregnum,  he  can completely override  the advice  of the Council of Ministers and act  according to his own lights which power neither the Governor nor the President enjoys. [562 A-C]      Shamsher Singh  Anr. v.  State or  Punjab, [1976] 1 SCR 814 held in applicable.      2. The  grievance that  the detaining  authority had no material from  which to  infer  that  the  petitioners  were engaged in  smuggling activities  is not  borne out  by  the material on  record. Copies of recorded statements and other relevant documents  had been taken into consideration by the detaining authority.  These  copies  were  supplied  to  the detenu. [563 A-B]      3. It  cannot be  said that  there was any violation of Article 22(5)  of the Constitution or that the detenu was in any way  handicapped in  submitting  his  representation.  A Gujarati  translation   of  the  grounds  of  detention  was supplied to  the detenu. The order of detention was a formal recital of  section 3(1)  of the  R COFEPOSA Act showing the provision of law under which the order of detention had been made. Although  the section of the COFEPOSA Act has not been mentioned. the  grounds of detention were sufficiently clear to bring home to the detenu that he was engaged in smuggling activities. [565 F, C-E]      The State  of Bombay v. Atma Ram Sridhar Vaidya, [1951] 2 SCR 167, held inapplicable.      4. (a)  Clause (e)  of section 8 of the COFEPOSA Act in express terms disentities a detenu to appeal through a legal practitioner in  any matter  connected with the reference to the Advisory Board. It is now well settled that the right to consult and  be defended  by a  legal practitioner  of one’s choice conferred by a Article 22(1) is denied by clause 3(b) to a  person who  is detained  under any  law providing  for preventive detention. 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 555 choice or  be defended  by him.  Therefore it cannot be said



that a  detenu has the right of being represented by a legal practitioner in  the proceedings  before the Advisory Board. [570 F]      (b) The embargo on the appearance of legal practitioner does not apply to a friend who in truth and substance is not a legal  practitioner; 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. [574 F]      (c) So  is the  case with  reference to  agents. 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 would be barred. 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 would also be barred from appearance on  behalf of  the detenu.  Although a person may have a  common law  right to  appoint an  agent 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.                                             [574 G-H, 575 A]      In the  instant case  the sender of the telegram stated in clear  terms that he was an advocate and was representing the detenu.  He had not stated that he was a friend or agent of the  detenu and therefore the Administrator was justified in refusing permission to the advocate to assist the detenu. [575 C-E]      5.  A   person  detained  under  a  law  providing  for preventive  detention   cannot  claim   as   a   matter   of constitutional right  to consult and be defended by a lawyer of his  choice; nor can be insist upon being produced before a’ Magistrate within 24 hours of his arrest. This is evident from Article  22  (3)(b)  which  provides  that  nothing  in clauses (1)  and (2)  of this  Article shall  apply  to  any person who  is arrested  or detained under any law providing for preventive detention.                                               [575 G-H; A-B]      6.  It   is  implicit   in  Articles   22(5)  that  the representation  has   to   be   a   written   representation communicated through  the jail  authorities  or  through  my other mode  which the detenu thinks fit of adopting. But the detaining authority is under no obligation to grant any oral hearing at  the time  of considering  the representation. If the representation has to be a written representation, there is no  question  of  hearing  anyone  much  less  a  lawyer. Therefore, the  Administrator’s refusal to hear the advocate of the detenu while considering the representation would not be denial  of the  common law  right of  the  detenu  to  be represented by an agent. [577 A-C]      Francis  Coralie  Mullin  v.  The  Administrator  Union Territory of Delhi Ors.,[1981] 2 SCR 516, held inapplicable,

JUDGMENT:      ORIGINAL JURISDICTION  : Writ  Petition (CRL) Nos. 8070 of 1981, 23 and 29 of 1982.            (Under Article 32 of the Constitution) 556      Ram  Jethmalani   and  Miss  Rani  Jethmalani  for  the Petitioners.      Eduardo  Falireo   and  Miss   A.  Subhashini  for  the Respondents.      The Judgment of the Court was delivered by      BAHARUL ISLAM,  J. These  three  writ  petitions  under



Article 32  of the  Constitution  of  India  involve  common questions of  facts and  law. This  common  order  of  ours, therefore,  will   dispose  of  all  of  them.  It  will  be sufficient if  we refer  to the  facts only of Writ Petition No. 8070  of 1981.  This petition  is directed  against  the order dated 11th September, 1981 made under Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act,  1974 (the COFEPOSA) by the Administrator of Goa,  Daman   and  Diu  (hereinafter  ’the  Administrator’), detaining the petitioner "with a view to preventing him from smuggling goods".      2. The  material facts  in a nutshell as alleged in the grounds of  detention in  Writ Petition No. 8070 of 1981 are that the  petitioner along  with Lallu  Govan  Tandel  alias Lallu Malbari,  Narsingh Vallabhbhai Tandel (the petitioners in  the   other  two   writ  petitions)   and   Narsinghbhai Daulabhbhai (detenu since released) indulged in smuggling of foreign goods  such as  fabrics, speakers,  cassettes, video cassettes, wrist  watches, refrigerators,  silver,  etc.  be goods in 36 packages were recovered from House No. 12/134 of Daman Municipal  Area. These  goods were  kept there  by two persons,  namely;   Tulsibhai   Ranchhodhbhai   Tandel   and Mangalbhai Bhula  bhai Tandel  engaged by the aforesaid four detenus for  lifting the  said 36  packages  from  a  vessel grounded in  sea off Ghati Sheri, Nani Daman. The contraband goods recovered  were worth  Rs. 5,30,281.50.  The aforesaid Tulsidas and Mangalbhai made certain statements on 2nd July, 1981 implicating  the aforesaid  four persons  including the petitioner. When  the Customs  squad was  keeping a watch on Nani Daman  coast, a  vessel was  found in the sea and goods were being  unloaded. In the process Tulsibbai Ranchhodhbhai and Mangalbhai  Bhulabhai  were  accosted  and  each  had  a package with  him and on being led by them the customs squad reached the  house bearing  municipal No.  12/134. On  being questioned, the  aforementioned two  labourers Tulsibhai and Mangalbhai stated  that they  were engaged  as labourers for transporting packages  of contraband  goods  from  a  vessel grounded in  sea on Ghatisheri to the said house bearing No. 12/134. Tulsibhai and Mangalbhai, in the course of 557 interrogation, admitted  that they  were engaged  by  detenu Devji Vallabhbhai  Tandel and  Lallu Govan for unloading the packages containing contraband goods.      3.  The   impugned  order   of  detention   dated  11th September, 1981  (Annexure ’A’) together with the grounds of detention (Annexure  ’B’) were  served on  the petitioner on June 30,1981, which was the date of apprehension.      4. The  first submission of Mr. Ram Jethmalani, learned counsel for  the petitioner, is that under the Government of Union Territories  Act, 1963,  (hereinafter  the  Act),  the order of  detention can  be made  only by the Chief Minister and in  the name  of  the  Administrator  and  not-  by  the Administrator, though  it can  be made  in the  name of  the Administrator. In  the instant  case, the order of detention was made, and the representation dated 10th October, 1981 of the petitioner  was disposed of, by the Administrator, which it is submitted, is not permissible in law.      The argument  sought to  be made  seems to  be that the status of  the Administrator  is  similar  to  that  of  the Governor of a State and as such the Administrator had to act with the  aid  and  advice  of  the  Council  of  Ministers. Admittedly, there  is an  elected Assembly with a Council of Ministers in  the Union  Territory of  Goa, Daman  and  Diu. Therefore, the  argument proceeds,  the Administrator on his own cannot make an order of detention. The order can be made



by the  Chief Minister  or any other person authorised under section of the COFEPOSA in the name of the Administrator.      On the  other hand  in  paragraph  7  of  the  counter- affidavit, it  has been  stated by the respondent, "that the respondent has full authority to make the order of detention under COFEPOSA in exercise of the powers conferred under the statute. In  case of  the Union  Territories  the  power  of detention is  specifically conferred on the Administrator by virtue of  the definition  of the  "State Government"  under Section 2  (f) of  the COFEPOSA  Act, 1974  and as  such the Administrator as  the detaining  authority, has  to form his own opinion and is not bound to act on the aid and advice of his Council of Ministers .. Even, then the Administrator has considered the  advice of  the Chief  Minister, who  is  the Minister in-charge  of the  department dealing with COFEPOSA matters". 558      5. Mr.  Eduardo Faleiro,  learned counsel appearing for Respondent No.  l (the  Administrator) has placed the entire records before  us. On  a perusal of the relevant papers, we find that  the matter  was routed through the Chief Minister who considered  the case  and sent  it to the Administrator, who thereafter, passed the order of detention. There is thus a substantial  compliance of Section 3 of the COFEPOSA. Even so, the  legal submission  of  learned  counsel  has  to  be answered, as he urged it with vehemence.      6.   Section 2 (f) of the COFEPOSA provides:             "In  this  Act,  unless  the  context  otherwise           requires,-           (f)  "State Government",  in relation  to a  Union                Territory, means the administrator thereof".      In the  Union Territories  Act, 1963  (hereinafter  the ’Act’), under  clause (a)  of sub-section  (1) of Section 2, ’Administrator’ has been defined as:           " ’Administrator’  means the  administrator  of  a      Union  Territory   appointed  by  the  President  under      article 239"      Under clause  (h) of  sub-section  (1)  of  Section  2, "Union Territory" has been defined as:           "  ’Union   Territory’  means  any  of  the  Union      Territories of......  Goa, Daman and Diu.. ". (Material      portion only)      Sub-section (1) of Section 3 of the COFEPOSA Provides:           "The Central Government or the State Government or      any officer  of the  Central Government,  not below the      rank of a Joint Secretary to that Government, specially      empowered for  the purposes  of this  section  by  that      Government, or  any officer  of a State Government, not      below the  rank of  a  Secretary  to  that  Government,      specially empowered for the purposes of this section by      that Government, may, if satisfied, with respect to any      person (including  a Foreigner),  that, with  a view to      preventing him from acting in any manner Prejudicial to      the conservation or argumenta- 559      tion of  foreign exchange  or with a view to preventing      him  from       (i) smuggling goods, or      (ii) abetting the smuggling of goods, or     (iii) engaging in  transporting or concealing or keeping           smuggled goods, or      (iv) dealing  in   smuggled  goods  otherwise  than  by           engaging in  transporting or concealing or keeping           smuggled goods, or      (v)  harbouring persons  engaged in  smuggling goods or



         in abetting the smuggling of goods,      it is  necessary so to do, make an order directing that such person be detained".      The fasciculus  of Sections  44 to 46 in Part IV of the Act provides  for setting up a Council of Ministers. Section 44 reads as under:           "44. Council  of Ministers-(I)  There shall  be  a      Council of  Ministers in  each Union Territory with the      Chief Minister  at the  head  to  aid  and  advise  the      Administrator in  the  exercise  of  his  functions  in      relation  to   matters  with   respect  to   which  the      Legislative Assembly  of the  Union Territory has power      to make  laws except  in so far as he is required by or      under this  Act to act in his discretion or by or under      any law  to exercise  any judicial  or  quasi  judicial      functions:           Provided that  in case  of difference  of  opinion      between the  Administrator and  his  Ministers  on  any      matter,  the   Administrator  shall  refer  it  to  the      President  for   decision  and  act  according  to  the      decision given  thereon by  the President,  and pending      such  decision   it  shall   be   competent   for   the      Administrator in  any case  where the  matter is in his      opinion so  urgent that it is necessary for him to take      imme- 560      diate action,  to take  such action  or  to  give  such      direction in the matter as he deems necessary".       x             x              x         x      Section 46  confers power  on  the  President  to  make rules: (a)  for the allocation of business to the Ministers; and (b) for the more convenient transaction of business with the Ministers  including the  procedure to be adopted in the case of  difference of opinion between the Administrator and the Council  of Ministers  or a  Minister.  Sub-section  (2) provides that  save as  otherwise provided  in the  Act, all executive action  of the Administrator, whether taken on the advice of  his Ministers or otherwise, shall be expressed to be taken in the name of the Administrator. The contention is that the  Administrator of  the  Union  Territory  appointed under Article 239 of the Constitution by the President is in the same  position  as  the  Governor  of  a  State  or  the President of  India in  the matter of discharge of executive functions conferred  upon him  and he must act on the advice of the  Council of  Ministers. It  was  accordingly  further submitted that  the Administrator  cannot act on his own and in this case it is claimed on behalf of the Administrator in the affidavit  that he  can act  on his own as stated above. Reliance was  placed on  Shamsher Singh  Anr.  v.  State  of Punjab (where  in it  was held  that the  President  or  the Governor acts  on the  aid and  advice  of  the  Council  of Ministers with the Prime Minister at the head in the case of the Union  and the Chief Minister at the head in the case of a State  in all  matters which vest in the executive whether those functions  are executive  or legislative in character. It was  further held  that neither  the  President  nor  the Governor is  to exercise the executive functions personally. It is not possible to accept this submission.      Article 74  provides that  there shall  be a Council of Ministers with  the Prime  Minister at  the head  to aid and advise the  President who  shall, in  the  exercise  of  his functions, act  in accordance  with such advice. The proviso to the  Article is  not  material.  Similarly,  Article  163 provides that there shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in



the exercise  of his functions, except in so far as he is by or  under   this  Constitution   required  to  exercise  his functions or any of them in his 561 discretion. Once  we compare the language of Articles 74 and 163 with  the  language  of  Section  44  of  the  Act,  the difference between  the position  of the  President and  the Governor on  the one hand and the Administrator of the Union territory  on   the  other   becomes  manifest.   The  first difference  is  that  he  is  similarly  situated  with  the Governor but not with the President when he is to act in his discretion under  the Act. Further, the Administrator has to act on  his own  unaided by the Council of Ministers when he is to exercise any judicial or quasi judicial functions. The nearest analogy  to this  provision is  one to  be found  in Article 217  (3) when the President has to determine the age of a  Judge of  tho High  Court. It has been held that while exercising the  power conferred  by  Article  217  (3),  the President discharges a judicial function and is not required to act  on the  advice of the Council of Ministers, his only obligation being to decide the question about the age of the Judge after consulting the Chief Justice of India (see Union of India  v. J.P.  Mitter. But  there the  analogy ends. The Administrator even  in matters  where he  is not required to act in  his discretion  under the  Act or  where he  is  not exercising any  judicial or quasi judicial functions, is not bound to  act according  to the  advice of  the  Council  of Ministers. This becomes manifest from the proviso to Section 44 (1).  It transpires from the proviso that in the event of a difference  of opinion  between the  Administrator and his Ministers on  any matter,  the Administrator shall refer the matter to  the President  for decision  and act according to the  decision   given  thereon  by  the  President.  If  the President  in   a  given  situation  agrees  with  what  the Administrator opines  contrary to  the advice of the Council of Ministers,  the Administrator  would be  able to override the advice of the Council of Ministers and on a reference to the President  under the  proviso, obviously  the  President would  not  according  to  the  advice  of  the  Council  of Ministers given  under Article  74. Virtually, therefore, in the event  of a difference of opinion between the Council of Ministers of  the Union territory and the Administrator, the right to  decide would  vest in the Union Government and the Council of  Ministers of  the Union territory would be bound by the  view taken  be the  Union Government.  Further,  the Administrator  enjoys  still  some  more  power  to  act  in derogation of the advice of the Council of Ministers. 562      The second  limb of  the  proviso  to  Section  44  (1) enables the  Administrator that in the event of a difference of opinion between him and the Council of Ministers not only he can  refer the  matter to  the President  but during  the interregnum where  the matter  is in  his opinion  so urgent that it  is necessary  for him  to take immediate action, he has the power to take such action or to give such directions in the  matter as he deems necessary. In other words, during the interregnum he can completely override the advice of the Council of Ministers and act according to his light. Neither the Governor  nor the  President enjoys any such power. This basic functional  difference  in  the  powers  and  position enjoyed by  the Governor  and the  President on the one hand and the  Administrator on the other is so glaring that it is not possible  to hold on the analogy of the      decision in Shamsher Singh’s  case that  the Administrator  is purely  a constitutional functionary bound to act on the advice of the



Council of  Ministers and  cannot act on his own. Therefore, for this  additional  reason  also  the  submission  of  Mr. Jethmalani must be rejected.      7. The  second submission of learned counsel was to the effect  that  the  statements  of  labourers  Tulsibhai  and Mangalbhai of  30th June, 1981, being the earlier statements of the  two labourers  were not  supplied to  the detenu but only the  two statements  of 1st  July, 1981,  were supplied and, therefore,  the detenu  was prevented  from  making  an effective representation  by which  he wanted  to controvert the statements  of Tulsibhai  and Mangalbhai. The submission was that  in their  statements recorded  on 1st  July, 1981, they did  not state that during the earlier interrogation on the night  of 30th  June, ]981,  they informed  the  Customs authorities that  they were  employed as  labourers  by  the detenu and  Lalubhai Govan.  Consequently, it was contended, the detaining  authority had no material from which to infer that on  being first  accosted by  the customs squad the two labourers gave  out that  they were engaged in this unlawful activity as  wage earners by the detenu and Lallu Govan. The submission has  no merit  because there  are two statements, one of  Customs Inspector,  Mr.  Patel,  and  the  other  of Customs officer,  Mr. Fitter,  both of  which show  that  on being interrogated  during the night of 30th June, 1981, the aforementioned two labourers gave out that they were engaged for unloading  packages containing contraband goods from the grounded vessel  to a  house in Nani Daman by the detenu and Lallu Govan;  and there is no dispute that the statements of Mr. Patel and Mr. Fitter were given 563 to the  detenu. Further, the grievance made by the detenu is not warranted  by the  materials  on  record.  For,  in  the penultimate paragraph  of the  grounds of  detention, it was stated, "copies  of the statements and other documents which have  been   taken  into   consideration  by  the  detaining authority are  also enclosed  as  per  the  index  attached" (underline mine).  Thereafter, no  grievance appears to have been made by the detenu in his representation. Even from the grounds in  the Writ  Petition, it  does  not  appear  which documents, if  any, were  not supplied  to the  detenu.  The records show that there was great tension on the date at the place of apprehension and as such no statements could be and were recorded  on the date of apprehension, but subsequently recorded on  2nd July, 1981. The submission therefore has no substance.      8. The  third submission  of learned  counsel is, "that the  order  of  detention  was  not  properly  served".  The submission is that the Gujarati translation of the order was not  supplied  to  the  detenu.  According  to  the  learned counsel, "the  petitioner does  not know and cannot speak or write in  a language  other than Gujarati, and that Annexure ’A’  ought  to  have  been  translated  into  Gujarati.  The petitioner was  thereby deprived of an opportunity of making an effective  representation  against  his  detention".  The submission is  not wholly  correct on facts. Annexure ’A’ is the ’ORDER’  expressed in  terms  of  Section  3(1)  of  the COFEPOSA. It is in English and reads:           "SECRET      No. 14/3/80/HD (G)      Administrator of Goa,      Daman & Diu, Cabo Raj Niwas,      Caranzalem (P.O.)      Goa.                            ORDER           WHEREAS, I,  Jagmohan, Administrator of Goa, Daman



    and Diu, am satisfied with respect- to the person known      as Shri  Devji Vallabhbhai  Tandel alias Devji Boss son      of Shri  Vallabhbhai Tandel  residing at  H.No.  1/255,      Fenta Sheri,  Vadi Falia,  Nani Daman, that with a view      to preventing him from smuggling goods. 564 It is necessary to make the following order:      Now, therefore,  in exercise of the powers conferred by section 3  (1) of  the Conservation  of Foreign Exchange and Prevention of Smuggling Activities Act, 1974;      I, Jagmohan, Administrator of Goa, Daman and Diu direct that the  said Shri  Devji Vallabhbhai Tandel be detained at the Central  Jail,  Aguada,  and  the  enclosed  grounds  of detention be served on him.                             SEAL Place :-Cabo Raj Niwas Date  :-11.9.81 Encl  : As above      Sd/-      (Jagmohan)      Administrator of Goa, Daman      and Diu. To      Shri Devji Vallabhbhai Tandel      alias Devji Boss,      H. No. 11255, Fenta Sheri,      Vadi Falia, Nani Daman"      Admittedly, this  ’ORDER’ as  per Annexure  ’A’ was  in English but  the enclosure,  Annexure ’B’ which contains the grounds of  detention together  with the  materials on which the grounds  were based  was in  Gujarati. In paragraph 8 of the counter-affidavit  filed on behalf of the Administrator, it has been stated:           "As regards Ground it is denied that the detaining      authority has  not furnished  Gujarati version  of  the      order of  detention as alleged by the petitioner... The      petitioner by his own admission knows Gujarati and 565      accordingly  the   grounds  of   detention  have   been      communicated to  the petitioner  in Gujarati  language.      The allegation is, therefore, untenable".      The above  statement of  the respondent is supported by the internal  evidence of  Annuexure ’B’ itself. For, in the penultimate paragraph of the "grounds" it bas been stated:-           "The Gujarati  version of the grounds of detention      is enclosed to enable you to understand the grounds for      which detention order is passed against you".      This shows  that the Gujarati version of the grounds as per Annexure  ’B’ was sent to the detenu alongwith the ORDER as per  Annexure ’A’.  Admittedly, the  detenu is a Gujarati speaking person.      So far as the non-supply of the Gujarati version of the ORDER as  per Annexure  ’A’ is  concerned, in  our  opinion, there has  been no  violation of Article 22 (5) or any other law. The ORDER as per Annexure ’A’ was a mere formal recital of section  3 (1)  of the COFEPOSA, showing the provision of law under  which the  order  of  detention  has  been  made. Although, the section of the COFEPOSA has not been mentioned in the last but two paragraphs of the "grounds", it has been stated that  the detenu  engaged himself "in smuggling goods and that  there is  sufficient cause to pass detention order against you  with a  view to  preventing you  from smuggling goods", which  was in  Gujarati. It  cannot, therefore,  be. said  that   the  detenu  was  in  any  way  handicapped  in submitting  his   representation,  or  there  has  been  any



violation of Article 22 (5) of the Constitution.      9.  The  learned  counsel,  in  support  of  his  third submission, cited  before us  the decision  of this Court in the case of The State Bombay v. Atma Ram Sridhar Vaidya. The decision is beside the point and need not be referred to.      Learned Counsel  for the  petitioner also cited another decision of  this Court reported in (1980) 4 SCC 427 In that case, it has been held that failure to supply the grounds of detention in  the language understood by the detenu violates Article 22  (5) of the Constitution. In the instant case? as we have found above, the 566 Gujarati translation  of the  grounds was  supplied  to  the detenu. The  decision cited  has not  held  that  the  ORDER expressed in  terms of  Section 3  (1) of  the COFEPOSA must also be  in the language understood by the detenu. Section 3 (1) as  stated above  merely gives power of detention to the detaining authority. This submission also has no substance.      10. The  fourth submission  of learned counsel was that by a  telegram dated 1st October, 1981, the detenu requested for an  immediate  thearing  through  his  lawyer  but  this request was  denied. There  was  a  delay  of  six  days  in deciding the  matter. This  was contrary to law. That apart, the "respondent  misled the detenu by indicating to him that the only  way by  which the Administrator could be persuaded would be  a representation  through the  jail". The  factual part of the submission is not correct. On 1st October, 1981, one Shri  Thaku Ajwani,  Advocate for the petitioner, sent a telegram to  the Administrator.  It  was  in  the  following terms:                                         "JAGMOHAN                                         ADMINISTRATOR OF GOA                                         DAMAN & DIU                                         CABO RAJ NIWAS                                         CARANZALER, GOA ORDINARY DETENUS DEVJI  VALLABHBHAI TANDEL AND NARSINBHAI DURLABHBHAI TANDEL DETAINED  UNDER COFEPOSA  ORDERS DATED 11TH SEPTEMBER 1981 HAVE  INSTRUCTED ME  TO APPEAR BEFORE YOU AND REPRESENT THEIR CASE  FOR  REVOKING  DETENTION  ORDERS  (Stop)  KINDLY INTIMATE FORTHWITH DATE, TIME AND PLACE                               THAKU AJWANI ADVOCATE 22                               PANCHSHILA ROAD CHURCHGATE                               BOMBAY 400 020 567      There was  a reply  telegram by  the Chief Secretary of the Union  Territory in question. The post copy of the reply telegram reads thus: (material portions only):      "STATE              TELEGRAM            EXPRESS      ADVOCATE SHRI THAKU AJWANI      CHAMBERS C/O RAM JETHMALANI      ADVOCATE SUPREME COURT      22 PANCHSHILA ROAD,      CHURCHGATE, BOMBAY-400 020      . ..  . .. No. 14/3/80/HD (G) (.) REFERENCE YOUR LETTER      DATED 1ST OCTOBER 1981 REGARDING DETENTION OF SARVASHRI      DEVJI  VALLABHBHAI  TANDEL  AND  NARSINBHAI  DURLABBHAI      TANDEL DETAINED  UNDER COFEPOSA  ACT  RECEIVED  IN  THE      OFFICE OF  THE ADMINISTRATOR  ON  5/10/1981  (.)  "YOUR      TELEGRAM DATED  1ST OCTOBER  1981 REFERRED  THERElN HAD      BEEN REPLIED  UNDER THIS  DEPARTMENT’S TELEGRAM OF EVEN      NUMBER DATED  6TH OCTOBER 1981 AND ITS COPIES HAVE ALSO      BEEN SENT  To THE  CONCERNED DETENUS  AT  CENTRAL  JAIL      AGUADA (.) CONTENTS OF THE SAID TELEGRAM ARE REPRODUCED      BELOW (.)  QUOTE (.)  YOUR TELEGRAM  DATED 1ST  OCTOBER



    1981 ADDRESSED  TO THE  ADMINISTRATOR GOA DAMAN AND DIU      REGARDING  DETENTION  OF  SARVASHRI  DEVJI  VALLABHBHAI      TANDEL AND NARSINBHAI DURLABHBHAI TANDEL DETAINED UNDER      COFEPOSA ACT (.) YOUR REQUEST FOR APPEARANCE BEFORE THE      ADMINISTRATOR AND  REPRESENT THE  CASE OF THE AFORESAID      DETENUS  HAS   BEEN   CAREFULLY   CONSIDERED   BY   THE      ADMINISTRATOR AND  HE HAS  DECIDED THAT THE DETENUS CAN      MAKE 568      REPRESENTATION TO  THE  ADMINISTRATOR  THROUGH  CENTRAL      JAIL  AGUADA   WHERE  THEY   ARE   DETAINED   (.)   THE      REPRESENTATION OF  THE AFORESAID  DETENUS WILL  RECEIVE      HIS DUE CONSIDERATION AS AND WHEN THEY ARE RECEIVED (.)      UNQUOTE (.)      -CHIEF SEC-"      It has  been stated  in  paragraph  9  of  the  counter affidavit as follows:           "........................ ,  it is  admitted  that      the telegram dated 1st October, 1981, purported to have      been made  by the  Advocate  on  behalf  of  petitioner      requesting the  Administrator  for  grant  of  personal      appearance before him for revocation of detention order      was received  in the office of the Administrator on 3rd      October, 1981.  This request  was duly  examined and it      was felt that under the law, the detenu is not entitled      to be  represented by  an Advocate  and  the  Detaining      Authority is not legally bound to grant the prayer made      on behalf of the detenu. The Advocate of the petitioner      was telegraphically  informed on  6th October 1981 that      the request  had been  duly considered  by the Adminis-      trator who  had decided  that the  detenu could  make a      representation  to   the  Administrator   through   the      Superintendent, Central  Jail,  Aguada,  where  he  was      detained and  that  the  same  would  receive  his  due      consideration as  and when  it was  received. A copy of      the  said  telegram  sent  to  the  Advocate  was  also      endorsed to the detenu and the same was received by him      on 7th  October, 1981.  A letter in confirmation of the      Advocate’s telegram  was received  from the Advocate of      the petitioner  in the  office of  the Administrator on      5.10.1981 and  the same  was replied to telegraphically      on 7th  October, 1981, reiterating the earlier position      as conveyed in the said telegram of 6th October.           The allegation  that 10  days were  taken  by  the      respondent in  only deciding  the representation and in      coming to  the conclusion  that he  would not  permit a      lawyer to plead 569      for revocation of the order of detention is, therefore,      not   correct. To give further details, the telegram of      the  petitioner’s   Advocate  was   received   in   the      Administrator’s office  on 3rd  October, 1981,  and was      sent to the Joint Secretary (Home) the same day. It was      referred to  the law  Department on  3rd October,  1981      itself and  through  usual  channels  reached  the  Law      Secretary on  5th October,  1981, the  4th  of  October      being a  Sunday. The Law Secretary gave his opinion and      referred the  telegram to  the Home  Department on  the      same day i.e. 5th October, 1981. In the Home Department      it was  sent by the Under Secretary (Home) to the Chief      Secretary and  by the  latter to the Chief Minister the      same day.  On 6th October, 1981, it was examined by the      Lt. Governor  and the  reply was sent to the petitioner      on  the  same  day.  The  reply  was  received  by  the      petitioner/detenu on 7th October, 1981".



    In addition  to the above explanation of the respondent in para  9 of the counter-affidavit, we perused the file and we are satisfied that there was no delay in disposal. On the contrary, it may be said to the credit of the administration that it was dealing with the matter with utmost promptitude.      11. Now  to examine  the  second  part  of  the  fourth contention of  learned counsel.  His submission  is that the Administrator committed  an illegality  not only by refusing the detenu  to be  heard through a lawyer, but, in addition, by misleading  the detenu  by  his  telegram.  The  detenu’s counsel, Mr.  Ajwani, informed  the Administrator  that  the detenu had  instructed him  to represent his case before the Administrator. He made a request to the Administrator to let him know  the date,  time and place of his appearance before the Administrator The reply telegram quoted above has stated that his  request has  been  "carefully  considered  by  the Administrator" who,  by implication,  rejected the  request. Besides, it  was further  stated in  the telegram  that  the Administrator  has   decided  that   the  detenu   can  make representation to  the Administrator  through the jailor and that the  representation so sent would be duly considered by the Administrator  to which  exception has  been  taken.  In these circumstances, the following questions arise:      (1)  whether the  detenu has  a right  to appear before           the detaining authority through a lawyer; 570      (2)  whether the  last sentence  in  the  telegram  has           misled the detenu.      Mr. Jethmalani  submits that Article 22 (3) enables the legislature to  take away  the common  law right  of  acting through an  agent generally or through a particular class of agents. The  statute does Dot deal with the general but with a particular  class, namely,  the legal  practitioners.  The statute  confines   this  legal  disability  to  the  matter connected with  reference  to  the  Advisory  Board.  So  he submits  that  lawyers  are  not  completely  sought  to  be excluded. Under  Article 22  counsel submits  there are  two distinct  and   independent  rights:  (1)  to  persuade  the detaining authority to revoke the order of detention and (2) to persuade  the Advisory Board to disapprove the detention. It is  only in  the second  process that  the  agent  called lawyer is excluded. The learned counsel further submits that every person  has a  common law right to employ an agent and do an  act through him. The detenu could, therefore, send an ’agent’ or a ’friend’ who might have been his lawyer.      Let us  first examine whether the detenu has a right to appear through a lawyer. This examination need not detain us long.      Section 8  (e) of the COFEPOSA reads: (material portion      only)           "For the  purposes of sub-clause (a) of clause (4)      and sub-clause  (c) of clause (7), of Article 22 of the      Constitution,-(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.." (emphasis added).      Clause (e)  in express  terms disentitles the detenu to appear through  a legal practitioner in any matter connected with the reference to the Advisory Board. It is indisputable that  a   detention  matter  which  is  pending  before  the Administrator is  undoubtedly a  matter connected  with  the reference to  the Advisory Board. The detenu, therefore, has no right  to appear before the detaining authority or before the Advisory Board by a legal practitioner.



    This Court in the case of Smt. Hemlata Kantilal Shah v. The State of Maharashtra & Anr. have held; 571           "Section 8  (e) has not barred representation of a      detenu by  a lawyer.  It only lays down that the detenu      cannot claim representation by a lawyer as of right. It      has given  the Board  a discretion  to permit or not to      permit  representation   of  the   detenu  by   counsel      according to the necessity in a particular case".      In the  case of  A.K Roy v. Union of India relied on by Mr. Jethmalani, a Constitution Bench of this Court has held.           "First and  foremost, we must consider whether and      to what  extent the  detenu is entitled to exercise the      trinity of  rights before  the Advisory  Board; (i) the      right of legal representation; (ii) the right of cross-      examination and (iii) the right to present his evidence      in rebuttal.  These rights  undoubtedly constitute  the      core of  just process because without them, it would be      difficult for  any person  to disprove  the allegations      made against  him and to establish the truth. But there      are two considerations of primary importance which must      be borne in mind in this regard. There is no prescribed      standard of  reasonableness and therefore, what kind of      processual rights  should be made available to a person      in any  proceeding  depends  upon  the  nature  of  the      proceedings  in   relation  to  which  the  rights  are      claimed. The  kind of issues involved in the proceeding      determine the  kind of  rights available to the persons      who  are  parties  to  that  proceeding.  Secondly  the      question as  to the  availability of  rights has  to be      decided not generally but on the basis of the statutory      provisions which  govern the  proceeding,  provided  of      course that those provisions are valid.. " (para 84)           ’Turning   first    to   the    right   of   legal      representation which is claimed by the petitioners, the      relevant article  of the  Constitution to  consider  is      Article 22  which bears  the marginal  note "protection      against arrest  and detention  in certain  cases". That      article provides  by clause  (1) that  no person who is      arrested shall  be detained  in custody  without  being      informed, as  soon as  may be,  of the grounds for such      arrest nor shall he be denied the right to consult, and 572      to be  defended by, a legal practitioner of his choice.      Clause (2)  requires that  every person who is arrested      and detained  in custody  shall be  produced before the      nearest magistrate  within a period of 24 hours of such      arrest and  that no person shall be detained in custody      beyond the  said period  without  the  authority  of  a      magistrate. Clause (3) provides that nothing in clauses      (1) and  (2) shall  apply (a) to any person who for the      time being  is an enemy alien; or (b) to any person who      is arrested  or detained  under any  law providing  for      preventive detention.  It may  be recalled  that clause      (4)  (a)   of  Article  22  provides  that  no  law  of      preventive detention shall authorise the detention of a      person for a period longer than three months unless the      Advisory Board  has reported  before the  expiry of the      said period  of three  months  that  there  is  in  its      opinion sufficient  cause for such detention. By clause      (7) (c)  of Article  22, the  Parliament is  given  the      power to  prescribe by law the procedure to be followed      by the  Advisory Board  in an  inquiry under clause (4)      (a)". (para 85)           "On a  combined reading of clauses (1) and (3) (b)



    of Article  22, 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. 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. In  view of  this,  it  seems  to  us      difficult to  hold, by 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.. lt is indeed true to say, after the decision in      the Bank  Nationalisation case, that though the subject      of preventive  detention is  specifically dealt with in      Article  22,   the  requirements  of  Article  21  have      nevertheless to be satisfied. It is therefore necessary      that  the   procedure  prescribed   by  law   for   the      proceedings before  the Advisory  Boards must  be fair,      just and  reasonable. But then, the Constitution itself      has provided a yardstick for 573      the application of that standard, through the medium of      the  provisions   contained  in  Article  22  (3)  (b).      Howsoever much  we would  have liked to hold otherwise,      we experience  serious difficulty  in taking  the  view      that the  procedure of the Advisory Boards in which the      detenu is  denied the  right of legal representation is      unfair, unjust  or unreasonable.  If  article  22  were      silent  on   the  question,   of  the  right  of  legal      representation, it  would have  been  possible,  indeed      right and  proper, to  hold that  the detenu  cannot be      denied  the   right  of  legal  representation  in  the      proceedings  before   the  Advisory   Boards.   It   is      unfortunate that  courts have  been  deprived  of  that      choice by  the express  language of  Article 22 (3) (b)      read with Article 22 (1)". (para 86).           "To read  the right  of  legal  representation  in      Article 22  (S)  is  straining  the  language  of  that      article. Clause  (S) confers  upon the detenu the right      to be  informed of  the 1) grounds of detention and the      right to be afforded the earliest opportunity of making      a representation  against the  order of detention. That      right has  undoubtedly to be effective, but it does not      carry with  it the  right to  be represented by a legal      practitioner before  the Advisory Board merely because,      by  Section  10  of  the  National  Security  Act,  the      representation made  by the  detenu is  required to  be      forwarded to the. Advisory Board for its consideration.      If anything,  the effect  of Section  11(4) of the Act,      which conforms  to Article  22 (3)  (b),  is  that  the      detenu cannot  appear before the Advisory Board through      a legal practitioner. The written representation of the      detenu does  not have  to be expatiated upon by a legal      practitioner". (para 88)           "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,........  ".



    (para 93) (underlines added) 574      What has  been  said  above  about  appearance  through lawyer before the Advisory Board under the National Security Act  equally  apply  to  appearance  by  lawyer  before  the Advisory Board under COFEPOSA.      With regard to appearance through a ’friend’, the Court observed:           "Another aspect  of this  matter which needs to be      mentioned is  that the  embargo on  the  appearance  of      legal a  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.      ............... ". (para 94) (emphasis added).      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."  (emphasis      added).      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.      12. 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. 575      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.      That apart,  in this  case, the  case, the  telegram in express terms  has described the sender, Thaku Ajwani, as an advocate, who  in  clear  terms  stated  that  he  had  been instructed by  the detenu  to appear  before  the  detaining authority to  represent the  case of  the detenu.  In  other words, Mr.  Ajwani clearly  told the  Administrator that the detenu was  his client  and that  he himself was his counsel and that  he desired  to represent the case of the detenu in his capacity  as a  legal practitioner. The telegram was not sent by  Mr. Ajwani telling the Administrator that he wanted to appear  before the  Administrator as  a  ’friend’  or  an ’agent’ of  the detenu  in order  to represent his case. It, therefore, cannot  be said  that the Administrator refused a ’friend’ or an ’agent’ of the detenu to appear before him to assist the detenu.



    13 Article  22 (1)  and (2) confer fundamental right of protection against  arrest and  detention in  certain cases. Sub-Article (1)  enjoins a  duty on the person arresting any person to  inform the person arrested, as soon as may be, of the grounds  for such arrest before detaining him in custody and such  detained person  shall not  be denied the right to consult and  to be  defended by a legal practitioner, of his choice.  Sub-Article  (2)  enjoins  a  duty  on  the  person arresting and  detaining any  one to  produce him before the nearest Magistrate  within a  period of  24  hours  of  such arrest excluding the time necessary for the journey from the place of  arrest to  the Court of the Magistrate and no such person shall  be detained  in custody beyond the said period without the authority of a magistrate. These two fundamental rights, namely,  right to  be informed  of  the  grounds  of detention at the time of arrest and the right to consult and be defended  by a  lawyer of  his choice,  and any detention beyond the period of 24 hours plus the time taken in the 576 journey, unless  authorised by  a magistrate  to be  illegal would have also been available to any one detained under the preventive detention  laws but  for  sub-Article  (3).  Sub- Article (3)  provides that  nothing in  clauses (1)  and (2) shall apply  (a) to  any person who for the time being is an enemy alien;  or (b)  to  any  person  who  is  arrested  or detained under  any law  providing for preventive detention. As a  necessary corollary,  any law providing for preventive detention  would   not  be   unconstitutional  even   if  it contravenes Article 22 (1) and (2). In other words, a person detained under  a law  providing  for  preventive  detention cannot claim  as a matter of constitutional right to consult and be defended by a lawyer of his choice. Nor can he insist upon being  produced before  a magistrate within 24 hours of his arrest.      14. Section  8 of  the COFEPOSA  soows as noticed above that a  person against  whom an  order of detention has been made under  the Act  shall not  be entitled to appear by any legal  practitioner   in  any   matter  connected  with  the reference to  the Advisory Board. Assuming that the right to make a  representation and the corresponding obligation cast on the  detaining authority  to consider  the representation expeditiously is  not a  matter connected with the reference to the  Advisory Board and that both are independent stages, it cannot  be said  that the refusal of the Administrator to hear the  advocate  of  the  detenu  while  considering  the representation would  be denial  of common  law right of the detenu to  be represented  by an agent. Article 22 (5) which has  provided  a  safeguard  in  the  matter  of  preventive detention confers the right on the detenu and simultaneously casts an  obligation on  the detaining authority, as soon as may be,  after the  arrest to  communicate to the detenu the grounds on  which the  order has been made and to afford the earliest opportunity  of making a representation against the order. Representation is to be made by the detenu. Detenu is a person  who is already deprived of his liberty. Giving the ordinary connotation to the expression ’earliest opportunity of making  a representation’  as set  out in sub-Article (5) would only  imply that  the  person  can  send  his  written representation through  the jail  authorities. It  would  be open to  him to send it by any other communicating media but the opportunity to make a representation does not comprehend an oral hearing If it does, the detenu will have to be taken from the  jail  where  he  is  detained  to  the  detaining’ authority which  in  a  given  situation  may  not  even  be feasible and the delay in transit may be



577 counterproductive to the earliest opportunity to be afforded to make a representation. It is, therefore, implicit in Sub- Article (5)  of Article 22 that the representation has to be a  written  representation  communicated  through  the  jail authorities or  through any  other  mode  which  the  detenu thinks fit  of adopting but the detaining authority is under no obligation  to grant  any oral  hearing at  the  time  of considering the  representation. Now,  if the representation has to  be a written representation. there is no question of hearing any  one much  less a lawyer. Reliance was, however, placed on Francis Coralie Mullin v. The Administrator, Union Territory  of   Delhi  &  ors.,  In  that  case  the  detenu challenged the  validity of clause 3 (b) (i) and (ii) of the Condition of  Detention laid down by the jail administration under an  order dated  23rd August, 1975, issued in exercise of the powers conferred under Section 5 of the COFEPOSA. The relevant condition was as under:           "3. The  conditions of  detention  in  respect  of      classification and interviews shall be as under:           (b)  Interviews: Subject  to the  direction issued                by  the  Administrator  from  time  to  time,                permission for the grant of interviews with a                detenu  shall  be  granted  by  the  District                Magistrate, Delhi as under:                (i)  Interview with legal adviser:                     Interview   with    legal   adviser   in                     connection with defence of a detenu in a                     criminal  case  or  in  regard  to  writ                     petitions and  the like,  may be allowed                     by prior appointment, in the presence of                     an    officer     of     Customs/Central                     Excise/Enforcement to  be  nominated  by                     the local  collector of  Customs/Central                     Excise or Deputy Director of Enforcement                     who sponsors the case for detention.                (ii) Interview with family members: 578                     monthly interview  may be  permitted for                     members  of  the  family  consisting  of                     wife, children  or parents of the detenu                     .. "      The contention  was that  the condition in clause 3 (b) (ii) which restricts the interview to only one in a month in case  of   a  detenu  is  unreasonable  and  arbitrary  when contrasted with  an under-trial prisoner who was entitled to the facility  of interviews with friends and relatives twice in a  week and  even though  a detenu  stands  on  a  higher pedestal than  an under-trial  prisoner or  a  convict,  the limitation of  interview  to  one  in  a  month  is  utterly arbitrary. This  contention found  favour with  the Court on the ground  that  restrictions  placed  on  a  detenu  must, consistent with  the effectiveness  of detention, be minimal (see Sampat  Prakash v.  State of  Jammu & Kashmir, [1969] 3 S.C.R. 574.  Proceeding further,  this Court  held that sub- clause (i)  of clause 3 (b) which prescribes that the detenu can have  an interview  with a  legal adviser  of his choice with prior  permission of  the District  Magistrate and  the interview  has   to  take   place  in   the  presence  of  a Customs/Central Excise/Enforcement  officer nominated by the local Collector of Customs/Central Excise/Deputy Director of Enforcement, was  unreasonable and  hence invalid. Now, this judgment is  not an  authority for  the proposition  that  a detenu as  a  matter  of  right  is  entitled  to  make  his representation by  an  oral  hearing  before  the  detaining



authority under  Article 22  (5). The  right  to  consult  a lawyer was granted by the conditions of detention prescribed under Section 5. This right was not spelt out as an incident of Article  21 and  what  has  been  found  invalid  is  the presence of  officers at  the interview  and the  number  of interviews. Therefore,  Francis Coralie Mullin’s case is not an authority  for the proposition and frankly, cannot be one for the purpose of spelling out a right to be represented by a lawyer  while making  representation before  the detaining authority. Even though there are some observations which may imply such  a right, they would be completely obiter for the obvious reason  that a right was conferred by the Conditions of Detention  and not  for the  first time a right was being spelt out  by the  expanded horizons  of right  to life  and liberty as  enshrined in  Article 21. The attempt to read or imply  something  in  .  Article  21,  which  is  positively reflected by  Article 22  (5) would be contrary to any canon of construction  because it  is well  settled that  what  is expressly reflected cannot be brought in by the back door of implication. It  was not necessary to spell out these rights in the  facts of  that case  for the obvious reason that the right was conferred 579 by the conditions of detention. One need not go in search of some such  right implicit  in Article  21 by  a  process  of interpretation  when   it  was   expressly  granted  in  the Conditions of  Detention  under  the  Act.  Therefore,  with respect, the  decision in  Mullin’s  case  cannot  help  the petitioner to  spell out right to be represented by a lawyer before the detaining authority.      15. Now  the other  aspect of  the submission,  namely; whether the  respondent misled  the detenu  by his telegram. Objection has  been taken  to the  following sentence of the telegram:           "He (administrator)  has decided  that the detenus      can make  representation to  the administrator  through      Central jail, Aguada, where they are detained".      It may  be remembered that the telegram was sent to the detenus’ advocate,  Mr. Ajwani,  and not to the detenus. The above sentence conveying an advice, albeit gratuitous, could hardly mislead  a lawyer  who is  supposed  to  know  how  a representation of  a detenu  is to  be sent to the detaining authority. The  submission of  Mr. Jethmalani  was that  the sentence give the impression that the representation if sent through the  jail only,  and  in  no  other  way,  would  be considered. The  submission was hypothetical. The detenu was in jail.  The representation,  of necessity,  had to be sent through the Superintendent of the jail where he was detained with the  former’s necessary  endorsement and seal. It would be difficult  for the  detaining  authority  to  immediately ascertain whether  the representation  sent  otherwise  than through the  jailor was  genuine. Even  so the Administrator did not  say that  the detenu’s  representation, unless sent through the  jail would  be considered. There is no merit in the submission.      16. The  sixth point  raised by learned counsel for the petitioner is  that illegalities  were committed  in dealing with the representation of the detenu in that:           "(a) the detenu was not heard.           (b)  his advocate was not heard.           (c)   he was not told that he could be represented                by a friend. 580           (d)  he was  not  permitted  cross-examination  of                rebuttal evidence."



    The submission of learned counsel has no substance.      (a)  A perusal  of the record shows that the detenu was           heard in  person, was  questioned by  the Board on           several points  in Gujarati which was the language           of the  detenu, and  necessary answers elected. He           does not  have any  right to be heard in person by           the detaining authority.      (b)  It is true that the advocate of the detenu was not           heard but the former’s right to be heard either by           the detaining  authority or  by the Advisory Board           has been answered above.      (c)  The contention has been dealt with above.      (d)   This Court  in A.K. Roy’s case (supra) dealt with           the detenu’s  plea of  cross-examination, and  has           held;           ".... It  seems to  us difficult  to hold  that  a      detenu can  claim the right of cross-examination in the      proceeding  before   the  Advisory   Board.  First  and      foremost, cross  examination of  whom ?  The  principle      that witnesses  must  be  confronted  and  offered  for      cross-examination applies  generally to  proceedings in      which witnesses  are examined  or documents are adduced      in  evidence   in  order   to  prove  a  point.  Cross-      examination then  becomes a powerful weapon for showing      the untruthfulness  of that  evidence.  In  proceedings      before   the   Advisory   Board,   the   question   for      consideration of the Board is not whether the detenu is      guilty of  any charge  but whether  there is sufficient      cause for  the detention  of the  person concerned. The      detention, it must be remembered, is based not on facts      proved either  by applying the test of preponderance of      probabilities or  of reasonable doubt. The detention is      based on  the subjective  satisfaction of the detaining      authority that  it is  necessary to detain a particular      person in  order to prevent him from acting in a manner      prejudicial to  certain stated  objects. The proceeding      of the Advisory Board has therefore to be 581      structured differently  from the proceeding of judicial      or quasi judicial tribunals before which there is a lis      to adjudicate upon."      Finally, the Court observed           "We are  therefore of  the opinion,  that. in  the      proceedings before  the Advisory  Board, the detenu has      no right  to cross-examine  either the  persons on  the      basis of whose statement the order of detention is made      or the detaining authority."      17. Faced  with the  difficulty created  by  the  above decision, learned  counsel submits  that he has not used the word ’cross-examination’  in the technical sense but used it loosely in  the sense that the detenu would have examined as his witnesses  the persons  on whose statements the order of the detention  has been  based, to  establish his  innocence particularly before  the judicially  trained  minds  of  the Members of  the Advisory  Board. Even  if the  word  ’cross- examination’ is taken in the loose sense as submitted by the learned counsel,  the Advisory  Board cannot be blamed; for, there was  no request  by the  detenu for  the production of those persons  before the  Advisory Board to examine them as his defence  witnesses. The  sixth submission  also  has  no substance.      18. The seventh point formulated by learned counsel was "that the Advisory Board was required to decide two issues:      (i)  whether the detention was justified when made;      (ii) whether it  was  justified  on  the  date  of  the



         Advisory Board’s report".      Mr. Jethmalani  did not  press before us sub-point (i). But he  submitted that the Board ought to have found whether or not  the order  of detention was justified on the date of its report. We have perused the report of the Advisory Board and find that the report covers both sub-points (i) and (ii) enumerated above.      19. The  eight point  raised by learned counsel for the petitioner is  that the  procedure before the Advisory Board was ’totally  unjust and discriminatory’. His submission was that although  the detaining  authority was  not present  in persons before the Advisory Board, his 582 representatives were present to assist the Advisory Board on issues of  law and fact in support of the order of detention while there  was none  to assist  the detenu. The submission has been  based on  suspicion or guess, and is not borne out by records.  The record  shows that  the detenu was produced before the  Advisory Board  and necessary questions were put to him  and answers  elicited by the Chairman and the Member of the  Advisory Board  and there was none present on behalf of the  detaining authority.  This submission  also  has  no substance.      20. The  last point  raised by  Mr. Jethmalani was that the cases  of the  four  detenus  connected  with  the  same incident were  reviewed by  the Board; after having released one  co-detenu,   namely;  Narasinghbhai   Durlabhbhai,   in pursuance of the Advisory Board’s order, it was incumbent on the detaining  authority to review the order of detention of the petitioners  before us namely; Devji Vallabhbhai Tandel, (petitioner in  Writ Petition  No. 8070  of 1981),  Narsingh Vallabhbhai Tandel,  (petitioner in  Writ Petition No. 23 of 1982) and  Lallubhai Govanbhai  Tandel (petitioner  in  Writ Petition No.  29 of  1982). As on a perusal of the report of the Advisory  Board, it  was found  that Narsinh Vallabhbhai Tandel was  advised to  be released  on the ground of tender age, learned counsel did not press the submission.      21. These petitions have no merits and are dismissed. P.B.R.    Petitions dismissed. 583