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PETITIONER: JOHNEY D’ COUTO

       Vs.

RESPONDENT: STATE OF TAMIL NADU

DATE OF JUDGMENT04/11/1987

BENCH: MISRA RANGNATH BENCH: MISRA RANGNATH RANGNATHAN, S.

CITATION:  1988 AIR  109            1988 SCR  (1) 787  1988 SCC  (1) 116        JT 1987 (4)   248  1987 SCALE  (2)943  CITATOR INFO :  APL        1989 SC 389  (9)  R          1991 SC 979  (7)

ACT:      Conservation of  Foreign  Exchange  and  Prevention  of Smuggling   Activities    Act,   1974:    s.   8(e)-Detenu’s representation-Consideration  of  by  Advisory  Board-Detenu whether entitled to the assistance of a friend.

HEADNOTE: %      The detenu, a clearing and forwarding agent aged around 26 or  27 years,  was  detained  under  s.  3(1)(i)  of  the COFEPOSA Act. On the day the representation was heard by the Advisory Board the detaining authority was being assisted by a Deputy Collector and a Superintendent of Central Excise. A specific request of the detenu to permit a retired Assistant Collector of  Central Excise  to assist  him as a friend was turned down  on the  ground that  he was not a friend of the detenu, though  the person was inclined to assist the detenu because of  his professional experience. The detention order was confirmed on the recommendation of the Advisory Board.      In the writ petition under Art. 226 of the Constitution challenging the  order of detention it was contended for the detenu that  he had  sought the  assistance of  the  retired officer because  the case  before the Board involved certain facets which required acquaintance with the legal provisions and the  procedure  and  practice  adopted  by  the  Customs authorities, with  which he  was not  well versed.  The writ petition having  been dismissed,  the father  of the  detenu filed special leave to appeal to this Court.      Allowing the appeal, ^      HELD: 1.1  The detenu was entitled to the assistance of a friend. The refusal of the Advisory Board to permit him to be assisted by the retired officer was bad and his continued detention became vitiated. [793E-F]      1.2 The  detenu was  not very  much acquainted with the legal provisions  and the  procedure and practice adopted by the customs  authorities. If  the retired  officer had  been permitted to assist him,

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788 his case  would have  been better placed before the Advisory Board. A  Moreover, when  the detaining  authority  had  the assistance of  the Deputy  Collector and a Superintendent of Central Excise,  who play  the role  of legal  advisers, the Board had  no justification  to refuse the assistance sought for by  the detenu.  There was,  therefore, denial of a fair hearing before the Advisory Board. [792G-H]      Nand Lal  Bajaj v.  State of  Punjab, [1982] 1 SCR 718; Smt. Kavita  v. State  of Maharashtra, [ 1982] 1 SCR 138 and A.K. Roy  etc. v.  Union of  India & Anr., [1982] 2 SCR 272, applied.      2.1 The  term ’friend’  used in  the judgments  of this Court was more in the sense of ’an ally in a fight or cause, or a  supporter’, 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  by a  detenu for  rendering assistance before the Advisory Board  within the  frame of  the law  as settled by this Court.1793B-C]      2.2 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. What cannot be permitted directly  should not  be allowed  to be done in an indirect way. [793C-D]      3. Matters  relating to preventive detention are strict proceedings   and   warrant   full   compliance   with   the requirements of law. It is not for this Court to examine and assess what  prejudice has  been caused  to  the  detenu  on account of denial of assistance.[1793D-E]      4. The order of detention is quashed. The detenu be set at liberty forthwith.

JUDGMENT:      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.232 of 1987.      From the  Judgment and  order dated  23.2.1987  of  the Madras High Court in W.P. No.6290 of 1986.      K.K. Venugopal,  C.S.  Vaidyanathan,  Probir  Chowdhry, S.R. Bhatt and S.R. Setia for the Appellant.      M.M. Abdul Khader and A.V. Rangam for the Respondent. 789      The Judgment of the Court was delivered by      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  many  as  six contentions had  been advanced before the High Court. 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 appeal.      The hearing  of the  representation of the appellant by the Advisory  Board was  fixed for  25th November,  1986. On that  day  the  appellant  had  specifically  requested  the Advisory Board  to permit  one Mr.  Sundararajan, a  retired

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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           rejecting 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 paragraph 2 that the           detenu filed  a petition requesting the assistance           of Mr. Sundararajan, a retired Assistant Collector           of Customs. The Advisory Board has stated in para-           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  his           professional  experience  he  liked  to  help  the           detenu. In  the same  paragraph the Advisory Board           has given  its findings  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 790 It is  thus clear  from the allegations in the special leave petition and  the counter  affidavit 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.      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   represented  at  the  hearing  before  the Advisory  Board  by  a  Deputy  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 order  was confirmed.      The appellant  is a  clearing and  forwarding agent  at Madras and  is said  to be  a young man 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 customs authorities. It is  the case  of the  appellant that he was not very much acquainted with  them and  that is  why he  had  sought  the assistance of  Sundararajan and  even brought him before the Board that  day. 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-( 1)  whether the  appellant was  entitled  to  the assistance of Sundararajan as a friend; and (2) whether when the detaining  authority was  assisted by a Deputy Collector

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and a  Superintendent of  Central Excise, was the request of the  appellant   to  be  assisted  by  a  retired  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 718 was considering the question  of legal  assistance for the detenu before the Advisory Board. It referred to the decision of this Court in the case  of Smt.  Kavita v.  State of Maharashtra, [1982] 1 SCR  138  where  Chinnappa  Reddy,  J.  made  the  following observation: 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 further observed by Reddy, J. :-                "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 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 Advisory  Board, could  have,  if  he  was  so           minded, made  a request  to the Advisory Board for           permission to be represented by 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 represented 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." 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 792           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

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         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,  whosoever assist  or advises  on           facts of  law must be deemed to be in the position           of a  legal adviser.  We  do  hope  that  Advisory           Boards  will   take  care   to  ensure   that  the           provisions of  Article 14  are not violated in any           manner in the proceedings before them .. ". 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 the  Deputy  Collector  of Central Excise  and a  Superintendent of  Central Excise. In the words  of Chandrachud,  CJ, "they play the role of legal advisers".  The   Board  had   no  justification  to  refuse assistance of 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  common parlance.  One  of  the meanings of  the word  ’friend’, according  to  the  Collins English  Dictionary  is  "an  ally  in  a  fight  or  cause; supporter". 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

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detention 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 detention  of  the  appellant became vitiated. Accordingly, this appeal is allowed and the order of  detention is quashed. The appellant is directed to be set at liberty forthwith. P.S.S.                                       Appeal allowed. 794