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PETITIONER: SMT. ASHA KESHAVRAO BHOSALE

       Vs.

RESPONDENT: UNION OF INDIA & ANR.

DATE OF JUDGMENT04/10/1985

BENCH: MISRA RANGNATH BENCH: MISRA RANGNATH PATHAK, R.S.

CITATION:  1986 AIR  283            1985 SCR  Supl. (3) 252  1985 SCC  (4) 361        1985 SCALE  (2)634  CITATOR INFO :  D          1987 SC2377  (9)  D          1990 SC 231  (18)

ACT:      Conservation  of   Foreign  Exchange  &  Prevention  of Smuggling Activities Act 1974, sections 3(1) and 9.      Detenu  assailing   order  of   detention  -  Delay  in consideration of  representation by  Government  -  Advisory Board rejecting  request of  detenu  for  representation  by counsel or non-lawyer friend - Detention order  Whether liable to be quashed - Court not to test adequacy of material on which satisfaction of detaining authority is based.

HEADNOTE:      The petitioner’s husband was detained by an order dated November 20,  1984 under Section 3(1) of the Conservation of Foreign Exchange  & Prevention  of Smuggling Activities Act, 1974 on  the ground,  that contraband articles alleged to be worth more than 1/2 crore of rupees had been received on the sea-shore at  the back of Raj Bhavan, Bombay, that access to this place was only through the Raj; Bhavan, and that he had asked an employee of the Raj Bhavan compound for the purpose of transporting the contraband articles.      The petitioner  in her  writ  petition  to  this  Court assailed the  order of  detention  as  also  the  subsequent declaration dated  December 12,  1984 under section 9 of the Act. Earlier  the petitioner  had challenged  the  detention order by  filing a  writ petition  before the High Court but the same was dismissed.      It was contended on behalf of the petitioner that: (1)  the   petitioner  made  a  representation  against  the detention of  her husband  on November  24, 1984  and it was received  in  the  Secretariat  of  the  Chief  Minister  on November 28,  1984 and  that it  was not  disposed  of  till January 28,  1985 and  that this  delay in disposal vitiated the detention  and the  detenu became  entitled to be set at liberty by  the quashing  of the  order. (2)  The  order  of detention is  liable to be set aside inasmuch as it has been made without  proper application  of mind.  The link between the 253

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alleged transaction of transporting the contraband materials and A  the detenu  is said  to have  been established  by  a statement made  by an  employee of  Raj Bhavan to the effect that the  Detenu had  asked him  to allow the truck to enter into the  Raj Bhavan  premises. (3) The grounds of detention disclose that  the detaining  authority had  relied upon the contact between  the detenu  and  another  person,  and  the source of information for ascertaining the existence of this relationship was  as intelligence  report, and that the same had not  been furnished  to the  detenu. (4)  The detenu had been prejudiced  in the hearing by the Advisory Board as his request for  representation by  counsel or  by a  non-lawyer friend had not been entertained by the Board.      Dismissing the writ petition, ^      HELD: l.  The petitioner  had made a representation and the same was received in the office of the Chief Minister on November 28,  1984 and orders were passed thereon on January 28, 1985.  There was  also another  representation  made  on behalf of  the detenu by the Khed Taluka Maratha Seva Sangh, and this  representation was  a detailed  one and  this  was received in the Secretariat on November 29, 1984 and finally disposed of on December 12, 1984. The High Court looked into the two  representations one made by the Sangh and the other by the  petitioner and  having regard to the manner in which the Sangh’s  representation had  been disposed of, held that the representation  made by  the petitioner was a second one on  the   same  score,   and  delay  in  disposing  of  that representation did  not really  prejudice the detenu’s case. The  petitioner  is  not  entitled  therefore  to  make  any submission  on  the  score  of  delay  in  disposal  of  the representation. [258 B-F]      2. Satisfaction  under the  law is subjective and it is not for  the court  to test  the adequacy of the material on which satisfaction  is reached.  It was  up to the detaining authority in  the instant case, to accept the statement made by the  employee of  Raj Bhavan  about the  link between the detenu and  the receipt  of the  contraband articles and the bundle of facts relating thereto. [259 F]      3. In the instant case, no privilege against disclosure of source  as  well  as  contents  of  the  information  was claimed.  Adequate   material  had  been  disclosed  and  no prejudice appears  to have  been caused  for want of further disclosure of the intelligence report. The exact information received from the 254 intelligence source  had not  been  made  available  to  the petitioner or  placed on record but sufficient material with reference  to   the  intelligence   report  had   been  made available. [260 H - 261 B]      Wesi  Uddin  Ahmed  v.  District  Magistrate,  Aligarh, [1981] 4 S.C.C. 521., distinguished.      4. The Advisory Board mate inquiries from the detenu as to whether  he had a friend available on the date of hearing to represent  him and  it appeared  that no  such person had been called by the detenu to the place of hearing. The Board was not  inclined to adjourn the matter. The Board talked to the detenu and ascertained that the detenu was worldly wise, was sufficiently  educated, and  did  not  suffer  from  any deficiency and was in a fit condition to represent his case. The rule  to be  applied is one of prejudice. The detenu was not prejudiced in mocking an effective representation of his case at  the hearing by the Advisory Board in the absence of a friend.  There are cases where the affected person is in a better position  than anyone  else to  place his case before

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the Advisory Board. [262 - 263 B]      A.K. Roy  v. Union  of  India,  [1982]  2  S.C.R.  272, referred

JUDGMENT:      ORIGINAL JURISDICTION  : Writ  Petition (Crl.) No. 1107 of 1985.      (Under Article 32 of the Constitution of India)      Ram   Jethmalani,   Ms.   Rani   Jethmalani   and   Ms. Madhusoodanan for the Petitioner.      O.P. Rana,  M.N. Shroff, C.V. Subba Rao and R.N. Poddar for the Respondents.      The Judgment of the Court was delivered by      RANGANATH MISRA, J.The Petitioner, the wife of a detenu under the Conservation of Foreign Exchange and Prevention of Smuggling Activities  Act, 1974  (’Act’ for  short), in this application under Article 32 of the Constitution assails the order of  detention as also the subsequent declaration under section 9  of the  Act. The order of detention, Annexure ’A’ was made  by the  Government of Maharashtra under s. 3(1) of the Act on 255 November 20,  1984. The  order directed his detention in the Bombay Central  Prison at  Bombay for one week from the date of detention and in Nasik Road Central Prison thereafter. On the same  day the  grounds of  detention were also served on the detenu. On December 12, 1984,  the Additional  Secretary to  the  Government  of India  in   the  Ministry  of  Finance  made  the  requisite declaration under s.9(1) of the Act, Annexure ’B’.      Petitioner, at  the instance  of  the  detenu,  made  a representation to  the Chief  Minister on November 24, 1984, against  the  detention  and  the  said  representation  was received in the office of the Chief Minister on November 28, 1984. This  representation was rejected on January 28, 1985, two months  after its  receipt as alleged by the petitioner. Detenu appeared before the Advisory Board on April 17, 1985. When  he   appeared  before  the  Board  he  asked  for  the assistance of  a lawyer  or alternatively  of  a  non-lawyer friend. The request was not acceded to and the Board made an adverse report  to the  State Government. The petitioner had challenged the  detention of  her husband  by filing  a writ petition before  the Bombay  High Court  being Criminal Writ Petition No.  50 of  1985. By  judgment dated April 29, 1985 the High  Court  dismissed  the  said  petition.  This  writ application has  thereafter been  filed in July 1985 for the reliefs indicated already. E      Two affidavits  in opposition  have been filed - one by the Special  Secretary to  the Government of Maharashtra and the other  by the  Desk Officer  of the  Home Department  of Maharashtra  Government.   The  Special   Secretary  in  his affidavit explained  the basis of his satisfaction regarding the necessity to detain the detenu and the reasons for which the declaration  under s.  9(1)  was  later  made.  He  also explained in answer to specific allegations contained in the writ petition that there was no separate intelligence report which  had   been  placed   before  him  and/or  taken  into consideration in  making of  the order  of detention. In the other  counter   affidavit,  apart   from   indicating   the justification for  detention,  reference  was  made  to  the petitioner’s representation  against the  detention made  to the Chief  Minister. It  has been pointed out that the order was dated January 23, 1985, and the reasoning adopted by the

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Bombay High  Court in regard to the delay in disposal of the representation has been adverted to. Reference has also been made in regard to the detenu’s request for representation by a lawyer  or alternatively a non-lawyer friend. Dealing with that aspect, the affidavit indicates: 256           "I say  that  in  his  representation,  which  was           handed over  to the  Advisory  Board,  the  detenu           asked to  be represented  by a lawyer or otherwise           by his next friend. I say that the Advisory Board,           after considering the detailed representation made           and after  talking to  the  detenu,  came  to  the           conclusion that  since  the  detenu  was  in  good           health and  also that  he  has  studied  upto  8th           standard in  Khambala Hill  Municipal  School  and           thereafter in  Social High School and since he was           the  owner/part   owner,  manager   of  number  of           business enterprises  and he  has been  active  in           politics, there  was no  necessity for  permitting           the detenu  to have  his case  represented through           the lawyer.  These facts  were  mentioned  by  the           Advisory Board to the detenu. I say that whenever a request is made by the detenu to have his case represented through his  friend, such  a  request  has  invariably  been granted and  he is  always allowed  to represent his case by his next friend who is not a lawyer. I say that the Advisory Board had  informed this  to the detenu and asked the detenu whether he  had brought  any friend with him Since the Board always permits the detenu to be assisted by his next friend. I say  that the  detenu replied  that he had not brought any friend to  represent his  case. I say that the fact that the detenu had  not brought  any friend despite the request made in the  representation, is  noted in  the Minutes  which are regularly kept by the Chairman, Advisory Board."      On more  or less  similar allegations  the Bombay  High Court had  been moved for quashing of petitioner’s husband’s detention. The  High Court  examined the contention at great length and  ultimately concluded  that on  the facts  of the case continued detention of the petitioner’s husband was not vitiated.      Though raised  in the  writ application  the  challenge against the  declaration under  s. 9(1)  of the  Act has not been canvassed  at the  hearing by  Mr. Jethmalani appearing for the  petitioner. It  was stated to us that the challenge to the vires of the section is pending before this Court for consideration by  a larger  Bench and  as the  petitioner is anxious to have her writ petition disposed of expeditiously, petitioner does not press the relief against the declaration and would  remain content  by confining the challenge to the order of detention. In view of counsel’s 257 statement and  in the  circumstances stated,  we proceed  to consider A the challenge to the order of detention, Annexure ’A’ without  entering into controversy over the vires of the section. Four points have been raised by Mr. Jethmalani in support of his stand that the detenu’s detention is bad :      1.   Petitioner  made   a  representation  against  the      detention of  her husband  on November 24, 1984, and it      was admittedly received in the Secretariat of the Chief      Minister on  November 28,  1984. It,  however, was  not      disposed of  till January  28, 1985. The delay vitiates      the detention  and the detenu became entitled to be set      at liberty by quashing of the order;      2.   The order  of detention  is liable to be set aside

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    inasmuch as it has been made without proper application      of mind.  The link  between the alleged transaction and      the detenu  is said  to  have  been  established  by  a      statement made  by one  Sabnis to  the effect  that the      detenu had  asked him  to allow the truck to enter into      the Raj Bhavan premises with a view to transporting the      contraband materials clandestinely received there;      3.   The  grounds   of  detention   disclose  that  the      detaining authority had relied upon contact between the      detenu  and   one  Yusuf   Herro  and   the  source  of      information   for   ascertaining   the   existence   of      relationship was  described as intelligence report. The      same had not been  furnished to the detenu;      4.   The detenu  had been  prejudiced in the hearing by      the Advisory Board as his request for representation by      counsel  or   by  a  non-lawyer  friend  had  not  been      entertained by the Board. This, it is alleged, affected      the guarantee  of limited defence available to d detenu      as held  by this  Court in  A.K. Roy v. Union of India,      [1982] 2 S.C.R.272.      Two of these grounds had been clearly raised before the High Court  but the  Court  was  not  impressed  with  these submissions and,  therefore,  dismissed  the  petition.  The petitioner has  not chosen  to come  in appeal  against  the decision  of   the  High   Court  and   relying  upon   some observations of  this Court  in a  case of this type, a writ petition has been filed in this Court under Article 258 32 of  the Constitution. As objection to the maintainability of the  writ petition  has not been raised at the hearing by counsel for  the opposite  parties, we are not examining the question of  maintainability of this application and propose to  deal   with  the  submissions  made  on  behalf  of  the petitioner.      It is  a fact  that a  representation was  made by  the petitioner on behalf of the detenu which was received in the office of  the Chief  Minister on November 28, 1984, and Mr. Jethmalani has  accepted the  position that  orders  on  the representation were  passed on January 2, 1985, and the said orders  were   received  on   January  28,   1985.  In   the representation made by the petitioner to the Chief Minister, the order  of detention  was casually  impugned but  lot  of attention appears  to have been bestowed on the necessity of keeping the  detenu in  a Bombay Jail instead of sending him to Nasik  Road Prison as directed in the order of detention. A detailed representation was made by Secretary, Khed Taluka Maratha Seva  Sangh challenging  the detention.  It  appears that the detenu belonged to the Khed Taluka and his case was espoused by the Sangh. It is not disputed before us that the said representation  was received  on November  29, 1984, in the Secretariat  of the  Chief Minister and was forwarded to the Home  Department on  December 3,  1984, and  was finally disposed of  on December 12, 1984, and the rejection thereof was communicated  on December  13, 1984. This representation was a  detailed one  and on  a due consideration thereof the representation had  been expeditiously disposed of. The High Court looked  into the two representations - one made by the Sangh and the other by the petitioner and on considering the contents  thereof  and  the  manner  in  which  the  Sangh’s representation had  been disposed  of, came to hold that the representation made  by the  petitioner was  a second one on the same score and delay in disposing of that representation did not really prejudice the detenu’s case. On the facts and circumstances appearing  in the  record and  as found by the High Court,  we are  inclined to   agree with the submission

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made before  us that  the petitioner is not entitled to make any tenable  submission on the score of delay in disposal of the representation.      In paragraph  3(H)  of  the  writ  petition  petitioner alleged:           "That the  detention of the detenu is based on the           statement  of   a  self-confessed  accomplice  one           Sabnis who  claims that  it was the detenu who had           told him  to allow  the truck  to  enter  the  Raj           Bhavan. The detaining 259           authority is aware that on such flimsy material it           is A  impossible to  get a conviction in a regular           Court of  law. The  detaining authority has failed           to apply its mind to this aspect of the matter." In the return made by the Special Secretary to Government of Maharashtra, it has been averred :           ’With reference  to para  3(H), I  say that  I was           aware that  prosecution against the detenu and his           co-detenus were  under contemplation  yet  I  have           come   to   the   conclusion   that   departmental           adjudication  and  prosecution  proceedings  under           Customs Act,  were not  sufficient to  prevent the           detenu from  indulging in  criminality  in  future           considering  the   role  of  the  detenu  and  the           attending circumstances. Moreover, the prosecution           under Customs  Act  cannot  overlap  action  under           COFEPOSA.......      It is  interesting to note that the contraband articles alleged to  be worth  more than l/2 crore of rupees had been received on  the sea-shore  at the back of the Raj Bhavan of Bombay. Access  to this  place  was  only  through  the  Raj Bhavan. Sabnis  was an  employee of  the Raj  Bhavan at  the relevant time  and the  detenu had asked Sabnis to allow the truck to  enter into the Raj Bhavan compound for the purpose of transporting  the contraband  articles. It  was up to the detaining authority to accept the statement of Sabnis and to be satisfied  that such  statement provided the link between the detenu  and the  receipt of  the contraband articles and the bundle  of facts  relating  thereto.  This  satisfaction under the  law is  subjective and it is not for the Court to test the  adequacy of  the material on which satisfaction is reached. It  is quite  possible as  suggested  in  the  writ application and  reiterated in  the  submission  of  learned counsel that at a trial conviction may not have been secured on the  basis of  the statement of Sabnis. But that argument is not  available for  challenging an  order of detention if the satisfaction of the detaining authority has been reached on bona  fide basis.  We do  not think there is any force in this submission  advanced on  behalf of  the petitioner and, therefore, attack on that ground has to be rejected.      The  third   submission  advanced   by  counsel   is  a reiteration of  the allegation in paragraph 3(I) of the writ petition. There it was all eged : 260           "..... the grounds of detention disclosed that the           detaining authority  has relied  upon some alleged           contact between the detenu and one Yusuf Herro. In           para 12 of the grounds of detention, the detaining           authority states  : ’Intelligence gathered reveals           that the  main person  behind the  said  smuggling           racket is one Yusuf Herro. Since he has figured in           many big  cases detected by the Customs Deptt. his           photograph  was   available   with   the   Customs

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         Department.’  The   grounds  of   detention   then           continue to  allege that  the detenu  was  in  the           company of  this Yusuf  Herro on the 16th October,           1984, as  stated by  Sabnis in  his  statement  of           22.10.84.   It    was   incumbent    under   these           circumstances  on   the  detaining   authority  to           disclose the  role of Yusuf Herro in the smuggling           in hand,  as well as, his involvement in other big           cases. No privilege was claimed in respect of this           material. Under  the circumstances, there has been           a  failure  to  comply  with  Article  22  of  the           Constitution and  the  petitionr’s  constitutional           rights have been violated.’ In the return of the Special Secretary it has been stated :           "....I say that it was not necessary to supply the           copy of  the intelligence  report. I say that as a           matter of fact, no independent intelligence report           was ever  placed before  me  and  I  have  neither           referred to nor relied upon the said report. I say           that It  is a  fact that the detenu was engaged In           criminal activity  with Yusuf Herro and was In his           company, which  fact  his  co-accused  Sabnis  has           brought to  light in  his  confessional  statement           dated 22nd  October 1984  recorded by  the Customs           under section 108 of the Customs Act.      Before the  High Court this submission had been pressed into service  and the High Court found no force in the point relying upon a decition of this Court in Wasi Uddin Ahmed v. District Magistrate,  Aligarh, L1981] 4 S.C.C. 521. That was a case,  as  rightly  indicated  by  Mr.  Jethmalani,  where privilege had  been claimed against disclosure of the source as also  the contents  of the  information. In  view of  the privilege claimed  this Court  took the  view that supply of intelligence report of secret nature cannot be insisted upon and non-disclosure  of such  information does  not provide a basis   for    challenging   the    detention.    In    this 261 case no privilege was claimed. On the facts we are, however, satisfied that  adequate material  had been disclosed and no prejudice appears  to have  been caused  for want of further disclosure. It  may be  that the  exact information received from the  intelligence source had not been made available to the petitioner  or placed  on record but sufficient material with reference  to the  intelligence report  had  been  made available. In that view of the matter, we also find no force in this submission.      We now  proceed to  examine  the  last  contention.  In paragraph 3(J), petitioner alleged :                "That, on  the 17th  April, 1985,  the detenu                appeared before the Advisory Board. He handed                over  to   the  Advisory  Board  his  written                representation containing  a prayer  that the                detenu be  allowed to  be  represented  by  a                lawyer, and  in the  alternative, by  a  non-                lawyer friend  or a  relative. These requests                were not considered by the Advisory Board and                were not  disposed of  as are  required to be                done by  Judgments  of  this  Hon’ble  Court.                Under the  circumstances, the  hearing before                the Advisory Board was not in accordance with                the law, the detention continued detention is                invalid." This aspect  has been dealt with in the counter-affidavit of Mokal, Desk  Officer of Home Department of the Government of Maharashtra and  the relevant  paragraph  has  already  been

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extracted by  us earlier.  Ordinarily, in cases of this type representation by  lawyer is not allowed. In A.K. Roy’s case this Court indicated:                "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. Ia  view of this, it                seems  to   us  difficult  to  hold,  by  the                application of abstract general principles or                on a  priori considerations,  that the detenu                has the right of being represented by a legal                practitioner in  the proceedings  before  the                Advisory Board." No grievance,  therefore, can  be made on the score that the Advisory  Board   had  not   permitted  the   detenu  to  be represented by  counsel. While reiterating the position, the learned Chief Justice stated : 262                "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.      The Court further added :                "Another aspect of this matter which needs to                be mentioned  is  that  the  embargo  on  the                appearance of  legal practitioners should not                be extended  90 as to prevent the detenu from                being aided  or assisted  by a friend who, in                truth  and   substance,  is   not   a   legal                practitioner. Every  person  whose  interests                are adversely  affected as  a result  of  the                proceedings which  have a  serious import, is                entitled to be heard in those proceedings and                be assisted  by a  friend.  A  detenu,  taken                straight from  his cell  to the Board’s room,                may lack  the ease  and composure  to present                his point  of view.  He may  be ’tongue-tied,                nervous, confused or wanting in intelligence’                (see Pest  v.  Greyhound  Racing  Association                Ltd. [1969] 1 W.B. 125), and if justice is to                be done,  he must at least have the help of a                friend who  can assist  him to give coherence                to   his    stray   and    wandering   ideas.                Incarceration makes  a man  and his  thoughts                dishevelled. Just  as a person who is dumb is                entitled, as  he must, to be represented by a                person who  has speech, even so, a person who                finds himself  unable to present his own case                is entitled  to take  the aid and advice of a                person who  is better  situated to appreciate                the facts of the case and the language of the                law."      It is  on  these  observations  of  the  learned  Chief Justice that  reliance has  been placed by Mr. Jethmalani to contend that  denial  of  representation  by  a  friend  has affected due  representation of the petitioner’s case before the Advisory  Board. It  is the  case of  the State that the Advisory Board  made inquiries from the detenu as to whether he had  a  friend  available  on  the  date  of  hearing  to represent him  and it  appeared that no such person had been called by  the detenu to the place of hearing. The Board was not inclined  to adjourn the matter. The Board talked to the detenu and ascertained that the detenu was worldly wise, was

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sufficiently educated and did not suffer from any deficiency and was  in a  fit condition to represent his case. The rule to be  applied is  one of  prejudice and in the facts of the case we are inclined to agree with Mr. Rana for the State 263 that the  detenu was  not prejudiced  in making an effective representation of  his case  at the  hearing by the Advisory Board in  the absence of a friend. There are cases where the affected person  is in a better position than anyone else to place his  case and in the facts and circumstances available on record,  we are  inclined to agree with Mr. Rana that the detenu’s is one such.      Since  all   the  four   submissions  advanced  by  Mr. Jethmalani on  behalf of  the petitioner  are rejected, this writ petition has to fail. We accordingly dismiss it. N.V.K.                                   Petition dismissed. 264