IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No. 1064     of 2008 (@Special Leave Petition(Crl) No.1224 of 2007)

State of Maharashtra & Ors. ...Appellants

Vs.

Zubair Haji Qasim ...

Respondent

With

CRIMINAL APPEAL NO.1065 of 2008 @ Special Leave Petition (Crl.) No.1975 of 2007

J U D G M E N T

ALTAMAS KABIR,J.

1. Leave granted.

2. One  Abu  Baker  Haji  Qasim,  the  brother  of

respondent  No.1  herein,  was  placed  under

detention after his arrest on 10th September,

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2005, pursuant to an order of detention dated

9th September,  2005,  issued  by  the  Principal

Secretary  (Appeals  and  Security)  to  the

Government of Maharashtra, specially empowered

under  Section  3(1)  of  the  Conservation  of

Foreign  Exchange and  Prevention of  Smuggling

Activities Act of 1974 (hereinafter referred to

as “the COFEPOSA Act, 1974”).

3. On  22nd September,  2005,  the  said  Abu  Baker

Haji  Qasim  (hereinafter  referred  to  as  “the

detenu”) filed Criminal Writ Petition No.2312

of 2005, through the respondent No.1 herein,

before the Bombay High Court for quashing and

setting  aside  the  detention  order  dated  9th

September,  2005.   At  the  same  time,  in  the

proceedings,  before  the  Advisory  Board,  the

detenu made a representation for permission to

be  represented  in  the  proceedings  through  a

legal practitioner.  Such representation was,

however, rejected by the Advisory Board on 28th

October, 2005, on the ground that under the

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COFEPOSA Act 1974, a detenu was not entitled to

be  represented  by  a  legal  practitioner  and

consequently it was not necessary to consider

such  prayer.   In  fact,  the  Advisory  Board

rejected  the  prayer  made  on  behalf  of  the

detenu for permission to be represented by a

legal  practitioner  upon  holding  that  such

prayer  could  not  be  considered  “for  some

obvious reasons”.   

4. When the writ petition came up for hearing, the

High  Court  upon  considering  the  submissions

made on behalf of the respective parties and

upon  placing  reliance  on  a  Division  Bench

Judgment of the Bombay High Court in Kekalwa

Samuele Kongwa vs. Union of India [1985 (1)

Bom. 742 C.R. 742] allowed the writ petition

and quashed the detention order holding that

the prayer of the detenu for permission to be

represented  by  a  legal  practitioner  was  not

rejected  after  proper  consideration  but  on

erroneous grounds.  It may not be out of place

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to  mention  that  in  Kekalwa  Samuele  Kongwa’s

case (supra) the Division Bench of the Bombay

High Court held as follows :-

“A request made by a detenu for being represented  by  a  legal  practioner must  be  considered  on  merits  and cannot be turned down on the ground (i) that the law does not give such a right to the detenue, or (ii) that it was the practice of the Board not to allow representation of a detenue by a legal practitioner.”

5. The said judgment and order of the Bombay High

Court allowing the writ petition and quashing

the detention order is under challenge in this

appeal.

6. Although, the life of the detention order came

to an end on 9th September, 2006, Mr. Adsure,

appearing  for  the  appellant  –  State  of

Maharashtra, submitted that the ground on which

the High Court had quashed the detention order

was erroneous and was required to be corrected.

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7. Referring to clause (3)(b) of Article 22 of the

Constitution,  Mr.  Adsure  submitted  that  a

person  placed under  preventive detention  was

not  entitled  to  be  represented  by  a  legal

practitioner  before  the  Advisory  Board.   In

this  regard,  Mr.  Adsure  also  referred  to

Section 8(e) of the COFEPOSA Act, 1974, which

reads as follows:-

“8(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, and the proceedings of the Advisory Board and its report, excepting that part of the report in which the opinion of the  Advisory  Board  is  specified, shall be confidential;”

8. Mr. Adsure submitted that both Article 22(3)(b)

of the Constitution as well as Section 8(e) of

the COFEPOSA Act, 1974, makes it quite clear

that  a  detenu  under  any  of  the  preventive

detention enactments would not be entitled to

be represented by a legal practitioner before

the Advisory Board.

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9. In  support  of  his  submissions,  Mr.  Adsure

placed reliance on certain passages from the

decision of this Court in Smt. Kavita vs. State

of Maharashtra and Ors. [1981 (3) SCC 558),

where along with certain other questions, the

question  relating  to  a  detenu’s  request  for

being represented by lawyer before the Advisory

Board in view of the provisions of Section 8(e)

of  the  COFEPOSA  Act,  1974,  fell  for

consideration.  In the said case, a similar

question arose on account of the rejection by

the Government of the detenu’s request to be

permitted to be represented by a lawyer before

the Advisory Board.  The detenu was informed by

the  Government  that  under  the  provisions  of

Section 8(e) of the COFEPOSA Act, 1974, he was

not  entitled  to  be  represented  by  a  lawyer

before the Advisory Board, and, therefore, it

was not possible to grant his request.  The

three-Judge Bench, while considering the reply

of the State Government, observed as follows:-

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“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.”

10. It was observed further that without adequate

legal assistance the personal liberty of the

detenu  guaranteed  by  Article  21  of  the

Constitution could be jeopardized and rendered

meaningless.  The request by a detenu for legal

assistance would have to be considered on its

own merits in each individual case.  However,

since  in  the  said  case,  the  detenu  had  not

applied to the Advisory Board, it was held that

it could not be said that the detenu had been

wrongly denied the assistance of counsel.  What

Mr. Adsure tried to emphasise was that no legal

right vested in the detenu for being allowed to

be represented by a legal practitioner before

the Advisory Board.

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11.  Mr. Adsure also referred to the Constitution

Bench decision of this Court in A.K. Roy vs.

Union of India [1982 (1) SCC 271], wherein the

questions raised in this appeal had also been

considered  in  detail  in  the  light  of  the

provisions  of  the  Maintenance  of  Internal

Security Act, 1971 and the National Security

Act  and  it  was  held,  with  regret,  that  the

detenu had no right to appear through a legal

practitioner  in  the  proceedings  before  the

Advisory Board.

12. Various other decisions on the same issue were

also referred to by Mr. Adsure in support of

his contention that the order of the High Court

quashing the detention order issued against the

brother of respondent No.1, was erroneous and

was liable to be set aside.

13. On behalf of the respondent No.1, the views

expressed before the High Court were reiterated

and  it  was  urged  that  no  interference  was

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warranted  with  the  order  of  the  High  Court

impugned in the instant appeal.   

14. Having  considered  the  submissions  made  on

behalf of the respective parties, we are of the

view that the order of the High Court impugned

in this appeal does not warrant interference.

In Smt. Kavita’s case (supra) on which reliance

was placed by Mr. Adsure, it was also laid down

that, although, a detenu has no right under

Section  8(e)  of  the  COFEPOSA  Act,  1974,  to

legal  assistance  in  proceedings  before  the

Advisory Board, he is entitled to make such a

request to the Board and the Board is bound to

consider such request when made.

15. In the instant case, the detenu’s prayer for

being  allowed  to  be  represented  by  a  legal

practitioner was rejected by the Advisory Board

upon observing that such prayer could not be

considered  “for  some  obvious  reasons”.   The

said reasoning runs counter to the decision of

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this Court in Smt. Kavita’s case (supra) and

cannot, therefore, be sustained. The decision

of the Division Bench of the Bombay High Court,

relied upon by the High Court in quashing the

detention order, says much the same thing as

has been stated by this Court in Smt. Kavita’s

case (supra) and also in the case of Nand Lal

Bajaj vs. State of Punjab [1981 (4) SCCF 327].

It  is  quite  clear  that  while  rejecting  the

detenu’s representation the Advisory Board took

refuge  in  vague  verbiage  without  really

applying its mind as it was required to do, to

the merits thereof.  

16. Detention  of  a  citizen  under  any  of  the

preventive  detention enactments  is a  serious

and severe invasion on the Fundamental Rights

guaranteed to citizens under Articles 19 and 21

of  the  Constitution.   Recognising  such

detention  to  be  an  evil  necessity,  various

safeguards have been placed at different stages

of  the  detention  proceedings  to  ensure  that

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such powers were not used indiscriminately to

settle scores or to short-circuit the process

of  investigation  and  trial  of  an  alleged

offence. In Smt. Kavita’s case (supra) and also

in Nand Lal Bajaj’s case (supra) this Court

held that even  if the detenu had no right to

appear  through  a  legal  practitioner  in  the

proceedings before the Advisory Board he was

entitled  to  make  a  representation  for  the

services of a lawyer to appear before the said

Board  which  was  under  an  obligation   to

consider the same dispassionately in the facts

of the particular case. The representation made

by a detenu for legal assistance before the

Advisory  Board,  has,  therefore,  to  be

considered not perfunctorily, as has been done

in this case, but with due application of mind,

since in each case of detention the liberty of

an individual is involved.

17.  We, therefore, see no reason to interfere with

the  judgment  and  order  of  the  High  Court

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impugned  in  this  appeal  and  the  appeal  is

accordingly dismissed.

18. This judgment would also govern Criminal Appeal

NO._______ (@ Special Leave Petition (Criminal)

No.1975 of 2007) titled State of Maharashtra

vs. Sheetal Manoj Gore.

..................J. (A.K. Mathur)

..................J. (Altamas Kabir)

New Delhi, Dated: 11th July 2008

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