CHOITH NANIKRAM HARCHANDANIversusSTATE OF MAHARASHTRA& ORS.

                        [2015) 11 S.C.R. 80


A              CHOITH NANIKRAM HARCHANDANI
                                  v.
               STATE OF MAHARASHTRA& ORS.
                (Writ Petition (Crl.) No.134 of 2015)
B
                       NOVEMBER 20, 2015
                   [J. CHELAMESWAR AND
                 ABHAY MANOHAR SAPRE, JJ.]

c       Preventive Detention - Detention under COFEPOSA
  Act - Challenged in a Habeas Corpus writ petition u/Art 32
  of Constitution - Held: The detention order is liable to be
  quashed on the ground that that the detenu was denied an
  opportunity affair hearing inasmuch he was denied hearing
o before Advisory Board - Since the Detaining Authority was
  represented by the officers, denial of opportunity to the detenu
  to take aid of legal practitioner also amounted to violation of
  Art 14 of the Constitution - Therefore, the detention order is
  passed by issuance of writ of certiorari - Constitution of India,
E 1950 - Arts. 14 and 32 - Natural Justice - Fair hearing -
  Conservation of Foreign Exchange and Prevention of
  Smuggling Activities Act, 1974- s.3(1).
         Allowing the petition, the Court
F      HELD: 1. The detenu has a right to appear through
  a legal practitioner in the proceedings before the
  Advisory Board. The petitioner in the present case, vide
  his representation/application dated 13/14..._05.2015
  (Annexure P-5) had prayed that he be permitted to be
G represented by any legal practitioner/counsel of his
  choice before the Board. The Board did not grant any
  time to the petitioner and secondly, at the time of hearing
  of the case, officers of the sponsoring and detaining
  authority were present and heard in the course of
H proceedings. [Paras 7, 8, 9] [84-G; 86-D-E, H; 87-A]
                                 80
   CHOITH NANIKRAM HARCHANDANI v. STATE OF                    81
                MAHARASHTRA

     2. If the Detaining Authority or Government takes        A
the aid of a legal practitioner or legal advisor before the
Advisory Board, the detenu must be allowed the facility
of appearing before the Board through a legal
practitioner. If it is denied to him then a clear case of
breach of Article 14 of the Constitution of India, 1950, is   B
made out in favour of detenu. The expression "legal
practitioner" includes even the officers of the
Government when they appear before the B~ard to
assist the proceedings against the detenu, the detenu
too has to be provided with equal facility of appearing       C
before the Board through legal practitioner. Since no
such opportunity was afforded to the petitioner though
claimed by him, he was denied an opportunity of a fair
hearing before the Advisory Board, which eventually
                                                              0
resulted in passing an adverse order. This ground alone
is enough to quash the impugned order of detention.
[Paras 10 -13] [87-E-F, H; 88-A-D]
     A.K. Roy vs. Union of/ndia & Ors. 1982 (2)
     SCR 272: (1982) 1 sec 271 - followed.                    E
                   Case Law Reference
1982 (2) SCR 272            followed                 Para 4
     CRIMINAL ORIGINAL JURISDICTION : Writ Petition           F
(Criminal) Appeal No. 134 of 2015

     Under Article 32 of the Constitution of India
                            WITH
     SLP (Crl.) No. 7010 of 2015
                                                              G

      Saurabh Kirpal, Sanjay Agarwal, Wattan Sharma, Nikhil
Jain, Amit K. Nain for the Petitioner.

     Mahaling Pandarge, .Nishant              Ramakantrao
Katneshwarkar for the Respondents.
                                                              H
82         SUPREME COURT REPORTS                    [2015] 11 S.C.R.


A          The Judgment of the Court was delivered by

          ABHAY MANOHAR SAPRE, J. 1. By way of Habeas
     Corpus writ petition under Article 32 of the Constitution of India,
     the petitioner is challenging the order of preventive detention
B    bearing F.No. PSA-1215/CR-23/SPL-3(A) dated 16.04.2015
     issued by respondent No.2 - the Principal Secretary (Appeals
     & Security), Government of Maharashtra, Home Department
     & Detaining Authority against him under Section 3(1) of the
     Conservation of Foreign Exchange and Prevention of
C    Smuggling Activities Act, 1974 (hereinafter referred to as
     "COFEPOSAAct").

         2. Challenging the same detention order dated
  16.04.2015 issued by respondent No.2 herein, the petitioner's
D son filed a petition bearing Writ Petition No. 2076 of 2015
  before the High Court of Judir:ature at Bombay. By impugned
  judgment dated 03.07.2015, the High Court dismissed the
  petition. Against the said order, the petitioner's son has filed
  S.L.P. (Crl.) No. 7010 of 2015 under Article '136 of the
E Constitution of India before this Court.

           3.   Brief facts :

          (a) On 16.04.2015, a detention order was issued by
F    respondent No.2 herein under Section 3(1) of COFEPOSA
     Act for detaining the petitioner herein to prevent him from
     smuggling of goods in future.

       (b) On 20.4.2015, the detention order along with
  Grounds of Detention and the list of relied upon documents
G was served on the petitioner and he was thereafter lodged in
  custody in Nashik Road Central Prison at Nashik,
  Maharashtra.

        (c) On 14.05.2015, the petitioner made a representation
H to the Detaining Authority as well as the Advisory Board, inter
    CHOITH NANIKRAM HARCHANDANI v. STATE OF                          83
     MAHARASHTRr\[A.8HAY MANOHAR SAPRE, J.]

alia, praying therein to allow him to be represented through         A
any legal practitioner/counsel of his choice before the Board.
The representation dated 14.05.2015 was rejected by the
Detaining Authority on 28.05.2015 and the same was
communicated to the petitioner on 03.06.2015.
                                                                     B
      (d) On 05.06.2015, a letter was issued by the Advisory
Board through its Secretary informing the petitioner that the
date of hearing before it was scheduled on 12.06.2015. The
said letter was received by the petitioner on 06.06.2015 in
prison.                                                              c
     (e) On 12.06.2015, the petitioner submitted a written
request to the Advisory Board for a short adjournment so that
he can make arrangement for the counsel.
                                                                     D
      (f)  On 03.07.2015, the petitioner got an order dated
29.06.2015 written by the Section Officer to the Government
of Maharashtra, Home Department communicating him that
after considering the report of the Advisory Board, he is
directed to be detained for a period of one year from the date       E
of detention, i.e., 20.04.2015.    ·

      (g) Against the said order, the petitioner has filed this
writ petition and his son has filed special leave petition against
the impugned judgment dated 03.07 .2015 passed by the High           F
Court of Judicature at Bombay.

     4. Mr. Saurabh Kirpal, learned counsel for the petitioner,
while assailing the legality and correctness of the impugned
order of detention dated 16.04.2015, mainly urged one
submission. It was his submission that despite the petitioner G
repeatedly praying in writing for an opportunity to allow him to
have proper representation before the Advisory board so as
to enable him to place his case effectively before the Board
through legal practitioner/counsel, the same was denied to him. H
84         SUPREME COURT REPORTS                   (2015] 11 S.C.R.


A Learned counsel pointed out from the affidavit dated
  23.09.2015 filed by respondent No. 3 - Shri Deepak Kharat,
  Secretary, Advisory Board, COFEPOSAAct, 1974 that the
  Board had allowed participation and the assistance of the
  officials at the time of hearing of the case against the petitioner.
B Learned counsel submitted that it was, therefore, all the more
  necessary rather obligatory on the part of the Board to grant
  time to the petitioner for enabling him to engage any legal
  practitioner for representing his case as was prayed by him in
  his application dated 14.05.2015. Learned counsel thus
C contended that since the petitioner was denied an opportunity
  to represent his case effectively before the Board though timely
  prayed by him, the impugned order is not legally sustainable
  and deserves to be quashed on this ground alone leaving
  aside other grounds which are also equally made out on merits.
0
  In support of his submission, learned counsel placed reliance
  on the decision of this Court in A.K. Roy vs. Union of India
  & Ors., (1982) 1 sec 271.

         5. In reply, learned counsel forthe respondents supported
E the impugned order and prayed for its upholding contending
  that since the petitioner is a habitual offender, he is not entitled
  to claim any indulgence.

         6. Having heard the learned counsel for the parties and
F    on perusal of the record of the case, we find force in the
     submission of learned counsel for the petitioner.

         7. As rightly argued by the learned counsel for the
  petitioner, the question as to whether the detenu has a right to
G appear through a legal practitioner in the proceedings before
  the Advisory Board remains no more res integra and stands
  settled by the decision of the Constitution Bench of this Court
  in the case of A.K.Roy's case (supra). Y.V. Chandrachud,
  C.J., speaking for the Bench succinctly dealt with this issue
H and held in paragraph 93 as under:
CHOITH NAN!VRAM HARCHANDANI v. STATE OF                     85
 MAHARASHTRA[ABHAY MANOHAR SAPRE, J.]

  "93. We must therefore hold, regretfully though, that     A
 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          B
  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          C
  Advisory Board with the aid of a legal practitioner
  but that the said facility should be denied to the
  detenu. In any case, that is not what the
  Constitution says and it would be wholly
                                                            0
  inappropriate to read any 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   E
  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         F
  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   G
  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      H
    86        SUPREME COURT REPORTS                   [2015] 11 S.C.R.


    A         be had to the substance and not the form since,
              especially, in matters like the proceedings of
              Advisory Boards, whosoever assists or advises on
              facts or law must be deemed to be in the position
              of a legal adviser. We do hope that Advisory Boards
    B         will take care to ensure that the provisions of Article
              14 are not violated in any manner in the
              proceedings before them. Serving or retired Judges
              of the High Court will have no difficulty in
              understanding this position. Those who are merely
    c         "qualified to be appointed" as High Court Judges
              may have to do a little homework in order to
              appreciate it."
             8. Applying this principle to the facts of the case in hand,
    D we find that the petitioner vid.e his representation/application
      dated 13/14.05.2015 (Annexure P-5) had prayed that he be
      permitted to be represented by any legal practitioner/counsel
      of his choice before the Board. It is clear from prayer (e), which
      reads as under :
    E
             "I may also be permitted to be represented by any
             legal practitioner/counsel of my choice before the
             Hon'ble Advisory Board. An advance permission for
             the same may please be communicated to me,
    F        along with the response of the Sponsoring
             Authority and of the Detaining Authority on the
'            issues raised in this representation, so that I can
             timely and effectively instruct my Counsel
             regarding the same."
    G
            9. We also find from Paras 2 and 3 (wrongly typed as 4)
      of the counter affidavit filed by respondent No.3- Mr. Deepak
      Kharat that the Board did not grant any time to the petitioner
      and secondly, at the time of hearing of the case, officers of the
    H sponsoring and detaining authority were present and heard in
   CHOITH NANI KRAM HARCHANDANI v. STATE OF                        87
    MAHARASHTRA[ABHAYMANOHAR SAPRE, J.]

the course of proceedings. Paras 2 and 3 of the affidavit read     A
as undar:
     "2. At the outset I state that I am filing the present
     affidavit to the extent that the Petitioner has referred
     to the proceedings before the Advisory Board. It is B
     true that the Petitioner had addressed a
     representation dated 14.05.2015 through
     Superintendent, Nashik Road Central Prison,
     Nashik. It is also true that on the date of hearing
     before the Advisory Board on 12.06.2015, Petitioner c
     made a request for adjourning proceedings for two
     weeks to enable him to engage a Legal Advisor. The
     Advisory Board decided not to grant any time for
     that purpose and after hearing the detenu as well
     as his son concluded the proceedings.                    D
     3. I say that it is true that in the course of hearing
     Officers of the Sponsoring Authority and Detaining
     Authority were pre.sent and were heard in the
     course of the proceedings."
                                                                   E
       10. In our considered opinion, since the Detaining
Authority was represented by the officers at the time of hearing
of the petitioner's case before the Advisory Board, the
petitioner too was entitled to be represented through legal
practitioner. Since no such opportunity was afforded to the        F
petitioner though claimed by him, he was denied an opportunity
of a fair hearing before the Advisory Board, which eventually
resulted in passing an adverse order.

      11. As held in A.K.Roy's case (supra), if the Detaining G
Authority or Government takes the aid of a legal practitioner
or legal advisor before the Advisory Board, the detenu niust
be allowed the facility of appearing before the Board through
a legal practitioner. If it is denied to him then a clear case of
breach of Article 14 is made out'in favour of detenu. Since the H
88         SUPREME COURT REPORTS                    [2015] 1'1 S.C.R.


A    expression "legal practitioner" was interpreted in A.K.Roy's
     case to include even the officers of the Government when they
     appear before the Board to assist the proceedings against
     the detenu, the detenu too has to be provided with equal facility
     of appearing before the Board through legal practitioner.
 B
             12. It is not in dispute, as would be clear from Para 3of
     the counter affidavit, that the officers had appeared in the case
     before the Advisory Board and participated in the proceedings
     against the petitioner whereas the petitioner was denied such
C    facility. This infirmity, being fatal, renders the impugned order
     legally unsustainable.

            13. In the light of what is held above, it is not necessary
     for this Court to examine other grounds though taken by the
o    petitioner in these proceedings because one ground once held
     made out is enough to quash the impugned order of detention.
     We, therefore, express no opinion on any other ground taken
     in the petition and raised in the arguments.

.E         14. So far as the submission of the learned counsel for
     the respondents that the petitioner being a habitual offender
     and, therefore, he should not be shown any indulgence in this
     case is concerned, in our considered view, firstly, this Court
     can not uphold the detention order on such submission and
 F   secondly, once the legal infirmity pointed out by the petitioner
     in the proceedings before the Advisory Board is held made
     out then the impugned detention order is rendered bad in law
     and can not be sustained.

        15. In our considered view, if the petitioner is a habitual
G
  offender and has past criminal record, as alleged by the
  respondents, it was all the more necessary for the respondents
  to have followed in letter and spirit the procedure laid down in
  A.K. Roy's case (supra) before passing the impugned order
H of detention. It was, however, not done.
    CHOITH NANiKRAM HARCHANDANI v. STATE OF                        89
     MAHARASHTRA[ABHAY MANOHAR SAPRE, J.]

      16. In view of forgoing discussion, the petition succeeds A
and is allowed. The impugned order of detention dated
16.04.2015 (Annexure P-2) is quashed by issuance of writ of
certiorari.

       17. As a consequence of this order, allowing the writ B
petition filed by the petitioner and quashing the detention order
dated 16.04.2015, it is not necessary to pass any order in
Special leave Petition (Crl.) No. 7010 of 2015, which has
rendered infructuous.
                                                                   c
Kalpana K. Tripathy                            Petition allowed.