Supreme Court of India
SMT. ASHA KESHAVRAO BHOSALEversusUNION OF INDIA & ANR.
- Citation
- 1985 INSC 220
- Decided
- 4 October 1985
- Disposal
- Dismissed
- Bench
- R S PATHAK
Holding
The Court held that the detention order stands because the delay in representation did not prejudice the detenu, the authority’s satisfaction is subjective, sufficient material was disclosed, and the detenu is not entitled to counsel or a friend’s assistance before the Advisory Board.
Summary
The petitioners, the wife of a man detained under the Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, 1974, challenged his detention order (s.3(1)) and subsequent declaration (s.9) before the Supreme Court under Article 32. They argued that the government’s delay in disposing a representation against the detention vitiated the order, that the detaining authority had not applied its mind to flimsy evidence, that the intelligence report relied upon was not disclosed, and that the Advisory Board’s refusal to allow representation by a lawyer or a friend violated the detenu’s right to a fair hearing. The Court held that the representation’s delay did not prejudice the detenu, that satisfaction of the detaining authority is a subjective matter not open to judicial scrutiny, that sufficient material regarding the intelligence was disclosed and no privilege was claimed, and that the detenu was not entitled to counsel and was not prejudiced by the absence of a friend. Consequently, the petition was dismissed and the detention order upheld.
Issues considered
- The effect of delay in disposing a representation against a preventive detention order
- Whether the material on which the detaining authority based its satisfaction is subject to judicial scrutiny
- Whether non-disclosure of the source and contents of an intelligence report violates Article 22
- Whether a detenu is entitled to representation by a lawyer or a non‑lawyer friend before the Advisory Board
Legislation cited
Subjects
preventive detentionrepresentationadvisory boarddelay in disposalintelligence reportforeign exchangesmugglingArticle 32right to counselprocedural fairness
Judgment
252
A SMT. ASHA KESHAVRAO BHOSAI.E
v.
UNION OF INDIA & ANR.
OCTOBER 4, 1985
ll (R.S. PATHAK AND RANGANATII MISRA, JJ.]
Conservation of Foreign Exchange & Prevention of Smuggling
Activities·Act 1974, sections 3(1) and 9.
Detenu assailing order of detention Delay in
c consideration of representation by Government - Advisory lloard
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.
D The petitioner's husballd waa cletaiDecl by an order dated
November 20, 1984 under Section 3(1) of the Conservation of
Foreign Exchange & Prevention of Smuggllng Activities Act, 1974
on the ground, that contraband articlea alleged to be worth more
than 1/ 2 erore of rupees had been received on the sea-shore at
the back of Raj Bhavan, Bombay, that access to this place was
E 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
F the order of detention as alao the 1ubaequent declaration dated
December 12, 1984 under section 9 of the Act. Earlier the
petitioner had challenged the detention order by filing s writ
petition before the High Court but the same waa dilllllissed.
It was contended on behalf of the petitioner that :
G
(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 llinister 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
H to be set at liberty by the quashing of the order. (2) The order
of detention is liable to be set aside inasmuch aa it has been
made without proper application of mind. The link between the
ASHA KESHAVRAO BHOSALE v. U.O.I. 253
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 B
ascertaining the existenee of this relationship · was as
intelligence report, and that the same hsd not been furnished to
the detenu. (4) The detenu hsd been prejudiced in the hearing by
the Advisory Board as his request for representation by counsel
or by a non-lawyer friend hsd not been entertained by the Board.
c
Dismissing the writ petition,
Bl!U>: 1. The petitioner hsd 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 D
detenu by the Khed Taluka llaratha 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 E
representation hsd 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 dn the score of delay in
disposal of the representation. (258 B-F] ·
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. G
(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 H
254 SUPREME COURT REPORTS [1985] SUPP.3 s.c.R.
A 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]
lleai Uddin .Alaed Vo Diatrlct llagiatrate, Allgarh, (1981] 4
s.c.c. 521., distinguished.
B
4. The Advisory Board made inquiries from the detenu as to
whether be 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 ascer-
tained that the detenu was worldly wise, was sufficiently educa-
C ted, 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 mo't.ing an effective
representation of his case at the hearing by tba Advisory Board
in the absence of a friend. There are cases where the affected
person.is in a better position than anyone elae to place his case
before the Advisory Board. [262 G - 263 B]
D
A.L Roy v. UniaD of India, (1982] 2 s.c.R. 272, referred
to.
ORIGINAL JURISDICTION Writ Petition (Crl.) No. 1107 of
1985.
E
(Under Article 32 of the Constitution of India)
·Ram Jethmalani, Ms. Rani Jethmalani and Ms. Madhusoodanan
for the Petitioner.
F
Q,p, Rana, M.N. Shroff, C.V. Subba Rao and R.N. Poddar for
the l<espondents.
The Judgment of the Court was delivered by
G 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
orde.r of detention as also the subsequent declaration under
section 9 of the Act. The order of detention, Annexure 'A' was
H made by the Government of Maharashtra under s. 3(1) of the Act on
.•
ASHA KESHAVRAO BllOSALE v. u.o.r. [RANGANATll MISRA, J.] 255
A
November 20, 1984. The order directed his detention in the Bombay
Central Prison at Bombay fot 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 Secr~tary to the Government of India in
the Ministry of Finance made the .requisite declaration under
B
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
c
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
D
had challenged the detention of her husband by filing a writ
petitio~ 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
~pecial Secretary to the Govermnent 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)
F
was later made. He also explained in anRwer 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 G
Chief Minister. It has been pointed out that the order was dated
January 23, 1985, and the reasoning adopted by the 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 1 s request for representation by a lawyer or
alternatively a non-lawyer friend. Dealing with that aspect, the
affidavit indicates : H
256 SUPREME COURT REPORTS [1985] SUPP.3 s.c.R.
A "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
B 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 Hight High
School and since he was the owner/part owoer, 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
c 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 be.en 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
D 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
E 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.
F 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 challeng~ against
the declaration under s. 9(1) of the Act has not been canvassed
G 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
H challenge to the order of detention. In view of counsel's
ASHA KESHAVRAO BHOSALE v. U.O.I. [AANGANATH MISRA, J.] 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 yires of the section.
Four points have been-raised by Mr. Jethmalani in support of
his stand that the detenu's detention is bad :
ll
l. 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 c
at liberty by 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 mirui. The link between the alleged transaction and
D
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;
E
3. The -grounds of detention disclose that the detaining
authority had relied upon contact between the detenu
and one Yusuf Herra and the source of information fOr
ascertaining the existence of relationship was
described as intelligence repor.t. ·The same. 1:-..ad tUJ!.:. been
furnished to .the detenu;
4. The detenu had been prejudiced in the h•~aring · by the F
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 limite<. defence available to a detenu
as held by this Court in A.K. ll<>y v. Union of India,
[1982] 2 s.c.R. 272. G
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 H
258 SUPREME COURT REPORTS [1985] SUPP.3 s.c.R.
32 of the Constitution. As objection to the maintainability of
A
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 wi~h the
submissions made on behalf of the petitioner.
It is a fact that a representation was made by the
B
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
c 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
D
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
E 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
F 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 made before us that the petitioner is not
entitled to make any tenable submission on the score of delay in
disposal of the representation.
G
In paragraph 3(H) of the writ petition petitioner alleged:
"That the detention of the detsnu is based on the
statement of a self-confessed accomplice one Sabnis
who claims that it was the de tenu who had told him to
H
allow the truck to enter the Raj Bhavan. The detaining
ASHA t<;;SHAVRAO l!liO:>AIB v. u.o.r. [l\ANGANATH MISRA, J.j 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 : ll
''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
c
criminality in future considering the role of the
detenu and the attending circumstances. Moreover, the
prosecution under Customs Act cannot overlap action
under CO~"'EPOSA • •• • ••• "
D
It is interesting to note that the contraband articles
alleged to be worth more than. 1/2 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 llhavan.
Sabnis was an employee of the Raj J!havan at the relevant time and
the detenu had asked Sabnis to allow the truck to enter into the
E
Raj llhavan 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
F
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
G
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 alleged :
H
260 SUPREME COURT REPORTS [1985] SUPP.3 s.c.R.
A " ••••• the grounds of detention disclosed that the
detaining authority has relied upon some alleged
contact between the detenu and one Yusuf Herra. 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
B Herra. Since he has figured in many big cases detected
by the Customs Deptt. his photograph was available with
the Customs Department.' The grounds of detention then
continue to allege that the detenu was in the company
of this Yusuf Herra 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
c authority to disclose the role of Yusuf Herra 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 petitioner's constitutional rights have been
violated.'
D
In the return of the Sepcial 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
E 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 activ!ty
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
F recoreded 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 decision of this Court in Wasi Uddin Ahmed v. District
G Magistrate, Aligarh, [1981] 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
H does not provide a basis for challenging the detention. In this
ASliA KESHAVRAO liHOSAU: v. u.o.I. [RANGANATH MISHA, J. J 261
case no privilege was claimed. On the facts we are, however,
satisfied that adequate material had been disclosed and no F
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 B
submission.
We now proceed to examine the last contention. In paragraph
3(J), petitioner alleged
"That, on the 17th April, 1985, the detenu appeared c
before the Advisory lioard. He handed over to the
Advisory lioard Ms 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 lioard and were not disposed D
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 detenu' s continued detention is invalid."
This aspect has been dealt with in the counter-affidavit of
Mok.al, Desk Officer of Home Department of the Government of
Maharashtra and the relevant paragraph has already been extracted
by us earlier. Ordinarily, in cases of this type representation
by lawyer is not allowed. In A.K. Hoy's case this Court
indicated:
"Thus, according to the express intendment of the !'
Constitution itself, no pers9n 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. h view 0f this, it
seems to us difficult to hold, by the application of
abstract general principles or on a priori consi- G
derations, that the detenu has the right of being
represented by a legal practitioner in the proceedings
before the Advisory lloard."
No grievance, therefore, can be made on the score that the
Advisory lloard had not permitted the detenu to be represented by
counsel. While reiterating the position, the learned Chief H
Justice stated :
262 SUPREME COURT REPORTS [1985] SUPP.3 s.c.R.
"We must, therefore, hold regretfully though, that the
A
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 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
c 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] l W.B. 125), and if justice is •
D to be done, he llll.lSt 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 llll.lSt, 'to be represented by a person who
has speech, even so, a person who finds himself unable
E 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 Juatice
that reliance has been placed by Mr. Jethmalani to contend that
F denial of representation by a friend has affected due
representation of the petitioners'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
G 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 and in the facts of
the case we art inclined to agree with Mr. Rana for the State
H
ASHA KESHAVRAO BHOSALE v. u.o.r. [RANGANATH MISl\A, J. J 263
that the detenu was not prejudiced in making an effective
represent?tion of his case ·at the hearing by the Advisory Board
in the absence of a fri.end. 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
bahalf of the petitioner are rejected, this writ petition has to
fail. We accordingly dismiss it.
N.V.K. Petition dismissed;
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