Holding

A detenu, though not statutorily entitled to legal representation under Section 8(e) of the COFEPOSA Act, is entitled to make a request for such representation and the Advisory Board must consider the request on its merits.

Issues considered

Whether a detenu under the COFEPOSA Act has a statutory right to be represented by a legal practitioner before the Advisory Board.
Whether the Advisory Board is bound to consider a detenu’s request for legal representation despite the language of Section 8(e).
Whether the High Court’s quashing of the detention order was justified.

Legislation cited

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974s. 3(1), s. 8(e)
Constitution of Indias. Article 19, s. Article 21, s. Article 22(3)(b)

Subjects

preventive detentionCOFEPOSAlegal representationadvisory boardfundamental rightsArticle 21Article 22detention orderprocedural safeguards

Judgment

[2008] 10 S.C.R. 832
' -t
\ "
A JULY 11, 2008
[A.K. MATHUR AND ALTAMAS KABIR, JJ.]

Preventive Detention - Detention under COFEPOSA Act
- Rejection of representation of detenu seeking permission 'i· ,
.B to be represented by legal practitioner by Advisory Board -
Propriety of- Held: Detenu though has no legal right u/s 8 (e)
of the Act, to legal assistance before Advisory Board, he is
entitled to make such request and the Board is bound to con-
sider the request - Detention under preventive detention en-
c actments is serious and severe invasion on the fundamental
rights - Safeguards provided in order to check indiscriminate
exercise of powers should be considered not perfunctorily -
Constitution of India, 1950 - Articles 19 and 21 - Conserva-
tion of Foreign Exchange and Prevention of Smuggling Ac-
D tivities Act, 1974 - ss. 3 (1) and 8 (e). r.
Brother of respondent No. 1 was detained uls. 3 (1)
of Conservation of Foreign exchange and Prevention of
Smuggling Activities Act, 1974. Detenu filed a writ petition
through respondent No. 1. In the meantime his represen-
E tation to Advisory Board for permission to be represented
by a legal practitioner was rejected on the ground that
the prayer could not be considered "for some obvious
reasons". High Court allowed the writ petition holding that
the Advisory Board rejected the representation of the ).... .....
F detenu on erroneous grounds. Hence the present appeal.
Dismissing the appeals, the Court
HELD: 1. The order of the High Court does not war-
rant interference. Although, a detenu has no right under
G Section 8(e) of Conservation of Foreign Exchange and
Prevention of Smuggling Activities Act, 1974, to legal as-
sistance in proceedings before the Advisory Board, he is
)....
...
entitled to make such a request to the Board and the Board

H 832
STATE OF MAHARASHTRA & ORS. v. ZUBAIR HAJ! 833
QASIM

is bound to consider such request when made. [Para 14] A
[837-F & G]
2. In the instant case, the detenu's prayer for being
allowed to be represented by a legal practitioner was re-
jected by the Advisory Board upon observing that such
r Y B
prayer could not be considered "for some obvious rea-
sons". 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. [para 15] [837-G & H; 838-B]
c
3. 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
~·"f
D
been placed at different stages of the detention proceed-
ings to ensure that such powers were not used indiscrimi-
nately to settle scores or to short-circuit the process of
investigation and trial of an alleged offence. The represen-
tation made by a detenu for legal assistance before the
E1
Advisory Board, has, therefore, to be considered not per-
functorily, as has been done in this case, but with due ap-
plication of mind, since in each case of detention, the lib-
erty of an individual is involved. [Para 16] [838-C,D,E & F]
Ill' ...( Smt. Kavita vs. State of Maharashtra and Ors. 1981 (3) F
SCC 558; Nand Lal Bajaj vs. State of Punjab 1981 (4) SCCF
327 - relied on.
Kekalwa Samuele Kongwa vs. Union of India 1985 (1)
Born. 742 C.R. 742 - approved.
A.K. Roy vs. Union of India 1982 (1) sec 211 - re- G: I

&>
~ ferred to.
CRIMINALAPPELLATE JURISDICTION: Criminal Appeal
No. 1064 of 2008
H
834 SUPREME COURT REPORTS [2008] 10 S.C.R.
t

A From the Judgment and final Order dated 30.6.2006 of
the High Court of Judicature at Bombay in Crl. Writ Petition No.
2312 of 2005
Ravindra Keshavrao Adsure and Gautam Godara for the
Appellants. ~ "f
B
Naresh Kaushik, Manish Kaushik and KL. Janjani for the
Respondent.
The Judgment of the Coutt was delivered by

c 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, 2005, pursuant to an order of detention dated 9th
September, 2005, issued by the Principal Secretary (Appeals
't-~
D and Security) to the Government of Maharashtra, specially em-
powered under Section 3(1) of the Conservation of Foreign
Exchange and Prevention of Smuggling Activities Act of 1974
(hereinafter referred to as "the COFEPOSAAct, 1974").
3. On 22nd September, 2005, the said Abu Baker Haji
E
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
F detenu made a representation for permission to be represented >-- ~
in the proceedings through a legal practitioner. Such represen-
tation was, however, rejected by the Advisory Board on 28th
October, 2005, on the ground that under the COFEPOSA Act
1974, a detenu was not entitled to be represented by a legal
G 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".
H
STATE OF MAHARASHTRA & ORS. v. ZUBAIR HAJI 835

"' • QASIM [AlTAMAS KABIR, J.]

4. When the writ petition came up for hearing, the High A
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) Born. 742 C.R. 742] al-
't f' lowed the writ petition and quashed the detention order holding B
that the prayer of the detenu for permission to be represented
by a legal practitioner was not rejected after, proper consider-
ation but on erroneous grounds. It may not be out of place to
mention that in Kekalwa Samuele Kongwa's case (supra) the
Division Bench of the Bombay High Court held as follows :- c
"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 D
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.
E
6. Although, the life of the detention order came to an end
on gth September, 2006, Mr. Adsure, appearing for the appel-
lant- 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. F
7. Referring to clause (3)(b) of Article 22 of the Constitution,
Mr. Adsure submitted that a person placed under preventive deten-
tion was not entitled to be represented by a legal practitioner before
---i.
the Advisory Board. In this regard, Mr. Adsure also referred to Sec-

.. -of
tion 8(e) of the COFEPOSAAct, 1974, which reads as follows:-
"8(e) - a person against whom an order of detention has
G

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
.,. H
836 SUPREME COURT REPORTS - [2008] 10 S.C.R.

A 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,
B 1974, makes it,guite clear that a detenu under any of the pre-
ventive detention enactments would not be entitled to be repre-
sented by a legal practitioner before the Advisory Board.
9. In support of his submissions, Mr. Adsure placed reli-
c ance 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 COFEPOSAAct, '1974, fell for consideration. In the
0
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 provi-
sions of Section 8(e) of the COFEPOSAAct, 1974, he was not
E 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 constdering the reply of the State
Government, observed as follows:-

F "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
•
G assistance the personal liberty of the detenu guaranteed by Ar-
ticle 21 of the Constitution could be jeopardized and rendered
meaningless. Tha request by a detenu for legal assistance
would have to be considered on its own merits in each indi-
vidual case. However, since in the said case, the detenu had
H · not applied to the Advisory Board, it was held that it could not
STATE OF MAHARASHTRA & ORS. v. ZUBAIR HAJI 837
·~· QASIM [AlTAMAS KABIR, J.]

be said that the detenu had been wrongly denied the assis- A
tance of counsel. What Mr. Adsure tried to emphasise was that
no legal right vested in the detenu for being allowed to be rep-
resented by a legal practitioner before the Advisory Board.
11. Mr. Adsure also referred to the Constitution Bench
• r decision of this Court in A.K. Roy vs. Union of India [1982 (1) B
sec 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 app~ar through a legal practitioner in the proceedings c
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 D
liable to be set aside.
13. Ori behalf of the respondent No.1, the views expressed
before the High Court were reiterated and it was urged that no
interference was warranted with the order of the High Court
impugned in the instant appeal. E

14. Having considered the submissions made on behalf
of the respective parties, we are of the view that the order of the
High Court lmpugned in this appeal does not warrant interfer-
.--' ence. In Smt. Kavita's case (supra) on which reliance was placed
by Mr. Adsure, it was also laid down that, although, a detenu F
has no right under Section 8(e) of the COFEPOSAAct, 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.
G
15. In the instant case, the detenu's prayer for being al-
• ~ lowed 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 reason-
ing runs counter to the decision of this Court in Smt. Kavita's
case (supr~) and cannot, therefore, be sustained. The decision H
~¥
1
838 SUPREME COURT REPORTS [2008] 10 S.C.R.

A 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 reject-
s ing the detenu's representation the Advisory Board took refuge 'i ,
in vague verbiage without really applying its mind as it was re-
quired to do, to the merits thereof.
16. Detention of a citizen under any of the preventive de-
tention enactments is a serious and severe invasion on the Fun-
e damental 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 tl":·Jt such powers
were not used indiscriminately to settle scores or to short-circuit
D 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
ser\tices of a lawyer to appear before the said Board which was
E 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
F the liberty of an individual is involved.
17. We, therefore, see no reason to interfere with the judg-
ment and order of the High Court impugned in this appeal and
the appeal is accordingly dismissed.
18. This judgment would also govern Criminal Appeal NO.
G 1065 (@ Special Leave Petition (Criminal) No.1975 of 2007)
titled State of Maharashtra vs. Sheetal Manoj Gore.

K.K.T. Appeals dismissed.

H