Bombay High Court
Zubair Haji Qasim vs The State Of Maharashtra Through ... on 30 June, 2006
Bench: D Deshpande, S Bobde
JUDGMENT
1. Heard Mr. Maqsood Khan for the petitioner and the learned APP for the
2. The petitioner is the brother of the detenu. His advocate raised only one point that even though in his representation to the Advisory Board, he has specifically prayed that he be given opportunity to putforth his case through the legal practitioners, it was not considered. In support of this contention, the learned Counsel for the petitioner relied upon a division bench judgment of this Court in Kekalwa Samuele Kongwa v. Union of India, reported in 1985 (1) Bom. C.R.C.R.C.R. 742742742, wherein it is held and observed by the division bench in para -19 sub-para (6), as follows:
A request made by a detenu for being represented by a legal practitioner 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 detenu, or (ii) that it was the practice of the Board not to allow representation of a detenu by a legal practitioner.
3. Our attention was also drawn to the affidavit of the Advisory Board by the learned Advocate for the Petitioner. In that affidavit, the Advisory Board has stated that since the petitioner is brother of the detenu and under the COFEPOSA Act, the detenu is not entitled to be represented through legal practitioner, it was not necessary to consider his prayer. In view of the above said judgment and a specific statement made by the Advisory Board in its affidavit referred to above, we gave liberty to Mr. Mhaispurkar, learned APP, to go through the record and proceedings of the Advisory Board and then we re-heard the matter again.
4. After going through those papers, Mr. Mhaispurkar, pointed out that the Advisory Board rejected the prayer of the petitioner for being represented through a legal practitioner by observing that the prayer of the detenu for permitting to be represented through legal practitioner cannot be considered for some obvious reasons". This is contradictory to the affidavit, wherein it is asserted that a detenu under the COFEPOSA Act is not entitled to be represented through a legal practitioner. The detention and the case before us is also under the COFEPOSA Act and the division bench judgment, referred to above, of Mr. Jahagirdar and Mr. Jamdar, JJ. is also under the COFEPOSA Act. When the division bench judgment has clearly laid down the law in para -19, sub- para (6), as stated above, then the Advisory Board was not permitted to raise the contention in their affidavit that detenu has no legal right to be represented in the cases of detention under the COFEPOSA Act. Secondly, the affidavit is in contravention of the record and proceedings of the Advisory Board, as pointed out above. What is meant by "obvious reasons" is not clear and consequently, it has to be held that the prayer of the detenu for permission to be represented by the legal practitioner was not rejected after proper consideration. It was rejected on erroneous grounds and therefore, the order of detention is required to be set aside and quashed.
5. The petition is allowed and continuous detention of the detenu is rendered illegal after 27.10.2005. He should be set free, if not required in any other matter.
