Bombay High Court
Seema Vishal Salunke vs The Commissioner Of Police And Ors on 4 January, 2018
Bench: S.C. Dharmadhikari
1-WP.4008.2017.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO. 4008 OF 2017
Mrs. Seema Vishal Salunke }
Age 29 years, residing at }
B-29/3, Sambhaji Nagar, }
Dhanukawadi, Pune } Petitioner
versus
1.The Commissioner of Police}
Pune }
}
2. The State of Maharashtra, }
(through Addl. Chief }
Secretary to Government of }
Maharashtra, Mantralaya, }
Home Department, }
Mantralaya, Mumbai) }
}
3. The Superintendent }
Yerwada Central Prison }
Pune } Respondents
Mr. Udaynath Tripathi with Ms. Jayshree
Tripathi for the petitioner.
Mr. J. P. Yagnik-APP for State.
CORAM :- S. C. DHARMADHIKARI &
SMT. BHARATI H. DANGRE, JJ.
DATE :- JANUARY 4, 2018
ORAL JUDGMENT:- (Per S. C. Dharmadhikari, J.)
1. By this petition under Article 226 of the Constitution of
India, the order of detention passed by the Detaining Authority
dated 9th August, 2017 under section 3 of the Maharashtra
Prevention of Dangerous Activities of Slumlords, Bootleggers,
Drug-Offenders, Dangerous Persons, Video Pirates, Sand
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Smugglers and Persons Engaged in Black-Marketing of Essential
Commodities Act, 1981 (hereinafter referred to as "the MPDA
Act") is challenged by the wife of the detenue- Vishal Salunke.
2. Mr. Tripathi learned advocate appearing in support of this
petition has pressed two grounds, incorporated and inserted in
the memo of the petition by way of an amendment. The first
ground incorporated by the amendment and with leave of this
court dated 21st November, 2017 reads as under:-
"(g) The Petitioner says and submits that a
communication was sent to the detenu by the Hon'ble
Advisory Board through an intimation letter informing
him the date of Advisory Board's meeting and the detenu's
right to make representation to the Advisory Board and
forward the same through the Superintendent of Jail,
where he is detained. However, the detenu was not
apprised/informed about his two valuable rights in the said
intimation letter. They are, Firstly, the detenu has a right
to make representation to Advisory Board. Secondly, the
detenu has the right to lead oral evidence in rebuttal of
allegations made against him by producing and examining
witness to defend his case effectively before the Hon'ble
Advisory Board and witness should be kept ready before
the Board. As a result of non-appraisal of these rights to
the detenu which are recognized by Hon'ble Supreme Court
his right is violated. The detenu could not make any
suitable arrangement to produce and examine witnesses
by keeping them present and lead evidence in rebuttal of
allegations made against him in order to present his case
effectively before the Advisory Board. What is stated in
the grounds of detention is that 'as well as other rights
prescribed under the Act', which is absolutely vague. The
procedure adopted by the Advisory Board is not just, fair
and reasonable. It is pertinent to note that the Advisory
Board has informed these rights to the many detenues
earlier. The whole Board proceeding vitiates. This also
amounts to discrimination as contemplated under Article
14 of the Constitution of India. Since the Advisory Board
has not adopted a fair and just procedure, the detenu is
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deprived of his right to defend his case before Advisory
Board. As such Article 21 of the Constitution of India is
violated. The whole Board proceeding vitiates. The report
submitted to the State Government is erroneous and not
according to law and procedure, consequently the
confirmation order is also bad in law. The continued
detention is illegal and bad in law, liable to be quashed and
set aside."
3. During the pendency of the writ petition, leave was sought
to insert additional ground and that came to be granted on 14 th
December, 2017. Pursuant to that liberty, ground no. 10H at
page 10C was inserted on 20th December, 2017. Mr. Tripathi
would submit and in relation to the ground inserted by way of
amendment on 20th December, 2017 that there is a contradiction
and dichotomy in the affidavits filed in reply to this petition. The
first affidavit proceeds to state that the petitioner was served
with order of detention while in custody, whereas, the detaining
authority maintains that the petitioner was enlarged on bail and
was not in custody. Mr. Tripathi would submit that the petitioner
has stated that there is a single/solitary case being C. R. No. 88 of
2017 alleging offences punishable under sections 387, 427, 323
and 504 of the Indian Penal Code, 1860. That criminal case/C. R.
has been referred in the grounds of detention at para 4.1. In that,
the detaining authority says that the detenue was arrested on
14th March, 2017 and applied for bail on 16 th March, 2017. He
was enlarged on bail and released on the same day. Thus, the
petitioner was no more in custody. In these circumstances, in
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para 8 of the grounds of detention, the detaining authority
proceeds to say that the petitioner was released on bail in this
C.R. No. 88 of 2017. If he was a free person, not in custody and
duly enlarged on bail, then, the affidavit of the authorities filed in
reply to this petition, containing the above statement, would
vitiate the subjective satisfaction of the detaining authority.
4. Mr. Tripathi in that regard has invited our attention to the
affidavit of Shri. Deepak Kharat, in which, he says in para 3 at
page 65 as under:-
"3. I say that on 9.08.2017, the Order of Detention was
issued by the Commissioner of Police, Pune, against the
detenu. And thereafter the detenu, who was in custody
executed with the order of detention on 10.08.2017 and
the said order of detention was approved by State
Government on 14.08.2017. The reference u/s. 10 of the
MPDA Act, 1981 to the Advisory Board was on
14.08.2017. The case report of above detenu under MPDA
Act, 1981 was sent from Home Department, SPL-3(B),
dated 14.08.2017 was received to the Advisory Board on
21.08.2017."
5. Based on the insertion of the additional ground, affidavits
were filed again by Shri. Deepak Kharat styled as additional
affidavits and in para 4 at page 73, the authority says as under:-
"4) I say that on 09.08.2017, the Order of Detention was
issued by the Commissioner of Police, Pune, against the
detenu. And thereafter the detenu, who was not in custody
and executed with the order of detention on 10.08.2017
and the said Order of detention was approved by State
Government on 14.08.2017. The reference u/s. 10 of the
MPDA Act, 1981 to the Advisory Board was on
14.08.2017. The case report of above detenu under MPDA
Act, 1981 was sent from Home Department, SPL-3, dated
14.08.2017 was received to the Advisory Board on
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21.08.2017."
6. In the additional affidavit of the detaining authority as well
in para 6 at page 78, there is an explanation provided, which
reads as under:-
"6. It is kindly submitted that the Detenu was arrested on
14/03/2017 and produced before Ld. Trial court, Pune who
then remanded to police custody and magistrate custody to
the Detenu from time to time. That thereafter the Detenu
had applied for bail and the same was granted by the Ld.
Trial Court on 16/03/2017. The said fact was clearly
mentioned in para 4.1 of the grounds of detention. That
thereafter the respondent has perused all the material on
record and after subjectively satisfied that passed the
order of detention on 09/08/2017 vide
No./PCB/DET/2087/2017. Detenu was served with the
grounds of detention on 10/08/2017 and copy of station
diary mentioned in CCTNS Computer detailed report of
execution of detention order are annexed collectively as
Annexure "A' Colly. for ready reference of this Hon'ble
Court, then on 11/08/2017 detained in jail. In the said
grounds it has specifically mentioned in para 8 that, the
respondent carefully gone through the material on record
and subjectively satisfied that the detenu was acting in a
manner prejudicial to the maintenance of public order.
The Detenu was released on bail by the concerned court
and after availing bail facility, the Detenu again reverted to
similar activities which were prejudicial to the
maintenance of public order. As such on 10/08/2017 the
Detenu was the free person and as such the said order was
not served in custody."
7. Mr. Yagnik learned APP appearing for the respondents
would submit that the amended ground would not survive for
consideration, particularly in the light of these additional
affidavits and the error, if any, has been now corrected and
consistent with the record.
8. We have heard the counsel on this point.
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9. After noting the amended plea, we find that the same
pertains to execution or service of the detention order. The first
affidavit asserts and proceeds on the footing that the detention
order was served on the detenue in custody. The contradiction
was with regard to the specific statements or satisfaction in the
grounds of detention, which proceeds on the footing that the
detenue was taken into custody on 14 th March, 2017, but
enlarged on bail on 16th March, 2017, after which as well, his
criminal activities posed a continued threat to the maintenance of
public order and public peace in the area.
10. We have carefully perused the additional affidavits and the
above reproduced statements. We are satisfied that the first
error committed by the detaining authority, namely, Shri. Deepak
Kharat, in his affidavit was inadvertent and not intentional. He
was not at all indicating to this court that the detention order was
passed while the detenue was in custody or that it was served
upon him while in custody. Far from this, he was not suggesting
that there was an error in stating that the detenue was in the
custody and thereafter the detention order was served upon him.
We are of the opinion that after the explanation in the affidavits,
particularly of the detaining authority, this ground would not
survive. We except the explanation and hold that the continued
detention is not vitiated on this ground.
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11. Thereafter, the petitioner's counsel reverts to the ground at
page 10A, which we have reproduced above. The precise
contention of Mr. Tripathi is that this is a preventive detention.
Unlike the detention post trial, a detenue must be extended all the
constitutional safeguards and protection. If the statute demands
compliance and that too strict with the requirements stipulated
therein before a detention order can be passed and equally
requires the detenue to be informed about his rights in law, then,
there is an obligation to inform the detenue about his further
entitlement. His further rights, according to Mr. Tripathi, are
three fold. Firstly that he has a right to make representation
against the detention order to the Detaining Authority and
secondly to the Advisory Board. He can seek assistance of his
next friend and equally an advocate to make such representation
to the board effective by insisting on an oral hearing and thirdly,
at such oral hearing, he can lead evidence in rebuttal. As far as
these three rights are concerned, there is no clear prescription
and the procedure that is followed by the detaining authority is
contradictory. Mr. Tripathi produced, as illustrations or
examples, copies of three detention orders, which have been
passed by the Commissioner of Police, Greater Mumbai as
detaining authority. Mr. Tripathi, relying upon the language of
these orders, would submit that this detaining authority is
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consistently informing the detenue of his rights, particularly the
later one noted above. That is in order to make him aware that he
has an opportunity to seek revocation of the detention order by
approaching the Advisory Board. For that purpose, the detenue
can request the witnesses to remain present on the date and time
of hearing. If no intimation is given of these rights by the
detaining authority, then, it would not be possible for the detenue
to arrange for witnesses to be produced on the given date and
time. In the present case, according to Mr. Tripathi, the Advisory
Board only forwarded an intimation through the Superintendent
of Jail, Nashik Prison. That Superintendent of Jail handed over
the communication informing the detenue that he must attend
the proceedings before the Advisory Board and if so advised,
engage an advocate or appear in-person. There was no intimation
of the later two rights, namely, to engage an advocate and to lead
evidence in rebuttal. If there was no proper intimation of his
rights, then, the detenue, who is a layman, was handicapped and
could not arrange for presence of the witnesses before the
Advisory Board. He has been seriously prejudiced in this case.
Mr. Tripathi also relies upon paragraph 14 of the detention order
to submit that the detaining authority does not inform the
petitioner of these valuable rights.
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12. Mr. Tripathi was very critical of the stand taken in the
affidavit in reply by the detaining authority as also the Advisory
Board. Mr. Tripathi would submit that these authorities are
proceeding on the footing that the MPDA Act must provide
specifically that the detenue is free to engage an advocate of his
choice when he appears before the board and equally he can lead
evidence in rebuttal by requesting the Advisory Board to summon
witnesses on his behalf. Absent such prescription in law, there is
no mandate, according to these authorities to inform the detenue
of these rights. Mr. Tripathi would submit that such submissions
or stand overlooks the authoritative pronouncements of the
Hon'ble Supreme Court of India and our attention is invited to the
judgments in the case of A. K. Roy vs. Union of India1 and
Harbans Lal vs. M. L. Wadhawan and Ors.2. Mr. Tripathi also
relies upon a judgment in the case of Kamleshkumar Ishwardas
Patel vs. Union of India and Ors.3 as also the judgment in the case
of State of Maharashtra vs. Zubair Haji Qasim 4. Finally, Mr.
Tripathi would submit that as far as this court is concerned, the
correct pronouncement of law emerges from its discussion in the
case of Kekalwa Samuele Kongwa vs. Union of India5.
1 1982 CRI. L. J. 340,
2 (1987) 1 SCC 151
3 (1995) 4 SCC 51
4 (2008) 12 SCC 797
5 1984 Bom. L. R. 24
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13. On the other hand, Mr. Yagnik would submit that these
judgments of the Hon'ble Supreme Court apart, the MPDA Act has
not provided for any such procedure and he relies upon the
language of Article 22(4) and 22(7) of the Constitution of India in
that regard. Mr. Yagnik would submit that there was no
obligation or mandate to inform the petitioner that he has a right
to engage an advocate and lead evidence in rebuttal before the
Advisory Board. It may be that one detaining authority deems it
appropriate to inform him, but because there is no such
intimation either from the detaining authority or Advisory Board
in this case does not mean that the Petitioner is prejudiced or
unable to effectively present his case. There is no presumption in
law of this nature. Hence, there is no prejudice caused to the
petitioner. If at all a procedural safeguard is relied upon, then,
breach of procedure by itself does not vitiate any legal action and
any prejudice must be proved. There is no such prejudice
established and on facts, Mr. yagnik would submit that there is a
specific statement of compliance with law made on oath by the
Advisory Board before this court. Once the intimation was sent to
the Superintendent of Jail, Nashik Central Prison, which was duly
served, the petitioner engaged an advocate. That advocate
remained present before the Advisory Board. The petitioner was
duly advised by him. If that advocate did not deem it fit and
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proper to seek adjournment to produce witnesses or he makes
any application, but that request is denied, then, the petitioner
cannot complain unless he establishes a serious breach and
prejudice. Such a prejudice being absent, according to Mr.Yagnik,
we should not go into any larger or wider question, but must
sustain the detention order.
14. Mr. Yagnik relies upon a Division Bench judgment of this
court in the case of Anthony @ Sandy John Nigero vs.
Ramamurthi, Commissioner of Police for Greater Bombay and
Ors.6 and a judgment of the Hon'ble Supreme Court in the case of
State of Maharashtra and Ors. vs. Shri. Ramchandra Rammilan
Mishra7.
15. For properly appreciating these contentions, we must first
make a reference to Article 22 of the Constitution of India. Article
22 grants protection against arrest and detention in certain
cases. Clause (1) of this Article says that no person, who is
arrested, shall be detained in custody without being informed, as
soon as may be, of the grounds for such arrest nor shall he be
denied the right to consult, and to be defended by, a legal
practitioner of his choice. Clauses (1) and (2) are not applicable
to any person who is arrested or detained under any law
6 1993 CRI. L. J. 3259
7 2004 SCC (Cri.) 1329
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providing for preventive detention. Clause (4) then deals with
the law authorising preventive detention and says in categorical
terms that no law providing for preventive detention shall
authorise the detention of a person for a longer period than three
months unless the requirements set out in sub-clauses (a) and (b)
thereof are satisfied. The detention that has to be made and
styled as preventive detention must be in accordance with the
provisions of law made by Parliament under sub-clauses (a) and
(b) of clause (7). Clause (7) of Article 22 reads as under:-
"(7) Parliament may by law prescribe -
(a) the circumstances under which, and the class or
classes of cases in which, a person may be detained for a
period longer than three months under any law
providing for preventive detention without obtaining the
opinion of an Advisory Board in accordance with the
provisions of sub-clause (a) of clause (4);
(b) the maximum period for which any person may in
any class or classes of cases be detained under any law
providing for preventive detention; and
(c) the procedure to be followed by an Advisory Board
in an inquiry under sub-clause (a) of clause (4)."
16. A perusal of the same would indicate as to how the
Parliament may, by law, prescribe, inter alia, procedure to be
followed by an Advisory Board in an inquiry under sub-clause (a)
of clause (4).
17. We are dealing with a statute prevailing in the State of
Maharashtra (MPDA) and which permits an order to be passed of
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detention under section 3 thereof on a satisfaction to be reached
as stated therein. Thus, with a view to prevent a person from
acting in any manner prejudicial to the maintenance of public
order, if it is necessary to do so, the State Government can make
an order directing that such person be detained. After such an
order is made, the factum of such order being passed or made has
to be forthwith reported to the State Government by the detaining
authority. Sections 4 and 5 thereof provide for execution of
detention order and to regulate and place conditions of detention.
We are not concerned with section 5(A) and sections 6 and 7 for
the present petition. Section 8 obliges the communication of the
grounds, on which the order of detention has been made and
affording of an opportunity to the detenue at the earliest of
making a representation against that order. Section 9 deals with
constitution of Advisory Board. Section 10 deals with reference
to Advisory Board and section 11 reads as under:-
"11. (1) The Advisory Board shall, after considering the
materials placed before it and, after calling for such
further information as it may deem necessary from the
State Government or from any person called for the
purpose through the State Government or from the person
concerned, and if, in any particular case, the Advisory
Board considers it essential so to do or if the person
concerned desires to be heard, after hearing him in person,
submit its report to the State Government, within seven
weeks from the date of detention of the person concerned.
(2) The report of the Advisory Board shall specify in
a separate part thereof the opinion of the Advisory
Board as to whether or not there is sufficient cause for
the detention of the person concerned.
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(3) When there is difference of opinion among the
members forming the Advisory Board, the opinion of
the majority of such members shall be deemed to be
the opinion of the Board.
(4) 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.
(5) Nothing in this section shall entitle any person
against whom a detention order has been made to
appear by any legal practitioner in any matter
connected with the reference to the Advisory Board."
18. A perusal of section 11 would reveal that it's sub-sections
deal with the manner in which the Advisory Board may consider
materials placed before it or such further information which it
has called for. If the Advisory Board considers it essential to do
so or if the person concerned desires to be heard, after hearing
him/her in person, it shall submit its report to the State
Government. Sub-section (5) of section 11 says nothing in this
section shall entitle any person against whom a detention order
has been made to appear by any legal practitioner in any matter
connnected with the reference to the Advisory Board.
19. Such stipulations and in relation to the preventive
detention orders have always been matters of debate before the
Hon'ble Supreme Court. The Constitution Bench dealing with one
such law of preventive detention of A. K. Roy and others (supra)
considered very broad and wide challenge. We are not concerned
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with the same. While dealing with the validity of a Ordinance
which later became the National Security Act, 1980, the Hon'ble
Supreme Court dealt with extensively an argument of the
detenues that if there are three rights, as enumerated by Mr.
Tripathi before us, then what are the contours thereof. In
paragraph 104, the Bench dealt with one of the rights, which are
styled as trinity of rights. The first one is the right of legal
representation, the second is the right of cross examination and
the third is the right to present evidence in rebuttal. In paras 85,
86 and 87, the Bench observes as under:-
"85. First and foremost, we must consider whether and to
what extent the detenu is entitled to exercise the trinity of
rights before the Advisory Board: (i) the right of legal
representation; (ii) the right of cross examination and (iii)
the right to present his evidence in rebuttal. These rights
undoubtedly constitute the core of just process because
without them, it would be difficult for any person to
disprove the allegations made against him and to establish
the truth. But there are two considerations of primary
importance which must be borne in mind in this regard.
There is no prescribed standard of reasonableness and
therefore, what kind of processual rights should be made
available to a person in any proceeding depends upon the
nature of the proceeding in relation to which the rights are
claimed. The kind of issues involved in the proceeding
determine the kind of rights available to the persons who
are parties to that proceeding. Secondly, the question as to
the availability of rights has to be decided not generally but
on the basis of the statutory provisions which govern the
proceeding, provided of course that those provisions are
valid. In the instant case, the question as to what kind of
rights are available to the detenu in the proceeding before
the Advisory Board has to be decided in the light of the
provisions of the Constitution, and on the basis of the
provisions of the National Security Act to the extent to
which they do not offend against the Constitution.
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86 Turning first to the right of legal representation
which is claimed by the petitioners, the relevant article of
the Constitution to consider is Article 22 which bears the
marginal note "protection against arrest and detention in
certain cases." That article provides by clause (l) that no
person who is arrested shall be detained in custody
without being informed, as soon as may be, of the grounds
for such arrest nor shall he be denied the right to consult,
and to be defended by, a legal practitioner of his choice.
Clause (2) requires that every person who is arrested and
detained in custody shall be produced before the nearest
magistrate within a period of 24 hours of such arrest and
that no person shall be detained in custody beyond the said
period without the authority of a magistrate. Clause (3)
provides that nothing in clauses (1) and (2) shall apply (a)
to any person who for the time being is an enemy alien; or
(b) to any person who is arrested or detained under any
law providing for preventive detention. It may be recalled
that clause 4(a) of Article 22 provides that no law of
preventive detention shall authorise the detention of a
person for a period longer than three months unless the
Advisory Board has reported before the expiry of the said
period of three months that there is in its opinion sufficient
cause for such detention. By clause 7(c) of Article 22, the
Parliament is given the power to prescribe by law the
procedure to be followed by the Advisory Board in an
inquiry under clause 4(a).
87. On a combined reading of clauses (1) and (3) (b) of
Article 22, it is clear that the right to consult and to be
defended by a legal practitioner of one's choice, which is
conferred by clause (1), is denied by clause 3(b) to a
person who is detained under any law providing for
preventive detention. Thus, according to the express
intendment of the Constitution itself, no person 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. In view
of this, it seems to us difficult to hold, by the application of
abstract, general principles or on a prior considerations
that the detenu has the right of being represented by a
legal practitioner in the proceedings before the Advisory
Board, Since the Constitution, as originally enacted, itself
contemplates that such a right should not be made
available to a detenu, it cannot be said that the denial of
the said right is unfair, unjust or unreasonable. It is indeed
true to say, after the decision in the Bank Nationalisation
case, that though the subject of preventive detention is
specifically dealt with in Article 22, the requirements of
Article 22 have nevertheless to be satisfied. It is therefore
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necessary that the procedure prescribed by law for the
proceedings before the Advisory Boards must be fair, just
and reasonable. But then, the Constitution itself has
provided a yardstick for the application of that standard,
through the medium of the provisions contained in Article
22(3)(b). Howsoever much we would have liked to hold
otherwise, we experience serious difficulty in taking the
view that the procedure of the Advisory Boards in which
the detenu is denied the right of legal representation is
unfair unjust or unreasonable. If Article 22 were silent on
the question of the right of legal representation, it would
have been possible, indeed right and proper, to hold that
the detenu cannot be denied the right of legal
representation in the proceedings before the Advisory
Boards. It is unfortunate that courts have been deprived of
that choice by the express language of Article 22(3)(b)
read with Article 22(1)."
20. In express words, the Hon'ble Supreme Court holds that if
Article 22 was silent on the question of representation, the
detenue cannot be denied the right of representation in the
proceedings before the Advisory Boards. However, the express
language of Article 22 would have some bearing on the issue.
Then, in para 88, the Bench deals with the argument that the
right of legal representation is available to the detenue apart from
the provisions of Article 22(1). That right cannot be denied to
him by reason of the exclusionary provisions contained in Article
22(3)(b). The Bench then, in para 89, holds as under:-
"89. To read the right of legal representation in Article
22(5) is straining the language of that article. Clause (5)
confers upon the detenu the right to be informed of the
grounds of detention and the right to be afforded the
earliest opportunity of making a representation against
the order of detention. That right has undoubtedly to be
effective, but it does not carry with it the right to be
represented by a legal practitioner before the Advisory
Board merely because, by section 10 of the National
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Security Act, the representation made by the detenu is
required to be forwarded to the Advisory Board for its
consideration. If anything, the effect of section 11(4) of the
Act, which conforms to Article 22(3)(b), is that the detenu
cannot appear before the Advisory Board through a legal
practitioner. The written representation of the detenu does
not have to be expatiated upon by a legal practitioner."
21. In para 95, the Bench observes that the embargo on the
appearance of legal practitioner should not be extended so as to
prevent the detenue from being aided or assisted by the friend,
who, in truth and substance, is not a legal practitioner. Therefore,
the persons whose interests are adversely affected as a result of
the proceedings which have a serious import, is entitled to be
heard in those proceedings and be assisted by a friend. However,
as noted by the Hon'ble Supreme Court itself, the argument did
not rest there. The argument proceeded further and revolved
around effective representation and even if it is presumed that
the right to appear is through a next friend and not through the
legal practitioner, whether that would be effective in the absence
of the opportunities to cross examine and to lead evidence in
rebuttal. In para 104, the Bench concluded that in proceedings
before the Advisory Board, the detenue has no right to cross
examine either the persons on the basis of whose statement the
order of detention is made or the detaining authority.
22. After holding so, in para 105, the Bench held as under:-
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"105. The last of the three rights for which Shri
Jethmalani contends is the right of the detenu to lead
evidence in rebuttal before the Advisory Board. We do not
see any objection to this right being granted to the detenu.
Neither the Constitution nor the National Security Act
contains any provision denying to the detenu the right to
present his own evidence in rebuttal of the allegations
made against him. The detenu may therefore offer oral and
documentary evidence before the Advisory Board in order
to rebut the allegations which are made against him. We
would only like to add that if the detenu desires to examine
any witnesses, he shall have to keep them present at the
appointed time and no obligation can be cast on the
Advisory Board to summon them. The Advisory Board, like
any other tribunal, is free to regulate its own procedure
within the constraints of the Constitution and the statute.
It would be open to it, in the exercise of that power, to limit
the time within which the detenu must complete his
evidence. We consider it necessary to make this
observation particularly in view of the fact that the
Advisory Board is under an obligation under section 11(1)
of the Act to submit its report to the appropriate
Government within seven weeks from the date of detention
of the person concerned. The proceedings before the
Advisory Board have therefore to be completed with the
utmost expedition."
23. Thus, the Hon'ble Supreme Court holds that the detenue
may, therefore, offer oral and documentary evidence before the
Advisory Board in order to rebut the allegations which are made
against him. If the detenue desires to examine any witnesses, he
shall have to keep them present at the appointed time and no
obligation is cast on the Board to summon them. The Advisory
Board like any other Tribunal is free to follow a procedure within
the constraints of the Constitution and the statute. It would be
open to it to limit the time within which the detenue must
complete his evidence. Given the nature of the proceedings
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before the Advisory Board they are required to be completed with
utmost expedition. The Hon'ble Supreme Court then observes
that the Advisory Board must be granted that liberty and
freedom. In these circumstances, the judgment holds that it is
clear from the mandate of the Constitution of India that in
preventive detention matters, the safeguards and protection to
the extent noted above cannot be denied.
24. In the case of Harbans Lal vs. M. L. Wadhawan and Ors.
(supra), the issue raised and expressly before the Hon'ble
Supreme Court was that the detenue wanted to prove that the
premises in which the alleged contraband goods were found was
not in his possession and that in fact he lived at some other place.
In support of that case, he wanted to examine five witnesses
before the Advisory Board. These witnesses were present when
the matter was heard by the Advisory Board. This fact was made
known to the Board. The Board intimated to the legal advisor
that it would not examine the witnesses, but instead permit the
detenue to produce affidavits. Thus, an opportunity was lost to
him that day to examine the witnesses in rebuttal. It was the case
of the detenue that despite best efforts by his legal advisor, it was
possible to secure the affidavits of the witnesses, but for that
purpose, time was consumed. The witnesses were brought again
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on 1st May, 1986 when the Board resumed its hearing and an
application was made to the Board to examine then, but it
declined. The High Court considered this aspect of the case and
justified the rejection of this request on the plea that the detenue
could not waste the time of the Advisory Board by asking the
Board to record oral evidence. The two questions of law,
therefore, were (i) whether the Advisory Board acted in violation
of law as mandated by a Constitution Bench judgment in the case
of A. K. Roy in denying to the detenue his right to examine
witnesses, who were readily available and present on the dates of
hearing before the Advisory Board, in rebuttal of the case of the
detaining authority; (ii) whether the Advisory Board was bound
under law to send the entire record and proceedings before it to
the Central Government and the Central Government, in turn,
was bound to apply its mind to the entire materials before
proceeding to make the order of confirmation. We are not
concerned with the later question, but the earlier one. In para 5,
the trinity of the rights is emphasised and then in para 6, the
court observes that it was not told that the Advisory Board has
regulated any procedure that oral evidence will not be permitted
when it inquires into the orders of detention. The court holds that
even if there is any such procedure, it will be of no legal
consequence after the law in this behalf has been laid down in the
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case of A. K. Roy. The right to adduce oral evidence by examining
witnesses is a right available to a detenue under the above
decision and this should be deemed to be incorporated in the
statute dealing with detention without trial. The specific
observations in paras 6 and 7 read as under:-
"6. We have not been told that the Advisory Board has
regulated any procedure that oral evidence will not be
permitted when it enquires into orders of detention. Even
if there is any such procedure it will be of no legal
consequence after the law in this behalf had been laid down
by this Court in A.K. Roy case (supra). The right to adduce
oral evidence by examining witnesses is a right available to
a detenu under the above decision and this should be
deemed to be incorporated in the statute dealing with
detention without trial. Support for this position was
sought by the learned counsel for the petitioner from a
decision of this Court in Narendra Purshotam Umrao vs. B.
B. Gujral (1979) 2 S.C.C. 637. In that case, this Court was
dealing with the absence of any express provision in
Section 8(b) of the COFEPOSA Act placing an obligation to
forward the representation made by a detenu alongwith
the reference to the Advisory Board unlike those contained
in Section 9 of the Preventive Detention Act, 1950 and
Section 10 of the 431 Maintenance of Internal Security
Act, 1971. It was contended in that case that in the
absence of an express provision in this behalf no obligation
was cast on the Government to consider the representation
made by the detenu before forwarding it to the Advisory
Board or to forward the same to the Advisory Board. After
discussing the scope of Article 22(5), this Court held "the
constitutional safeguards embodied in Article 22(5) of the
Constitution, as construed by this Court, must, therefore,
be read into the provisions of Section 8(b) of Conservation
of Foreign Exchange and Prevention of Smuggling
Activities Act, 1974 to prevent any arbitrary Executive
action."
7. This decision rendered by a three Judge Bench of this
Court has laid down that the Constitutional safeguards
embodied in Article 22(5) of the Constitution as
understood by this Court must be read into Section 8(b) of
the COFEPOSA Act. Therefore, the right in a detenu to
adduce oral evidence in rebuttal, being a right in the
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nature of a Constitutional safeguard embodied in Article
22(5) of the Constitution as construed by this Court in A.K.
Roy's case (supra) has necessarily to be read into Section
8(b) and (c) of the COFEPOSA Act. If this right is denied to
a detenu, the necessary consequence must follow. Article
22(7) enables Parliament to prescribe by law the
procedure to be followed by an Advisory Board an enquiry
under Article 22(4)(a). Section 8 of the COFEPOSA Act is
a sequel to this prescription. There is nothing in Section 8
prohibiting oral evidence of the witnesses tendered by a
detenu being taken. The concept of enquiry by the
Advisory Board takes within its ambit this aspect of
'hearing' also. This right has received the seal of approval
in A.K. Roy's case."
25. It is in the light of these specific observations and the law
culled out from the decision in the case of A. K. Roy, the Hon'ble
Supreme Court holds that the witnesses on behalf of the detaining
authority cannot be examined by the detenue. That is the ratio
clearly spelt out from the case of A. K. Roy (supra). However, as
far as the evidence in rebuttal is concerned, the Hon'ble Supreme
Court did not agree with the High Court from whose order an
appeal was brought before it by Harbans Lal. This denial of the
opportunity to examine witnesses present before the Advisory
Board vitiated the detention of the detenue.
26. As far as the third decision of a Division Bench of this court
is concerned, following the judgment in the case of A. K. Roy
(supra) and Nand Lal vs. State of Punjab8, the Division Bench held
that the detenue has a right to examine witnesses before the
Advisory Board in support of his case though the Advisory Board
8 AIR 1983 SC 2041
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is under no obligation to summon such witnesses. The issue
before the Division Bench was whether by informing a detenue
that he could produce the oral testimony only through the
affidavits, the Board denies the detenue his right to produce and
examine witnesses before it. It is in these circumstances, the
Division Bench considered the challenge and concluded that
consistent with the mandate of Article 14 of the Constitution of
India, the Advisory Board must device its procedure so that the
rights by virtue of the Constitution Bench judgment are not
rendered ineffective.
27. Mr. Tripathi relies upon a judgment in the case of Zubair
Haji Qasim (supra). In that, however, the Hon'ble Supreme Court
was concerned with an order of detention and made against the
detenue, who, pursuant to the same, appeared before the
Advisory Board and made a representation for permission to be
represented in the proceedings through a legal practitioner. That
representation was rejected on the ground that it could not be
considered for some obvious reasons. It is that vague ground,
which was considered to be untenable by the Hon'ble Supreme
Court.
28. In the case of Kamleshkumar Ishwardas Patel (supra), the
issue was whether the order of preventive detention is passed by
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an official especially empowered by the State Government or the
Central Government, if the said officer is required to consider the
representation submitted by the detenue. Once again, the two
rights are clearly distinguishable. One is to make a
representation against the detention order to the detaining
authority and another is to the Advisory Board. In para 14 of this
judgment, which Mr. Tripathi heavily relies upon, the Hon'ble
Supreme Court holds that Article 22(5) must be, therefore,
construed to mean that the person detained has a right to make
representation, which can be made not only to the Advisory
Board, but also to the detaining authority. The right to make
representation carries with it a corresponding obligation on the
authority making the order of detention to inform the person
detained of his rights to make representation against the order of
detention to the authorities, who are required to consider such
representation.
29. Before us, the argument is that this intimation or
information about the right envisaged by Article 22(5) of the
Constitution of India must also include an intimation to the
detenue that he can, if so advised, engage a legal practitioner to
defend himself and that he can also lead evidence in rebuttal. Mr.
Tripathi would submit that the intimation is, therefore,
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incomplete if the later of the two rights possessed by a detenue
are not brought to his notice expressly or that he was not made
aware of the same by the detaining authority or the Advisory
Board. Omission to intimate about the later two rights is fatal.
30. We are considering the correctness of this submission and
in that regard, we would be failing in our duty if we do not refer to
another Division Bench judgment of this court. In the case of
Anthony (supra), the detention order was challenged on five
points. The Division bench was called upon to decide whether the
petitioner must be informed that he has a right of legal assistance
or engage a next friend and to adduce evidence in rebuttal before
the Advisory Board. Secondly, the Advisory Board had not
adjourned the hearing to enable the petitioner to keep the next
friend present for legal assistance. These failures vitiate the
detention. As far as this aspect is concerned, the facts were very
clear, in the sense, the detention order was served on the
detenue. He was informed that if he wishes to make any
representation to the Advisory Board, he can do so and address it
to the Chairman and submit it through the Superintendent of Jail.
He was further informed that he shall be heard in person by the
Board if it considers it necessary to do so if he so desires and the
desire, if any, to be heard in person may also be similarly
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communicated. The detenue neither made any representation
nor expressed any desire to be heard in person. The Secretary of
the Advisory Board issued a letter informing that in case the
petitioner wanted to make a representation, he could address it to
the Chairman, immediately. The petitioner did not respond. The
meeting of the Board was fixed on 26 th June, 1992. As per the
normal practice, he was brought from Nashik Prison to Bombay
on 26th June, 1992 for giving personal hearing by the Board. He
made detailed representation of seven pages and made three
prayers, which have been noted by the Division Bench. Then, the
proceedings of the Board meeting are referred and what
transpires is that the detenue did not object to the conduct of the
proceedings despite the Board raising a query whether his next
friend was present. He did not pray for adjournment. In that
factual backdrop, the Division bench negatived the contention
that the petitioner has not been made aware of his right of
representation, constitutional as well as statutory, neither the
Constitution nor the statute makes it mandatory to permit
assistance or adduce evidence in rebuttal. The right is spelt out
from the judgment in the case of A. K. Roy (supra). It is in these
circumstances, the Division Bench held that there is no
requirement of giving advance intimation to the detenue about
these rights. It was submitted that the right of representation
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can never be effectively exercised without these particulars and
failure to intimate these rights adversely affects the right of
representation itself and on that ground, the order of detention
gets vitiated. This submission was not accepted. We are not
concerned with other factual aspects for the Division Bench held
that the proceedings before the Advisory Baord were not vitiated.
31. Mr. Yagnik also relies upon a judgment in the case of Shri.
Ramchandra Rammilan Mishra (supra), where, the Hon'ble
Supreme Court was considering a challenge to a preventive
detention order. This court was of the view that there was no
material to show that the Advisory Board inquired with the
detenue whether his witnesses were present and thus
opportunity of examining witnesses, when he was interviewed by
the Advisory Board, was denied. Pertinently, the later ground of
challenge was that the detenue was not granted opportunity of
producing witnesses before the Advisory Board though a
representation was made in this regard on 1st March, 1997.
Before us, Mr. Yagnik would rely upon observations and
particularly in paras 6 and 7 of this judgment. They read as
under:-
"6. The position, therefore, is clear that detenu was free
to produce the witnesses before the Advisory Board in
order to rebut the allegations levelled. There was no
obligation on the Advisory Board to summon witnesses and
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it was for the detenu to keep his witness present at the
appointed time. In the instant case specific affidavit of the
Secretary which was noted by the High Court, inter alia,
stated as under:
"With reference to para 8(D & K) of the petition, it is
stated that the detenu Shri Ramchandra Rammilan
Pandey was informed by the Advisory Board through
the Superintendent, Nasik Road Central Prison, Nasik
to make representation to the Chairman, Advisory
Board, M.P.D.A. 1981 and for taking assistance of his
friend who is not a legal practitioner or examine
witnesses and keep him/them present at the time of
his interview before the Advisory Board.
The said detenu has submitted two representations
dated the 1st March, 1997 and 21st March, 1997
through the Superintendent, Nasik Road Central
Prison, Nasik. Both the representations were duly
considered by the Advisory Board. He was heard
against the detention order. The detenu did not
produce any witness for examination and did not
state before the Advisory Board that he wanted to
examine witnesses". (underlined for emphasis)
7. The undisputed position, therefore, is that the detenu
did not produce any witness for examination and even did
not state before the Advisory Board that he wanted to
examine the witness or that the witness was present. The
High Court seems to have proceeded on the basis that once
a representation is made indicating the desire to examine
witness, there was no necessity for any oral prayer. That
may be so. But as noticed in A.K. Roy's case (supra), it was
for the detenu to keep his witness ready for examination.
The specific statement of the Secretary to the Advisory
Board on affidavit is that detenu did not produce any
witness for examination. It was not for the Advisory Board
to summon any witness. When the detenu did not produce
any witness for examination, there was no necessity for
the Advisory Board to require the detenu to produce
witnesses. The approach of the High Court which
proceeded on the basis as if there was such an obligation
on the Advisory Board, therefor is not right. That apart the
Court had nothing concrete before it to surmise that any
witness was present, and the failure on the part of the
Advisory Board to verify about the same constituted denial
of an opportunity. We set aside the judgment of the High
Court."
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32. Even if we proceed on the basis that this is a decision based
on the case of A. K Roy (supra) and considers it as well, what is
evident therefrom is that the detenue was free to produce
witnesses before the Advisory Board, but there was no obligation
on the Board to summon witnesses. The detenue in that case did
not produce any witnesses nor examined them and even did not
state before the Advisory Board that he wanted to examine
witnesses.
33. Before us, however, we have an intimation from the
detaining authority in the detention order itself that the detenue
can make a representation to the detaining authority and he can
also make a representation to the Advisory Board by addressing
it to the Chairman of the Advisory Board and submit it through
the Superintendent of Jail. He was also informed that he shall be
heard by the Board if the Board considers it essential to do so or if
he so desires. If he desires to be heard in person by the Advisory
Board, he may intimate his desire to the Advisory Board or to the
Government of Maharashtra, through the Superintendent of Jail,
so that the Advisory Board may be intimated about it and
necessary arrangements may be made to produce him before the
Advisory Board on the date fixed by the Board. The detenue was
also informed that he has right to seek assistance of any friend or
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legal practitioner during the course of hearing before the
Advisory Board as well as other rights as prescribed in the Act.
34. Mr. Tripathi would submit that this information or
intimation to the detenue does not satisfy the requirements in law
for the simple reason that what other rights, as prescribed in the
Act, are referred by the detaining authority is unclear from this
statement. Pertinently, the argument is that the Advisory Board
did not intimate to the detenue about all rights and particularly
the last of the two flowing from the trinity. In that regard, we
have an affidavit, firstly of the detaining authority and thereafter
of the Advisory Board itself. As far as this ground is concerned,
the procedure followed by the Advisory Board is placed before us.
The statement on oath is that the petitioner was detained in
Nashik Central Prison. It is denied that the constitutional
safeguards and protection were not brought to the detenue's
notice. The statement that the detenue has not been informed
that he may be assisted by his next friend to defend his case
before the Advisory Board is denied and equally, his right to lead
oral evidence in rebuttal by producing witnesses. It is stated that
the order of detention was passed on 9 th August, 2017 by the
Commissioner of Police, Pune and the detenue was detained on
10th August, 2017. An intimation letter dated 21 st August, 2017
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was issued to the detenue through the Superintendent of Jail,
Pune by the Secretary, Advisory Board. The detenue was
informed that the hearing will be fixed on 1 st September, 2017 at
1.00 p.m. The detenue was served with this intimation. The case
of the detenue was referred to the Advisory Board on 1 st
September, 2017, on which date, the detenue was present along
with his advocate Shri. Abdul Latif Choudhary. He submitted a
written submission before the Board. The detenue was heard by
the Board on 1st September, 2017. Thus, he as well as the
advocate were heard and in detail so also his written
representation was considered. On that date, the advocate
prayed for time to examine witnesses, but since the witnesses
were not kept present before the Board by the detenue, the Board
considered the detailed representation of the detenue and on
hearing him and his advocate, forwarded its opinion to the
Government. Thus, there is no substance in the ground urged
before us that the detenue was not informed about his rights or
the constitutional safeguards and protection extended to him.
35. Pertinently, we do not have any rejoinder or denial of these
statements made on oath. Thus, we find that on due receipt of the
intimation of the proceedings before the Board, the petitioner
consulted and engaged an advocate, that advocate appeared
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before the board and made detailed oral submissions as well as
tendered written representation. The detenue was present
throughout. Both did not make any grievance before the
Advisory Board that the witnesses are not present because no
intimation of the nature required by law was given to the detenue.
There was no grievance made that the intimation falls short of the
requirement of law and it is nothing but an information about the
date of the hearing and the time thereof. Thus, no grievance was
made about the intimation or its contents and that it did not meet
the constitutional safeguards or the law laid down in the case of
A. K. Roy (supra). If the petitioner has obtained legal advise and
he and the advocate were allowed to make representation, then,
we do not see how any grievance can be made now in the grounds
raised in the writ petition. There is no allegation against the
Advisory Board particularly that it hastily concluded the
proceedings to the detriment of the interests of the detenue. Thus,
no prejudice has been established in this case and we agree with
Mr. Yagnik that the order of detention cannot be held to be
vitiated by non compliance with the legal mandate. Mr. Yagnik
fairly brings to our notice the contents of para 4 of this affidavit of
the Secretary of the Advisory Board and particularly the portion
where he says that when the Act does not provide the Board to
record evidence, there is no question of the detenue examining
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the witnesses. Mr. Yagnik made no serious attempt to support
this stand, rather he fairly brings to our notice the judgments on
the point, including of the Hon'ble Supreme Court. There is
substance in the contention of Mr. Tripathi that if there is one
detaining authority at Mumbai, which has been informing and
intimating the detenue of their constitutional rights and
safeguards, then, there is no justification for others not following
that course. We are of the opinion that if the Advisory Boards
wish to avoid any charge or complaint of unfairness or non-
adherence to the mandate of Article 14 of the Constitution of
India and/or the allegations of arbitrariness or discrimination,
then, it would be better advised to intimate the detenue the
trinity of rights and there is further substance in the grievance of
Mr. Tripathi that if no such intimation is given, it will not be
possible for the detenues to arrange for presence of witnesses on
the given date and time. Thus, even if deteneues are informed
that may engage an advocate, in the proceedings before the
Board, they are expected to be informed about the last of the
rights in the trinity so that they can arrange for the presence of
the witnesses or lead evidence in rebuttal. It is stated that
detenues have right to lead evidence in rebuttal. Mr. Tripathi
has produced copies of detention orders passed by the detaining
authority at Mumbai. These copies were produced for our perusal
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and Mr. Yagnik does not dispute the contents thereof. If one
detaining authority or on some occasion the Secretary of the
Board deem it fit to inform the detenue of the trinity of rights, we
think that the there should be some consistency and a uniform
pattern to be followed by the State as far as the intimations are
concerned. We do not think that this is a matter of formality any
longer. Once there are authoritative pronouncements in the field,
then, it would be better if a uniform pattern is followed either by
the detaining authority or the Secretary of the Advisory Board.
However, we hasten to add that the non-intimation about the
same necessarily vitiates the continued detention would have to
be decided in the facts and circumstances in each case. No general
rule can be laid down and ultimately post - detention procedural
matters cannot be placed above that of substance. More so, when
the subjective satisfaction is not questioned at all. Prejudice by
non-adherence to procedural matters would have to be alleged
and proved. In the present case, that element is lacking.
36. In the present case and in the view that we have taken, we
do not think that the continued detention can be held to be bad in
law. In the present case, the detenue had due intimation of
appearance before the Advisory Board and prior to that date, he
had engaged an advocate. He could have discussed the matter
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with his advocate and both of them could have arranged for
presence of the witnesses for they had 10 days time with them to
make appropriate preparation. Within these days, they could
make a detailed representation and tender it to the Advisory
Board. None prevented them from in these days in securing the
presence of witnesses before the Board. The detenue, therefore,
could have arranged for the presence of the witnesses and leading
evidence in rebuttal as well. In the facts and circumstances of the
present case and in the absence of any rejoinder affidavit or
pleading, we hold that the detenue had full opportunity to
effectively represent his case before the Board. We do not think
that the Advisory Board was in error in not taking cognizance of
the grievance now made. Since the witnesses were not present
before the Board, when if their presence could have been
arranged, now, as an afterthought, the petitioner cannot complain
that the procedure adopted by the Advisory Board contravenes
the mandate of Article 14 of the Constitution of India. We have
carefully perused all the grounds of challenge and we do not think
that the procedure adopted by the Advisory Board in this case
was unfair, unjust and unreasonable. Once the detenue was
aware of his rights, then, he cannot turn around and question the
procedure adopted by the Advisory Board.
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37. In these circumstances and without laying down any
general rule and in the light of our discussion above, we dismiss
the writ petition. Rule is discharged.
(SMT. BHARATI H. DANGRE, J.) (S.C.DHARMADHIKARI, J.)
J.V.Salunke, P.S.
