T.N. Unnikrishnan vs Union Of India And Ors.
1987 Latest Caselaw 27 Del

JUDGMENT

Malik Sharief-Ud-Din, J.

(1) By an order dated 29th June, 1985 passed by the Government of India under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 the petitioner came to be detained on 14th March, 1986. The detention was directed with a view to prevent him from indulging in any activity prejudicial to the augmentation of the foreign -exchange. The incident on which the detention is based is dated 10/5/1985. Earlier the petitioner was granted bail by court of law on 27/6/1985.

(2) There is no need for me to detail broad facts of the incident that ultimately culminated the detention of the detenu. Mr. Herjinder Singh arguing the petition for the petitioner has mainly raised three contentions and the fate of the petition depends upon the out-come of the contentions raised. The first contention of Mr. Herjinder Singh is that there has been a considerable delay in consideration of his representation. This ground he has specifically raised in the petition and the grounds. This contention has been met by the other side in their counter at paras 12 to 17 which are as under :-

"12to 17 : In reply to paras 12 to 17 of the petition, it is stated that the petitioner's representation dated 29/4/1986 and not 23/4/86, was received in the Ministry of Finance, New Delhi on 5/5/86 and said representation was placed before detention authority on 6/5/86, who considered and rejected the same on 13/5/86. Memorandum to -this effect was served on the petitioner on 22/5/86 through the office of Superintendent, Central Prison, Trivandrum. Thus it is specifically denied that there was any wrong, unreasonable and unexplained delay in considering the representation of the petitioner".

MR.Watwani has vehemently urged that in the light of the facts given by the respondents in their counter-affidavit it is very clear that at no stage the respondents have been lax in considering the representation. The requirement of the law is that the representation must be considered and the result thereof conveyed to the detenu expeditiously. Having gone through the details given in the paras 12 to 17 of the counter-affidavit, to my kind, there is no laxity on the part of the respondent. In fact the representation has been considered at the earliest possible movement. That will dispose of the first contention of Mr. Herjinder Singh.

(3) Mr. Herjinder Singh has further urged that he made representation to the Central Government on 2/8/1986 in which apart from other facts he also requested the Central Government to supply legible copies of the documents. His submission is that earlier while the grounds of detention were conveyed to him legible copies were not supplied to him and the detaining authority is bound to supply him legible copies of the documents even without asking of the detenu. He states that this was a constitutional obligation cast upon the detaining authority as he had a right to get legible copies of these documents under Article 22(5) of the Constitution and if for any reason he is deprived of the right,, the detention stands vitiated.

(4) Together with this in the same representation the detenu through his Advocate had requested the Central Government to make a further reference of his case to the Advisory Board. Whether the Central Government is bound to make a further reference to the Advisory Board and under what circumstances is a matter which I will deal with. Before I do so, I must notice some more facts.

(5) On 23/4/1986 the detenu had made representation to the Advisory Board which was due to hold its sitting at Delhi on 15/5/1986. The detenu belongs to Trivandrum. Instead of holding its sitting at Delhi the Advisory Board held its sitting on 9/5/1986 at Madras. Under these circumstances the detenu represented to the Central Government that since he belonged to Trivandruni he was deprived of his right to adduce evidence in rebuttal of the grounds of detention and also of his right to be assisted by a, non-advocate friend. That the detenu has a right to be. assisted b.y a non-advocate friend and to examine witnesses in rebuttal if they are in attendance has been recognised in the case of A.K. Roy v. Union of India, .

(6) There can be absolutely no doubt on the point of law. The question that really arises for consideration is as to whether the detenu has expressed a desire to examine the witnesses in rebuttal or to be assisted by non-advocate friend. Admittedly in his representation dated 23/4/1986 to the Advisory Board no such request has been made by the detenu nor am I told that when he was heard by the Advisory Board at Madras he did raise a protest that he is being deprived of a valuable right because the venue oF hearing has been shifted to a place where he could not keep his witnesses or non-advocate friend in attendance. This fact came to his mind late in the day on 2/8/1986 when he made the representation to the Central Government through his advocate. Obviously this is based on the wisdom of the Advocate and in fact he had never desired to examine the witnesses in rebuttal nor had he at any stage desired that he be provided with an assistance of a non-advocate friend.

(7) That the Central Government can make further reference to the Advisory Board is a matter which has been recognised in Ram Bah Rajbhar v. State of West Bengal and others, .

(8) But the real question that arises is whether this law laid down by the Supreme Court will be applicable to all cases ipso facto or not. To my mind the law laid down by the Supreme Court is not to be applied indiscriminately. In order to compel and enable the Central Government to make a further reference of the detenu's case to the Advisory Board, the detenu has to bring to the notice of the Central Government some fresh material which at the time of consideration of the case by the Advisory Board was not available. This can also happen if after the Advisory Board's opinion a new or supervening fact comes to light which would necessitate by the revocation of the order of detention. It is only in such circumstances that the Central Government is obliged to make a further reference to the Advisory Board. There is otherwise no fun in making further reference to the Advisory Board when no new facts or supervening circumstances are brought to its notice. On cannot assume a fact to be fresh. It must really be a fact which was not either within the knowledge of the detenu or within the knowledge of the Advisory Board or the Central Government. The detenu in the present case knew that he had a right to lead evidence in rebuttal and to be assisted by a non-advocate friend. He never desired to exercise this right either when he made representation to the Advisory Board on 23/4/1986 or on the date when the Advisory Board gave him hearing. Had that been the case then the detenu could rightly represent to the Central Government that because of long distance at which the Advisory Board met he could not carry his witnesses which in other words, would amount to deprivation of the right. Perhaps that could become a very cogent ground for the Central Government to make a further reference to the Advisory Board and not otherwise. I do not, therefore, agree with the contention of Mr. Herjinder Singh that the Central Government by refusing to make a further reference to the Advisory Board has deprived him of his right. This I say not as a matter of general rule but in the light of the peculiar facts and circumstances of this case.

(9) Now the said contention which I noticed earlier is in respect of non-supply of legible copies of documents. It may be noticed that the petitioner made two representations on 29/4/1986 to the detaining authority and to the Central Advisory Board. That the detenu has a right of getting legible copies of the documents relied upon by the detaining authority in the language known to him is a matter beyond any dispute and that these documents together with grounds of detention must be supplied to the detenu within 5 days or 15 days as the case may be even without asking of the detenu is also a matter which is not in doubt. This grievance about non-supply of legible copies of the documents was also for the first time raised by the detenu in his representation dated 2/8/1986. Earlier to that not a word has been said by him either in his representation dated 29/4/1986 or even before the Advisory Board. Even though within 18 days of the receipt of this representation the detenu was informed that he has been supplied legible copies of all the documents but even then the authorities had been directed to provide him additional set of documents. Be that what it is, the real question is whether at this belated stage in the absence of a grievance having been made whenever occasion arose the detenu can be trusted to state that he was not supplied legible copies of the documents. In my view all these points have been raised for the first time on 2/8/1986 in the representation by the Advocate of the petitioner with a view to over power the detention order.

(10) Having considered the contentions of Mr. Herjinder Singh, I must with great respect, differ with Mr. Herjinder Singh. I find no merit in the petition which is disallowed.