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2000 DIGILAW 83 (KER)

Mrs. Vimi Vaswani v. State Of Kerala

2000-02-08

ARIJIT PASAYAT, K.S.RADHAKRISHNAN

body2000
Judgment :- PASAYAT, C.J. Order of detention passed in terms of Ss. 3(1)(i) and 3(1)(iii) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (in short 'the Act') in respect of Ishwar Vishindas Vaswani (hereinafter referred to as 'detenu') is challenged by his wife in this Original Petition. Order of detention dated 30-6-1999 was passed by the Principal Secretary to Government of Kerala, Home (SSA) Department. Documents relied on while passing order of detention were also supplied. Representations were filed by detenu to the State Government as well as Union Government. A representation was also filed before Chairman, COFEPOSA Advisory Board. 2. Though several grounds have been indicated to challenge order of detention, at the time of hearing, only one point was urged. It was submitted that before the Advisory Board, detenu wanted to be represented by an advocate or a near friend. The Advisory Board did not accept the prayer and thereby constitutional protections provided by Article 22(5) of the Constitution of India, 1950 (in short 'the Constitution') to detenu were violated. Counsel appearing for respondents, i.e., State of Kerala and Union of India, submitted that it is settled position of law that detenu has no right to be represented by a counsel before the Advisory Board. In the circumstance of the case, Advisory Board did not feel it necessary to countenance the prayer made by detenu for being represented by a near friend. 3. At this juncture, it is necessary to take note of the prayer made by detenu before the Advisory Board. Said prayer, inter alia, reads as follows : "I therefore request you to pass favourable orders revoking the order of my detention. Please also make copies of this representation and sent them as soon as possible to the State Government/detaining authority and to the Central Government so that they may consider it without delay. I also request an opportunity of personal hearing at which time I may be permitted to be represented by my counsel, or if that is not permissible, by a near friend since I fear that due to ill-health and a perturbed mind, I may not be able to effectively put forth my case. I also request an opportunity of personal hearing at which time I may be permitted to be represented by my counsel, or if that is not permissible, by a near friend since I fear that due to ill-health and a perturbed mind, I may not be able to effectively put forth my case. Please convey me the permission for representation in sufficient advance for me to arrange for a representative on the date of personal hearing." Position, therefore, is clear that detenu had requested to be represented by a near friend at the time of hearing by the Advisory Board, if not permitted to be represented by an advocate and that has not been granted. 4. A Constitution Bench of Apex Court in Phillippa Anne Duke v. State of Tamil Nadu, AIR 1982 SC 1178 : (1982 Cri LJ 1389) held as follows (at pages 1391-1392 of Cri LJ) : "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 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, mah lack the ease and composure to present his point of view. He may be 'tongue-tied, nervous, confused or wanting in intelligence' (see : Pett v. Greybound Racing Association Ltd. (1969) 1 QB 125, and if justice is to be done, he must 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 must, to be represented by a person who has speech, even so, a person who finds himself unable 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 may be that denial of legal representation is not denial of natural justice per se, and, therefore, if a statute excludes that facility expressly, it would not be open to the Tribunal to allow it. Fairness, as said by Lord Denning M.R., in Maynard v. Osmond (1977) 1 QB 240, 253, can be obtained without legal representation. But, it is not fair, and the statute does not exclude that right, that the detenu should not even be allowed to take the aid of a friend. Whenever demanded, the Advisory Boards must grant that facility." 5. The very fact that detenu did not succeed in convincing the Advisory Board of the points of view would, prima facie, indicate that the competence of detenu to drive his points home was not as satisfactory as pictured by the Advisory Board. Secondly, the Advisory Board did not even test the competence of the friend whose appearance was requested for. Such a course was found to be fatal to detention by Apex Court in P. Murugesan v. State, 1999 (9) Supreme 467 : (1999 AIR SCW 4751). 6. Apex Court has stated time and again that denial of such an opportunity to a detenu, if he made such a request and when such a friend was present, would violate the constitutional provision and would vitiate the detention. (see : Abdul Zabbar v. State of Rajasthan (1984) 1 SCC 443 : (1983 Cri LJ 853) and Anil Vats v. Union of India, 1991 Supp (2) SCC 661 : (1991 Cri LJ 605). In the second cited decision, a plea was made that detenu was capable of presenting his case effectively, but Apex Court was not persuaded to give accord to the same. That was a case where detenu was a graduate and was noted to be competent to defend himself. Nevertheless, Apex Court pointed out the following (at pp. 664-65) : "9. We do not see any valid reason why the detenu should have been refused the assistance of a friend. It is true that the Advisory Board has to report within the prescribed period and the meeting may brook no delay. But a timely request of the detenu for being allowing to be assisted by a friend ought to be considered. We do not see any valid reason why the detenu should have been refused the assistance of a friend. It is true that the Advisory Board has to report within the prescribed period and the meeting may brook no delay. But a timely request of the detenu for being allowing to be assisted by a friend ought to be considered. It has not been denied in this case that the person proposed to assist the detenu was present at the relevant time and place. Mr. Bhandari submits that A. K. Roy's case ((1982) 1 SCC 271) : (1982 Cri LJ 340) is distinguishable on the ground that the detenu therein was not a graduate as in this case. We are of the view that it cannot be a sufficient ground ............ He may not properly be served by his memory, he may be nervous, incoherent and his faculties may be benumbed. Assistance of a friend would result in fairness of procedure towards the detenu. We, therefore, feel that the procedural safeguard, as envisaged under Article 22(5) was not satisfied in this case, with the result that continuation of detention of the petitioner would be rendered illegal." 7. In the instant case, a specific prayer was made for being represented by a near friend. The Advisory Board was obliged to consider the said prayer. Non-consideration of the same itself vitiates order of detention as the protection mandated by the Constitution has been violated. Order of detention cannot, therefore, be maintained. In the result, the Original Petition is allowed. We order detenu to be set be set at liberty forthwith, unless required to be in custody in connection with any other case. Petition allowed.