1. Detention of persons under COFEPOSA for smuggling foreign goods in Union Territory of Goa, Daman and Diu, with challenge to Administrator's authority and service of order. (Para 1 , 2 , 3 )
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1982 Supreme(SC) 94
SUPREME COURT OF INDIA
D.A. DESAI, A.P. SEN AND BAHARUL ISLAM, JJ.
Devji Vallabhabhai Tandel, Petitioner
Versus
The Administrator of Goa, Daman and Diu and another, Respondents
Writ Petns. Nos. 8080 of with 23 and 29 of 198
Decided on 29-3-1982.
WITH
Narsinh Vallabhbhai Tandel, Petitioner
Versus
The Administrator of Goa, Daman and Diu and another, Respondents.
AND
Lallubhai Govanbhai Tandel, Petitioner
Versus
The Administrator of Goa, Daman and Diu and another, Respondents.
Advocates:
A.Subhashini, EDVARD FALRIRE, RAM JETHMALANI, RANI JETHMALANI
A.Subhashini, EDVARD FALRIRE, RAM JETHMALANI, RANI JETHMALANI
Headnote:REPRESENTATION BY LAWYER—PERSON DETAINED UNDER PREVENTIVE DETENTION LAW CANNOT CLAIM RIGHT TO CONSULT LEGAL PRACTITIONER OF HIS CHOICE—HE HAS NO RIGHT ALSO TO BE REPRESENTED THROUGH LAWYER BEFORE ADVISORY BOARD
-held, an agent in “truth and substance” may appear for detenue but agent who is a legal practitioner cannot claim appearance for detenue as of right. “Friend” or “agent” essentially a comrade in profession of detenue is also barred from appearance on behalf of detenue.
Legal Category Hierarchy
- constitutional law
- administrative law
- crime and sentencing
Table of Contents
2. Whether the Administrator can independently order detention under COFEPOSA, whether the detenu was properly served, and whether counsel had the right to appear before the detaining authority. (Para 4 , 5 , 6 , 7 , 8 , 9 , 10 , 11 , 12 , 13 , 14 , 15 , 16 , 17 , 18 , 19 , 20 )
3. Writ petitions dismissed; detention order under COFEPOSA upheld, Administrator's authority and procedures confirmed. (Para 21 )
4. Can the Administrator of a Union Territory independently make an order of detention under COFEPOSA without acting on the advice of the Council of Ministers?
Yes. The Administrator is not bound to act on the advice of the Council of Ministers when making detention orders under COFEPOSA. Unlike the Governor, the Administrator has independent authority and can act on his own, especially when exercising judicial or quasi-judicial functions. (Para 4 , 5 , 6 )
5. Does a detenu have the right to appear before the Advisory Board or detaining authority through a legal practitioner under Article 22 and COFEPOSA?
No. Section 8(e) of COFEPOSA expressly bars appearance through any legal practitioner in matters connected with reference to the Advisory Board. Article 22(3)(b) denies the right to consult a legal practitioner to persons detained under preventive detention laws. (Para 11 , 12 , 13 )
6. Does the refusal to allow a detenu's lawyer to appear amount to denial of the right to make a representation under Article 22(5)?
No. Article 22(5) confers the right to make a written representation, not an oral hearing. The detenu can send written representation through jail authorities. Refusal to hear a lawyer does not deny the right to make representation. (Para 14 , 15 )
7. Does a detenu have the right to cross-examine witnesses before the Advisory Board in preventive detention proceedings?
No. The Advisory Board proceedings are not judicial trials but reviews of sufficient cause for detention. The detenu has no right to cross-examine persons on whose statements the order of detention is based. (Para 16 , 17 )
8. Is supply of the order of detention in English without Gujarati translation a violation of Article 22(5) when the detenu is a Gujarati speaker?
No. The order under COFEPOSA is a formal recital of the statutory provision. The grounds of detention were supplied in Gujarati. There was no violation of Article 22(5) as the detenu was not handicapped in making representation. (Para 8 )
JUDGMENT
BAHARUL ISLAM, J.:— These three writ petitions under Art. 32 of the Constitution of India involve common questions of facts and law. This common order of ours, therefore, will dispose of all of them. It will be sufficient if we refer to the facts only of Writ Petition No. 8070 of 1981. This petition is directed against the order dated 11th September, 1981 made under Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (the COFEPOSA) by the Administrator of Goa, Daman and Diu (hereinafter the Administrator), detaining the) petitioner "with a view to preventing him from smuggling goods".
2. The material facts in a nutshell as alleged in the grounds of detention in Writ Petition No. 8070 of 1981 are that the petitioner along with Lallu Govan Tandel alias Lallu Malbari, Narsinh Vallabhbhai Tandel (the petitioners in the other two writ petitions) and Narsinghbhai Daulabhbhai (detenu since released) indulged in smuggling of foreign goods such as fabrics, speakers, cassettes, video cassettes, wrist watches, refrigerators silver etc. The goods in 36 packages were recovered from House No. 12/134 of Daman Municipal Area. These goods were kept there by two persons, namely; Tulsibhai Ranchhodhbhai Tandel and Mangalbhai Bhulabhai Tandel engaged by the aforesaid four detenus for lifting the said 36 packages from a vessel grounded in sea off Ghati Sheri, Nani Daman. The contraband goods recovered were worth Rs. 5,30,281.50. The aforesaid Tulsidas and Mangalbhai made certain statements on 2nd July, 1981 implicating the aforesaid four persons including the petitioner. When the Customs squad was keeping a watch on Nani Daman coast, a vessel was found in the sea and goods were being unloaded. In the process Tulsibhai Ranchhodhbhai and Mangalbhai Bhulabhai were accosted and each had a package with him and on being led by them the customs squad reached the house bearing municipal No. 12/134. On being questioned, the aforementioned two labourers Tulsibhai and Mangalbhai stated that they were engaged as labourers for transporting packages of contraband goods from a vessel grounded in sea on Ghatisheri to the said house bearing No. 12/134. Tulsibhai and Mangalbhai, in the course of interrogation, admitted that they were engaged by detenu Devji Vallabhbhai Tandel and Lallu Govan for unloading the packages containing contraband goods.
3. The impugned order of detention dated 11th September, 1981 (Annexure A) together with the grounds of detention (Annexure B) were served on the petitioner on June 30, 1981, which was the date of apprehension.
4. The first submission of Mr. Rem Jethmalani, learned counsel for the petitioner, is that under the Government of Union Territories Act, 1963, (hereinafter the Act), the order of detention can be made only by the Chief Minister and in the name of the Administrator and not by the Administrator, though it can be made in the name of the Administrator. In the instant case, the order of detention was made, and the representation dated 10th October, 1981 of the petitioner was disposed of, by the Administrator, which, it is submitted, is not permissible in law.
The argument sought to be made seems to be that the status of the Administrator is similar to that of the Governor of a State and as such the Administrator had to act with the aid and advice of the Council of Ministers. Admittedly, there is an elected Assembly with a Council of Ministers in the Union Territory of Goa, Daman and Diu. Therefore, the argument proceeds, the Administrator on his own cannot make an order of detention. The order can be made by the Chief Minister or any other person authorised under Section 3 of the COFEPOSA in the name of the Administrator.
On the other hand in Paragraph 7 of the counter-affidavit, it has been stated by the respondent, "that the respondent has full authority to make the order of detention under COFEPOSA in exercise of the powers conferred under the statute. In case of the
