IMPORTANT POINT
The Advisory Board committed an error of law in denying to the detenu right to orally examine the witnesses present in rebuttal of detention order.

JUDGMENT

Khalid, J. - The Special Leave Petition is directed against the Judgment dated 26.8.1986 of a Single Judge of the Delhi High Court in Criminal Writ No. 170/86 filed by Shri Harbans Lal, father of the detenue Om Prakash. The Writ Petition is also by the same person. Both these matters are being disposed of by this common Judgment. Special Leave granted.

2. The cases relate to the detention of Shri Om Prakash under section 3(1) of the COFEPOSA Act. An order of detention was passed against him on 31st March, 1986 by tile Additional Secretary to the Government of India, Ministry of Finance Department of Revenue-the Respondent No.1 herein. The detenue was served with the grounds of detention on the same date. The case against the detenue is that he was in possession of a large quantity of contraband goods hidden in his premises No. 5/23, West Patel Nagar, New Delhi. These premises were searched by the officers of the Directorate of Revenue Intelligence in the early hours of 20.3.1986, as a result of which foreign goods worth Rupees Twenty one lakhs and odd were recovered. The accusation against the detenue is that he brought these articles during the various trips that he made to Hong Kong between 10.12.1985 and 19.3.1986.

3. On 29th of April, 1986, the Advisory Board met to consider the propriety of the detention order. 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 this case he wanted to examine five witnesses before the Advisory Board. These 5 witnesses were present when the matter was to be heard by the Advisory Board on 29th April, 1986. This fact was made known to the Advisory Board. The Board intimated the detenues legal Adviser that it would not examine the-said witnesses but would instead permit the detenue to produce their affidavits. Thus an opportunity was lost to him that day to examine the witnesses in rebuttal It is the detenues case that despite best efforts by his legal Adviser it was not possible to secure the affidavits of the witnesses. The said witnesses were therefore brought again on the 1st of May, 1986, when the Board resumed its hearing and an application was made to the Board to examine them. Annexure-C attached to the Writ Petition shows that the detenue filed an application before the Advisory Board on 29th April, 1986, requesting the Board to examine the witnesses brought in his defence both on 29.4.1986 and 011 1.5.1986 and without making any request for an adjournment. The Advisory Board declined this request. 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 records of proceedings of the Advisory Board were forwarded to the Central Government and the order of detention was confirmed.

4. The learned counsel for the detenue raised two questions of law, for our consideration, in his attempt to persuade us to accept his plea that the detention in question had to be quashed:

(i) the Advisory Board acted in violation of taw as mandated by a Constitution Bench Judgment of this Court 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) the Advisory Board was bound under la w to send the entire records of the proceedings before it to the Central Government and the Central Government in turn bound to apply its mind to the entire materials before proceeding to make the order of confirmation. The Central Government, in this case, was not informed about the presence of 5 witnesses before the Advisory Board, ready to be examined and the Boards refusal to record their evidence.

5. In support of the first contention, the learned counsel for the pe