JUDGMENT (ALTAMAS KABIR, J.)

1. Leave granted.

2. One Abu Baker Haji Qasim, the brother of respondent No.1 herein, was placed under detention after his arrest on 10th September, 2005, pursuant to an order of detention dated 9th September, 2005, issued by the Principal Secretary (Appeals and Security) to the Government of Maharashtra, specially empowered under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act of 1974 (hereinafter referred to as "the COFEPOSA Act, 1974").

3. On 22nd September, 2005, the said Abu Baker Haji Qasim (hereinafter referred to as "the detenu") filed Criminal Writ Petition No.2312 of 2005, through the respondent No.1 herein, before the Bombay High Court for quashing and setting aside the detention order dated 9th September, 2005. At the same time, in the proceedings, before the Advisory Board, the detenu made a representation for permission to be represented in the proceedings through a legal practitioner. Such representation was, however, rejected by the Advisory Board on 28th October, 2005, on the ground that under the COFEPOSA Act 1974, a detenu was not entitled to be represented by a legal practitioner and consequently it was not necessary to consider such prayer. In fact, the Advisory Board rejected the prayer made on behalf of the detenu for permission to be represented by a legal practitioner upon holding that such prayer could not be considered "for some obvious reasons".

4. When the writ petition came up for hearing, the High Court upon considering the submissions made on behalf of the respective parties and upon placing reliance on a Division Bench Judgment of the Bombay High Court in Kekalwa Samuele Kongwa vs. Union of India [1985 (1) Bom. 742 C.R. 742] allowed the writ petition and quashed the detention order holding that the prayer of the detenu for permission to be represented by a legal practitioner was not rejected after proper consideration but on erroneous grounds. It may not be out of place to mention that in Kekalwa Samuele Kongwas case (supra) the Division Bench of the Bombay High Court held as follows :-

"A request made by a detenu for being represented by a legal practioner must be considered on merits and cannot be turned down on the ground (i) that the law does not give such a right to the detenue, or (ii) that it was the practice of the Board not to allow representation of a detenue by a legal practitioner."

5. The said judgment and order of the Bombay High Court allowing the writ petition and quashing the detention order is under challenge in this appeal.

6. Although, the life of the detention order came to an end on 9th September, 2006, Mr. Adsure, appearing for the appellant - State of Maharashtra, submitted that the ground on which the High Court had quashed the detention order was erroneous and was required to be corrected.

7. Referring to clause (3)(b) of Article 22 of the Constitution, Mr. Adsure submitted that a person placed under preventive detention was not entitled to be represented by a legal practitioner before the Advisory Board. In this regard, Mr. Adsure also referred to Section 8(e) of the COFEPOSA Act, 1974, which reads as follows:-

"8(e) - a person against whom an order of detention has been made under this Act shall not be entitled to appear by any legal practitioner in any matter connected with the reference to the Advisory Board, and 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;"

8. Mr. Adsure submitted that both Article 22(3)(b) of the Constitution as well as Section 8(e) of the COFEPOSA Act, 1974, makes it quite clear that a detenu under any of the preventive detention enactments would not be entitled to be represented by a legal practitioner before the Advisory Board.

9. In support of his submissions, Mr. Adsure placed reliance on certain passages from the decision of this Court in Smt.