The provisions of the Evidence Act do not regulate the consideration of the material which is put before the detaining authority for consideration in order to decide whether it would make an order of detention.

Headnote:
Whether the failure of the Advisory Board to adjourn the hearing when it rejected at the time of the hearing the detenu's request for the assistance of a legal practitioner even in the absence of such a request by the detenu, will vitiate the order of detention Whether the confessional statement made by the detenu to the police officer is admissible in cases of detention under a Preventive Detention Act such as Tamil Nadu Act No. 14 of 1982.
Fact of the Case:

The Commissioner of Police, Madras City passed an order of detention under section 3(1) of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug-offenders, Goondas, Immoral Traffic Offenders and Slum Grabbers Act, 1982 (hereinafter referred to as the Act) directing that the petitioner be detained and kept in custody in the Central Prison, Madras. The petitioner forwarded a representation dated 7-6-1985 to the State Government which was received by the State Government on 10-6-1985. In this representation at the end of paragraph 5, the petitioner asked for permission to have the assistance of an advocate to be present before the Advisory Board. The request made to the State Government is contained in the following words. "I may also be permitted to have the assistance of an advocate to represent my case before the Advisory Board."
Finding of the Court:

1. There is no duty or obligation on the Advisory Board to suo motu adjourn the hearing of the reference made to it when on the date of the hearing the detenu's request for assistance of a legal practitioner is rejected even though the detenu does not request for adjournment 2. The confessional statement made by the detenu to the police officer can be considered by the detaining authority as material relevant for making an order of detention against the maker of the statement, but the weight to be attached to it is for the said authority to decide.
Issues: 1. Whether the failure of the Advisory Board to adjourn the hearing when it rejected at the time of the hearing the detenu's request for the assistance of a legal practitioner even in the absence of such a request by the detenu, will vitiate the order of detention 2. Whether the confessional statement made by the detenu to the police officer is admissible in cases of detention under a Preventive Detention Act such as Tamil Nadu Act No. 14 of 1982.
Ratio Decidendi: 1. The Act contains provisions similar to the provisions in other detention laws requiring a reference to the Advisory Board and the procedure of Advisory Boards. Section 10 of the Act which requires a reference to the Advisory Board to be made reads as follows. "In every case where a detention order has been made under this Act, the State Government shall, within three weeks from the date of detention of a person under the order, place before the Advisory Board constituted by them under S. 9, the grounds on which the order has been made and the representation, if any, made by the person affected by the order, and in the case where the order has been made by an officer, also the report by such officer under sub-section (3) of section 3. Section 11 deals with the procedure of Advisory Boards and sub-sections (1) and (S) which alone are relevant far our purpose read as follows" (1) The Advisory Board shall, after considering the materials placed before it and, after calling for such further information as it may deem necessary from the State Government or from any person called for the purpose through the State Government or from the person concerned, and if, in any particular case, the Advisory Board considers it essential so to do or if the person concerned desires to be heard, after hearing him in person, submit its report to the State Government, within seven weeks from the date of detention of the person concerned (5) Nothing in this section shall entitle any person against whom a detention order has been made to appear by any legal practitioner in any matter connected with the reference to the Advisory Board. Section 11(5) expressly bars the representation of the detenu by any legal practitioner in any matter connected with the reference to the Advisory Board. Section 11(1) and 11(5) together, it is clear that personal hearing to the detenu is contemplated by the Act only if the Advisory Board considers it essential to do so or if the person concerned desires to be heard by the Advisory Board. If the detenu does not desire to be heard in person, then the Advisory Board is entitled to consider the material placed before it and the representation even without hearing him. Of course, if the Advisory Board itself considers it essential to hear the person concerned, then the Advisory Board can also hear the detenu. It however appears that it is the normal practice that a notice of personal hearing is always given to the detenu. So far as the provisions of the Act are concerned, the procedure before the Advisory Board is governed by section 11 and if no request is made by the detenu to be heard in person or to hear a friend of his choice on his behalf, then it is difficult to spell out any duty in the Advisory Board to adjourn the hearing after the request for being represented by a legal practitioner is rejected. 2. The nature of the jurisdiction of detention is thus now well established. The order of detention is made by an executive authority and that when it makes such an order, it does not do so in the exercise of judicial or quasi-judicial power; nor is the jurisdiction to reach a subjective satisfaction a criminal or a quasi-criminal in character. While making use of any material in order to form a subjective satisfaction the normal rule of criminal jurisprudence of proof beyond reasonable doubt is not attracted. Similarly, the proceeding before the Advisory Board is also not quasi-judicial or quasi-criminal in character. It is in the light of this well settled position of law that the question as to whether on the analogy of section 25 the confession cannot be considered as valid material by the detaining authority must be determined. It is true that confessions recorded by police officers are often looked upon with suspicion. Section 25 of the Evidence Act which provides that no confession made to a police officer, shall be proved as against a person accused of an offence, is undoubtedly a bar against the use of such confession for the purpose of proving an offence against an accused person. Though initially it was argued that section 25 of the Evidence Act should be construed as ruling out the use of a confession as material to be considered by the detaining authority, what was however finally contended is that on the analogy of section 25, a confession must be excluded from consideration by the detaining authority. Confession is a form of an admission and even in a criminal case section 27 of the Evidence Act carves out a small area in which such a confession could be proved. The rule of English Criminal Law which makes confession by an accused in-admissible to be proved against him and on which section 25 of the Evidence Act is based is discussed by the Privy Council in Ibrahim v. Emperor, 1914 AIR(PC) 155 : 1914 (15) CrLJ 326). The Privy Council has observed as follows It has long been established as a positive rule of English criminal law, that no statement by an accused is admissible in evidence against him unless it is shown by the prosecution to have been a voluntary statement, in the sense that it has not been obtained from him either by a fear of prejudice or hope of advantage exercised or held out by a person in authority."
Final Decision: 1. There is no duty or obligation on the Advisory Board to suo motu adjourn the hearing of the reference made to it when on the date of the hearing the detenu's request for assistance of a legal practitioner is rejected even though the detenu does not request for adjournment 2. The confessional statement made by the detenu to the police officer can be considered by the detaining authority as material relevant for making an order of detention against the maker of the statement, but the weight to be attached to it is for the said authority to decide.

Judgment :-

M. N. CHANDURKAR, C.J.

Two questions of law have been framed by the Division Bench which according to the learned Judges required consideration by a Full Bench. The two questions are as follows.

(1) Whether the failure of the Advisory Board to adjourn the hearing when it rejected at the time of the hearing the detenu's request for the assistance of a legal practitioner even in the absence of such a request by the detenu, will vitiate the order of detention

(2) Whether the confessional statement made by the detenu to the police officer is admissible in cases of detention under a Preventive Detention Act such as Tamil Nadu Act No. 14 of 1982.

We are not concerned with the merits of the detention order passed against the detenu-petitioner. It is therefore not necessary to refer to the grounds on which the petitioner had been detained. We are therefore setting out only such of the facts that are material for the decision of the two questions which have been canvassed before us.

2. The Commissioner of Police, Madras City passed an order of detention under section 3(1) of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug-offenders, Goondas, Immoral Traffic Offenders and Slum Grabbers Act, 1982 (hereinafter referred to as the Act) directing that the petitioner be detained and kept in custody in the Central Prison, Madras. The petitioner was served with the grounds of detention and other documents on 25-5-1985. The order of detention was confirmed by the State Government on 30-5-1985. The petitioner forwarded a representation dated 7-6-1985 to the State Government which was received by the State Government on 10-6-1985. In this representation at the end of paragraph 5, the petitioner asked for permission to have the assistance of an advocate to be present before the Advisory Board. The request made to the State Government is contained in the following words.

"I may also be permitted to have the assistance of an advocate to represent my case before the Advisory Board." *

This representation was forwarded by the State Government to the Advisory Board on 11-6-1985. It was also forwarded to the Commissioner of Police on the same day. The Commissioner of Police submitted his remarks on 14-6-1985. The Advisory Board met on 17th June, 1985 and the Board found that there was sufficient cause for the detention of the petitioner. Thereafter, the Chief Minister passed an order on 25-6-1985 rejecting the representation of the detenu. The order of the State Government was served on the detenu on 25-6-1985. The petitioner then challenged his detention by a writ petition in this Court. Several contentions raised on behalf of the petitioner were rejected by the Division Bench. One of the contentions raised before the Division Bench was that the petitioner had been denied a reasonable opportunity to make an effective representation as the Advisory Board when it turned down the request of the detenu failed to adjourn the proceedings as laid down in the unreported decision of this Court in Suresh v. State of Tamil Nadu (W.P. No. 12708 of 1984) followed by the Bench in Ramaswami v. State of Tamil Nadu (W.P. No. 11605 of 1985). The Division Bench in the case of Suresh had taken the view that even if the Advisory Board had decided not to permit the detenu to have legal assistance, they should have adjourned the matter giving enough time to the detenu to prepare his case for oral representation, if any. The Division Bench further observed.

"It is no answer to say that when he was informed orally that his request for legal assistance is rejected, he should have requested for an adjournment of the hearing. It is not a question of the detenu asking for time for making a representation. He is already under preventive detention. It is the duty of the Advisory Board to give him sufficient time to enable him to present his case at the time of personal hearing. If the argument that unless he had made a request for an adjournment, the Advis

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