Full Judgment Text
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRI. WRIT PETITION NO. 2312 OF 2005
CRI. WRIT PETITION NO. 2312 OF 2005 CRI. WRIT PETITION NO. 2312 OF 2005
Zubair Haji Qasim, ) ..Petitioner.
Indian Inhabitant, R/a.302, ) (Brother of the detenu)
Shale Rock, Somnath Lane, )
Bandra (W),Mumbai-400 050. )
V/s.
1. The State of Maharashtra, ) ..Respondents.
Through the Secretary, to the )
Govt. of Maharashtra, Home Dept. )
(Special), Mantralaya, Mumbai-32.)
)
2. Smt. Neela Satyanarayana, )
The Principal Secretary, )
(Appeals & Security), Govt. of )
Maharashtra, Home Dept.(Special) )
Mantralaya, Mumbai -32. )
)
3. The Superintendent of Prison, )
The Mumbai Central Prison, )
Arthur Road, Mumbai. )
)
4. The Superintendent of Prison, )
The Nashik Road Central Prison, )
Nashik Road, Nasik. )
)
5. The Secretary, )
Hon’ble Advisory Board, )
Mantralaya, Mumbai. )
---
Mr. Maqsood Khan for the Petitioner.
Mr. D.S.Mhaispurkar, APP for the Respondent State.
---
CORAM : D. G. DESHPANDE & CORAM : D. G. DESHPANDE & CORAM : D. G. DESHPANDE &
S. A. BOBDE, JJ. S. A. BOBDE, JJ. S. A. BOBDE, JJ.
DATED : 30TH JUNE, 2006. DATED : 30TH JUNE, 2006. DATED : 30TH JUNE, 2006.
ORAL JUDGMENT .: ORAL JUDGMENT .: ORAL JUDGMENT .:
1. Heard Mr. Maqsood Khan for the petitioner and
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the learned APP for the State.
2. The petitioner is the brother of the detenu.
His advocate raised only one point that even though in
his representation to the Advisory Board, he has
specifically prayed that he be given opportunity to
putforth his case through the legal practitioners, it
was not considered. In support of this contention, the
learned counsel for the petitioner relied upon a
division bench judgment of this court in Kekalwa Samuele Kekalwa Samuele Kekalwa Samuele
Kongwa vs. Union of India, Kongwa vs. Union of India, reported in 1985 (1) Bom. Kongwa vs. Union of India, 1985 (1) Bom. 1985 (1) Bom.
C.R. 742 C.R. 742, wherein it is held and observed by the C.R. 742
division bench in para -19 sub-para (6), as follows :
"A request made by a detenu for being
represented by a legal practitioner 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 detenu, or (ii) that it was
the practice of the Board not to allow
representation of a detenu by a legal
practitioner."
3. Our attention was also drawn to the affidavit of
the Advisory Board by the learned Advocate for the
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Petitioner. In that affidavit, the Advisory Board has
stated that since the petitioner is brother of the
detenu and under the COFEPOSA Act, the detenu is not
entitled to be represented through legal practitioner,
it was not necessary to consider his prayer. In view of
the above said judgment and a specific statement made by
the Advisory Board in its affidavit referred to above,
we gave liberty to Mr. Mhaispurkar, learned APP, to go
through the record and proceedings of the Advisory Board
and then we re-heard the matter again.
4. After going through those papers, Mr.
Mhaispurkar, pointed out that the Advisory Board
rejected the prayer of the petitioner for being
represented through a legal practitioner by observing -
" that the prayer of the detenu for permitting to be
represented through legal practitioner cannot be
considered for some obvious reasons". This is
contradictory to the affidavit, wherein it is asserted
that a detenu under the COFEPOSA Act is not entitled to
be represented through a legal practitioner. The
detention and the case before us is also under the
COFEPOSA Act and the division bench judgment, referred
to above, of Mr.Jahagirdar and Mr.Jamdar, JJ. is also
under the COFEPOSA Act. When the division bench
judgment has clearly laid down the law in para -19,
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sub-para (6), as stated above, then the Advisory Board
was not permitted to raise the contention in their
affidavit that detenu has no legal right to be
represented in the cases of detention under the COFEPOSA
Act. Secondly, the affidavit is in contravention of the
record and proceedings of the Advisory Board, as pointed
out above. What is meant by "obvious reasons" is not
clear and consequently, it has to be held that the
prayer of the detenu for permission to be represented by
the legal practitioner was not rejected after proper
consideration. It was rejected on erroneous grounds and
therefore, the order of detention is required to be set
aside and quashed.
5. The petition is allowed and continuous detention
of the detenu is rendered illegal after 27.10.2005. He
should be set free, if not required in any other matter.
(D.G.DESHPANDE,J)
Dt.30.06.2006
(S.A. BOBDE, J)
.....
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRI. WRIT PETITION NO. 2312 OF 2005
CRI. WRIT PETITION NO. 2312 OF 2005 CRI. WRIT PETITION NO. 2312 OF 2005
Zubair Haji Qasim, ) ..Petitioner.
Indian Inhabitant, R/a.302, ) (Brother of the detenu)
Shale Rock, Somnath Lane, )
Bandra (W),Mumbai-400 050. )
V/s.
1. The State of Maharashtra, ) ..Respondents.
Through the Secretary, to the )
Govt. of Maharashtra, Home Dept. )
(Special), Mantralaya, Mumbai-32.)
)
2. Smt. Neela Satyanarayana, )
The Principal Secretary, )
(Appeals & Security), Govt. of )
Maharashtra, Home Dept.(Special) )
Mantralaya, Mumbai -32. )
)
3. The Superintendent of Prison, )
The Mumbai Central Prison, )
Arthur Road, Mumbai. )
)
4. The Superintendent of Prison, )
The Nashik Road Central Prison, )
Nashik Road, Nasik. )
)
5. The Secretary, )
Hon’ble Advisory Board, )
Mantralaya, Mumbai. )
---
Mr. Maqsood Khan for the Petitioner.
Mr. D.S.Mhaispurkar, APP for the Respondent State.
---
CORAM : D. G. DESHPANDE & CORAM : D. G. DESHPANDE & CORAM : D. G. DESHPANDE &
S. A. BOBDE, JJ. S. A. BOBDE, JJ. S. A. BOBDE, JJ.
DATED : 30TH JUNE, 2006. DATED : 30TH JUNE, 2006. DATED : 30TH JUNE, 2006.
ORAL JUDGMENT .: ORAL JUDGMENT .: ORAL JUDGMENT .:
1. Heard Mr. Maqsood Khan for the petitioner and
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the learned APP for the State.
2. The petitioner is the brother of the detenu.
His advocate raised only one point that even though in
his representation to the Advisory Board, he has
specifically prayed that he be given opportunity to
putforth his case through the legal practitioners, it
was not considered. In support of this contention, the
learned counsel for the petitioner relied upon a
division bench judgment of this court in Kekalwa Samuele Kekalwa Samuele Kekalwa Samuele
Kongwa vs. Union of India, Kongwa vs. Union of India, reported in 1985 (1) Bom. Kongwa vs. Union of India, 1985 (1) Bom. 1985 (1) Bom.
C.R. 742 C.R. 742, wherein it is held and observed by the C.R. 742
division bench in para -19 sub-para (6), as follows :
"A request made by a detenu for being
represented by a legal practitioner 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 detenu, or (ii) that it was
the practice of the Board not to allow
representation of a detenu by a legal
practitioner."
3. Our attention was also drawn to the affidavit of
the Advisory Board by the learned Advocate for the
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Petitioner. In that affidavit, the Advisory Board has
stated that since the petitioner is brother of the
detenu and under the COFEPOSA Act, the detenu is not
entitled to be represented through legal practitioner,
it was not necessary to consider his prayer. In view of
the above said judgment and a specific statement made by
the Advisory Board in its affidavit referred to above,
we gave liberty to Mr. Mhaispurkar, learned APP, to go
through the record and proceedings of the Advisory Board
and then we re-heard the matter again.
4. After going through those papers, Mr.
Mhaispurkar, pointed out that the Advisory Board
rejected the prayer of the petitioner for being
represented through a legal practitioner by observing -
" that the prayer of the detenu for permitting to be
represented through legal practitioner cannot be
considered for some obvious reasons". This is
contradictory to the affidavit, wherein it is asserted
that a detenu under the COFEPOSA Act is not entitled to
be represented through a legal practitioner. The
detention and the case before us is also under the
COFEPOSA Act and the division bench judgment, referred
to above, of Mr.Jahagirdar and Mr.Jamdar, JJ. is also
under the COFEPOSA Act. When the division bench
judgment has clearly laid down the law in para -19,
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sub-para (6), as stated above, then the Advisory Board
was not permitted to raise the contention in their
affidavit that detenu has no legal right to be
represented in the cases of detention under the COFEPOSA
Act. Secondly, the affidavit is in contravention of the
record and proceedings of the Advisory Board, as pointed
out above. What is meant by "obvious reasons" is not
clear and consequently, it has to be held that the
prayer of the detenu for permission to be represented by
the legal practitioner was not rejected after proper
consideration. It was rejected on erroneous grounds and
therefore, the order of detention is required to be set
aside and quashed.
5. The petition is allowed and continuous detention
of the detenu is rendered illegal after 27.10.2005. He
should be set free, if not required in any other matter.
(D.G.DESHPANDE,J)
Dt.30.06.2006
(S.A. BOBDE, J)
.....
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