Full Judgment Text
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PETITIONER:
BAL CHAND CHORARIA
Vs.
RESPONDENT:
UNION OF INDIA AND ORS.
DATE OF JUDGMENT13/12/1977
BENCH:
FAZALALI, SYED MURTAZA
BENCH:
FAZALALI, SYED MURTAZA
SINGH, JASWANT
CITATION:
1978 AIR 297 1978 SCR (2) 401
1978 SCC (1) 161
CITATOR INFO :
RF 1990 SC 237 (23)
ACT:
Constitution of India, 1950-Art. 22(5)-Representation made
by a Member of Parliament as counsel for the detenu under
Conservation of Foreign Exchange and prevention of
Smuggling Activities Act, 1974-Whether a proper repre-
sentation u/A 22/(5) of the Constitution.
HEADNOTE:
The representation of the appellant, detenu through his
counsel who is a member of Parliament was not considered by
the Advisory Board constituted under the COFEPOSA, 1974.
The High Court of Delhi refused to quash the detention and
dismissed the writ petition.
Allowing the appeal by special leave, the court.
HELD : In matters where the liberty of the subject is
concerned and a highly cherished right is involved, the
representations made by the detenu should be construed
liberally and not technically so as to frustrate or defeat
the concept of liberty which is engrained in article 21 of
the Constitution. [401 H, 402 A]
In the instant case : (i) as the representation has not been
considered at all by the government which it was duty bound
to consider, that by itself vitiates the order of detention.
(ii) The representation clearly recites that Mr. Jethmalani
acted not as a member of the Parliament but on instructions
from his client, namely the detenu. The counsel had no
personal matter and be was only advocating the cause of his
client. The High Court was in error in construing the
representation made by the petitioner as having been made
not by him but by his counsel. [401 G-H, 402 A]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 413
of 1977.
Appeal by Special Leave from the Judgment and Order dated
12-8-77 of the Delhi High Court in Criminal Writ No. 37/77.
Ram Jethmalani, A. K. Sen, Harjinder Singh and M. N. Lodha
for the Appellant.
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S. N. Kacker, Sol. General, R. P. Bhatt, Girish Chandra
for the Respondent.
The Order of the Court was delivered by
FAZAL ALI, J.- In support of the rule Mr. Jethmalani
submitted a short point before us. It was argued that the
representation filed by the detenu through his counsel has
not been considered by the Government at all. The High
Court was of the view that the aforesaid representation was
not given by the detenu himself but by Mr. Jethmalani in his
capacity as a member of the Parliament. The representation
has been placed before us and it clearly recites that Mr.
Jethmalani acted not as a member of the Parliament but on
instructions from his client, namely, the detenu. In the
circumstances therefore, the High Court was in error in
construing the representation made by the petitioner as
being mad& not by him but by his counsel. It is manifest
that the counsel had no personal matter and he was only
advocating the cause of his client. In matters where the
liberty
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of the subject is concerned and a highly cherished right is
involved, the representations made by the detenu should be
construed liberally and not technically so as to frustrate
or defeat the concept of liberty which is engrained in
article 21 of the Constitution. As the representation has
not been considered at all by the Government which it was
duty bound to consider, that by itself vitiates the order of
detention. We, therefore, allow this appeal and direct the
appellant to be released forthwith. The order of this Court
releasing the appellant on parole, passed by us on the last
hearing, is vacated as having
become infructuous.
S.R.
Appeal allowed.
403