Full Judgment Text
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
WRIT PETITION (Crl.) No. 134 OF 2015
Choith Nanikram Harchandani …..….Petitioner(s)
VERSUS
State of Maharashtra & Ors. ……Respondent(s)
with
SPECIAL LEAVE PETITION (Crl.) No. 7010 of 2015
Bittu Choith Harchandani …..….Petitioner(s)
VERSUS
State of Maharashtra & Ors. ……Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1. By way of Habeas Corpus writ petition under Article 32 of
the Constitution of India, the petitioner is challenging the
order of preventive detention bearing F.No.
PSA-1215/CR-23/SPL-3(A) dated 16.04.2015 issued by
respondent No.2 - the Principal Secretary (Appeals & Security),
Government of Maharashtra, Home Department & Detaining
Signature Not Verified
Authority against him under Section 3(1) of the Conservation
Digitally signed by
Om Parkash Sharma
Date: 2015.11.21
10:49:30 IST
Reason:
of Foreign Exchange and Prevention of Smuggling Activities
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Act, 1974 (hereinafter referred to as “COFEPOSA Act”).
2. Challenging the same detention order dated 16.04.2015
issued by respondent No.2 herein, the petitioner’s son filed a
petition bearing Writ Petition No. 2076 of 2015 before the High
Court of Judicature at Bombay. By impugned judgment dated
03.07.2015, the High Court dismissed the petition. Against
the said order, the petitioner’s son has filed S.L.P. (Crl.) No.
7010 of 2015 under Article 136 of the Constitution of India
before this Court.
3. Brief facts :
(a) On 16.04.2015, a detention order was issued by
respondent No.2 herein under Section 3(1) of COFEPOSA Act
for detaining the petitioner herein to prevent him from
smuggling of goods in future.
(b) On 20.4.2015, the detention order along with Grounds of
Detention and the list of relied upon documents was served on
the petitioner and he was thereafter lodged in custody in
Nashik Road Central Prison at Nashik, Maharashtra.
(c) On 14.05.2015, the petitioner made a representation to
the Detaining Authority as well as the Advisory Board, inter
alia , praying therein to allow him to be represented through
any legal practitioner/counsel of his choice before the Board.
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The representation dated 14.05.2015 was rejected by the
Detaining Authority on 28.05.2015 and the same was
communicated to the petitioner on 03.06.2015.
(d) On 05.06.2015, a letter was issued by the Advisory Board
through its Secretary informing the petitioner that the date of
hearing before it was scheduled on 12.06.2015. The said letter
was received by the petitioner on 06.06.2015 in prison.
(e) On 12.06.2015, the petitioner submitted a written
request to the Advisory Board for a short adjournment so that
he can make arrangement for the counsel.
(f) On 03.07.2015, the petitioner got an order dated
29.06.2015 written by the Section Officer to the Government of
Maharashtra, Home Department communicating him that
after considering the report of the Advisory Board, he is
directed to be detained for a period of one year from the date of
detention, i.e., 20.04.2015.
(g) Against the said order, the petitioner has filed this writ
petition and his son has filed special leave petition against the
impugned judgment dated 03.07.2015 passed by the High
Court of Judicature at Bombay.
4. Mr. Saurabh Kirpal, learned counsel for the petitioner,
while assailing the legality and correctness of the impugned
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order of detention dated 16.04.2015, mainly urged one
submission. It was his submission that despite the petitioner
repeatedly praying in writing for an opportunity to allow him
to have proper representation before the Advisory board so as
to enable him to place his case effectively before the Board
through legal practitioner/counsel, the same was denied to
him. Learned counsel pointed out from the affidavit dated
23.09.2015 filed by respondent No. 3 - Shri Deepak Kharat,
Secretary, Advisory Board, COFEPOSA Act, 1974 that the
Board had allowed participation and the assistance of the
officials at the time of hearing of the case against the
petitioner. Learned counsel submitted that it was, therefore,
all the more necessary rather obligatory on the part of the
Board to grant time to the petitioner for enabling him to
engage any legal practitioner for representing his case as was
prayed by him in his application dated 14.05.2015. Learned
counsel thus contended that since the petitioner was denied
an opportunity to represent his case effectively before the
Board though timely prayed by him, the impugned order is not
legally sustainable and deserves to be quashed on this ground
alone leaving aside other grounds which are also equally
made out on merits. In support of his submission, learned
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counsel placed reliance on the decision of this Court in A.K.
Roy vs. Union of India & Ors. , (1982) 1 SCC 271.
5. In reply, learned counsel for the respondents supported
the impugned order and prayed for its upholding contending
that since the petitioner is a habitual offender, he is not
entitled to claim any indulgence.
6. Having heard the learned counsel for the parties and on
perusal of the record of the case, we find force in the
submission of learned counsel for the petitioner.
7. As rightly argued by the learned counsel for the
petitioner, the question as to whether the detenu has a right to
appear through a legal practitioner in the proceedings before
the Advisory Board remains no more res integra and stands
settled by the decision of the Constitution Bench of this Court
in the case of A.K.Roy’s case (supra). Y.V. Chandrachud,
C.J., speaking for the Bench succinctly dealt with this issue
and held in paragraph 93 as under :
“93. We must therefore hold, regretfully though, that
the detenu has no right to appear through a legal
practitioner in the proceedings before the Advisory
Board. It is, however, necessary to add an important
caveat. The reason behind the provisions contained in
Article 22(3)( b ) of the Constitution clearly is that a
legal practitioner should not be permitted to appear
before the Advisory Board for any party. The
Constitution does not contemplate that the detaining
authority or the government should have the facility
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of appearing before the Advisory Board with the aid of
a legal practitioner but that the said facility should be
denied to the detenu. In any case, that is not what
the Constitution says and it would be wholly
inappropriate to read any such meaning into the
provisions of Article 22. Permitting the detaining
authority or the government to appear before the
Advisory Board with the aid of a legal practitioner or a
legal adviser would be in breach of Article 14, if a
similar facility is denied to the detenu. We must
therefore make it clear that if the detaining authority
or the government takes the aid of a legal practitioner
or a legal adviser before the Advisory Board, the
detenu must be allowed the facility of appearing
before the Board through a legal practitioner. We are
informed that officers of the government in the
concerned departments often appear before the Board
and assist it with a view to justifying the detention
orders. If that be so, we must clarify that the Boards
should not permit the authorities to do indirectly
what they cannot do directly; and no one should be
enabled to take shelter behind the excuse that such
officers are not “legal practitioners” or legal advisers.
Regard must be had to the substance and not the
form since, especially, in matters like the proceedings
of Advisory Boards, whosoever assists or advises on
facts or law must be deemed to be in the position of a
legal adviser. We do hope that Advisory Boards will
take care to ensure that the provisions of Article 14
are not violated in any manner in the proceedings
before them. Serving or retired Judges of the High
Court will have no difficulty in understanding this
position. Those who are merely “qualified to be
appointed” as High Court Judges may have to do a
little homework in order to appreciate it.”
8. Applying this principle to the facts of the case in hand,
we find that the petitioner vide his representation/application
dated 13/14.05.2015 (Annexure P-5) had prayed that he be
permitted to be represented by any legal practitioner/counsel
of his choice before the Board. It is clear from prayer (e), which
reads as under :
“I may also be permitted to be represented by
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any legal practitioner/counsel of my choice before the
Hon’ble Advisory Board. An advance permission for
the same may please be communicated to me, along
with the response of the Sponsoring Authority and of
the Detaining Authority on the issues raised in this
representation, so that I can timely and effectively
instruct my Counsel regarding the same.”
9. We also find from Paras 2 and 3 (wrongly typed as 4) of
the counter affidavit filed by respondent No.3 - Mr. Deepak
Kharat that the Board did not grant any time to the petitioner
and secondly, at the time of hearing of the case, officers of the
sponsoring and detaining authority were present and heard in
the course of proceedings. Paras 2 and 3 of the affidavit read
as under:
2. At the outset I state that I am filing the
“
present affidavit to the extent that the Petitioner has
referred to the proceedings before the Advisory Board.
It is true that the Petitioner had addressed a
representation dated 14.05.2015 through
Superintendent, Nashik Road Central Prison, Nashik.
It is also true that on the date of hearing before the
Advisory Board on 12.06.2015, Petitioner made a
request for adjourning proceedings for two weeks to
enable him to engage a Legal Advisor. The Advisory
Board decided not to grant any time for that purpose
and after hearing the detenu as well as his son
concluded the proceedings.
3. I say that it is true that in the course of
hearing Officers of the Sponsoring Authority and
Detaining Authority were present and were heard in
the course of the proceedings.”
10. In our considered opinion, since the Detaining Authority
was represented by the officers at the time of hearing of the
petitioner's case before the Advisory Board, the petitioner too
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was entitled to be represented through legal practitioner. Since
no such opportunity was afforded to the petitioner though
claimed by him, he was denied an opportunity of a fair hearing
before the Advisory Board, which eventually resulted in
passing an adverse order.
11. As held in A.K.Roy’s case (supra) , if the Detaining
Authority or Government takes the aid of a legal practitioner
or legal advisor before the Advisory Board, the detenu must be
allowed the facility of appearing before the Board through a
legal practitioner. If it is denied to him then a clear case of
breach of Article 14 is made out in favour of detenu. Since the
expression "legal practitioner" was interpreted in A.K.Roy's
case to include even the officers of the Government when they
appear before the Board to assist the proceedings against the
detenu, the detenu too has to be provided with equal facility of
appearing before the Board through legal practitioner.
12. It is not in dispute, as would be clear from Para 3 of the
counter affidavit, that the officers had appeared in the case
before the Advisory Board and participated in the proceedings
against the petitioner whereas the petitioner was denied such
facility. This infirmity, being fatal, renders the impugned order
legally unsustainable.
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13. In the light of what is held above, it is not necessary for
this Court to examine other grounds though taken by the
petitioner in these proceedings because one ground once held
made out is enough to quash the impugned order of detention.
We, therefore, express no opinion on any other ground taken
in the petition and raised in the arguments.
14. So far as the submission of the learned counsel for the
respondents that the petitioner being a habitual offender and,
therefore, he should not be shown any indulgence in this case
is concerned, in our considered view, firstly, this Court can not
uphold the detention order on such submission and secondly,
once the legal infirmity pointed out by the petitioner in the
proceedings before the Advisory Board is held made out then
the impugned detention order is rendered bad in law and can
not be sustained.
15. In our considered view, if the petitioner is a habitual
offender and has past criminal record, as alleged by the
respondents, it was all the more necessary for the respondents
to have followed in letter and spirit the procedure laid down in
A.K. Roy’s case (supra) before passing the impugned order of
detention. It was, however, not done.
16. In view of forgoing discussion, the petition succeeds and
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is allowed. The impugned order of detention dated 16.04.2015
(Annexure P-2) is quashed by issuance of writ of certiorari.
17. As a consequence of this order, allowing the writ petition
filed by the petitioner and quashing the detention order dated
16.04.2015, it is not necessary to pass any order in Special
Leave Petition (Crl.) No. 7010 of 2015, which has rendered
infructuous.
….……...................................J.
[J. CHELAMESWAR]
..……..................................J.
[ABHAY MANOHAR SAPRE]
New Delhi;
November 20, 2015.
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ITEM NO.1A COURT NO.6 SECTION X
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Writ Petition(s)(Criminal) No(s). 134/2015
CHOITH NANIKRAM HARCHANDANI Petitioner(s)
VERSUS
STATE OF MAHARASHTRA & ORS. Respondent(s)
WITH
SLP(Crl) No. 7010/2015
Date : 20/11/2015 These petitions were called on for pronouncement
of judgment today.
For Petitioner(s) Mr. Nikhil Jain,Adv.
Mr. Wattan Sharma,Adv.
Mr. Amit K. Nain,Adv.
For Respondent(s) Mr. Nishant Ramakantrao Katneshwarkar,Adv.
Hon'ble Mr. Justice Abhay Manohar Sapre pronounced the
judgment of the Bench comprising of Hon'ble Mr. Justice J.
Chelameswar and His Lordship.
The writ petition is allowed in terms of the signed
reportable judgment.
As a consequence of this order, allowing the writ
petition filed by the petitioner and quashing the detention order
dated 16.04.2015, it is not necessary to pass any order in Special
Leave Petition (Crl.) No. 7010 of 2015, which has rendered
infructuous. As a consequence, the special leave petition stands
disposed of as having become infructuous.
[O.P. SHARMA] [INDU BALA KAPUR]
AR-cum-PS COURT MASTER
(Signed reportable judgment is placed on the file)
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