1981 (7) TMI 245 - SC - Indian Laws

Summary

Issues Involved:
1. Legality of the reference to the Advisory Board.
2. Authority of the Minister of State to dispose of the representation.
3. Denial of legal representation before the Advisory Board.
4. Alleged non-application of mind by the detaining authority.

Summary:

1. Legality of the reference to the Advisory Board:
The first submission by Shri Jethmalani was that the reference to the Advisory Board was made by a subordinate officer and not by the Government, as required u/s 8(b) of the COFEPOSA. The Court rejected this submission, stating that the act of making a reference to the Advisory Board is a mechanical or ministerial act involving no exercise of discretion. The Court emphasized that the period of detention is to be determined at the final stage after receiving the report of the Advisory Board, and there is no intermediate stage requiring a tentative conclusion regarding the period of detention.

2. Authority of the Minister of State to dispose of the representation:
The second submission was that the representation was disposed of by the Minister of State, Home Affairs, Government of Maharashtra without any authority. The Court found this contention baseless, referring to a standing order made by the Chief Minister of Maharashtra, which allotted the business related to COFEPOSA to the Minister of State for Home. The Court concluded that the Minister of State was entitled to deal with the representation of the detenu.

3. Denial of legal representation before the Advisory Board:
The third submission was that the detenu was not permitted to be represented by a lawyer before the Advisory Board. The Court acknowledged that while Sec. 8(e) of COFEPOSA does not entitle a detenu to legal representation as of right, it does not bar a request for legal assistance. The Court noted that the detenu did not make a request to the Advisory Board for legal representation when he was produced before it. Therefore, the Court did not find any wrongful denial of legal assistance that would lead to a violation of procedural fairness guaranteed by Article 21 of the Constitution.

4. Alleged non-application of mind by the detaining authority:
The last submission was that there was non-application of mind by the detaining authority in making the order of detention and in considering the representation of the detenu. The Court found no substance in this submission, clarifying that the grounds of detention did not imply any admission by the detenu regarding the existence of an order dated 29.11.80. The Court also dismissed the argument regarding the clerical mistake in the communication of the grounds of detention, stating that it was an obvious clerical error that was later rectified.

Conclusion:
Both Writ Petitions (Criminal) No. 2690 of 1981 and No. 3241 of 1981 were dismissed. The Court found no constitutional or legal infirmity in the actions taken by the Government and the detaining authority. The petitions were dismissed.