1982 (3) TMI 263 - SC - Customs

Summary

Issues Involved:
1. Authority of the Administrator to issue a detention order.
2. Non-supply of earlier statements to the detenu.
3. Non-supply of Gujarati translation of the detention order.
4. Denial of legal representation and delay in considering representation.
5. Rights of the detenu to appear through a lawyer or agent.
6. Procedural fairness before the Advisory Board.

Issue-wise Detailed Analysis:

1. Authority of the Administrator to Issue a Detention Order:
The petitioner contended that under the Government of Union Territories Act, 1963, the detention order could only be made by the Chief Minister and not by the Administrator. The respondent countered that the Administrator had full authority under COFEPOSA to issue the detention order. The court noted that Section 2(f) of COFEPOSA defines "State Government" in relation to a Union Territory as the Administrator thereof. The court found that the Administrator acted within his authority and had considered the advice of the Chief Minister. The court concluded that the Administrator was not bound to act on the advice of the Council of Ministers and could act independently in matters of detention.

2. Non-supply of Earlier Statements to the Detenu:
The petitioner argued that the earlier statements of laborers Tulsibhai and Mangalbhai were not supplied, which prevented him from making an effective representation. The court found that the statements of Customs officers Patel and Fitter, which were provided to the detenu, indicated that the laborers had implicated the detenu during the initial interrogation. The court held that there was no merit in the petitioner's claim as the necessary documents were supplied, and the detenu did not raise any grievance in his representation.

3. Non-supply of Gujarati Translation of the Detention Order:
The petitioner claimed that the order of detention was not properly served as the Gujarati translation was not provided. The court noted that while the order (Annexure 'A') was in English, the grounds of detention (Annexure 'B') were provided in Gujarati. The court held that the detenu was not handicapped in submitting his representation as the grounds of detention, which contained the essential information, were in Gujarati. Therefore, there was no violation of Article 22(5) or any other law.

4. Denial of Legal Representation and Delay in Considering Representation:
The petitioner argued that his request for a hearing through his lawyer was denied, causing a delay in deciding his representation. The court found that the telegram from the petitioner's advocate was received and promptly considered, and the detenu was informed that he could make a representation through the jail. The court held that there was no delay in the administration's response and no right to legal representation before the detaining authority under COFEPOSA.

5. Rights of the Detenu to Appear Through a Lawyer or Agent:
The petitioner contended that he had a right to appear through a lawyer or agent. The court referred to Section 8(e) of COFEPOSA, which disentitles the detenu from appearing through a legal practitioner in matters connected with the Advisory Board. The court also cited precedents establishing that the detenu does not have a right to legal representation before the Advisory Board or the detaining authority. The court noted that while a friend or agent who is not a legal practitioner may assist the detenu, the detaining authority is not obligated to deal with such an agent.

6. Procedural Fairness Before the Advisory Board:
The petitioner argued that the procedure before the Advisory Board was unjust and discriminatory as representatives of the detaining authority were present while the detenu had no assistance. The court found no evidence to support this claim, noting that the detenu was questioned by the Advisory Board members in Gujarati and there was no presence of representatives from the detaining authority. The court concluded that the procedure followed was fair and did not violate any rights of the detenu.

Conclusion:
The court dismissed the petitions, finding no merit in the arguments presented by the petitioner. The court upheld the authority of the Administrator to issue the detention order, found that the necessary documents were supplied to the detenu, and held that there was no right to legal representation before the detaining authority or the Advisory Board under COFEPOSA. The procedural fairness was maintained throughout the process.