2015 (12) TMI 1192 - SC - FEMA

Validity of detention order - Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA) - Held that - 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 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. - 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. 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 before passing the impugned order of detention. It was, however, not done. - impugned order of detention is quashed - Decided in favour of appellant.

Summary

Issues:
Challenge to preventive detention order under COFEPOSA Act based on denial of legal representation before Advisory Board.

Analysis:
1. The petitioner challenged a preventive detention order issued under the COFEPOSA Act by the Principal Secretary (Appeals & Security) of the Government of Maharashtra, alleging denial of proper legal representation before the Advisory Board.

2. The petitioner's son filed a petition before the High Court, which was dismissed, leading to a special leave petition before the Supreme Court.

3. The detention order was issued on 16.04.2015, and the petitioner was served with the order, grounds of detention, and related documents on 20.04.2015. Despite requesting legal representation, the petitioner's plea was rejected by the Detaining Authority.

4. The petitioner's counsel argued that the denial of legal representation violated the petitioner's rights, citing the decision in A.K. Roy vs. Union of India & Ors. (1982) 1 SCC 271.

5. The respondents contended that the petitioner, being a habitual offender, was not entitled to any leniency.

6. The Court found merit in the petitioner's argument, emphasizing the importance of legal representation in such cases.

7. Referring to the A.K. Roy case, the Court clarified that the detenu must be allowed legal representation if the detaining authority or government avails legal assistance before the Advisory Board.

8. The petitioner's request for legal representation was denied, while officers of the detaining authority were present during the proceedings, creating an imbalance.

9. The Court held that the denial of legal representation to the petitioner, while officers represented the detaining authority, breached the detenu's rights and rendered the detention order legally unsustainable.

10. Given the legal infirmity in denying legal representation, the Court quashed the detention order, not delving into other grounds raised by the petitioner.

11. The Court emphasized that even if the petitioner had a criminal record, following due process, including legal representation, was essential, which was not done in this case.

12. Consequently, the petition was allowed, and the detention order was quashed by issuing a writ of certiorari, making the related special leave petition infructuous.