1988 (10) TMI 288 - SC - Indian Laws

Summary

Issues Involved:
1. Validity of the order of detention under the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980.
2. Unequal treatment by the Advisory Board in considering the representation of the detenu.
3. Right to legal representation or assistance by a friend before the Advisory Board.
4. Procedural fairness and compliance with Article 22(5) of the Constitution.

Detailed Analysis:

1. Validity of the Order of Detention:
The appeal was directed against the judgment of the High Court of Andhra Pradesh, which quashed the order of detention passed against the respondent under the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980. The respondent was accused of smuggling paddy from Andhra Pradesh to Tamil Nadu. Following the seizure of the lorry carrying the paddy and the apprehension of the driver, a criminal case was registered. The District Magistrate ordered the detention of the respondent, which was subsequently approved by the State Government and referred to the Advisory Board.

2. Unequal Treatment by the Advisory Board:
The High Court found that there was unequal treatment by the Advisory Board in considering the representation of the detenu. The Advisory Board heard high-ranking police officers representing the Government but did not allow the detenu to be represented by a lawyer or an official of equal rank. The High Court observed, "In such circumstances, the Advisory Board ought to have provided the prisoner an opportunity for representation though not by a lawyer at least by someone equally competent like those who appeared for the State."

3. Right to Legal Representation or Assistance by a Friend:
The Act, by Section 11(4), expressly denies representation through a legal practitioner before the Advisory Board. However, the High Court noted that the detenu's request for legal representation should have been considered, especially given the presence of high-ranking officials representing the Government. The Supreme Court in A.K. Roy v. Union of India emphasized that while the Constitution denies the right to legal representation in preventive detention cases, fairness requires that if the Government is represented by legal experts, the detenu should also be allowed similar representation. The Court stated, "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."

4. Procedural Fairness and Compliance with Article 22(5):
Article 22(5) of the Constitution mandates that the detaining authority must communicate the grounds of detention to the detenu and afford the earliest opportunity for representation. The Supreme Court reiterated that procedural fairness is a constitutional imperative. The Advisory Board, comprising individuals qualified to be High Court judges, must ensure that the detenu is not handicapped by unequal representation. The Court observed, "It is important for laws and authorities not only to be just but also appear to be just. Therefore, the action that gives the appearance of unequal treatment or unreasonableness--whether or not any substance in it--should be avoided by the Advisory Board."

Conclusion:
The Supreme Court upheld the High Court's decision to quash the detention order. The Court concluded that the Advisory Board's failure to allow the detenu equal representation, while hearing high-ranking officials on behalf of the Government, constituted a breach of procedural fairness. The Court dismissed the appeal, agreeing with the High Court's finding that the detenu's right to equal representation had been violated. The judgment emphasized the necessity for the Advisory Board to adopt procedures that ensure fairness and equality, in compliance with constitutional safeguards.