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1986 (12) TMI 131 - SC - Indian LawsWhether detenue has a right to lead evidence in rebuttal before the Advisory Board? Held that - We are bound by the law laid down by the Constitution Bench of this Court in A.K. Roy s case 1981 (12) TMI 159 - SUPREME COURT , the Advisory Board committed an error in law in denying to the detenu the right to examine the witnesses, rendering his continued detention bad. Upon the particular facts and circumstances of this case, we quash the order of detention, set aside the Judgment of the Delhi High Court and direct that the petitioner s son be released forthwith.
Issues Involved:
1. Violation of the detenu's right to examine witnesses before the Advisory Board. 2. Failure of the Advisory Board to send the entire records of proceedings to the Central Government. Issue-wise Detailed Analysis: 1. Violation of the Detenu's Right to Examine Witnesses: The detenu contested his detention under Section 3(1) of the COFEPOSA Act, arguing that the Advisory Board violated his right to examine witnesses. The detenu was accused of possessing contraband goods, and during the Advisory Board meeting on April 29, 1986, he sought to examine five witnesses to rebut the allegations. Although these witnesses were present, the Advisory Board declined to examine them and instead suggested submitting affidavits, which the detenu could not secure. The High Court upheld the Advisory Board's decision, reasoning that the detenu could not waste the Board's time by recording oral evidence and that affidavits would suffice. The Supreme Court referenced the Constitution Bench judgment in A.K. Roy v. Union of India, which recognized the detenu's right to present evidence in rebuttal, including oral evidence, provided the witnesses were present at the appointed time. The Court emphasized that the Advisory Board must allow the detenu to examine witnesses unless constrained by time limits. The Court found that the High Court erred in its interpretation, as the right to adduce oral evidence is a constitutional safeguard under Article 22(5) and must be read into Section 8(b) and (c) of the COFEPOSA Act. The Supreme Court concluded that by denying the detenu the right to examine witnesses, the Advisory Board violated the law established in A.K. Roy's case. The detenu's inability to present oral evidence deprived him of his right to defense, making the continued detention unlawful. 2. Failure to Send Entire Records to the Central Government: The detenu's counsel argued that the Advisory Board failed to inform the Central Government about the presence of witnesses and the Board's refusal to examine them. The Central Government, therefore, could not apply its mind to the entire material before confirming the detention order. The Supreme Court noted that in Nand Lal Bajaj v. State of Punjab, the failure to forward the record of proceedings to the State Government constituted a serious infirmity, as the government must consider the report and the material on record before confirming a detention order. Although the Supreme Court did not delve deeply into this issue due to the resolution of the first contention, it acknowledged that the detenu's complaint about the incomplete report to the Central Government was not wholly unjustified. Conclusion: The Supreme Court held that the Advisory Board's refusal to allow the detenu to examine witnesses violated the law as laid down in A.K. Roy's case. Consequently, the Court quashed the detention order, set aside the Delhi High Court's judgment, and directed the release of the detenu.
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