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TMI Blog1986 (12) TMI 131X X X X Extracts X X X X X X X X Extracts X X X X ..... Writ No. 170/86 filed by Shn Harbans Lal father of the detenu Om Prakash. The Writ Petition is also by the same person. Both these matters are being disposed of by this common Judgment. Special Leave granted. 2. The cases relate to the detention of Shri Om Prakash under Section 3(1) of the COFEPOSA Act. An order of detention was passed against him on 31st March, 1986 by the Additional Secretary to the Government of India, Ministry of Finance, Department of Revenue - the Respondent No. 1 herein. The detenue was served with the grounds of detention on the same date. The case against the detenue is that he was in possession of a large quantity of contraband goods hidden in his premises - No. 5/23, West Patel Nagar, New Delhi. These premises were searched by the officers of the Directorate of Revenue Intelligence in the early hours of 20-3-1986, as a result of which foreign goods worth Rupees Twenty-one lakhs and odd were recovered. The accusation against the detenue is that he brought these articles during the various trips that he made to Hong Kong between 10-12-1985 and 19-3-1986. 3. On 29th of April, 1986, the Advisory Board met to consider the propriety of the detention orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Central Government, in this case, was not informed about the presence of 5 witnesses before the Advisory Board, ready to be examined and the Board s refusal to record their evidence. 5. In support of the first contention, the learned Counsel for the petitioner relied upon the following observation by a Constitution Bench of this Court in A.K. Roy v. Union of India - 1982(2) SCR 272. In that case this Court had to consider the extent of the trinity of rights which was available to the detenue before the Advisory Board. These rights are : (i) The right of legal representation (ii) The right of cross-examination and (iii) The right to present his evidence in rebuttal. We are here concerned with the third right, namely the right of the detenue to lead evidence in rebuttal before the Advisory Board. The Constitution Bench repelled the plea that the detenue had a right to cross-examine either the persons on the basis of whose statements the order of detention was made or the detaining authority but observed as follows on the third right : The last of the three rights for which Shri Jethmalani contends is the right of the detenue to lead evidence in rebuttal before the Adv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itnesses is a right available to a detenue under the above decision and this should be deemed to be incorporated in the statute dealing with detention without trial. Support for this position was sought by the learned Counsel for the petitioner from a decision of this Court in Narendra Purshotam Umrao v. B.B. Gujral Ors - 1979 (2) SCC 637. In that case, this Court was dealing with the absence of any express provision in Section 8(b) of the COFEPOSA Act placing an obligation to forward the representation made by a detenue along with the reference to the Advisory Board unlike the use contained in Section 9 of the Preventive Detention Act, 1950 and Section 10 of the Maintenance of Internal Security Act, 1971. It was contended in that case that in the absence of an express provision in this behalf no obligation was cast on the Government to consider the representation made by the detenue before forwarding it to the Advisory Board or to forward the same to the Advisory Board. After discussing the scope of Article 22(5), this Court held the Constitutional safeguards embodied in Article 22(5) of the Constitution, as construed by this Court, must, therefore, be read into the provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary to record evidence of the persons who were not prepared to give affidavits . There is some factual dispute in the two versions, one by the detenue and the other seen in the Counter Affidavit. The petitioner s case is that the witnesses were present both on 29-4-1986 1-5-1986. No request for any adjournment was made. The Counter Affidavit would indicate that time was sought for by the detenue to file affidavits and the matter was adjourned to 1-5-1986 on this request. 10. For the purpose of this case we will accept the version in the Counter Affidavit. Two facts that are not in dispute are that the witnesses were present on both the days and that on 1-5-1986, they were not permitted to be examined. 11. This aspect of the case is seen discussed by the High Court as follows : Admittedly, these witnesses were not required under the law to be subjected to cross-examination, the Advisory Board was right in suggesting to the learned Counsel for the detenue to file the affidavits of those witnesses. Whatever those witnesses were to depose to by them in the affidavits and that could have saved the hard-pressed time of the Advisory Board. The detenue could not gain anything fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is right by this Court in A.K. Roy s case relating to constraints of time. The High Court disbelieved the case of the detenue that the witnesses declined to file their affidavits and had characterised it as just flimsy and without any valid reason. 13. We do not agree with the wide statement made by the High Court that by denying oral evidence it cannot be said that the detenue was deprived of his right of defence before the Advisory Board. On the strength of the law laid down by this Court, there is no escape from the conclusion that by denying the right to examine witnesses present before the Advisory Board, the Board acted in violation of the law laid down by this Court in A.K. Roy s case. 14. The second contention raised on behalf of the detenue is that the Advisory Board failed to send the entire records of proceeding before it to the Central Government. The gravamen of the charge is that the Central Government should have been made aware of the fact that the detenue had got ready witnesses to be examined on 29-4-1986 and 1-5-1986 and that the Advisory Board denied the right of examination of witnesses but only permitted affidavits to be filed which could not ultimaely ..... X X X X Extracts X X X X X X X X Extracts X X X X
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