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TMI Blog1988 (10) TMI 242X X X X Extracts X X X X X X X X Extracts X X X X ..... ly on 4-3-1988 and produced before the learned C.J.M. Jaipur on 5-3-1988. He moved an application for bail before the C.J.M., Jaipur, which was rejected on 9-3-1988 thereafter he approached the learned Sessions Judge, Jaipur for bail and he was granted bail on 14-3-1988. 3. The case of the petitioner further is that an order was made by the Commissioner and Secretary, Home Department, Government of Rajasthan on 23-4-1988, directing that Ghanshyam be detained under Sec. 3(1) of the COFEPOSA Act, with a view to prevent him from abetting the smuggling of gold and indulging in transporting, concealing or keeping smuggled goods. According to the petitioner, Ghanshyam was again arrested on 30th of April 1988 was locked in the Central Jail, Ajmer. The order of the detention as well as the grounds of detention were served upon him on 30th of April, 1988. Detenue Ghanshyam made certain representations to the detaining authority, the State Government and the Central Government through the Jail authorities but the same were rejected. He also made a representation before the Advisory Board but that also was rejected and his detention was confirmed by the order of the State Govt. dated 24-6-1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance any arguments in support of the detention Order against Shri Ghanshyam and were present to make available the relevant records . Then in para 2 it was inter alia stated that the Department officers did not argue the Case but were present before the Board only to present the records and to answer any query made by the Board, (emphasis added) Now, in this set of cir-cumstances we have to consider whether the Advisory Board rightly refused permission to the detenue to appear through his Advocate. It may at once be stated that their lordship of Supreme Court, in AIR 1982 Supreme Court 710; A.K. Roy v. Union of India and another, had observed as under:- We must therefore make it clear that if the detaining authority or the Govt. takes the aid of a legal practitioner or a legal adviser before the Advisory Board, the detenue must be allowed the facility of appearing before the Board through a legal practitioner. We are informed that officers of the Govt. in the concerned departments often appear before the Board and assist it with a view to justifying the detention orders. If that be so, we must clarify that the Boards should not permit the authorities to do indirectly what they ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be deemed to be legal practitioners or legal advisors. But when the decision of the Hon ble Supreme Court in A.K. Roy s case (supra) came to be cited they realized that these officers may be considered to be legal practitioners or legal advisors and therefore the department tried to take up the position that these officers were present only to produce the documents. But this position cannot be accepted. The word represented used in para 8 of the reply is of importance and when this averment in the reply is read with the statement of Shri Kishan Singh in the affidavit dated 27-9-1988 that the officers were present to produce the records and to answer any query made by the Board, it leaves no room for doubt that the department was represented by legal practitioners within the meaning given to this term by the Hon ble Supreme Court. Mr. Joshi however, placed reliance upon Phillippa Anne Duke v. State of Tamil Nadu Ors. 1982 (2) Supreme Court Cases 389 and Suresh Bhojraj Chelani v. State of Maharashtra 1983 (1) Supreme Court Cases 382 and contended that the mere presence of the officers of the Customs and Central Excise Department would not tantamount to a representation of the dep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore the Advisory Board. 6A. It will also be worthwhile to mention here that in the writ petition in para 8 it was mentioned that the department was allowed to be represented by the Assistant Collector of Customs and Inspector of Customs. Here in the affidavit filed by Shri Kishan Singh who happens to be the Addl. Collector of Customs does not specifically mention that no Assistant Collector was present before the Advisory Board and that officer did not represent the department. It is not denied that these officials of the Customs department are legally trained officers on the subject. In these circumstances the conclusion is inevitable that the department was allowed to be represented by legal practitioners whereas the detenue was refused permission to be represented by an Advocate and therefore there is a clear violation pf Article 14 of the Constitution as observed by their lordship of Hon ble Supreme Court in A.K. Roy v. Union of India s case (supra). It also amounts to refusal of an effective and proper opportunity of being heard. 7. The second contention raised by learned counsel for the petitioner is that in pursuance f Article 22(5) of the Constitution read with Sec. 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in para 4 of the reply that the statement of Ghanshyam recorded on 2-3-1988 has been relied upon in the grounds of detention, it is again mentioned in sub-para (iv) of para 10 of the reply that the statement of the detenue recorded by the SHO Police Station, Jodhpur was placed before the detaining authority. Hence, it cannot be said that order of detention was inviolated since the detaining authority had applied his mind to the relevant material". It was added however supply of documents not relied upon in the grounds of detention cannot be said to constitute denial of opportunity of making of effective representation . The latter assertion on the face of it appears to be inconsistent. When in para 4 it has specifically been mentioned that the statement of Ghanshyam dated 2-3-1988 had been relied upon in the grounds of detention and again it has been reiterated that the detaining authority already had applied his mind to this particular document, it cannot be said that this document was not relied upon in the grounds of detention merely because it does not find a special mention in the grounds. It may also be added that this controversy had also been pointed out to Shri Joshi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been carried out and therefore it has resulted into violation of Art. 22(5) of the Constitution. 10. Although in view of our findings on the first two contentions the 3rd contention need not be gone into but since it has been raised it will be appropriate for us to mention it also. This third contention of the learned counsel for the petitioner is that in order to find out whether the recovered Gold was foreign Gold, the sponsoring authority did not get the purity of gold tested and the mere foreign marking on the gold does not gives rise to a presumption that the gold was of foreign origin. In reply it was mentioned in para 9 (v) that the gold recovered from the detenue on 2-3-1988 was correctly held to be foreign mark in view of the marking had purity indicated on them. The gold at the time of seizure by Customs on 3-3-1988 was got tested by a certified goldsmith and found to be of 24 carats purity. Thus, the satisfaction arrived by the detenue authority before the orders of detention was clearly subjective and was correctly arrived at . In view of this reply the learned counsel for the petitioner further contended that the copy of the report of the goldsmith who certified the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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