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TMI Blog1984 (12) TMI 324X X X X Extracts X X X X X X X X Extracts X X X X ..... lani in this regard it would be advantageous to notice the relevant provisions of law as well as the law declared by the Supreme Court on the question of the procedure which is to be followed by the Advisory Boards. Section 8(e) of the COFEPOSA Act provides that - A person against whom an order of detention has been made under this Act, shall not be entitled to appear by any legal practitioner in any matter connected with the reference to the Advisory Board. From the aforesaid provision contained in the COFEPOSA Act this much is clear that a detenu cannot by way of right insist that he should be allowed to be represented before the Advisory Board by a legal practitioner. But one must not fail to notice that the said provision does n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the Supreme Court recognised the fact that a detenu had no legal right to be represented by a legal practitioner. But it also noticed that the provision contained in S. 8(e) of the COFEPOSA Act did not disentitle a detenu from making a request to the Advisory Board which request has to be considered by the Advisory Board on its own merit. 16. In A. K. Roy v. Union of India, , the Supreme Court regretfully noted that a detenu had no right to appear through a legal practitioner in the proceedings before the Advisory Board. In para 95 of the judgment, the travails of a detenu who is suddenly taken before the Advisory Board have been graphically described. Relying upon certain observations made in this para Mr. Jethmalani suggested that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to rebut the allegations which are made against him. The Supreme Court, however, uttered the caution that if the detenu desired to examine any witnesses he should himself keep them present at the appointed time and there was no obligation cast upon the Advisory Board to summon those witnesses. This necessarily means that if the detenu wants to lead oral evidence he should be allowed to do so. 18. We may also at this stage profitably refer to another judgment of the Supreme Court in Nand Lal v. State of Punjab, . The facts of Nand Lal's case disclosed that the Advisory Board disallowed the detenu's request for legal assistance though the detaining authority himself was allowed to be represented by a counsel. The Supreme Court st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hoped that Advisory Board will take care to ensure that the provisions of Art. 14 were not violated in any manner in the proceedings before them. 19. From the examination of the judgments of the Supreme Court referred to above, the following propositions, in our opinion emerge :- (1) There is neither a constitutional right nor a legal right available to a detenu to be represented by a legal practitioner. (2) Where, however, the department is represented by a legal practitioner or a legal adviser, then the detenu cannot be denied the right to be similarly represented. (3) If the department is represented by an official before the Advisory Board to assist the latter, then that official must be regarded as a legal adviser or a lega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the detenu wherein he drew the attention of the detenu to the provisions contained in S. 8(e) of the COFEPOSA Act. Proceeding further, the Secretary stated as follows :- The present Advisory Board under the COFEPOSA Act for the State of Maharashtra has so far not permitted any legal practitioner to appear in any reference made to it by the Government under the Act. Therefore, your request to allow you to plead your case through a lawyer of your choice, it is regretted, cannot be acceded to. It is clear from this letter that it was stated on behalf of the Advisory Board that it was the practice of the Advisory Board not to permit any legal practitioner to appear for any detenu and on that account the petitioner's request for b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quate or proper representation of his case before the Advisory Board. 22. On the second question, it has not been pressed by Mr. Jethmalani that the petitioner had a right to cross examine the three witnesses on whose statements the detaining authority had relied. However, Mr. Jethmalani contended that the petitioner's request was to allow him to produce his witnesses before the Advisory Board and it was so understood by the Advisory Board itself because in para 3 of the letter Dt. 16th August, 1984 sent by the Secretary of the Board it has been stated as follows : If you want to tender evidence of any witnesses, you may do so in the form of an affidavit an send four copies of such affidavit to the Advisory Board, well in advance ..... X X X X Extracts X X X X X X X X Extracts X X X X
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