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TMI Blog1988 (10) TMI 288X X X X Extracts X X X X X X X X Extracts X X X X ..... g check post. The lorry was chased by the Inspector of Police and his staff. The driver suddenly stopped the lorry, but the persons in the vehicle took the heals jumping out there-from and disappeared in the bushes. The respondent was identified by the Inspector of Police and his staff in the head lights of the jeep in which they were chasing. The driver of the vehicle was apprehended after a hot chase, but not the respondent. From the interrogation of the driver, it was established that on November 4, 1987, the respondent along with two others were in the cabin of the lorry and they were responsible for transporting paddy to Tamil Nadu. The paddy and the lorry were seized by the Inspector. A criminal case was registered against the driver under the Essential Commodities Act and the Andhra Pradesh Rice Procurement (Levy) Order, 1984. When the investigation of that case was proceeding, Additional Superintendent of Police, Nellore sent proposals to the District Magistrate for detaining the respondent under the Act. The District Magistrate passed an order dated December 24, 1987 directing the detention of the respondent. On January 4, 1988, the State Government approved the detention. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icial representation before the Advisory Board out- weighed by several times the value of the detenu's representation . The High Court also found that the detenu did write to the Government on January 27, 1988 asking for representation by a lawyer and that request ought to have been acceded to by the Advisory Board when the matter came up before it. The High Court then said: We are of the opinion that the dormant right of the detenu for equal representation had become active upon the mode of conducting the proceedings by the Advisory Board. The prisoner in this case could not have envisaged that the High State officials would appear against his case and for the detaining authority. For these reasons. we cannot agree with the contention that the prisoner himself was to blame for not asking the Advisory Board for a lawyer's representation or for equal level of representation before the Advisory Board. As we are of the opinion that Article 22 (5) requires the Advisory Board to afford the prisoner an equal opportunity for representing his case compared with the quality and quantity of official representation allowed for the detaining authority and as we are also of the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hing in this section shall entitle any person against whom a detention order has been made to appear by any legal practitioner in any matter connected with the reference to the Advisory Board, and the proceedings of the Advisory Board, and its report, excepting that part of the report in which the opinion of the Advisory Board is specified, shall be confidential. ' Section 12 provides that where the Advisory Board has reported that there is in its opinion sufficient cause for the detention of a person, the Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit. But in case where the Advisory Board has reported that there is in its opinion no sufficient cause for the detention of the person concerned, the Government shall revoke the detention order and cause the person to be released forthwith. The Act thus by sec. 11(4) expressly denies representation through a legal practitioner. The Board may hear any person if necessary. If the detenu desires to be heard, the Board may hear him also. But no person has a right to be represented by a lawyer much less the detenu. This provision is in conformity with Art. 22 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... portant caveat. The reason behind the provisions contained in Article 22(4)(b) of the Constitution clearly is that a legal practitioner should not be permitted to appear before the Advisory Board for any party. The Constitution does not contemplate that the detaining authority or the Government should have the facility of appearing before the Advisory Board with the aid of a legal practitioner but that the said facility should be denied to the detenu. In any case, that is not what the Constitution says and it would be wholly inappropriate to read any such meaning into the provisions of Article 22. Permitting the detaining authority or the Government to appear before the Advisory Board with the aid of a legal practitioner or a legal adviser would be a breach of Article 14, if a similar facility is denied to the detenu. We must, therefore, make it clear that 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. We are informed that officers of the Government in the concerned departments often appear before the B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the detenu should not even be allowed to take the aid of a friend. Whenever demanded, the Advisory Boards must grant that facility. There are two decisions of this Court earlier to A.K. Roy, (supra). In Kavita w/o Sunder Shankardas Devidasani etc. v. State of Maharashtra, 11982] 1 SCR 138, Chinnappa Reddy, J. speaking for a three Judge Bench, observed (at 147): Where a detenu makes a request for legal assistance, his request would have to be considered on its own merit in each individual case. In the present case, the Government merely informed the detenu that he had no statutory right to be represented by a lawyer before the Advisory Board. Since it was for the Advisory Board and not for the Government to afford legal assistance to the detenu the latter, when he was produced before the Advisory Board, could have; if he was so minded, made a request to the Advisory Board for permission to be represented by a lawyer. He preferred not to do so. In the special circumstances of the present case, we are not prepared to hold that the detenu was wrongfully denied the assistance of counsel so as to lead to the conclusion that procedural fairness, a part of the Fundamental Right g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refusal of such assistance to the appellant was not justified. The history of civilised man is the history of incessant conflict between liberty and authority. The concentration of power in one hand and liberty in the other cannot go side by side. Temptation to use the power to curtail or destroy the liberty will be always there. It is found in the history of every country. The power to detain a person without trial is a serious inroad into the liberty of individuals. It is a drastic power capable of being misused or arbitrarily exercised. The Framers of our Constitution were not unaware of it. Some of them perhaps were the worst sufferers being the victims in the exercise of that arbitrary power. They had, therefore, specifically incorporated in the Constitution enough safeguards against the abuse of such power. The power to legislate in regard to preventive detention is located in Entry 9 of List I as well as in Entry 3 of List III in the VII Schedule of the Constitution. The safeguards in regard to preventive detention are incoporated under Article 22 of the Constitution. Article 22(4) provides: No law providing for preventive detention shall authorise the detention of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cally that it is the duty of the Advisory Board to see that the case of detenu is not adversely affected by the procedure it adopts. It must be ensured that the detenu is not handicapped by the unequal representation or refusal of access to a friend to represent his case. In the instant case, since the Advisory Board has heard the high ranking officers of the Police Department and others on behalf of the Government and detaining authority, it ought to have permitted the detenu to have the assistance of a friend who could have made an equally effective representation on his behalf. Since that has been denied to the detenu, the High Court, in our opinion, was justified in quashing the detention order. It was, however, sought to be made out for the State that the police officers were present before the Board only to produce the record and they did not do anything further. But the record shows otherwise. The officers were not there only to produce the records. They were in fact heard by the Advisory Board obviously on the merits of the matter and that makes all the difference in the instant case. In the result, we agree with the conclusion of the High Court and dismiss this appea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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