JUDGMENT
V. Ramaswami, J
1. Learned Counsel for the petitioner raised a number of grounds including the constitutional validity of Section 9 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (Central Act 52 of 1974) (hereinafter referred to as the “Act”). In fact, the learned Counsel had thoroughly argued the matter and finished his arguments. In view of the fact that the relief could be granted on one of the grounds itself, without going into the constitutional validity of Section 9 of the Act, we are proceeding to dispose of the petition only on that short ground.
2. The point raised by the learned Counsel for the petitioner is that though the detenu produced witnesses before the Advisory Board to be examined on the date of hearing, the Advisory Board refused to permit them to be examined on his side. In the affidavit dated 13-2-1986 sworn to by the detenu, it is stated that when the Advisory Board met on 4-2-1986, the detenu appeared before the Board along with his friends, that he kept ready two witnesses whose names and addresses have been given in the affidavit ready to be examined and that he requested the Advisory Board to permit him to examine the said two witnesses. He had further stated that he also filed a representation dated 4-2-1986 before the Advisory Board requesting the Board to examine the above said witnesses. But the Advisory Board flatly refused permission to examine the witnesses. On this ground, he contended that the detenu was prevented from rebutting the allegations made against him and proving his innocence, and that the Advisory Board had not complied with the provisions of Sections 8 and 9 of the Act. In the additional counter affidavit filed on behalf of the State of Tamil Nadu and sworn to by one Mr. Vivek Harinarayanan, Deputy Secretary to the Government of Tamil Nadu, Public Department, the respondents have denied the allegations that the detenu had kept two witnesses ready to be examined by the Advisory Board, that he requested the Advisory Board to permit him to examine the witnesses and that the Board refused to permit them to be examined. However, there is no satisfactory denial that the detenu filed a written representation dated 4-2-1986 before the Advisory Board requesting the Board to examine the said two witnesses. It is also not made clear in the counter affidavit that the deponent, namely, the Deputy Secretary, is swearing to those facts mentioned in the counter affidavit on instructions from the Advisory Board. In the circumstances, we proceed on the assumption that a written request was made for examining two witnesses on behalf of the detenu on that date and that request has been refused.
3. The Supreme Court in A.K. Roy v. Union of India AIR 1982 SO 710 in paragraph 105 has held as follows:–
Neither the Constitution nor the National Security Act contains any provision denying to the detenu the right to present his own evidence in rebuttal of the allegations made against him. The detenu may therefore offer oral and documentary evidence before the Advisory Board in order to rebut the allegations which are made against him.
The Supreme Court has further added as follows:–
We would only like to add that if the detenu desires to examine any witnesses, he shall have to keep them present at the appointed time and no obligation can be cast on the Advisory Board to summon them. The Advisory Board, like any other Tribunal, is free to regulate its own procedure within the constraints of the Constitution and the statute. It would be open to it, in the exercise of that power to limit the time within which the detenu must complete his evidence. We consider it necessary to make this observation particularly in view of the fact that the Advisory Board is under an obligation under Section 11(1) of the Act to submit its report to the appropriate Government within seven weeks from the date of detention of the person concerned. The proceedings before the Advisory Board have therefore to be completed with the utmost expedition.
4. In this case, the detenu was not permitted to examine the witnesses at all and therefore he did not have an opportunity to rebut the evidence against him. On this short ground, the detenu is entitled to the relief prayed for. Accordingly, we allow the writ petition, set aside the order of detention and direct the respondents to set the detenu at liberty forthwith.