Suman And Etc. vs State Of Tamil Nadu And Anr. Etc. on 7 April, 1986

JUDGMENT

M.N. Chandurkar, C.J.

1. Two questions of law have been framed by the Division Bench which according to the learned Judges required consideration by a Full Bench. The two questions are as follows :

(1) Whether the failure of the Advisory Board to adjourn the hearing when it rejected at the time of the hearing the detenu’s request for the assistance of a legal practitioner even in the absence of such a request by the detenu, will vitiate the order of detention.

(2) Whether the confessional statement made by the detenu to the police officer is admissible in cases of detention under a Preventive Detention Act such as Tamil Nadu Act No. 14 of 1982.

We are not concerned with the merits of the detention order passed against the detenu-petitioner. It is therefore not necessary to refer to the grounds on which the petitioner had been detained. We are therefore setting out only such of the facts that are material for the decision of the two questions which have been canvassed before us.

2. The Commissioner of Police, Madras City passed an order of detention under section 3(1) of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug-offenders, Goondas, Immoral Traffic Offenders and Slum Grabbers Act, 1982 (hereinafter referred to as the Act) directing that the petitioner be detained and kept in custody in the Central Prison, Madras. The petitioner was served with the grounds of detention and other documents on 25-5-1985. The order of detention was confirmed by the State Government on 30-5-1985. The petitioner forwarded a representation dated 7-6-1985 to the State Government which was received by the State Government on 10-6-1985. In this representation at the end of paragraph 5, the petitioner asked for permission to have the assistance of an advocate to be present before the Advisory Board. The request made to the State Government is contained in the following words :

“I may also be permitted to have the assistance of an advocate to represent my case before the Advisory Board.”

This representation was forwarded by the State Government to the Advisory Board on 11-6-1985. It was also forwarded to the Commissioner of Police on the same day. The Commissioner of Police submitted his remarks on 14-6-1985. The Advisory Board met on 17th June, 1985 and the Board found that there was sufficient cause for the detention of the petitioner. Thereafter, the Chief Minister passed an order on 25-6-1985 rejecting the representation of the detenu. The order of the State Government was served on the detenu on 25-6-1985. The petitioner then challenged his detention by a writ petition in this Court. Several contentions raised on behalf of the petitioner were rejected by the Division Bench. One of the contentions raised before the Division Bench was that the petitioner had been denied a reasonable opportunity to make an effective representation as the Advisory Board when it turned down the request of the detenu failed to adjourn the proceedings as laid down in the unreported decision of this Court in Suresh v. State of Tamil Nadu (W.P. No. 12708 of 1984) followed by the Bench in Ramaswami v. State of Tamil Nadu (W.P. No. 11605 of 1985). The Division Bench in the case of Suresh had taken the view that even if the Advisory Board had decided not to permit the detenu to have legal assistance, they should have adjourned the matter giving enough time to the detenu to prepare his case for oral representation, if any. The Division Bench further observed :

“It is no answer to say that when he was informed orally that his request for legal assistance is rejected, he should have requested for an adjournment of the hearing. It is not a question of the detenu asking for time for making a representation. He is already under preventive detention. It is the duty of the Advisory Board to give him sufficient time to enable him to present his case at the time of personal hearing. If the argument that unless he had made a request for an adjournment, the Advisory Board was not bound to adjourn it, were to be accepted, it would mean that the notice of the hearing also need not be given sufficiently in advance and that it could be served on the previous day and for that matter even on the same day as of hearing, and the detenu may be asked to make his representation. That would not amount to giving an opportunity at all for personal hearing.”

The Division Bench took the view that the decision in the case of Suresh required reconsideration in view of the decision in Tusher Govindji Shah v. Union of India, . The Division Bench found that the ratio of the Supreme Court decision was that when a right is available to the detenu, if he does not exercise the same, he shall suffer for his folly and that there is no duty cast on the Advisory Board to adjourn the hearing even though no such request was made by the detenu to the Advisory Board. Thus, according to the Division Bench the decision in the case of Suresh requires reconsideration. This is how the first question has been referred to a full bench.

3. The second question ‘whether the confessional statement made by the detenu to the police officer is admissible in cases of detention under a Preventive Detention Act such as Tamil Nadu Act No. 14 of 1982’ arises in the following circumstances. The case of the petitioner was that he was conversant with ‘Thulu’ which has no script and he knows reading and writing Hindi only. Therefore, since he does not know Tamil or English, the grounds of detention not having been supplied in the language which he knows, there was violation of Art. 22(5) of the Constitution of India. Six circumstances were relied upon before the Division Bench on behalf of the respondents in support of the proposition that the grounds of detention have been duly communicated to the petitioner and that he understood Tamil and English. These circumstances were : (1) The petitioner was born in Tamil Nadu. (2) He was educated in Madras and studied in Church Park Convent, Adayar Beasant Theosophical High School, Mambalam Ramakrishna High School and P.U.C. in Pachayappas College. (3) He has acted as a hero in a number of Tamil talkie films. (4) His written representation is in English and signed by the petitioner in English. (5) Search list is signed by him in English and during the search he did not say that he did not know Tamil and (6) His confessional statement is reduced in Tamil and made to the police authorities. Though it was conceded by the learned Advocate General before the Bench that the confessional statement was not considered by the detaining authority and indeed it is now common ground that it was not considered, Division Bench took the view that the detenu’s confessional statement is one among the circumstances relied on by the Advocate General in bringing the case within the exception envisaged in Prakash Chandra Mehta v. Commr., and Secretary, Govt. of Kerala, 1985 SCC (Cri) 322 : (1986 Cri LJ 786). Since the question as to whether the confessional statement was admissible in evidence was already referred to the Full Bench in W.P. No. 351 of 1985 by another Bench, the consideration of the said question had to be deferred till an authoritative pronouncement is made by the Full Bench. The Division Bench observed that even the examination of the petitioner’s contention that the detaining authority had before it inadmissible piece of evidence and that it was consequently influenced by extraneous matter depends upon the inadmissibility or otherwise of the confessional statement. This is how the second question has been referred for consideration.

4. Before we consider the contention that the detenu did not have reasonable opportunity to put forth his case before the Advisory Board, it is necessary to refer to the argument advanced by Mr. G. Ramaswami, before us, that instead of answering the two questions referred to the Full Bench which would finally decide the case, he has invited our attention to rule 7 in order I of the Appellate Side Rules of the High Court, which according to him, would enable us to go into the merits of the detention order and decide the writ petition itself. Rules 4 to 7 of Order I of the Appellate Side Rules deal with the constitution of a Full Bench in the matters which are ordinarily heard by a Bench of three Judges. Rule 7 reads as follows :

“When a question of law is referred to a Full Bench, the Full Bench may answer the reference or in its discretion may finally decide the case itself.”

Now, undoubtedly, in view of the provisions of Rule 7 it would be permissible for the Full Bench to decide the matter in which the question of law has been referred to the Full Bench on merits. We must point out, however, that in the present case, the Division Bench has considered on merits the several contentions raised on behalf of the petitioner and has also recorded findings thereon. If we were to rehear the matter that would mean that in a sense we will be sitting in judgment over the findings recorded by the Division Bench because it is obvious that the learned counsel would like to argue all the contentions which were raised before the Division Bench. Apart from this, when a Division Bench has already applied its mind to the contentions raised on behalf of the detenu, it would not be proper for the Full Bench to go into the selfsame contentions once again. This would clearly be waste of time. We have therefore declined to hear the matter finally and the arguments before us will therefore be restricted to only the two questions which have been referred to the Full Bench.

5. A brief reference may now be made to the provisions of the Act under which the detention order in question has been passed by the Commissioner of Police. The power of detention is provided for in section 3(1) of the Act which reads :

“The State Government may, if satisfied with respect to any bootlegger or drug-offender or goonda or immoral traffic offender or slum-grabber that with a view to prevent him from acting in any manner prejudicial to the maintenance of public order, it is necessary so to do, make an order directing that such person be detained.”

Sub-section (2) of section 3 enables the power under section 3(1) of the Act to be exercised either by the District Magistrate or the Commissioner of Police, if the State Government having regard to the circumstances prevailing, or likely to prevail in any area within the local limits of the jurisdiction of the District Magistrate or the Commissioner of Police, is satisfied that it is necessary to direct during such period as may be specified in the order, such District Magistrate or the Commissioner of Police, may also exercise the power conferred by section 3(1) of the Act. Under sub-section (3) of section 3 of the Act it is obligatory on the District Magistrate or the Commissioner of Police, as the case may be, if he has made an order of detention to report the fact to the State Government forthwith together with the grounds on which the report (order ?) has been made along with such other particulars as, in his opinion, have a bearing on the matter. The order made by the District Magistrate or the Commissioner of Police does not remain in force for more than twelve days unless in the meantime the State Government has approved the order. The person in respect of whom an order of detention can be made has to be either a bootlegger or drug-offender or goonda, immoral traffic offender or slum-grabber. Each one of these terms have been defined. In so far as the present case is concerned, the definition of goonda in section 2, clause (f) reads as follows :

“‘goonda’ means a person, who either by himself or as a member of or leader of a gang, habitually commits, or attempts to commit or abets the commission of offences, punishable under Chapter XVI or Chapter XVII or Chapter XXII of the Indian Penal Code.”

The definition section gives the meaning of the phrase’ acting in any manner prejudicial to the maintenance of public order’. In so far as the case of a goonda is concerned, ‘acting in any manner prejudicial to the maintenance of public order’ means ‘in the case of a goonda, when he is engaged, or is making preparations far engaging, in any of his activities as a goonda which affect adversely, or are likely to affect adversely, the maintenance of public order’. Reading the definition of ‘goonda’ along with the relevant part of the definition of ‘acting in any manner prejudicial to the maintenance of public order’, it is clear that it is not necessary for the exercise of the power of detention that a person in order to satisfy the description of a ‘goonda’ must be convicted of the offences punishable under Chapter XVI, XVII or XXII of the Indian Penal Code. It is enough if there is material to show that the person is engaged or is making preparations for engaging, in the commission of offences specified in the definition of a ‘goonda’. The subjective satisfaction of the detaining authority must therefore relate to the fact that the person who is sought to be detained as a goonda is a person who is engaged or is making preparations for engaging in any of the activities which are in the nature of offences specified in the definition of ‘goonda’.

6. We shall now take up the first question for consideration. The case of the petitioner in the affidavit in support of the petition is that the petitioner had requested that he may be permitted to have the assistance of an advocate at the time when he was produced before the Advisory Board and that whenever such a request is made, the Advisory Board is bound in law to consider the same on merits. He then stated :

“The detenu was hoping that the Advisory Board would give him the assistance of an advocate. The Advisory Board had not considered the request on merits, nor did grant the request ……… The petitioner had been seriously prejudiced when he was produced before the Advisory Board and asked to proceed with the enquiry, without the assistance of an advocate.”

This, according to the petitioner, itself vitiates the order of detention.

7. The respondents’ case is that the Advisory Board perused the grounds of detention, the report of the detaining authority to the Government, the written representation of the detenu and the connected records and also heard the representation of the detenu. The further case is that in view of section 11(1) and 11(5) of the Act, it was not obligatory on the part of the Advisory Board to comply with the request of the detenu made in his written representation. Further, when making a personal representation before the Advisory Board on 17-6-1985, he did not make this request. The affidavit of the second respondent further states that the Advisory Board was not bound to communicate in writing the refusal of the request for the assistance of an advocate. It is further stated that the detenu was informed of the position of the Advisory Board rejecting his request for the legal assistance and it was thereafter that the case of the detenu was taken up by the Advisory Board and considered. It is further stated that the detenu has chosen to appear in person before the Advisory Board and did not make any request before the Advisory Board for time. It was therefore not open to the detenu to complain that principles of natural justice had been violated. The learned counsel for the detenu stated that this statement of respondent No. 2 that the detenu himself did not make any request for legal assistance before the Advisory Board may be accepted as correct for the purposes of this reference. The learned counsel for the detenu has placed heavy reliance on the observation of the Division Bench in the case of Suresh which undoubtedly lays down a legal proposition that notwithstanding the fact that the detenu does not make a request for adjournment of the hearing before the Advisory Board when he is informed that his request for legal assistance of an advocate is rejected, it is the duty of the Advisory Board to give him sufficient time to enable him to present his case at the time of personal hearing. In that case the detenu had sent his representation on 14-11-1984 to the Advisory Board through the Superintendent, Central Prison. In his representation addressed to the Advisory Board, he had asked for permission to have the assistance of an advocate, at a time when he was produced before the Advisory Board. The Advisory Board issued a notice to the detenu stating that the meeting of the Board would be held on 27-11-1984 at 2.00 p.m. for personal hearing of the detenu’s case and to review the detention order. The Advisory Board did not give any written reply to the detenu till he appeared before the Advisory Board on 27-11-1984. On the date on which the detenu appeared and the case was fixed for hearing, the Advisory Board decided not to give legal assistance, just prior to taking up his case. On these facts, the Division Bench held that even if the Advisory Board decided not to permit the detenu to have legal assistance on 27-11-84 they should have adjourned the matter giving enough time to the detenu to prepare his case for oral representation, if any.

8. Since the reference to the Full Bench has been made because the Division Bench was inclined to take the view that the decision in Suresh case required reconsideration because of the observations made by the Supreme Court in Tusher Govindji Shah case, (1985 Cri LJ 793), it is proper that a reference is now made to the decision in Tusher Govindji Shah case. The detenu in that case was under detention from 23-3-1984 under an order dated 11-1-1984 made by the Government of Maharashtra under section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. The grounds of detention were supplied to the detenu on 23-3-1984. One of the contentions raised before the Supreme Court was that the principles of natural justice had not been complied with when the matter was heard by the Advisory Board in that the detenu was prevented from making his representation in his own language Punjabi and his request for assistance of a friend was refused. We are concerned only with the latter part of the ground. In the affidavit filed before the Supreme Court the Secretary of the Advisory Board denied that the officers of the Department were present in the hall where the detenu was heard by the Advisory Board. He had also denied that the detenu made any request for his case being represented by his friend who was not a lawyer and that the detenu requested the Advisory Board to be heard in Punjabi. The statement of the Secretary of the Advisory Board who is a responsible officer was accepted and the Supreme Court held that the detenu did not make the two requests, viz., his case should be represented by his friend who was not a lawyer and that he should be heard in Punjabi. Reliance was placed on behalf of the petitioner on the decision of the Supreme Court in Nand Lal Bajaj v. State of Punjab, wherein the Advisory Board was assisted by a Public Prosecutor, two Attorneys, a District Legal Advisor and a Legal Assistant, but the prayer of the detenu for assistance of a lawyer made in writing was refused by the Advisory Board and it was held that the confirmation of the detention under S. 12 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, when the entire report of the Advisory Board was not before the State Government, vitiated the detention and further refusal by the Board of the detenu’s request for assistance for a lawyer amounted to arbitrariness and unreasonableness offending Articles 14 and 21 of the Constitution of India. The detention was held to be bad for this reason also. Referring to the decision in Nand Lal Bajaj case, the following observation were made by the Supreme Court :

“That decision would not apply to the facts of the present case where it is not the contention of the petitioner that the Advisory Board had the assistance of any lawyer or attorney when the matter of the detention of the detenu was examined and any request of the detenu for assistance by a lawyer was refused. As stated earlier there was no request at all by the detenu for assistance by friend who is not a lawyer when the matter of his detention came to be considered by the Advisory Board. This decision does not, therefore, help the detenu in this case.”

This decision, in our view, must be read as laying down a proposition that unless the detenu specifically makes a request to the Advisory Board for the assistance of a friend, who is not a lawyer, no principle of natural justice can be said to have been breached when the Advisory Board, proceeds to consider the representation. It is undoubtedly true that the argument on behalf of the detenu that principles of natural justice had not been complied with when the matter was heard by the Advisory Board was advanced on the footing that the request for the assistance of a friend was refused, but though on facts it was found that no such request for the assistance of a friend was made by the detenu, the decision of the Supreme Court is, in our view, clearly an authority for the proposition that unless a request for a friend is expressly made before the Advisory Board, the proceedings before the Advisory Board do not, on account of the absence of a friend, suffer from any violation of the principles of natural justice. With respect, the Division Bench is in our view right when it reads this decision as creating an infirmity in the decision of the Division Bench of this Court in Suresh’s case which spelt a duty on the part of the Advisory Board to adjourn the hearing and give enough time to prepare his case for oral representation, if any, even if he does not ask for time.

9. Even apart from this decision, it appears to us that it is difficult to sustain the view taken by the Division Bench in Suresh’s case that the Advisory Board should on its own give enough time to the detenu without the detenu even asking for it to enable the detenu to make his oral representation and if the Advisory Board fails to do so, the detention order is vitiated.

10. The Act contains provisions similar to the provisions in other detention laws requiring a reference to the Advisory Board and the procedure of Advisory Boards. Section 10 of the Act which requires a reference to the Advisory Board to be made reads as follows :

“In every case where a detention order has been made under this Act, the State Government shall, within three weeks from the date of detention of a person under the order, place before the Advisory Board constituted by them under S. 9, the grounds on which the order has been made and the representation, if any, made by the person affected by the order, and in the case where the order has been made by an officer, also the report by such officer under sub-section (3) of section 3.

Section 11 deals with the procedure of Advisory Boards and sub-sections (1) and (S) which alone are relevant far our purpose read as follows :

“(1) The Advisory Board shall, after considering the materials placed before it and, after calling for such further information as it may deem necessary from the State Government or from any person called for the purpose through the State Government or from the person concerned, and if, in any particular case, the Advisory Board considers it essential so to do or if the person concerned desires to be heard, after hearing him in person, submit its report to the State Government, within seven weeks from the date of detention of the person concerned.

………….

(5) Nothing 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.”

Sub-section (5) expressly bars the representation of the detenu by any legal practitioner in any matter connected with the reference to the Advisory Board. Section 11(5) is in keeping with the provisions of Art. 22(3) of the Constitution of India which makes the provisions of Art. 22(1) and (2) inapplicable to a person who is arrested or detained under any law providing for preventive detention. Therefore, the right which is given under Art. 22(1) to a person who is arrested and detained in custody to be informed as soon as may be of the grounds of such arrest and the further right that he shall not be denied the right to consult and to be defended by legal practitioner of his choice, is not available to a person who is detained under any law providing for preventive detention. Section 11 of the Act lays down the procedure to be adopted by the Advisory Board. The Advisory Board is required to consider the material placed before it; it can call for such other information as it may deem necessary from the State Government or from any person called for the purpose through the State Government. Further, the Advisory Board is given discretion to hear the person concerned if in any particular case the Advisory Board considers it essential so to do, or if the person concerned desires to be heard. Thereafter, the Advisory Board has to submit its report to the State Government within seven weeks from the date of detention of the person concerned. Reading section 11(1) and 11(5) together, it is clear that personal hearing to the detenu is contemplated by the Act only if the Advisory Board considers it essential to do so or if the person concerned desires to be heard by the Advisory Board. If the detenu does not desire to be heard in person, then the Advisory Board is entitled to consider the material placed before it and the representation even without hearing him. Of course, if the Advisory Board itself considers it essential to hear the person concerned, then the Advisory Board can also hear the detenu. It however appears that it is the normal practice that a notice of personal hearing is always given to the detenu. So far as the provisions of the Act are concerned, the procedure before the Advisory Board is governed by section 11 and if no request is made by the detenu to be heard in person or to hear a friend of his choice on his behalf, then it is difficult to spell out any duty in the Advisory Board to adjourn the hearing after the request for being represented by a legal practitioner is rejected. As pointed out by the Supreme Court in Raisuddin v. State of U.P. the Advisory Board is a wholly independent body consisting of persons who are or have been or are qualified to be appointed as Judges of a High Court and it is entirely for the Advisory Board to regulate its schedule of holding meetings and conducting its business in accordance with the procedure laid down under section 11 of the Act.

11. The nature of the procedure to be adopted by the Advisory Board has been considered by the Supreme Court in A. K. Roy v. Union of India, . That is a decision of the Constitution Bench of the Supreme Court. The Supreme Court in that decision was considering the exercise of what the Supreme Court called the trinity of rights before the Advisory Board, viz., (1) the right of legal representation, (2) the right of cross-examination and (3) the right to present evidence in rebuttal. The Supreme Court in that case was dealing with the detention under the National Security Act and pointed out that the question as to the kind of rights that are available to the detenu in the proceeding before the Advisory Board has to be decided in the light of the provisions of the Constitution and on the basis of the provisions of the National Security Act to the extent to which they do not offend against the Constitution. Referring to the right of legal representation which is claimed by the detenu the Supreme Court in paragraph 87 observed as follows :

“On a combined reading of clauses (1) and (3)(b) of Art. 22, it is clear that the right to consult and to be defended by a legal practitioner of one’s choice, which is conferred by Clause (1), is denied by Clause (3)(b) to a person who is detained under any law providing for preventive detention. Thus, according to the express intendment of the Constitution itself, no person who is detained under any law, which provides for preventive detention, can claim the right to consult a legal practitioner of his choice or to be defended by him. In view of this, it seems to us difficult to hold, by the application of abstract, general principles or on a priori considerations that the detenu has the right of being represented by a legal practitioner in the proceedings before the Advisory Board. Since the Constitution, as originally enacted, itself contemplates that such a right should not be made available to a detenu, it cannot be said that the denial of the said right is unfair, unjust or unreasonable.”

The Supreme Court thus took the view that the denial of the right of legal representation to a detenu cannot be considered as unfair, unjust and unreasonable. It was then pointed out that the effect of section 11(4) of the National Security Act which is analogous to the provisions of section 11(4) of the Act and Art. 22(3)(b) was that the detenu cannot appear before the Advisory Board through a legal practitioner and the written representation of the detenu does not have to be expatiated upon by a legal practitioner. However, in paragraph 94 of the judgment the Supreme Court laid down the law thus :

“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.”

In paragraph 95 of the judgment in A. K. Roy case the Supreme Court held that the embargo on the appearance of legal practitioners should not be extended so as to prevent the detenu from being aided or assisted by a friend who, in truth and substance, is not a legal practitioner. It was observed :

“Every person whose interests are adversely affected as a result of the proceedings which have a serious import, is entitled to be heard in those proceedings and be assisted by a friend …………. The statute does not exclude that right, that the detenu should not even be allowed to take the aid of a friend. Whenever demanded, the Advisory Boards must grant that facility.”

In paragraph 99 of the judgment the Supreme Court pointed out that the rules of natural justice are not rigid norms of unchanging content, and the ambit of those rules must vary according to the context, and they have to be tailored to suit the nature of the proceeding in relation to which the particular right is claimed as a component of natural justice. Undoubtedly, these observations were made in the context of the consideration of the question as to whether the detenu can claim the right of cross-examination in the proceedings before the Advisory Board. But we cannot forget that when a detention is sought to be quashed on the ground that the proceedings before the Advisory Board were vitiated by non-compliance of the principles of natural justice, the question which must necessarily fall for consideration is what in the light of the provisions of the relevant Detention Act, could reasonably be claimed as a component of natural justice. As pointed out by the Supreme Court in A. K. Roy case (1982 Cri LJ 340) in proceedings before the Advisory Board the question for consideration is not whether the detenu is guilty of any charge, but whether there is sufficient cause for the detention of the person concerned. It was then pointed out :

“The detention, it must be remembered, is based not on facts proved either by applying the test of preponderance of probabilities or of reasonable doubt. The detention is based on the subjective satisfaction of the detaining authority that it is necessary to detain a particular person in order to prevent him from acting in a manner prejudicial to certain stated objects. The proceeding of the Advisory Board has therefore to be structured differently from the proceeding of judicial or quasi-judicial tribunals, before which there is a lis to adjudicate upon.”

Referring to the fact that even the disclosure of the identity of the informant may abort the very process of preventive detention and that no one will be willing to come forward to give information of any prejudicial activity if his identity is going to be disclosed, which may have to be done under the stress of cross-examination, the Supreme Court in paragraph 100 observed as follows :

“It is, therefore, difficult in the very nature of things, to give to the detenu the full panoply of rights which an accused is entitled to have in order to disprove the charges against him. That is the importance of the statement that the concept of what is just and reasonable is flexible in its scope and calls for such procedural protections as the particular situation demands. Just as there can be an effective hearing without legal representation even so, there can be an effective hearing without the right of cross-examination. The nature of the inquiry involved in the proceeding in relation to which these rights are claimed determines whether these rights must be given as components of natural justice.”

Having regard to the above observations of the Supreme Court, it would be difficult to hold that the proceedings before the Advisory Board are vitiated merely on the ground that the Advisory Board after rejecting the request for legal assistance made by the detenu did not suo motu adjourn the hearing, unless such a right to have the matter adjourned is treated as a component of natural justice and an obligation is spelt in the Advisory Board to suo motu adjourn the matter. The Supreme Court in A. K. Roy case (1982 Cri LJ 340) has undoubtedly indicated that the facility of being represented by a friend must be granted whenever demanded. This would mean that unless the detenu makes a demand there is no occasion for the Advisory Board to consider whether such a facility should be granted or not. In case, where such a demand is never made, it is difficult for us to spell out any duty or obligation on the part of the Advisory Board to tell the detenu that they are adjourning the matter, notwithstanding the fact that he does not ask for the adjournment, so as to enable him to be represented by a friend. Whether the detenu wishes to be represented by a friend and whether he requires time to fully represent his case or to make preparations for such representation, is a matter exclusively for the detenu to decide and it would, in our view, be wholly inappropriate to find fault with the procedure adopted by the Advisory Board because the Advisory Board does not suo motu adjourn the proceedings.

12. The detenu is supplied with all the material which is considered by the detaining authority. The best person to give his version of the material could be no other than the detenu himself. If he does not feel the need of a friend or if he does not feel that he did not have the sufficient time to enable him to put forth his case effectively before the Advisory Board, it is difficult for us to see how the Advisory Board is duty bound and is under an obligation to postpone the consideration of the representation and the matter of detention referred to the Board.

13. We may also refer to the decision of the Supreme Court in Phillippa Anne Duke v. State of Tamil Nadu, which also says that unless the detenu asks for a friendly representation, the question of denying such representation does not arise and that in a case where no demand for the assistance of a friend is made, there is no denial of the right to make a proper and effective representation to the Advisory Board. The Supreme Court in Phillippa Anne Duke’s case was dealing with the detention under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. One of the contentions raised before the Supreme Court was that the detenus had been denied the right to be represented before the Advisory Board by an Advocate or at least by a friend and they were thus denied the right to make a proper and effective representation to the Advisory Board. This was sufficient, according to the detenus, to vitiate the detention. It was further urged that the detenus were foreigners and they were under a handicap being ignorant of the laws and procedure of this country and to deny any legal representation to them was an unreasonable exercise of the discretion vested in the Advisory Board to permit or not to permit legal representation. Therefore, according to the detenus that was a case where legal representation should have been permitted and in any case the detenus ought to have been ‘offered’ at least ‘friendly’ representation, if not legal representation. Therefore, the argument was that the Advisory Board should have itself offered ‘friendly’ representation. In other words, the initiative should have been taken by the Advisory Board to tell the detenus that if they so desire they could get a friend to assist them. This argument was rejected by the Supreme Court with the following observations :

“In the present case, the Advisory Board consisting of three Judges of the High Court of Tamil Nadu considered it unnecessary and inadvisable to allow legal representation to the detenus. It was a matter for the decision of the Advisory Board and I do not think I will be justified in substituting my judgment in the place of their judgment. The detenus were heard personally by the Advisory Board. After seeing and hearing them personally also, the Board did not feel it necessary to provide legal representation to them which they would certainly have done if they had thought that the detenus appeared to require such representation. Regarding representation by a friend, there was never any such demand by the detenus. A ‘friendly’ representation would certainly have been provided if it had been so demanded. It was not for the Advisory Board to offer ‘friendly’ representation to the detenus even if the latter did not ask for it. Relying upon a sentence in the counter-affidavit of Shri Kiru Bhakaran that representation not only by a lawyer but by a friend was also considered not necessary by the Advisory Board, it was argued that the Advisory Board had, without warrant, refused even friendly representation. Shri Kiru Bhakaran was speaking for the State of Tamil Nadu and not for the Advisory Board. I have perused the file of the Advisory Board which was produced before me and I have also perused the communications addressed by the Advisory Board to the Government of Tamil Nadu and to the detenus. I do not find the slightest hint of a demand for ‘friendly’ representation or its denial anywhere. The advisory Board was neither asked nor did the Board deny any ‘friendly’ representation.”

The above observations will show that the Supreme court positively took the view that there was no demand whatsoever for ‘friendly’ representation and there was therefore no question of any denial of ‘friendly’ representation. The observation underlined by us above will indicate, that even according to the Supreme Court if a detenu does not ask for a ‘friendly’ representation, it was not for the Advisory Board to offer such ‘friendly’ representation. In rejecting the detention of the detenu in that case the Supreme Court has also taken into account the fact that the Advisory Board consists of three Judges of the High Court and if they considered unnecessary to allow legal representation to the detenus it was a matter for the decision of the Advisory Board and the Supreme Court could not substitute its judgment in place of the judgment of the Advisory Board. The Supreme Court also noticed the fact that the detenus were personally heard by the Advisory Board. Even though this decision clearly lays down that when the detenu does not ask for any assistance by a friend it was not for the Advisory Board to offer any ‘friendly’ representation after the Board does not feel it necessary to provide legal representation to the detenu and when the Board proceeds to hear the detenu himself there was no denial of opportunity to make a proper and effective representation to the Advisory Board, this was not even considered by the Division Bench in Suresh’s case probably because it was not cited before the Bench.

14. It is undoubtedly true that in Suresh’s case the Division Bench took the view that when the Advisory Board decided not to permit the detenu to have legal assistance, they should not have proceeded further with the hearing and enough time to the detenu should have been given to prepare his case for oral representation. With respect, the Division Bench assumed that the failure to adjourn the matter on its own by the Advisory Board deprived the detenu of the opportunity to prepare his case for oral representation. The Division Bench, as a matter of fact, spelt out a duty on the part of the Advisory Board to give sufficient time to the detenu, even without asking for an adjournment.

15. As earlier pointed out, these are the observations which have been heavily relied on by Mr. G. Ramaswami, learned counsel for the petitioner. He made it clear to us that his contention, in the instant case, was not with regard to the rejection of the request for a lawyer, but the contention was that there was failure by the Advisory Board to adjourn the hearing suo motu and thus rectify the mistake of informing the detenu only on the date of the hearing that the request for the lawyer is rejected. The prejudice, according to the learned counsel, lies in the fact that the Advisory Board did not grant him sufficient time to get ready for a personal hearing. It may be remembered that it is not the case of the detenu that he has asked for an adjournment on the ground that he was not ready for a personal hearing. He had been given sufficient notice of the date of the hearing. Indeed, the whole basis of the argument before us is the decision of the Division Bench in Suresh’s case, which according to the learned counsel secures to the detenu a reasonable opportunity of being heard. The decision of the Supreme Court in Phillippa Anne Duke’s case (1982 Cri LJ 1389) lays down a principle. The principle is that if the detenu does not make a request for ‘friendly’ representation then it is not for the Board to offer such representation. Same principle will apply where a question arises whether the Board should have offered to adjourn the proceeding when the detenu does not seek an adjournment. With great respect, we are unable to agree with the view taken by the Division Bench in Suresh’s case. We are also unable to concur with the view expressed by the Division Bench in the following observations :

“If the argument that unless he had made a request for an adjournment, the Advisory Board was not bound to adjourn it, were to be accepted, it would mean that the notice of the hearing also need not be given sufficiently in advance and that it could be served on the previous day and for that matter even on the same day of hearing, and the detenu may be asked to make his representation. That would not amount to his representation. That would not amount to giving an opportunity at all for personal hearing.”

We must point out that declining to adjourn the proceedings by the Advisory Board without even a request made by the detenu cannot be put on the same footing as an unduly short notice to the detenu, to make a representation before the Advisory Board. No dogmatic or hypothetical approach is permissible in such cases. The question as to whether in a given case there has been denial of opportunity to make a representation before the advisory Board cannot be decided on hypothetical considerations and has to be decided on the facts of each case. We must remember the fact as the Supreme Court pointed out in Phillippa Anne Duke’s case that the Advisory Board is headed by a sitting Judge of the High Court and the other two members are also either sitting or retired Judges or persons qualified to be Judges of the High Court. We are entitled to assume that they are aware of the elementary principles of natural justice and unless it is possible for the detenu to establish that on facts stated by him he has been denied reasonable opportunity of making a representation to the Advisory Board, the Advisory Board cannot be found guilty of adopting an arbitrary or unjust procedure. The fact even the Supreme Court in Phillippa Anne Duke’s case was required to notice the composition of the Advisory Board would indicate that non composition has some relevance when a grievance is made with regard to the arbitrariness of the procedure adopted by the Advisory Board.

16. The learned Advocate General has also contended that where a grievance is made that the detenu has been deprived of reasonable opportunity to make his representation before the Advisory Board, unless it is shown that the detenu has been prejudiced by the procedure adopted by the Advisory Board, the order of detention cannot be quashed on the vague assumption that by refusal to suo motu adjourn the proceedings the detenu has been deprived of an opportunity to make his representation. The learned Advocate General has relied on the decision of the Supreme Court in Asha v. Union of India, . Mr. G. Ramaswami, appearing on behalf of the detenu has invited our attention to certain passages from ‘Natural Justice’ by Paul Jackson, Second Edition. At page 63 in the Chapter ‘The Right to be Heard’ the learned author has observed as follows :

“A right to be heard and defend oneself is illusory without time to prepare a defence and knowledge of the case to be met. What is sufficient notice will vary with the facts as will the detail which must be given of the case to be met. “A case may be of so uncomplex a character and the issues may be so well known to all parties concerned that no more particular notice of any charge may be required, an opportunity for the party of whom complaint is made to state his case being sufficient (Stevenson v. United Road Transport Union, (1977) 2 All ER 941, 951, per Buckley L.J.).

The same learned author at page 66 further observed as follows :

“The opportunity to present an effective answer or defence may necessitate seeking an adjournment of proceedings; ‘Some times, if justice is to be done, adjournments are essential …….. Sometimes the court or tribunal should itself invite a party to ask for an adjournment, for example if magistrates realise that the defendant is directing his case to a particular charge but they are contemplating exercising their powers to convict, in the light of the facts, on a different charge under another statutory provision; Morriss v. Lawrence (1977) RTR 205.”

Mr. G. R. Ramaswami also relied upon a passage from “Natural Justice, Principles and Practical Application “by Geoffrey A Flick, 1979 Edn. in which at page 39 the author has observed as follows :

“A refusal to grant an adjournment may therefore in some cases be tantamount to a denial of natural justice, and where a party is denied the right of legal representation and is confronted at the hearing with a basis of liability as to which he has received no prior notice, a tribunal should offer such a party an adjournment; R. v. Small Claims Tribunal and Homewood, ex parte Cameron, (1976) VR 427, 431. Yet it should always be remembered that an adjournment will lead to a protracted hearing, increased delay, and increased costs and expenditure.”

The same author at page 40 has framed his conclusions as follows :

“Defects in any administrative notice should not be lightly disregarded, but the key issue is whether a party has been prejudiced by any procedural irregularity in the giving of notice. Without attempting an exhaustive list, the following three situations immediately suggest that prejudice is likely :

(i) Where a party is not informed of the time and place of a hearing :

(ii) Where legal or factual issues provide the basis for a tribunal’s determination and a party is denied the opportunity to comment on one or more of those issues; and

(iii) where, even if the facts remain the same and are fully discussed, a party has a penalty or a consequence imposed upon him which was not contemplated in the original notice.”

17. In Asha case cited (1986 Cri LJ 177) supra, the contention of the wife of the detenu was that the detenu had been prejudiced in the hearing by the Advisory Board as his request for representation by a counsel or by a non-lawyer friend had not been entertained by the Board. This, according to the petitioner, had affected the guarantee of limited defence available to a detenu as held in A. K. Roy case (1982 Cri LJ 340). In that case, the detenu in the representation handed over to the Advisory Board had asked to be represented by a lawyer or otherwise by his next friend. The Advisory Board after considering the representation and talking to the detenu came to the conclusion that there was no necessity to permit the detenu to have his case represented through the lawyer. The detenu had not brought along with him a friend though he had made such a request in his representation. After observing that no grievance can be made by the detenu on this score that the Advisory Board had not permitted the detenu to be represented by counsel in view of the decision in A. K. Roy case, the Supreme Court in paragraph 14 observed as follows :

“It is the case of the State that the advisory Board made inquiries from the detenu as to whether he had a friend available on the date of hearing to represent him and it appeared that no such person had been called by the detenu to the place of hearing. The Board was not inclined to adjourn the matter. The Board talked to the detenu and ascertained that the detenu was worldly wise, was sufficiently educated and did not suffer from any deficiency and was in a fit condition to represent his case. The rule to be applied is one of prejudice and in the facts of the case we are inclined to agree with Mr. Rana for the State that the detenu was not prejudiced in making an effective representation of his case at the hearing by the Advisory Board in the absence of a friend. There are cases where the affected person is in a better position than (sic) anyone else to place his case and in the facts and circumstances available on record, we are inclined to agree with Mr. Rana that the detenu’s is one such.” This decision of the Supreme Court in Asha case would therefore clearly show that no presumption can be drawn that a detenu has been prejudiced in his right to make an effective representation and specially when prejudice is sought to be made out for the failure of the Advisory Board to suo motu adjourn the proceeding, such prejudice must be established on record before fault is found with the procedure adopted by the Advisory Board so as to vitiate the order of detention. The test of prejudice having been established no academic view can be taken of the duty of the Advisory Board to suo motu adjourn the hearing and to advise the detenu to take more time to prepare his case.

18. It is important to refer to the decision of the Constitution Bench of five Judges of the Supreme Court in Olga Tellis v. Bombay Municipal Corporation, where the Constitution Bench even after quoting with approval the decision in S. L. Kapoor v. Jagmohan, where it was observed that the non-observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary, however took the view that though the Supreme Court would have directed the Municipal Commissioner to afford an opportunity to the petitioners to show why the encroachments committed by them on pavements or footpaths should not be removed, upheld that the opportunity which was denied by the Commissioner was granted by the Supreme Court in an ample measure, both sides having made their contentions elaborately on facts as well as on law. In paragraph 51 the Supreme Court observed as follows :

“Normally, we would have directed the Municipal Commissioner to afford an opportunity to the petitioners to show why the encroachments committed by them on pavements or footpaths should not be removed. But, the opportunity which was denied by the Commissioner was granted by us in an ample measure, both sides having made their contentions elaborately on facts as well as on law. Having considered those contentions, we are of the opinion that the Commissioner was justified in directing the removal of the encroachments committed by the petitioners on pavements, footpaths or accessory roads.”

This decision of the Constitution Bench must therefore be read as holding that even violation of the principles of natural justice does not necessarily make an action illegal.

19. Even the observations relied upon by the learned counsel for the detenu made by the learned author in ‘Natural Justice by Paul Jackson’ will indicate that though sufficient notice constitutes an important element of the right to be heard, the learned author himself has pointed out that what is sufficient notice will vary with the facts of each case. The learned author has himself quoted a decision which laid down that in a case which is not of complex character and the issues may be well known to all the parties concerned, no more particular notice of any charge may be required and an opportunity for the party of whom complaint is made to state his case may be sufficient. The observation of the same author that a court or tribunal should itself invite a party to ask for an adjournment is made in the context of the circumstance that the Court is contemplating to convict the defendant of a charge different from the one of which he had notice. Even the observations made by the learned author Geoffrey A Flick in ‘Natural Justice Principles and Practical Application’ reproduced by us would also indicate that a refusal to adjourn cannot in all cases amount to denial of natural justice. The learned author in his conclusion has also, as reproduced by us, clearly stated that ‘the key issue is whether a party has been prejudiced by any procedural irregularity in the giving of notice’. It therefore appears to us that the view of the Division Bench in Suresh case runs counter to the established proposition that there is no duty cast on the Advisory Board to suo motu adjourn the hearing before it, when it rejects the request for being represented by a lawyer and that merely on this ground unless prejudice is shown by the refusal to adjourn the hearing, there cannot be any procedural irregularity in the proceedings before the Advisory Board. We are therefore of the considered view that unless adjournment is sought for by the detenu the Advisory Board is not bound to adjourn the matter and in a given case even if the adjournment is refused by the Advisory Board that fact by itself will not vitiate the proceedings before the Advisory Board, unless the detenu establishes that he has been prejudiced as a result of the refusal of the adjournment.

20. It is argued by Mr. G. Ramaswami that the petitioner not having been intimated earlier that legal assistance will be denied to him, he was entitled for some time to prepare his case for his oral representation. We have perused the original record and we have also perused the original notice, a xerox copy of which was given to us by the learned counsel for the detenu. The petitioner was informed by a notice dated 10-6-1985 signed by the Deputy Secretary to Government that on 17-6-1985 there will be a personal hearing before the Advisory Board. This notice has an endorsement dated 12-6-1985 that it has been served on the detenu. In addition to this, when the Commissioner of Police forwarded the grounds of detention to the detenu on 21-5-1985 he was also informed that he was permitted to have the assistance of a friend if he so desires at the time of personal hearing by the Advisory Board provided that his friend is not an advocate and that he had to make arrangements to get the said friend to be present at the time of personal hearing by the Advisory Board. He was also informed that he was entitled to be heard in person by the Advisory Board and that he should intimate to the Commissioner and Secretary to Government, Prohibition and Excise Department, specifically in writing whether he desires to be heard in person by the Board or not. In his representation dated 10-6-1985, to which we have made a reference earlier, he merely stated that he may be permitted to have the assistance of an advocate to represent his case before the Advisory Board. We have looked into the original representation which had been signed by the detenu in English and some corrections also appear to have been made by him in his own hand. The Advisory Board issued a notice to him, as stated above, in pursuance of which he had appeared before the Advisory Board. The Board has recorded that ‘they heard the representation of the detenu’. The Board has also noted that when the requests for cross-examination of three girls and for legal representation made in the written representation were rejected the detenu did not make these requests when making a personal representation. It is not the detenu’s case that he had asked for any adjournment before the Advisory Board on the ground that he was not prepared for a personal hearing. No question of refusing an adjournment therefore arises. When notice is given to him for a personal hearing, unless there is indication to the contrary, we must assume that he had come before the Advisory Board ready for a personal hearing.

21. We may now turn to the second question which is referred for our consideration. In Duraiswamy Mudaliar v. Govt. of Tamil Nadu, 1984 Mad LW (Cri) 182 : (1985 Cri LJ 1115) a Division Bench of this Court has taken the view that section 25 of the Evidence Act by analogy will have to be applied even in respect of preventive detention under the Tamil Nadu Act No. 14 of 1982. The Division Bench rejected the contention of the Public Prosecutor in that case that the rules of criminal jurisprudence in general will not be applicable to preventive detention and that therefore even by way of analogy the provisions of section 25 of the Evidence Act should not be invoked. The Division Bench distinguished the decision of the Supreme Court in State of Gujarat v. Adam Kasam, on which reliance was placed by the Public Prosecutor. Distinguishing this decision, the Division Bench observed as follows :

“This decision is only authority for the proposition that the rule of criminal jurisprudence that guilt shall be proved beyond reasonable doubt is not to be imported in the case of preventive detention. In the case of preventive detention the orders are made on the subjective satisfaction of the authority concerned while in criminal proceedings, it is a judicial order open to question in further proceedings in an objective manner. We are therefore unable to agree with the learned public prosecutor that the rules of criminal jurisprudence as a whole are not applicable even by an analogy to the proceedings under the preventive detention.”

22. Another Division Bench of this Court however did not agree with this view. This was in W.P. No. 351 of 1985 (Kasthuri v. State of Tamil Nadu) in which the Division Bench doubting the correctness of the decision in Duraiswamy Mudaliar’s case referred to the Full Bench for consideration the question whether the provisions of the Evidence Act and in particular section 25 will be applicable to proceedings taken under S. 3 of the Tamil Nadu Act No. 14 of 1982, by the State Government or any one of its delegated authorities. In Kasthuri’s case the Division Bench took the view that “since the detaining authority is not a Court and the exercise of powers by him under the Act will not amount to judicial proceedings in or before any court, the provisions of the Evidence Act will not at all be attracted to any proceedings taken by Government or its delegated authority for passing orders of preventive detention under the Act”. Several reasons have been given by the Division Bench for this view. The reasons are : (1) The operation of section 25 will be confined only to those cases where a person is accused of an offence and in detention proceedings a detenu does not figure as an accused, much less as a person accused of an offence and there was no question of any confessional statement being proved against him or any finding rendered by the Court that a fact has been proved against him to the point of acceptance. (2) The embargo placed upon the proving of confessions made to a police officer by section 25 is not an absolute and unexceptionable one and section 27 operates as an exception to section 25 to the limited extent of permitting proof of any fact discovered in consequence of the information given by an accused and to that extent such portion of an accused’s statement, whether it would amount to a confessional statement or not, can be proved. (3) A Bench of this Court had earlier also taken a contrary view and held that the provisions of the Evidence Act will not have application to detention proceedings under the Act and as such section 25 will not have any application and that this decision has not been noticed by the Division Bench in Duraiswamy Mudaliar’s case. The decision is in Thenmozhi v. State of Tamil Nadu (W.P. No. 9811 of 1982) decided on 3-2-1983. (4) The Supreme Court has indirectly held in Kailash Pandey v. State of U.P., that an order of detention can be passed on the basis of a confessional statement. (5) If section 25 of the Evidence Act is held attracted to proceedings under the Tamil Nadu Act No. 14 of 1982, then it must logically be held that section 24 of the Evidence Act will be attracted to proceedings under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, but confessional statements of detenus in cases coming under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act made before the customs officers are taken as relevant material for forming the necessary subjective satisfaction before passing orders of detention.

23. Though at one stage Mr. G. Ramaswami on behalf of the petitioner had contended that proceedings relating to detention are criminal proceedings, he finally contended that such a proceeding must be construed as quasi-criminal or quasi-judicial proceeding, for the purposes of which admissibility of a statement will be governed by the provisions of the Evidence Act. He traced the history of the provisions of sections 25, 26 and 27 of the Evidence Act as given in Full Bench decision of the Allahabad High Court in Queen Empress v. Babu Lal, (1884) ILR 6 All 509 and to certain observations in the 14th Report of the Law Commission of India which also referred to the fact that a confession is seldom voluntarily made to a police officer and that it is probably only after a considerable amount of questioning that a statement is obtained from an accused person (paragraph 37). He has referred us to the decision of the Supreme Court in State of Punjab v. Barkat Ram, where at p. 280 : (1962 (1) Cri LJ 217 at p. 222) the Supreme Court observed as follows :

“The object of enacting section 25 of the Evidence Act, whose provisions formerly formed part of the Code of Criminal Procedure, was to exclude from evidence confessions made to the regular police which had a very bad reputation for the methods it employed in investigation, especially in forcibly extracting confessions with the object of securing a conviction. The past conduct of the members of the police organization justified the provision.”

Relying on these authorities, Mr. G. Ramaswami contended that the detaining authority has no method of finding out whether a confession is true or not and that confession does not therefore have any rational probative value and any view to the contrary will lead to disastrous consequences.

24. The learned Advocate General contended that neither section 25 nor the principle on which section 25, is based, is material for the purposes of exercising the power of detention. The proceedings under the preventive detention, according to the learned Advocate General is neither criminal nor quasi-criminal; nor is it a quasi-judicial one. Making an order of detention, according to the learned Advocate General, amounts to an administrative action and if we import the concept of proof beyond reasonable doubt, which is one of the characteristics of the criminal or quasi-criminal proceeding the whole purpose of preventive detention will be frustrated.

25. Now at the outset it appears to be well established that administrative authority or the State Government leading to the passing of an order of detention cannot properly be described as not only a criminal proceeding but also a quasi-criminal proceeding. The nature of the proceeding in respect of a preventive detention, is set out by the Supreme Court in Khudiram Das v. State of W.B., as follows : “The power of detention is clearly a preventive power. It does not partake in any manner of the nature of punishment. It is taken by way of precaution to prevent mischief to the community. Since every preventive measure is based on the principle that a person should be prevented from doing something which, if left free and unfettered, it is reasonably probable he would do, it must necessarily proceed in all cases, to some extent, on suspicion or anticipation as distinct from proof”. In State of Madras v. V. G. Row, the Supreme Court quoted with approval the observations of Lord Finlay in Rex v. Halliday, 1917 AC 260 that “the Court was the least appropriate tribunal, to investigate into circumstances of suspicion on which such anticipatory action must be largely based”. In Khudiram Das’s case the Supreme Court held that the power of detention is not a quasi judicial power and that the only thing which was intended to be emphasised by the Supreme Court in Bhut Nath Mate v. State of West Bengal, was that the detaining authority must exercise due care and caution and act fairly and justly in exercising the power of detention. The proceeding relating to detention is also not a quasi criminal proceeding because in the case of a quasi criminal proceeding, the principle that a violation of the law has been proved beyond all reasonable doubt is attracted. Dealing with penalty proceedings under the Foreign Exchange Regulations Act, 1947, the Supreme Court in Shanti Prasad v. Director of Enforcement, observed as follows :

“But it is only right to observe that the proceedings under the Act are quasi-criminal in character and it is the duty of the respondents as prosecutor to make out beyond all reasonable doubt that there has been a violation of the law.”

26. In Calcutta Dock Labour Board v. Jaffar Imam, the Supreme Court was considering the question as to whether termination of service solely on the basis of the preventive detention of the employees for alleged violent and riotous behaviour was against rules of natural justice and illegal and held that preventive detention is not equivalent to conviction by criminal Court. The argument advanced in that case was that if a citizen is released from preventive detention, the employer cannot immediately start disciplinary proceedings against him and tell him that he was detained for prejudicial activities which amount to misconduct and that the detention order was confirmed by the State Government after consultation with the Advisory Board and so he was liable to be dismissed from his employment. Dealing with the functions performed by the Advisory Board and while rejecting the contention raised on behalf of the employer the Supreme Court observed as follows :

“It is obvious that the Advisory Board does not try the question about the propriety or validity of the citizen’s detention as a Court of law would; indeed, its function is limited to consider the relevant material placed before it and the representation received from the detenu and then submit its report to the State Government within the time specified by section 10(1) of the Act (the reference was to Preventive Detention Act, 1950). It is not disputed that the Advisory Board considers evidence against the detenu which has not been tested in the normal way by cross-examination; its decision is essentially different in character from a judicial or quasi-judicial decision. In some cases, a detenu may be given a hearing, but such a hearing is often, if not always, likely to be ineffective, because the detenu is deprived of an opportunity to cross-examine the evidence on which the detaining authorities rely and may not be able to adduce evidence before the Advisory Board to rebut the allegations made against him. Having regard to the nature of the enquiry which the Advisory Board is authorised or permitted to hold before expressing its approval to the detention of a detenu, it would, we think, be entirely erroneous and wholly unsafe to treat the opinion expressed by the Advisory Board as amounting to a judgment of a criminal Court. The main infirmity which has vitiated the impugned orders arises from the fact that the said orders equate detention of a detenu with his conviction by a criminal Court.”

27. The effect of this decision is that neither the proceedings before the detaining authority or before the Advisory Board can be held to be of judicial or quasi-judicial character, nor are they of a criminal or a quasi-criminal character. The jurisdiction to detain by way of preventing detention is a jurisdiction of suspicion and not based on proof of any offence or act beyond all reasonable doubt. This is reiterated by the Supreme Court in H. Saha v. State of W.B., where in paragraph 19 it was observed as follows :

“The essential concept of preventive detention is that the detention of a person is not to punish him for some thing he has done but to prevent him from doing it. The basis of detention is the satisfaction of the executive of a reasonable probability of the likelihood of the detenu acting in a manner similar to his past acts and preventing him by detention from doing the same. A criminal conviction on the other hand is for an act already done which can only be possible by a trial and legal evidence. There is no parallel between prosecution in a Court of law and a detention order under the Act. One is a punitive action and the other is a preventive act. In one case a person is punished to prove (sic) (on proof of) his guilt and the standard is proof beyond reasonable doubt whereas in preventive detention a man is prevented from doing something which it is necessary for reasons mentioned in section 3 of the Act to prevent.”

28. The above observations of the Supreme Court apart contrasting detention with conviction also show that the concept of legal evidence contemplated in the context of a prosecution in a criminal Court which would be regulated by the provisions of the Evidence Act is foreign to the jurisdiction and the power to make an order of preventive detention. Even in respect of quasi-judicial enquiries, the strict rules of evidence in the Evidence Act do not apply. In State of Haryana v. Rattan Singh, the Supreme Court highlighted the difference between an administrative approach and a judicial approach and pointed out that in a domestic enquiry the strict and sophisticated rules of evidence under the Evidence Act may not apply, and that the essence of a judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice. The nature of the jurisdiction of detention is thus now well established. The order of detention is made by an executive authority and that when it makes such an order, it does not do so in the exercise of judicial or quasi-judicial power; nor is the jurisdiction to reach a subjective satisfaction a criminal or a quasi-criminal in character. While making use of any material in order to form a subjective satisfaction the normal rule of criminal jurisprudence of proof beyond reasonable doubt is not attracted. Similarly, the proceeding before the Advisory Board is also not quasi-judicial or quasi-criminal in character. It is in the light of this well settled position of law that the question as to whether on the analogy of section 25 the confession cannot be considered as valid material by the detaining authority must be determined. It is true that confessions recorded by police officers are often looked upon with suspicion. Section 25 of the Evidence Act which provides that no confession made to a police officer, shall be proved as against a person accused of an offence, is undoubtedly a bar against the use of such confession for the purpose of proving an offence against an accused person. Though initially it was argued that section 25 of the Evidence Act should be construed as ruling out the use of a confession as material to be considered by the detaining authority, what was however finally contended is that on the analogy of section 25, a confession must be excluded from consideration by the detaining authority. Confession is a form of an admission and even in a criminal case section 27 of the Evidence Act carves out a small area in which such a confession could be proved. The rule of English Criminal Law which makes confession by an accused in-admissible to be proved against him and on which section 25 of the Evidence Act is based is discussed by the Privy Council in Ibrahim v. Emperor, AIR 1914 PC 155 : (1914 (15) Cri LJ 326). The Privy Council has observed as follows :

It has long been established as a positive rule of English criminal law, that no statement by an accused is admissible in evidence against him unless it is shown by the prosecution to have been a voluntary statement, in the sense that it has not been obtained from him either by a fear of prejudice or hope of advantage exercised or held out by a person in authority.”

The following further observations of the Privy Council are also relevant :

“It is to be observed that logically these objections (i.e., that the statement was preceded by and made in answer to a question, and that the question was put by a person in authority and the answer given by a man in his custody) all go to the weight and not to the admissibility of the evidence. What a person having knowledge about the matter in issue says of it is itself relevant to the issue as evidence against him. That he made the statement under circumstances of hope, fear, interest or otherwise strictly goes only to its weight. In an action of tort, evidence of this kind could not be excluded when tendered against a tortfeasor, though a jury might well be told as prudent men to think little of it. Even the rule which excludes evidence of statements made by a prisoner, when they are induced by hope held out, or fear inspired by a person in authority, is a rule of policy. “A confession forced from torture of fear comes in so questionable a shape, when it is to be considered as evidence of guilt, that no credit ought to be given to it.” Rex. v. Warwickshall (1783) 1 Leach C.C. 263. It is not that the law presumes such statements to be untrue, but from the danger of receiving such evidence Judges have thought it better to reject it for the due administration of justice Reg. v. Baldry (1852) 2 Den CCR 430. Accordingly when hope or fear were not in question, such statements were long regularly admitted as relevant, though with some reluctance and subject to strong warnings as to their weight.”

These observations admirably set out the reasons for excluding the confessions for being proved against the accused. In so far as the powers of preventive detention are concerned, it is however difficult for us to see how any embargo can be placed on the material which a detaining authority may well consider. No artificial restriction can be placed on the so-called analogy of section 25 of the Evidence Act which can restrict the material which the administrative authority exercising statutory powers of detention can be barred from considering. Admittedly there is no constitutional bar disabling the detaining authority from considering the fact that the proposed detenu has made a confession. There is also no statutory provision to that effect. There is thus no warrant in law for requiring an administrative authority to leave out of consideration the fact that the proposed detenu had made a confessional statement for the purpose of considering whether an order of detention should be passed or not. Of course what weight is to be attached to the confession in the light of the other material is a matter exclusively for the detaining authority.

29-30. The extremely limited scope of section 25 of the Evidence Act is indicated by the decision of the Bombay High Court in Queen-Empress v. Tribhovan Manekchand, (1885) ILR 9 Bom 131, in which a Division Bench of the Bombay High Court held that statements made to the police by accused persons as to the ownership of property which is the subject-matter of the proceedings against them, although inadmissible as evidence against them at the trial for the offence with which they are charged, are admissible as evidence with regard to the ownership of the property in an enquiry held by the Magistrate under section 523 of the Criminal Procedure Code.

31. It has to be remembered that when section 25 refers to a confession which is not permitted to be proved as against a person accused of any offence, it refers to a confession made by an accused person which is proposed to be proved against him to establish an offence. The scope of Section 25 is therefore restricted only to a confession made by a person who is an accused that is being used in a proceeding to establish an offence against him. In King Emperor v. Nilakanta, ILR 35 Mad 247 : ((1912) 13 Cri LJ 305) the previous statement of an approver was sought to be used by the prosecution to show that his evidence at the trial was true. The argument on behalf of the defence was that the statement was a confession made to a police officer and could not be given in evidence. At the trial, the approver himself spoke of the statements made by him, but such statements were also spoken to by the Inspector and it was contended that the evidence as to the making of the statements was not admissible, firstly because the statements did not come within the purview of section 157 of the Evidence Act since they were not made before an authority legally competent to investigate the fact to which the statement relates and secondly the statements were confessions made to a police officer and under section 25 of the Evidence Act could not be given in evidence. The latter objection was rejected by the Bench in the following observations :

“As regard (b) – the objection under section 25 of the Evidence Act as we intimated in the course of the trial, in the opinion of the majority of the Court, this objection fails. Our attention was not called to any authority upon the point, but it was argued that the words of the section were general and not restricted, as in section 26, to the party who makes the confession. As regards the ‘mischief’ of the two sections there seems no good reason why the suggested distinction should be drawn. No doubt Arumugam’s statement to inspector Veeraraghava. Aiyar inculpated himself, but Arumugam is not now an accused person and does not stand charged before us. It is not sought to use the statement against him in any way. It is sought to use the fact that he made the statement in the circumstances in which it was made as a fact which goes to show that his evidence at the trial was true. In Queen-Empress v. Tribhovan Manekchand, (1885) ILR 9 Bom 131, West, J. observed ‘confession’ in section 25 of the Indian Evidence Act I of 1872 means, as in section 25, a ‘confession made by an accused person’ which it is proposed to prove against him to establish “an offence”. We do not think we are precluded by section 25 from admitting evidence of the statement as evidence of a fact which goes to show that the testimony of Arumugam at the trial was true. The question of the weight of this evidence is, of course, a different matter.”

The statements were held admissible under section 157 of the Evidence Act as corroborative evidence.

32. A Division Bench of this Court has taken the view in A. Vellanai v. Collector & Dist. Magistrate, Tirunelveli, 1984 Cri LJ 68 that a statement recorded under section 162 Cr.P.C. would constitute material for the purposes of detention under the Tamil Nadu Act No. 14 of 1982. The argument there was that a detaining authority ought not to have taken into consideration the statements purported to have been made by certain persons to the Inspector of Police, since those statements are inadmissible in any legal proceeding due to the bar under section 162 Cr.P.C. This Court referred to the decision of the Supreme Court in Khatri v. State of Bihar, in which the Supreme Court observed that the protection under section 162 Cr.P.C. is unnecessary in any proceeding other than an inquiry or trial in respect of the offence under investigation and hence the bar created by the section is a limited bar. Relying on this decision this Court held that the order of detention passed by the detaining authority drawing his subjective satisfaction on the materials set out in the grounds of detention inclusive of the statements under section 162 Cr.P.C. cannot be challenged on the ground that the statements are hit by section 162 Cr.P.C. as being inadmissible.

33. The Allahabad High Court in two decisions dealing with detention under the provisions of the National Security Act have expressly taken the view that an admission made by a person who is detained constituted material for the purposes of detention. In Noor Mohammad v. State of U.P., 1983 Cri LJ 995 the question was whether the statements of the detenu confessing his guilt recorded during the investigations as well as a copy of the general diary recorded after the conclusion of the identification proceedings in which it was mentioned that none of the witnesses dared to identify the detenu in the cases under sections 395, 396 and 397 I.P.C. because the witnesses after the conclusion of the identification proceedings had told the Station Officer that the petitioner wielded great influence and terror in the area and his companions in the village had constantly been threatening them that in case they identify detenu in jail he would on being released on bail either kill them or would break their arms and legs. The witnesses were accordingly scared of him and did not identify him in jail for that reason. Dealing with the question as to whether the confessions and the general diary could be considered by the detaining authority, the Division Bench observed as follows :

“This entry in the general diary and the said confessions to police may not have been admissible pieces of evidence at the trial but there was no bar for the detaining authority to have taken this material into consideration, and if his subjective satisfaction was reached on the basis of these documents that the witnesses did not actually identify the detenu in jail on account of fear of their lives and that the detenu was involved in the commission of those crimes and murder, and consequently the detention order was passed on such satisfaction, it cannot be challenged. In order to satisfy himself about the necessity for detention, the District Magistrate was not bound to take into consideration only such evidence which was legally admissible in a court of law. His subjective satisfaction could have been reached on the basis of any material which he considered to be reliable.”

With respect, we concur with these observations.

34. In Rajan Lal v. Dist. Magistrate, Moradabad, 1984 Cri LJ 954 (All) where the question was whether a statement in the general diary report in which it was clearly mentioned that the detenu after he was arrested admitted the crime could be considered by the District Magistrate, the detaining authority, the Division Bench observed as follows :

“The entry made in the G.D. with regard to the alleged admission made by the petitioner certainly constituted material on the basis of which the District Magistrate could feel satisfied that the petitioner was connected with the said crime.”

35. These decisions therefore show that it has been consistently held that the bar which is placed with regard to the consideration of evidence against the accused in the course of a criminal trial has been held to be inapplicable while considering the material for the purposes of detention.

36. We are supported in the view that we have taken by the decision of the Supreme Court in Khatri v. State of Bihar . The facts relevant for that decision were that when the cases of certain under trial prisoners in Bhagalpur jail in the State of Bihar who were alleged to have been blinded by the police officers, were taken up by the Supreme Court, the Supreme Court had called for certain documents, two of which were C.I.D. reports submitted by the D.I.G., CID (Anti-Dacoity). The production of these reports was resisted by the State of Bihar on the ground that they were protected from disclosure under sections 162 and 172 of the Code of Criminal Procedure and that the petitioners were not entitled to see them or to make any use of them in the proceedings before the Supreme Court which was in the nature of a petition under Article 32 of the Constitution of India alleging violation of the fundamental right under Article 21 of the Constitution of India. The Supreme Court referred to the provisions of section 162 of the Code of Criminal Procedure which inter alia read as follows :

“162. (1) No statement made by any person to a police officer in the course of an investigation under this chapter shall if reduced to writing be signed by the person making it, nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made :

Provided ………………….

(2) ……………………….”

Referring to the provisions of section 162, the Supreme Court held that the section bars the use of any statement made before a police officer in the course of an investigation under Chapter XII, whether recorded in a police diary or otherwise, but, by the express terms of the section, this bar is applicable only where such statement is sought to be used ‘at any inquiry or trial in respect of any offence under investigation at the time when such statement was made’ and point out that this section has been enacted for the benefit of the accused and that it was intended, as pointed by the Supreme Court in Tahsildar Singh v. State of U.P., “to protect the accused against the user of statements of witnesses made before the police during investigation, at the trial presumably on the assumption that the said statements were not made under circumstances inspiring confidence”. It may be pointed out that this is the exact principle on which the provisions of section 25 of the Evidence Act is based. Construing the provisions of Section 162(1) strictly, the Supreme Court observed as follows :

“But, this protection is unnecessary in any proceeding other than an inquiry or trial in respect of the offence under investigation and hence the bar created by the section is a limited bar.”

Even with regard to section 172(2) which has specifically provided that ‘any criminal Court may send for the police diaries of a case under inquiry or trial in such Court, and may use such diaries, not as evidence in the case, but to aid it in such inquiry or trial the Supreme Court pointed out that the bar under section 172 was intended to operate only in an inquiry or trial for an offence and even this bar is a limited bar, because in an inquiry or trial, the bar does not operate if the case diary is used by the police officer for refreshing his memory or the criminal Court uses it for the purpose of contradicting such police officer. What is also important in the decision in Khatri’s case (1981 Cri LJ 597) is that the Supreme Court pointed out that the provisions of sections 162 and 172 being exceptions to the legitimate demand for reception of all relevant evidence in the interest of justice, they must be strictly interpreted and not expansively construed. The Supreme Court, therefore, took the view that it would not be right to extend the prohibition of section 172 to cases not falling strictly within the terms of the section, by appealing to what may be regarded as the principle or spirit of the section. By a parity of reasoning, the provisions of section 25 of the Evidence Act must also be strictly construed and the bar created by that section must be restricted only to the proceedings in which the person against whom his earlier statement by any of confession is used, as accused of any offence and it is sought to be proved by using that confession that he has committed that offence. Just as according to the Supreme Court the principle of section 172 could not be extended to a proceeding which is not expressly covered by that section, similarly the principle of section 25 can also not be extended to a proceeding which does not squarely fall within the kind of the proceeding contemplated by that section.

37. The provisions of the Evidence Act do not regulate the consideration of the material which is put before the detaining authority for consideration in order to decide whether it would make an order of detention. If generally the provisions of the Evidence Act are not attracted in the case of an administrative action, there is no reason why only in respect of a statement made by the proposed detenu either the provisions of section 25 or the principle behind section 25 should be brought in by way of regulating the consideration of the material laid before the detaining authority. We must therefore hold that the decision in Duraiswamy Mudaliar’s case (1985 Cri LJ 1115) (SC) does not lay down the correct law and that the confessional statement made to a police officer constituted a relevant material which the detaining authority is entitled to take into consideration for passing an order of detention against the maker of the statement.

38. An argument was then advanced that if a confession is permitted to be used as relevant material for considering whether a person should be detained or not, the detaining authority may make an order of detention solely on a confession. This, to say the least, is an argument of despair. In a given case it is possible that making an order of detention only on the basis of a confession may amount to an abuse of the power. But this power itself cannot be negatived because there is a possibility of its abuse. In such a case, the exercise of the power might alone become bad. This is, however, a question to be determined on facts on which it might arise.

39. Accordingly, the two questions referred to the Full Bench are answered as follows :

(1) There is no duty or obligation on the Advisory Board to suo motu adjourn the hearing of the reference made to it when on the date of the hearing the detenu’s request for assistance of a legal practitioner is rejected even though the detenu does not request for adjournment.

(2) The confessional statement made by the detenu to the police officer can be considered by the detaining authority as material relevant for making an order of detention against the maker of the statement, but the weight to be attached to it is for the said authority to decide.

Reference is answered accordingly.

40. Though the second question is also referred to the Full Bench in W.P. No. 351 of 1985, we were informed at the hearing that since the detenu has already been released, the writ petition really became infructuous. W.P. No. 351 of 1985 is therefore dismissed as infructuous.

41. The papers in W.P. No. 6445 of 1985 will now be placed before the Division Bench which had made the order of reference.

42. Answer accordingly.