JUDGMENT
Shivashankar Bhat, J.
1. This writ petition by the father of the detenu detained under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA, for short), was referred to a Special Bench, since, a doubt was raised about the correctness of the principle of law stated in a Bench decision of this Court in Kantilal Jain v. Union of India, W.P.H.C. No. 79 of 1979. In the said decision it was held that a detenu had no right to have legal consultation before he makes any representation against the detention under COFEPOSA.
2. On 24-4-1989, the detenu was driving a car from Mandya to Bangalore. On the way, the car was intercepted by the officers of the Directorate of Revenue Intelligence, who had credible information that contraband gold was being carried on the said car. On a search, in all 84 gold biscuits of foreign origin (9.79 Kgs.) valued at Rs. 31,24,800/- were recovered, and were seized. Detenu’s statement was recorded. According to him, inter alia, the gold pellets were given to him by a Malayali at Mandya, whose name he did not know, detenu was to sell them for commission and that one Bhagavati of Bangalore had agreed to purchase them. It is unnecessary to narrate other facts, except to note that detenu had not furnished the address of Bhagvathilal; he gave the name of the person, as ‘Bhagavathi’.
3. The detention order was passed on 17-5-1989 and the detenu was detained on 19-5-1989.
4. It seems the authorities had searched the premises of one Bhagvathilal as a follow up action and found nothing According to the petitioners, the relevant documents such as Mahazar in connection with the said search and statement of anyone in connection with the said search and statement of anyone in connection with that search are relevant documents, not furnished to him.
5. Two contentions were urged before us by Mr. Kiran S. Javali, the learned counsel for the detenu.
I. The detenu had written a letter on 22-5-1989 seeking permission to engage a legal practitioner and the said letter was never considered by the 1st respondent, which resulted in vitiating the detention.
II. Vital documents concerning the search conducted of Bhagavathilal’s shop and residence were not placed before the detaining authority and the detenu was not furnished with the relevant documents concerning the said search, in spite of his specific request.
RE CONTENTION NO. I
6. According to the petitioner, detenu sent a letter to the Govt. of India, on 22-5-1989, copy of which was given to us at the time of hearing, by Mr. Kiran S. Javali it reads as follows.
“I am detained and lodged in Central prison, Bangalore, as per your detention order from 19-5-1989. I intend the service of an Advocate to take necessary legal action with my detention, I request you to kindly give me permission to engage an Advocate for my legal proceedings.”
Thus the request in the letter is for a permission to ‘engage’ an Advocate for his legal proceedings, so as to take necessary legal action ‘with’ his detention. Letter is not quite clear. At the most it conveys the idea that the detenu intended to challenge his detention for which he wants to ‘engage’ a counsel; if so permission to engage a counsel is wholly unnecessary. But if the idea was to have an Advocate for consultation and for being represented in the proceedings under COFEPOSA, then the question arises whether a detenu has such a right.
7. Article 22(1) and (3) of the Constitution read as follows :
“22. Protection against arrest and detention in certain cases – (1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall be denied the right to consult, and to be defended by, a legal practitioner of his choice.
XX XX XX (3) Nothing in clauses (1) and (2) shall apply - (a) to any person who for the time being is an enemy alien; or (b) to any person who is arrested or detained under any law providing for preventive detention."
According to Art. 22(1), an arrested person shall not be denied the right to consult and to be defended by a legal practitioner of his choice. But this right to consult and to be defended by an Advocate is taken away from a person who is detained under a preventive detention law. The Constitution, specifically denies such a right to a detenu, detained under the preventive detention law. The constitutional right of the detenu is found in Art. 22(5) whereby, the detenu shall be informed of the grounds on which the order of detention has been made and he shall be afforded an earliest opportunity of making a representation against the order of detention. One argument was, that, opportunity to make a representation comprises within itself, an opportunity to consult a legal practitioner and the right given by Art. 22(5) to have the earliest opportunity to make representation will be rendered illusory, by the denial of access to the legal practitioner as and when demanded by the detenu.
8. In abstract, as a matter of interpretation, it is not possible to hold that, what has been taken away by clear words, by Art. 22(3), can be inducted by a process of interpretation, into Art. 22(5). The opportunity to be given under Art. 22(5), is an opportunity to make representation against detention. May be, under certain circumstances where complicated questions of fact and law are involved, a detenu may put forth his difficulties and seek an opportunity to engage a counsel for consultation etc. But, such a situation will be exceptional and the detenu will have to make out a clear case for legal assistance. It is only in cash an exceptional situation the authority concerned would have a duty to consider the request of the detenu; if the request is not considered or the request is rejected, the detenu has to establish clearly the prejudice caused to him, by the denial to engage a counsel. Right to engage and counsel an Advocate being not a part of the right of the detenu, non-consideration of the request of a detenu for permission to engage a counsel by itself would not vitiate the detention. It is not one of the procedural requirements considered mandatory to be complied with and technically applied by the courts to examine the validity of the detention.
9. The earliest of the relevant decisions, is Francis Carolie Mullin v. The Administrator, Union Territory of Delhi, AIR 1981 SC 746 : (1981 Cri LJ 306). The detenu, while in detention experienced considerable difficulty in having interview with her lawyer and the members of her family. Even the lawyer found it difficult to obtain an interview with the detenu, because, he had to obtain prior appointment from the District Magistrate and the interview could take place only in the presence of a Customs Officer nominated by the Collector of Customs; the procedure was quite cumbersome. These restrictions were imposed under S. 5 of the COFEPOSA. The Constitutional validity of these restrictions was questioned before the Supreme Court. In the context of Arts. 14 and 21, the Supreme Court examined the validity of the executive order made under S. 5 of COFEPOSA Act and the observations of the Supreme Court were entirely in the background of those facts. After considering the scope of the right under Art. 21 and Art. 5 of the Universal Declaration of Human Rights the Supreme Court observed at p. 753. (of AIR) (at p. 313 of Cri LJ).
“The prisoner or detenu obviously cannot move about freely by going cannot move about freely by going outside the prison walls nor can he socialise at his free will with persons outside the jail. But as part of the right to live with human dignity and therefore as a necessary component of the right to life, he would be entitled to have interviews with the members of his family and friends and no prison regulation or procedure laid down by prison regulation regulating the right to have interviews with the members of the family and friends can be up held as constitutionally valid under Arts 14 and 21, unless it is reasonable, fair and just.”
Thereafter, proceeding further :
“The same consequence would follow even if this problem is considered from the point of view of the right to personal liberty enshrined in Art. 21, for the right to have interviews with members of the family and friends is clearly part of personal liberty guaranteed under that Article.”
Again at p. 754 (of AIR) : (at p. 314 of Cri LJ) :
“There can therefore be no doubt that ‘personal liberty’ would include the right to socialise with members of the family and friends subject, of course, to any valid prison regulations and under Arts. 14 and 21, such prison regulations must be reasonable and non-arbitrary. If any prison regulation or procedure laid down by it regulating the right to have interviews with members of the family and friends is arbitrary or unreasonable, it would be liable to be struck down as invalid as being violative of Arts. 14 and 21.”
On the question of interview with the legal practitioners, same principle was extended :
“The right of a detenu to consult a legal adviser of his choice for any purpose not necessarily limited to defence in a criminal proceedings but also for securing release from preventive detention or filing a write petition or prosecuting any claim or proceeding civil or criminal, is obviously included in the right to live with human dignity and is also part of personal liberty and the detenu cannot be deprived of this right nor can this right of the detenu be interfered with except in accordance with reasonable, fair and just procedure established by a valued law. A prison regulation may, therefore, regulate the right of a detenu to have interview with a legal adviser in a manner which is reasonable, fair and just but it cannot prescribe an arbitrary or unreasonable procedure for regulating such an interview and if it does so, it would be violative of Arts. 14 and 21. Now in the present case the legal adviser can have interview with a detenu only by prior appointment after obtaining permission of the District Magistrate, Delhi. This would obviously cause great hardship and inconvenience because the legal adviser would have have to apply to the District Magistrate, Delhi well in advance and then also the time fixed by the District Magistrate, Delhi well in advance and then also the time fixed by the District Magistrate, Delhi may not be suitable to the legal adviser who would ordinarily be a busy practitioner and, in the event, from a practical point of view the right to consult a legal adviser would be rendered illusory. Moreover, the interview must take place in the presence of an officer of Customs/Central Excise/Enforcement to be nominated by the local Collector of Customs/Central Excise or Deputy Director of Enforcement who has sponsored the detention and this too would seem to be an unreasonable procedural requirement because in order to secure the presence of such officer at the interview, the District Magistrate, Delhi would have to fix the time for the interview in consultation with the Collector of Customs/Central Excise or the Deputy Director of Enforcement and it may become difficult to sychronise the time which suits the legal adviser with the time convenient to the concerned officer and furthermore if the nominated officer does not, for any reason, attend at the appointed time, as seems to have happened on quite a few occasions in the case of the petitioner, the interview cannot be held at all and the legal adviser would have to go back without meeting the detenu and the entire procedure for applying for an appointment to the District Magistrate, Delhi would have to be gone through once again. We may point out that no satisfactory explanation has been give on behalf of the respondents disclosing the rationale of this requirement.”
The Supreme Court therefore struck down the particular restrictions challenged therein; the detention of the detenu, there, was not set aside. The entire discussion and the relief granted were, dehors the provisions of Art. 22(5) and the consideration of the facts was in the background of the detenu, as a prisoner, like anyone else. Thus the said case, relied upon by the learned counsel for the petitioner, had nothing to do with the validity of the detention under COFEPOSA.
10. In the instant case, if the detenu had been denied any reasonable access to a legal adviser, this court would have directed the concerned authority to grant the detenu the facility to meet and discuss with his lawyer. The detenu here, has not shown any prejudice caused to him by the non-consideration of his letter dated 22-5-1989. In fact, in the subsequent representation made by him against the detention, nowhere, he stated that he was handicapped by the non-consideration of the aforesaid letter. His entire argument now advanced before us, is to elevate the access to a detenu to consult an Advocate into a constitutional right following out of Art. 22(5). This, we cannot agree.
Two decisions of the Supreme Court, in this regard, are very relevant; A. K. Roy v. Union of India, , is a decision of a Constitutional Bench Act P. 747 (of AIR) : at p. 377 of Cri LJ (Para 93), Francis Coralie Mullin’s case (1981 Cri LJ 306) was referred and its ratio was stated as not covering the rights of a detenu to be represented by a legal adviser. The observations are :
“The Court directed that the detenu should be permitted to have an interview with her legal adviser at any reasonable hour during the day after taking an appointment from the Superintendent of the Jail and that the interview need not necessarily take place in the presence of an officer of the Customs or Central excise Department. The Court also directed that the officer concerned may watch the interview but not so as to be within the hearing distance of the detenu and the legal adviser. This decision has no bearing on the point which arises before us, since the limited question which was involved in that case was whether the procedure prescribed by Clause (3) governing the interviews which a detenu may have with his legal adviser, was reasonable. The Court was not called upon to consider the question as regards the right of a detenus to be represented by a legal practitioner before the Advisory Board, We would, however, like to say that by this judgment we are neither affirming nor disapproving of the decision in Francis Coralie Mullin to the effect that the detenu has a right to consult a lawyer of his choice for the purpose of preparing his representation, advising him as to how he should defend himself before the Advisory Board and preparing and filing a habeas corpus petition or other proceedings for securing his release.”
In the subsequent paragraph the Supreme Court enunciated the principle as to when the detenu is entitled to have a legal adviser to represent him before the Advisory Board. This judgment was rendered on 28-12-1981.
Subsequently Devji Vallabhai Tandel v. The Administrator of Goa, Daman and Diu, , was pronounced. Referring to Francis Coralie Mullin’s case, again, it was held, at 1041; (at AIR) : (At p. 811 of Cri LJ) :
“Now, this judgment is not an authority for the proposition that a detenu as a matter of right is entitled to make his representation by an oral hearing before the detaining authority under Article 22(5). The right to consult a lawyer was granted by the conditions of detention prescribed under S. 5. This right was not spelt out as an incident of Art. 21 and what has been found invalid is the presence of officers at the interview and the number of interviews. Therefore, Francis Coralie Mullin’s case is not an authority for the proposition and frankly, cannot be one for the purpose of spelling out a right to be represented by a lawyer while making representation before the detaining authority. Even though there are some observations which may imply such a right, they would be completely obiter for the obvious reason that a right was conferred by the Conditions of Detention and not for the first time a right was being spelt out by the expanded horizons of right to life and liberty as enshrined in Art. 21. The attempt to read or imply something in Art. 21, which is positively reflected by Art. 22(5) would be contrary to any canon of construction because it is well settled that what is expressly reflected cannot be brought in by the back door of implication. It was not necessary to spell out these rights in the facts of that case for the obvious reason that the right was conferred by the conditions of detention. One need not go in search of some such right implicit in Art. 21 by a process of interpretation when it was expressly granted in the conditions of detention under the Act. Therefore, with respect the decision in Mullin’s case cannot help the petitioner to spell out a right to be represented by a lawyer before the detaining authority.”
Earlier, it was held at p. 1039 (of AIR) : (at p. 809-10 of Cri LJ), after referring to Art. 22(1) and (3) that –
“As a necessary corollary, any law providing for preventive detention would not be unconstitutional even if it contravenes Art. 22(1)(2). In other words, a person detained under a law providing for preventive detention cannot claim as a matter of constitutional right to consult and be defended by a lawyer of his choice.”
This decision has considered the earlier decisions of Supreme Court; the inferences drawn from those earlier decisions and the principles enunciated thereafter are clearly binding on us.
In view of this, Kantilal Jain’s decision requires no reconsideration.
RE. CONTENTION NO. II :
11. This contention has two aspects – (i) the detention order is bad because, the detaining authority did not consider the documents relevant, to the search of the premises of Bhagavatilal and (ii) copies of those documents were not furnished to the detenu in spite of his specific request.
12. In the ‘affidavit in opposition’ filed by the detaining authority, it is stated that “the panchanama drawn up in the residential premises and shop premises of Bhagavatilal have not been relied upon for detention. Therefore question of supplying those copies to the detenu does not arise. However, the materials were placed “before the detaining authority”. The grounds of detention now here refer to these materials, though Mr. Javali tried to make out a case that reference to ‘follow up action’ in the grounds, ought to include the search of Bhagavathilal’s premises.
13. It is clear that, petitioner in his statement referred to one ‘Bhagavathy’, without giving his address or other details. The follow up action referred in the grounds, obviously, comprise of recording of statements of various persons referred therein, search of shops of petitioner’s father etc., there is nothing to connect ‘Bhagvathilal’ to the petitioner’s statement. This part, even according to the petitioner, nothing incriminating was found on such searches of Bhagavathilal’s premises. An empty search of a third party premises cannot in any way tilt or influence the case the mind of the detaining authority, either way, specially in the context of the seizure of contraband gold while the gold was being carried by the detenu.
14. The detaining authority has asserted that he had not considered those documents; grounds of detention also support this assertion. If so, there is no duty cast on him to furnish those documents to the detenu. The law requires, furnishing of all material documents to the detenu, as part of furnishing the grounds of detention, so that, detenu may be in a position to make representation properly under Art. 22(5) of the Constitution.
15. The learned counsel for the petitioner referred to M. Ahamedkutty v. Union of India, , in support of his proposition that all documents reflecting the relevant proceedings, preceding the detention order should be furnished to the detenu.
Law does not say so. In the aforesaid decision, Supreme Court held : (at page 14) :
“The constitutional requirement of Article 22(5) is that all the basic facts and particulars which influenced the detaining authority in arriving at the requisite satisfaction leading to making the detention order must be communicated to the detenu so that the detenu may have an opportunity of making an effective representation against the order of detention.
In the said case non-consideration of the bail order was held as non-application of mind to the relevant factor. At para 25, Supreme Court observed :
“If in the instant case the bail order on condition of the detenu’s reporting to the customs authorities was not considered the detention order itself would have been affected. Therefore, it cannot be held that while passing the detention order the bail order was not relied on by the detaining authority.”
Again at para 27, Supreme Court held that in the said case, the bail application and the bail order were ‘vital materials’ for consideration.
16. M. Kubic Dariuze v. Union of India, detenu had asked for translated copies of documents, such a request was itself to be a representation, requiring consideration. As this was held to be representation requiring immediate consideration, detention was set aside, for failure to consider it. In the instant case, admittedly, the representation for the documents sought by the petitioner was considered and was rejected, as the documents were stated as irrelevant. Therefore, there is no scope to extend the principle stated in Kubic Dariusz’s case, to the present case. Incidentally, we may have to note here that, the request for permission to engage a counsel, being an incompetent request, its non-consideration cannot be treated on par with the failure to consider a proper representation. Similarly, the facts of the case and the nature of documents sought in Yumnam Mangibabu Singh case, are clearly distinguishable.
In Madan Lal Anand v. Union of India, , documents referred by the detaining authority were furnished. The document not furnished was held to be immaterial; it was held therein that, the detenu had to show prejudice to his case by such a failure to furnish the copy of a documents which was not relied on by the detaining authority. It is unnecessary to refer to other decisions cited by Mr. Ashok Harnahalli, the learned Standing Counsel for the 1st respondent on this question. The basic question is whether the material not considered by the detaining authority was a basic and vital material; if not its non-consideration is immaterial to the validity of the order. Similarly, non-furnishing of copies of such materials to the detenu would not vitiate the detention.
17. No other question survives for consideration.
18. In the result, for the reasons stated above, this petition fails and is dismissed.
19. Petition dismissed.