COFEPOSA - Facility of Legal Practitioner not allowed to Detenu - Detention Quashed: SC
‘CONSERVATION of Foreign Exchange and Prevention of Smuggling Activities (COFEPOSA) Act' was once a dreaded legislation, using which even several Customs officers were detained for long without trial.
Putting somebody in jail is a very serious action in a democracy where life and liberty are constitutional guarantees. When you detain somebody and that too as a preventive action, the statute and procedures are to be strictly followed in letter certainly and spirit also preferably. If any of the stipulations are not followed, the Courts have not hesitated to strike down detention. But usually the bureaucrats do not have the same concern for liberty as do the judges.
Will a detenu under COFEPOSA be entitled to the facility of the service of a legal counsel before the Advisory Board ? The Supreme Court had decided this issue more than thirty years ago. The Supreme Court had in AK Roy observed,
"We must therefore hold, regretfully though, that the detenu has no right to appear through a legal practitioner in the proceedings before the Advisory Board. It is, however, necessary to add an important caveat. The reason behind the provisions contained in Article 22(3)(b) of the Constitution clearly is that a legal practitioner should not be permitted to appear before the Advisory Board for any party. The Constitution does not contemplate that the detaining authority or the government should have the facility of appearing before the Advisory Board with the aid of a legal practitioner but that the said facility should be denied to the detenu. In any case, that is not what the Constitution says and it would be wholly inappropriate to read any such meaning into the provisions of Article 22. Permitting the detaining authority or the government to appear before the Advisory Board with the aid of a legal practitioner or a legal adviser would be in breach of Article 14, if a similar facility is denied to the detenu. We must therefore make it clear that if the detaining authority or the government takes the aid of a legal practitioner or a legal adviser before the Advisory Board, the detenu must be allowed the facility of appearing before the Board through a legal practitioner.
We are informed that officers of the government in the concerned departments often appear before the Board and assist it with a view to justifying the detention orders. If that be so, we must clarify that the Boards should not permit the authorities to do indirectly what they cannot do directly; and no one should be enabled to take shelter behind the excuse that such officers are not "legal practitioners" or legal advisers. Regard must be had to the substance and not the form since, especially, in matters like the proceedings of Advisory Boards, whosoever assists or advises on facts or law must be deemed to be in the position of a legal adviser.
We do hope that Advisory Boards will take care to ensure that the provisions of Article 14 are not violated in any manner in the proceedings before them."
The Supreme Court made a marvellous observation, "Serving or retired Judges of the High Court will have no difficulty in understanding this position. Those who are merely "qualified to be appointed" as High Court Judges may have to do a little homework in order to appreciate it."
This is the difference between a Judicial Member and a Technical Member.
On Friday, the Supreme Court quashed the detention in a case where the detenu was not given the opportunity of having a legal counsel before the Advisory Committee, even though the Government was represented by its officers.
Procedure has to be followed for even habitual offender: One of the arguments of the Government was that the detenu was a habitual offender and, therefore, he should not be shown any indulgence.
The Supreme Court held:
1. The Court can not uphold the detention order on such submission, and if the petitioner is a habitual offender and has past criminal record, as alleged by the respondents, it was all the more necessary for the respondents to have followed in letter and spirit the procedure laid down in A.K. Roy's case before passing the impugned order of detentions.
2. once the legal infirmity pointed out by the petitioner in the proceedings before the Advisory Board is held made out then the impugned detention order is rendered bad in law and can not be sustained.
Thus the Government is forced to release a detenu all because he was denied a right to have a lawyer. Babus get very angry if they are told the law, especially by a lawyer. If somebody cites the Law, the attitude of most babus is "Okay, you quote the laws - we know how to fix you.”
Please see Breaking News for the Supreme Court case.