Case Note & Summary
The petitioner, brother of the detenu, challenged the detention order under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA). The sole ground raised was that the detenu's representation to the Advisory Board specifically prayed for an opportunity to put forth his case through a legal practitioner, but this request was not considered. The petitioner relied on a division bench judgment of the Bombay High Court in Kekalwa Samuele Kongwa v. Union of India, 1985 (1) Bom. C.R. 742, which held that a request for legal representation must be considered on merits and cannot be turned down on the ground that the law does not give such a right or that it is the practice of the Board. The court found that the Advisory Board had not considered the detenu's request, which was a clear violation of the principles laid down in the cited case. Consequently, the court quashed the detention order and directed the detenu's release unless required in any other case.
Headnote
A) Preventive Detention - Right to Legal Representation - Article 22(1) of Constitution of India, Section 8(e) of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA) - Detenu's request to be represented by a legal practitioner before the Advisory Board must be considered on merits and cannot be rejected on the ground that the law does not give such a right or that it is the practice of the Board to not permit legal representation - Failure to consider such request renders the detention order invalid - Held that the Advisory Board's failure to consider the detenu's request for legal representation vitiates the detention order (Paras 2-3).
Issue of Consideration
Whether the failure of the Advisory Board to consider the detenu's request for legal representation vitiates the detention order.
Final Decision
The court quashed the detention order and directed the detenu's release unless required in any other case.
Law Points
- Right to legal representation before Advisory Board
- Consideration of representation on merits
- Article 22(1) of Constitution
- Section 8(e) of COFEPOSA Act
- 1974
