Detenu's Right to Legal Representation Violated, Detention Order Quashed

The court found that the detenu's right to be represented by a legal practitioner before the Advisory Board was violated. The detenu's request for legal representation was not properly considered, leading to the detention order being set aside and quashed. The court emphasized that such requests should be evaluated on their merits and not denied arbitrarily. The Advisory Board's rejection based on "obvious reasons" was deemed contradictory to established legal principles. As a result, the detenu's continuous detention was declared unlawful, with the direction for release if not required in any other matter.

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Issues:
Violation of detenu's right to be represented by a legal practitioner before the Advisory Board.

Analysis:
The petitioner, who is the brother of the detenu, argued that the detenu's request to be represented by a legal practitioner before the Advisory Board was not considered. Citing a previous division bench judgment, the petitioner contended that such a request must be evaluated on its merits and cannot be denied based on the absence of a specific legal provision or past practices. The Advisory Board's affidavit stated that since the detenu was under the COFEPOSA Act, he was not entitled to legal representation, and thus, the request was not necessary to consider. However, upon further review, it was found that the Advisory Board had rejected the detenu's prayer based on "obvious reasons," which was deemed contradictory to the division bench judgment's clear directive. The court concluded that the detenu's request was not rejected after proper consideration and was based on erroneous grounds, leading to the detention order being set aside and quashed.

The court emphasized that the detenu's right to be represented by a legal practitioner should not be denied arbitrarily, especially when a specific request has been made. The division bench judgment highlighted the importance of evaluating such requests on their merits rather than relying on general practices or lack of explicit statutory provisions. The court found that the Advisory Board's decision to reject the detenu's request without proper consideration was a violation of procedural fairness and resulted in the detention being deemed illegal. As a result, the petition was allowed, and the detenu's continuous detention was declared unlawful from a specified date, with the direction to release the detenu if not required in any other matter.

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