TaxTMI 
TaxTMI 
2008 (7) TMI 971
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.... of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act of 1974 (hereinafter referred to as "the COFEPOSA Act, 1974"). 3. On 22nd September, 2005, the said Abu Baker Haji Qasim (hereinafter referred to as "the detenu") filed Criminal Writ Petition No.2312 of 2005, through the respondent No.1 herein, before the Bombay High Court for quashing and setting aside the detention order dated 9th September, 2005. At the same time, in the proceedings, before the Advisory Board, the detenu made a representation for permission to be represented in the proceedings through a legal practitioner. Such representation was, however, rejected by the Advisory Board on 28th October, 2005, on the ground that under the COFEPOSA ....
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....l. 6. Although, the life of the detention order came to an end on 9th September, 2006, Mr. Adsure, appearing for the appellant - State of Maharashtra, submitted that the ground on which the High Court had quashed the detention order was erroneous and was required to be corrected. 7. Referring to clause (3)(b) of Article 22 of the Constitution, Mr. Adsure submitted that a person placed under preventive detention was not entitled to be represented by a legal practitioner before the Advisory Board. In this regard, Mr. Adsure also referred to Section 8(e) of the COFEPOSA Act, 1974, which reads as follows:- "8(e) - a person against whom an order of detention has been made under this Act shall not be entitled to appear by any leg....
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....t, observed as follows:- "It is true that while Section 8(e) disentitles a detenu from claiming as of right to be represented by a lawyer, it does not disentitle him from making a request for the services of a lawyer." 10. It was observed further that without adequate legal assistance the personal liberty of the detenu guaranteed by Article 21 of the Constitution could be jeopardized and rendered meaningless. The request by a detenu for legal assistance would have to be considered on its own merits in each individual case. However, since in the said case, the detenu had not applied to the Advisory Board, it was held that it could not be said that the detenu had been wrongly denied the assistance of counsel. What Mr. Adsure t....
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....gal assistance in proceedings before the Advisory Board, he is entitled to make such a request to the Board and the Board is bound to consider such request when made. 15. In the instant case, the detenu's prayer for being allowed to be represented by a legal practitioner was rejected by the Advisory Board upon observing that such prayer could not be considered "for some obvious reasons". The said reasoning runs counter to the decision of this Court in Smt. Kavita's case (supra) and cannot, therefore, be sustained. The decision of the Division Bench of the Bombay High Court, relied upon by the High Court in quashing the detention order, says much the same thing as has been stated by this Court in Smt. Kavita's case (supra....