TaxTMI 
TaxTMI 
2015 (12) TMI 1192
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....tom:10.0pt; mso-para-margin-left:0in; line-height:115%; mso-pagination:widow-orphan; font-size:11.0pt; font-family:"Calibri","sans-serif"; mso-ascii-font-family:Calibri; mso-ascii-theme-font:minor-latin; mso-hansi-font-family:Calibri; mso-hansi-theme-font:minor-latin; mso-bidi-language:AR-SA;} J. CHELAMESWAR AND ABHAY MANOHAR SAPRE, JJ. For The Petitioner : Mr. Nikhil Jain,Adv., Mr. Wattan Sharma,Adv. and Mr. Amit K. Nain,Adv. For The Respondent : Mr. Nishant Ramakantrao Katneshwarkar,Adv. JUDGMENT Abhay Manohar Sapre, J. 1. By way of Habeas Corpus writ petition under Article 32 of the Constitution of India, the petitioner is challenging the order of preventive detention bearing F.No. PSA-1215/CR-23/SPL....
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....5.2015 was rejected by the Detaining Authority on 28.05.2015 and the same was communicated to the petitioner on 03.06.2015. (d) On 05.06.2015, a letter was issued by the Advisory Board through its Secretary informing the petitioner that the date of hearing before it was scheduled on 12.06.2015. The said letter was received by the petitioner on 06.06.2015 in prison. (e) On 12.06.2015, the petitioner submitted a written request to the Advisory Board for a short adjournment so that he can make arrangement for the counsel. (f) On 03.07.2015, the petitioner got an order dated 29.06.2015 written by the Section Officer to the Government of Maharashtra, Home Department communicating him that after considering the report of the Advisory Boa....
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....ly before the Board though timely prayed by him, the impugned order is not legally sustainable and deserves to be quashed on this ground alone leaving aside other grounds which are also equally made out on merits. In support of his submission, learned counsel placed reliance on the decision of this Court in A.K. Roy vs. Union of India & Ors., (1982) 1 SCC 271. 5. In reply, learned counsel for the respondents supported the impugned order and prayed for its upholding contending that since the petitioner is a habitual offender, he is not entitled to claim any indulgence. 6. Having heard the learned counsel for the parties and on perusal of the record of the case, we find force in the submission of learned counsel for the petitioner. 7....
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....erefore 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, especi....
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.... of the case, officers of the sponsoring and detaining authority were present and heard in the course of proceedings. Paras 2 and 3 of the affidavit read as under: "2. At the outset I state that I am filing the present affidavit to the extent that the Petitioner has referred to the proceedings before the Advisory Board. It is true that the Petitioner had addressed a representation dated 14.05.2015 through Superintendent, Nashik Road Central Prison, Nashik. It is also true that on the date of hearing before the Advisory Board on 12.06.2015, Petitioner made a request for adjourning proceedings for two weeks to enable him to engage a Legal Advisor. The Advisory Board decided not to grant any time for that purpose and after hearing the deten....
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....e before the Advisory Board and participated in the proceedings against the petitioner whereas the petitioner was denied such facility. This infirmity, being fatal, renders the impugned order legally unsustainable. 13. In the light of what is held above, it is not necessary for this Court to examine other grounds though taken by the petitioner in these proceedings because one ground once held made out is enough to quash the impugned order of detention. We, therefore, express no opinion on any other ground taken in the petition and raised in the arguments. 14. So far as the submission of the learned counsel for the respondents that the petitioner being a habitual offender and, therefore, he should not be shown any indulgence in this ca....