TaxTMI 
TaxTMI 
1986 (4) TMI 364
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....necessary to refer to the grounds on which the petitioner had been detained. We are therefore setting out only such of the facts that are material for the decision of the two questions which have been canvassed before us. 2. The Commissioner of Police, Madras City passed an order of detention under section 3(l) of the Tamil Nadu Prevention of Dangerous. Activities of Bootleggers, Drug-offenders, Goondas, Immoral Traffic Offenders and Slum Grabbers Act, 1982 (hereinafter referred to as the Act) directing that the petitioner be detained and kept in custody in the Central Prison, Madras. The petitioner was served with the grounds of detention and other documents on 25-5-1985. The order of detention was confirmed by the State Government on 30-5-1985. The petitioner forwarded a representation dated 7-6-1985 to the State Government which was received by the State Government on 10-6-1985. In this representation at the end of paragraph 5, the petitioner asked for permission to have the assistance of an advocate to be present before the Advisory Board. the request made to the State Government is contained in the following words: I may also be permitted to have the assistance of ....
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....ortunity at all for personal hearing. The Division Bench took the view that the decision in the case of Suresh required reconsideration in view of the decision in Tusher Govindji Shah v. Union of India, 1985 CriLJ 793. The Division Bench found that the ratio of the Supreme Court decision was that when a right is available to the detenu, if he does not exercise the same, he shall suffer for his folly and that there is no duty cast on the Advisory Board to adjourn the hearing even though no such request was made by the detenu to the Advisory Board. Thus, according to the Division Bench the decision in the case of Suresh requires reconsideration. This is how the first question has been referred to a Full Bench. 3. The second question 'whether the confessional statement made by the detenu to the police officer is admissible in cases of detention under a Preventive Detention Act such as Tamil Nadu Act No. 14 of 1982 arises in the following circumstances. The case of the petitioner was that he was conversant with 'Thulu' which has no script and he knows reading and writing Hindi only. Therefore, since he does not know Tamil or English, the grounds of detention not havin....
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.... Bench which would finally decide the case, he has invited our attention to rule 7 in order I of the Appellate Side Rules of the High Court, which according to him, would enable us to go into the merits of the detention order and decide the writ petition itself. Rules 4 to 7 of Order I of the Appellate Side Rules deal with the constitution of a Full Bench in the matters which are ordinarily heard by a Bench of three Judges. Rule 7 reads as follows: When a question of law is referred to a Full Bench, the Full Bench may answer the' reference or in its discretion may finally decide the case itself. Now, undoubtedly, in view of the provisions of rule 7 it would be permissible for the Full Bench to decide the matter in which the question of law has been referred to the Full Bench on merits. We must point out, however ' that in the present case, the Division Bench has considered on merits the several contentions raised on behalf of the petitioner and has also recorded findings thereon. If we were to rehear the matter that would mean that in a sense we will be sitting in judgment over the findings recorded by the Division Bench because it is obvious that the learned co....
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.... or slum grabber. Each one of these terms have been defined. In so far as the present case is concerned, the definition of goonda in section 2, clause (f) reads as follows: 'goonda' means a person, who either by himself or as a member of or leader of a gang, habitually commits, or attempts to commit or abets the commission of offences, punishable under Chapter XVI or Chapter XVII or Chapter XXII of the Indian Penal Code. The definition section gives the meaning of the phrase 'acting in any manner prejudicial to the maintenance of public order'. In so far as the case of a goonda is concerned, 'acting in any manner prejudicial to the maintenance of public order 'means' in the case of a goonda, when he is engaged, or is making preparations for engaging, in any of his, activities 'as' a goonda which affect adversely, or are likely to affect adversely, the maintenance of public order. Reading the definition of 'goonda' along with the relevant part of the definition of 'acting in any manner prejudicial to the maintenance of public order', it is clear that it is not necessary for the exercise of the power of detention that a ....
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....rejecting his request for the legal assistance and it was thereafter that the case of the detenu was taken up by the Advisory Board and considered. It is further stated that the detenu has chosen to appear in person before the Advisory Board and did not make any request before the Advisory Board for time. It was therefore not open to the detenu to complain that principles of natural justice had been violated. The learned counsel for the detenu stated that this statement of respondent No. 2 that the detenu himself did not make any request for legal assistance before the Advisory Board may be accepted as correct for the purposes of this reference. The learned counsel for the detenu has placed heavy reliance on the observation of the Division Bench in the case of Suresh which undoubtedly lays down a legal proposition that notwithstanding the fact that the detenu does not make a request for adjournment of the hearing before the Advisory Board when he is informed that his request for legal assistance of an advocate is rejected, it is the duty of the Advisory Board to give him sufficient time to enable him to present his case at the time of personal hearing. In that case the detenu had s....
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....s not a lawyer and that the detenu requested the Advisory Board to be heard in Punjabi. The statement of the Secretary of the Advisory Board who is a responsible officer was accepted and the Supreme Court held that the detenu did not make the two requests, viz., his case should be represented by his friend who was not a lawyer and that he should be heard in Punjabi. Reliance was placed on behalf of the petitioner on the decision of the Supreme Court in Nand Lal Baiaj v. State of Punjab, 1981 CriLJ 1501 wherein the Advisory Board was assisted by a Public Prosecutor, two Attorneys, a District Legal Advisor and a Legal Assistant, but the prayer of the detenu for assistance of a lawyer made in writing was refused by the Advisory Board and it was held that the confirmation of the detention under S. 12 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, when the entire report of the Advisory Board was not before the State Government, vitiated the detention and further refusal by the Board of the detenu request for assistance for a lawyer amounted to arbitrariness and unreasonableness offending articles 14 and 21 Of the Constitution of India. The dete....
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....e his oral representation and if the Advisory Board fails to do so, the detention order is vitiated. 10. The act contains provisions similar to the provisions in other detention laws requiring a reference to the Advisory Board and the procedure of Advisory Boards. Section 10 of the Act which requires a reference to the Advisory Board to be made reads as follows: In every case where a detention order has been made under this Act, the State Government shall, within three weeks from the date of detention of a person under the order, place before the Advisory Board constituted by them under S. 9, the grounds on which the order has been made and the representation, if any, made by the person affected by the order, and in the case where the order has been made by an officer, also the report by such officer under subsection (3) of Section 3. Section 11 deals with the procedure of Advisory Boards-and sub-sections (1) and (5) which alone are relevant for our purpose read as follows: (1) The Advisory Board shall, after considering the materials placed before it and, after calling for such further information as it may deem necessary from the State Government ....
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....itled to consider the material placed before it and the representation even without hearing him. Of course, if the Advisory Board itself considers it essential to hear the person concerned, then the Advisory Board can also hear the detenu. It how ever -appears that it is the normal practice that a notice of personal hearing is always given to the detenu. So far as the provision of the Act is concerned, the procedure before the Advisory Board is governed by section 11 and it no request is made by the detenu to be heard in person or to hear a friend of his choice on his behalf, then it is difficult to spell out any duty in the Advisory Board to adjourn the hearing after the request for being represented by a legal practitioner is rejected. As pointed out by the Supreme Court in Raisuddin v. State of U.P., 1983 CriLJ 1785 the Advisory Board is a wholly independent body consisting of persons who are or have been or are qualified to be appointed as Judges of a High Court and it is entirely for the Advisory Board to regulate its schedule of holding meetings and conducting its business in accordance with the procedure laid down under section 11 of the Act. 11. The nature of the procedu....
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....u cannot appear before the Advisory Board through a legal practitioner and the written representation of the detenu does not have to be expatiated upon by a legal practitioner. However, in paragraph 94 of the judgment the Supreme Court laid down the law thus: 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. In paragraph 95 of the judgment in A.K. Roy case the Supreme Court held that the embargo on the appearance of legal practitioners should not be extended so as to prevent the detenu from being aided or assisted by a friend who, in truth and substance, is not a legal practitioner. It was observed: Every person whose interests are adversely affected as a result of the proceedings which have a serious import, is entitled to be heard in those proceedings and be assisted by a friend.....The statute does not exclude that right, that the detenu should not even be allowed to take the aid of a friend. Whenever demanded, the Advisory Boards must grant that facility. (underlining on) ....
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....es against him. That is the importance of the statement that the concept of what is just and reasonable is flexible in its scope and calls for such procedural protections as the particular situation demands. Just as there can be an effective hearing without legal representation even so, there can be an effective hearing without the right of cross-examination. The nature of the inquiry involved in the proceeding in relation to which these rights are claimed determines whether these rights must be given as components of natural justice. Having regard to the above observations of the Supreme Court, it would be difficult to hold that the proceedings before the Advisory Board are vitiated merely on the ground that the Advisory Board after rejecting the request for legal assistance made by the detenu did not suo Motu adjourn the hearing, unless such a right to have the matter adjourned is treated as a component of natural justice and an obligation is spelt in the Advisory Board to suo Motu adjourn the matter. The Supreme Court in A. K. Roy case 1982 CriLJ 340 has undoubtedly indicated that the facility of being represented by a friend must be granted whenever demanded. This would mean....
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....tion. It was further urged that the detenus were foreigners and they were under a handicap being ignorant of the laws and procedure of this country and to deny any legal representation to them was an unreasonable exercise of the discretion vested in the Advisory Board to permit or not to permit legal representation. Therefore, according to the detenus that was a case where legal representation should have been permitted and in any case the detenus ought to have been 'offered' at least 'friendly' representation, if not legal representation. Therefore, the argument was that the Advisory Board should have itself offered 'friendly' representation. In other words, the initiative should have been taken by the Advisory Board to tell the detenus that if they so desire they could get a friend to assist them. This argument was rejected by the Supreme . Court with the following observations: In the present case, the Advisory Board consisting of three Judges of the High Court of Tamil Nadu considered it unnecessary and inadvisable to allow legal representation to the detenus. It was a matter for the decision of the Advisory Board and I do not think I will be ju....
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....Court also noticed the fact that the detenus were personally heard by the Advisory Board. Even though this decision clearly lays down that when the detenu does not ask for any assistance by a friend it was not for the Advisory Board to offer any 'friendly' representation after the Board does not feel it necessary to provide legal representation to the detenu and when the Board proceeds to hear the detenu himself there was no denial of opportunity to make a proper and effective representation to the Advisory Board, this was not even considered by the Division Bench in Suresh's case probably because it was not cited before the Bench. 14. It is undoubtedly true that in Suresh's case the Division Bench took the view that when the Advisory Board decided not to permit the detenu to have legal assistance, they should not have proceeded further with the hearing and enough time to the detenu should have been given to prepare his case for oral representation. With respect, the Division Bench assumed that the failure to adjourn the matter on-its own by the Advisory Board deprived the detenu of the opportunity to prepare his case for oral representation. The Division Bench, ....
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.... hearing., We must point out that declining to adjourn the proceedings by the Advisory Board without even a request made by the detenu cannot be put on the same footing as an unduly short notice to the detenu, to make a representation before the Advisory Board. No dogmatic or hypothetical approach is permissible in such cases. The question as to whether in a given case there has been denial of opportunity to make a representation before the advisory Board cannot be decided on hypothetical considerations and has to be decided on the facts of each case. We must remember the fact as the Supreme Court pointed out in Phillippa Anne Duke's case that the Advisory Board is headed by a sitting Judge of the High Court and the other two members are also either sitting or retired Judges or persons qualified to be Judges of the High Court. We are, entitled to assume that they are aware of the elementary principles of natural justice and unless it is possible for the detenu to establish that on facts stated by him he has been denied reasonable opportunity of making a representation to the Advisory Board, the Advisory Board cannot be found guilty of adopting an arbitrary or unjust procedur....
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....ed upon a passage from "Natural Justice, Principles and Practical Application "by Geoffrey A Flick, 1979 Edn. in which -at page 39 the author has observed as follows: A refusal to grant an adjournment may therefore in some cases be tantamount to a denial of natural justice, and Where a party is denied the right of legal representation and is confronted at the hearing with a basis of liability as to which he has received no prior notice, a tribunal should offer such a party an adjournment; R. v. Small Claims Tribunal and Homewood, ex parte Cameron, (1976) VR 427, 431. Yet it should always be remembered that an adjournment will lead to a protracted hearing, increased delay, and increased costs and expenditure. The same author at page 40 has framed his conclusions as follows: Defects in any administrative notice should not be lightly disregarded, but the key issue is whether a party has been prejudiced by any procedural irregularity in the giving of notice. Without attempting an exhaustive list, the following three situations immediately suggest that prejudice is likely: (i) Where a party is not informed of the time and place of a hearing: (ii) w....
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....acts and circumstances available on record, we are inclined to agree with Mr. Rana that the detenu's is one such.- This decision of the Supreme Court in Asha case would therefore clearly show that no presumption can be drawn that a detenu has been prejudiced in his right to make an effective representation and specially when prejudice is sought to be made out for the failure of the Advisory Board to suo motu adjourn the proceeding, such prejudice must be established on record before fault is found with the procedure adopted by the Advisory Board so as to vitiate the order of detention. The test of prejudice having been established no academic view can be taken of the duty of the Advisory Board to suo motu adjourn the hearing and to advise the detenu to take more time to prepare his case. 18. It is important to refer to the decision of the Constitution Bench of five Judges of the Supreme Court in Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180 where the Constitution Bench even after quoting with approval the decision in S. L. Kapoor v. Jagmohan, [1981] 1 SCR 746 where it was observed that the non-observance of natural justice is itself prejudice to any man and....
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....in 'Natural Justice Principles and Practical Application' reproduced by us would also indicate that a refusal to adjourn cannot in all cases amount to denial of natural justice. The learned author in his conclusion has also, as reproduced by us, clearly stated that 'the key issue is whether a party has been prejudiced by any procedural irregularity in the giving of notice'. It therefore appears to us that the view of 'the Division Bench in Suresh case runs counter to the established proposition that there is no duty cast on the Advisory Board to suo motu adjourn the hearing before it, when it rejects the request for being represented by a lawyer and that merely on this ground unless prejudice is shown by the refusal to adjourn the hearing, there cannot be any procedural irregularity in the proceedings before the Advisory Board. We are therefore of the considered view that unless adjournment is sought for by the detenu the Advisory Board is not bound to adjourn the matter and in a given case even if the adjournment is refused by the Advisory Board that fact by itself will not vitiate the proceedings before the Advisory Board, unless the detenu establishes that he....
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....sonal hearing. No question of refusing an adjournment therefore arises. When notice is given to him for a personal hearing, unless there is indication to the contrary, we must assume that he had come before the Advisory Board ready for a personal hearing. 21. We may~ now turn to the second question which is referred for our consideration. In Duraiswamy Mudaliar v. Govt. of Tamil Nadu, a Division Bench of this Court has taken the view that section 25 of the Evidence Act by analogy will have to be applied even in respect of preventive detention under the Tamil Nadu Act No. 14 of 1982. The Division Bench rejected the contention of the Public Prosecutor in that case that the rules of criminal jurisprudence in general will not be applicable to preventive detention and that therefore even by way of analogy the provisions of section 25 of the Evidence Act should not be invoked. The Division Bench distinguished the decision of the Supreme Court in State of Gujarat v. Adam Kasam, 1981 CriLJ 1686 on which reliance was placed by the public prosecutor. Distinguishing this decision, the Division Bench observed as follows: This decision is only authority for the proposition that the ....
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....ment, whether it would amount to-a confessional statement or not, can be proved. (3) A Bench of this Court had earlier also taken a contrary view and held that the provisions of the Evidence Act will not have application to detention proceedings under the Act and as such, section 25 will not have any application and that this decision has not been noticed by the, Division Bench in Duraiswamy Mudaliar's case. The decision is in Thenmozhi v. State of Tamil Nadu (W.P. No. 9811 of 1982) decided on 3-2-1983. (4) The Supreme Court has indirectly held in Kailash Pandey v. State of U. P., 1983 CriLJ 452 that an order of detention can be Passed on the basis of a confessional statement. (5) if section 25 of the Evidence Act is held attracted to proceedings under the Tamil Nadu Act No. 14 of 1982, then it must logically be held that section 24 of the Evidence Act will be attracted to proceedings under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, but confessional statements of detenus in cases coming under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act made before the customs officers are taken as relevant material for fo....
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....ond reasonable doubt, which is one of the characteristics of the criminal or quasi-criminal proceeding the whole purpose of preventive detention will be frustrated. 25. Now at the outset it appears to be w ell established that administrative authority. or the State Government leading to the passing of an order of detention cannot properly be described as not only a criminal proceeding but also a quasi-criminal proceeding. The nature of the proceeding in respect of a preventive detention, is set out by the Supreme Court in Khudiram Des v. State of W. B., [1975] 2 SCR 832 as follows : "The power of detention is clearly a preventive power. It does not partake in any manner of the nature of punishment. It is taken by way of precaution to prevent mischief to the community. Since every preventive measure is based on the principle that a person should be prevented from doing something which, if left free and unfettered, it is reasonably probable he would do, it must necessarily proceed in all cases, to some extent, on suspicion or anticipation as distinct from proof'. In State of Madras v. V. G. Row, 1952 CriLJ 966 the Supreme Court quoted with approval the observations of Lord Fin....
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....limited to consider the relevant material placed before it and the representation received from the detenu and then submit its report to the State Government within the time specified by section 10(l) of the Act (the reference was to Preventive Detention Act, 1950). It is not disputed that the Advisory Board considers evidence against the detenu which has not been tested in the normal way by cross-examination; its decision is essentially different in character from a judicial or quasi-judicial decision. In some cases, a detenu may be given a hearing, but such a hearing is often, if not always, likely to be ineffective, because the detenu is deprived of an opportunity to cross-examine the evidence on which the detaining authorities rely and may not be able to adduce evidence before the Advisory Board to rebut the allegations made against him. Having regard to the nature of the enquiry which the Advisory Board is authorised or permitted to hold before expressing its approval to the detention of a detenu, it would, we think, be entirely erroneous and wholly unsafe to treat the opinion expressed by the Advisory Board as amounting to a judgment of a criminal Court. The main infirmity wh....
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.... the essence of a judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice. The nature of the jurisdiction of detention is thus now well established. The order of detention is made by an executive authority and that when it makes such an order, it does not do so in the exercise of judicial or quasi-judicial power; nor is the jurisdiction to reach a subjective satisfaction a criminal or a quasi criminal in character. While making use of any material in order to form a subjective satisfaction the normal rule of criminal jurisprudence of proof beyond reasonable doubt is not attracted. Similarly, the proceeding before the Advisory Board is also not quasi-judicial- or quasi-criminal in character. It is in the light of this well settled position of law that the question as to whether on the analogy of section 25 the confession cannot be considered as valid material by the detaining authority must be determined. It is true that confessions recorded by police officers are often looked upon with suspicion. Section 25 of the Evidence Act which provides that no confession made to a police officer shall be proved as agains....
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.... is to be considered as evidence of guilt that no credit ought to be given to it." "Rex. v. Warickshall (1783) 1 Leach C. C. 263. It is not that the law presumes such statements to be untrue, but from the danger of receiving such evidence Judges have thought it better to reject it for the due administration of justice (keg. v. Baldry (1852) 2 Den. CCR 430. Accordingly when hope or fear were not in question, such statements were long regularly admitted as relevant, though with some reluctance and subject to strong warnings as to their weight. These observations admirably set out the reasons for excluding the confessions for being proved against the accused. In so far as the powers of preventive detention are concerned, it is however difficult for us to see how any embargo can be placed on the material which a detaining authority may well consider. No artificial restriction can be placed on the so called analogy of section 25 of the Evidence Act which can restrict the material which the administrative authority exercising statutory powers of detention can be barred from considering. Admittedly there is no constitutional bar disabling the detaining authority from considering the fa....
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....he statements were confessions made to a police officer and under section 25 of the Evidence Act could not be given in evidence. The latter objection was rejected by the Bench in the following observations; As regards (b) the objection under section 25 of the Evidence Act as we intimated in the course of the trial, in the opinion of the majority of the Court, this objection fails. Our attention was not called to any authority upon the point, but it was argued that the words of the section were general and not restricted, as in section 26, to the party who makes the confession. As regards the mischief of the two sections there seems no good reason why the suggested distinction should be drawn. No doubt Arumugam's statement to inspector Veeraraghava Aiyar inculpated himself, but Arumugam is not now an accused person and does not stand charged before us. It is not sought to use the statement against him in any way. It is sought to use the fact that he made the statement in the circumstances in which it was made as a fact which goes to show that his evidence at the trial was true. In Queen Empress v. Tribhovan Manekchand, ILR(1885) Bom 13 1, West, J. observed 'confessi....
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.... none of the witnesses dared to identify the detenu in the cases under sections 395, 396 and 397, I.P.C., because the witnesses after the conclusion of the identification proceedings had told the Station Officer that the petitioner wielded great influence and terror in the area and his companions in the village had constantly been threatening them that in case they identified the detenu in jail he would on being released on bail either kill them or would, break their arms and legs. The witnesses were accordingly scared of him and did not identify him in jail for that reason. Dealing with the question as to whether the confessions and the general diary could be considered by the detaining authority, the Division Bench observed as follows: . This entry in the general diary and the said confessions to police may not have been admissible pieces of evidence at the trial but "here was no bar for the detaining authority to have taken this material into consideration, and if his subjective satisfaction was reached on the basis of these documents that the witnesses did not actually identify the detenu in jail on account of fear of their lives and that the detenu was involved in the....
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....sions 'of section 162 of the Code of Criminal Procedure which inter alia read as follows: 162(l). No Statement made by any person to a police officer in the course of an investigation under this chapter shall if reduced to writing be signed by the person making it, nor shall any such-statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made: Provided ...................... (2) . . . Referring to the provisions of section 162, the Supreme Court held that the section bars the use of any statement made before a police officer in the course of an investigation under Chapter XII, whether recorded in a police diary or otherwise, but, by the express terms of the section, this bar is applicable only where such statement is sought to be used at any inquiry or trial in respect of any offence under investigation at the time when such statement was made, and point out that this section has been enacted for the benefit of the accused and that &....
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....he Supreme Court the principle of section 172 could not be extended to a proceeding which is not expressly covered by that section, similarly the principle of section 25 can also not be extended to a proceeding which does not squarely fall within the kind of the proceeding contemplated by that section. 37. The provisions of the Evidence Act do not regulate the consideration of the material which is put before the detaining authority for consideration in order to decide whether it would make an order of detention. If generally the provisions of the Evidence Act are not attracted in the case of an administrative action, there is no reason why only in respect of a statement made by the proposed detenu either the provisions of section 25 or the principle behind section 25 should be brought in by way of regulating the consideration of the material laid before the detaining authority. We must, therefore, hold that the decision in Duraiswamy Mudaliar's case does not lay down the correct law and that the confessional statement made to a police officer constituted a relevant material which the detaining authority is entitled to take into consideration for passing an order of detentio....