NAND LAL BAJAJ v. THE STATE OF PUNJAB AND ANR

Citation: [1982] 1 S.C.R. 718

Court: Supreme Court of India

Bench: A.P. SEN, BAHARUL ISLAM

Case summary

The father of the detenu, therefore, challenges the order of confirmation of the detention by the State.

Judgment text

NAND LAL BAJAJ v. THE STATE OF PUNJAB AND ANR, September 15, 1981 [A. P. SEN AND BAHARUL ! SLAM, JJ. ] Right to be defended by a lawyer-Advisory Board assisted by Public Prosecutor, two attorneys, District Legal Advisor and one Legal Assistant, but the detenu though prayed for assistance ofa legal counsel in writing refused the sam~ Whether the refusal amounts to arbitrariness and unreasonableness off1ndiug Articles 14 and21 ofthe Constitution-Prevention of Black. marketing and Maintenance ofSupplies ofEssential Commodities Act, 1980, section 11(4), scope of- Confirmation ofthe detention order under section 12 of the Act without tM entire report ofthe Advisory Board before them vitiates the detention. Inderjit alias Billa has been detained by an order dated June 1, 1981 passed by the District Magistrate uader sub-section (2) of section 3 of the Prevention of Black-marketing and Maintenance of Supplies of Essential Commodities Act, 1980 (PBMSECA).

The detenu submitted his representation challenging the ordef of detention on various grounds. He had a[so made a request in writing that he be allowed the assistance of counsel during the hearing before the Advisory Board, but the Government did not accede to his request in view of section 11 of the Act. On the contrary. at the time of hearing b~fore the Aavisory Board the State was assisted by Public Prosecutor, two attorneys, a District Legal Advisor and a Legal Assistant. Even at this stage, the detenu requested in writing for aid of a counsel but the same was rejected. The State Government confirmed the detention under section 12 of the Act. The father of the detenu, therefore, challenges the order of confirmation of the detention by the State. AUowing the writ petition, the Court. HELD 1:1.

Under Article 22(3Xb) of the Constitution, the right to consult and be defended by a legal practitioner of his choice is denied to any person who is arrested or detained under any law providing for preventive detention. Subsection (3) of section 11 of the Prevention of Black-marketing and Maintenance of Supplies of Essential Commodities Act, 1980 is undoubtedly in conformity with Article 22(3) (b) of the Constitution. Normally, lawyers have no place in the proceedings before the Advisory Board. [723 DJ 1:2. Upon the terms of sub-section (4) of section 11 of the Act the detenu had no right to legal assistance in the proceedings before the Advisory Board but it did not preclude the Board to allow such assistance to the detenu when it allowed the State to be represented by an array of lawyers. Smt. Kavlta v. The State ofMaharashtra & Ors. , [1982) l SCR p. 138 is an authority for the proposition. that while there is no right under section 8(e) of the COFEPOSA ·Act to legal NAND LAL V.

PUNJAB 719 assistance to a detenu in the proceedings before the Advisory Board is entitled to make such a request to the Board and the Board is bound to consider such a request when so made. [727 G-H, 728 A-BJ Smt. Kavila v. The State ~f Maharashtra & Orr. , [1982) 1 SCR p. 138 distinguished. 2. The Advisory Board is entitled to devise its own procedure. The functions of the Advisory Board are purely consultative. It i~ an independent body constituted under section 9 or the Act consisting of a sitting judge as the Chairman and not less than two other 1nembers, who may be sittinq: or retired ' judges of the High Court. It is e on1bleness is aa essential element of equality and the procedure contemplated :by Article 21 must answer th~ te5t ]of [reason· ableness in order to be in conformity with Article 14. The history of personal liberty is largely the history of procedural safeguards. The need for observance of procedural safeguards, particularly in cas.

es of deprivation of life ~and liberty is. therefore, of prime importance to the body politic. In the context of 'deprivation of life and liberty' under Article 21, the 'pro:edurl! l est1blish:d by Jaw' carried with it the inherent right to le~al assistance. The right to be heard before the Advisory Board would be, in mlny ca~~~. of little availy it did not co. n,>reh,,n1 tho right to be heard by the counsel. [723 D. Q, 725 C-D,l. F,i726 B. C] E. P. Royappa v. TamU Nadu, [197+) 2 SCR 348, Maneka Gandhi v. Union of India, [1978] 2 SCR 621; Fra11c. is Coralie Mullin v. The A. Jini11istrator, U11ion Territory ofDelhi and Ors. , [1981] 2 SCR 516 at 531; reiterated. 3. The State Government while-confirming the detention·order under section 12 of the Act has not only to peruse the report of the }Advisory Baird, but also to apply its mind to the material on record.

If the record itself was not before the State Government, as is evident from the returns filed in reply to the1writ petition before this Court, it follows that the order passed1by the State Govern.. meat under section 12 of the Act was without due applicatio:I of. mind, which is a serious infirmity in the case which mikes the continued detention of the detenu illegal. [728 B-D] OBITER :- It is e. pected that Parliament while making a law regulate the procedure before an Advisory" ,Board under Article 22(7) (c) of the Constitution should provide the right to con-Sutt and be defended by a legal practitioner of his choice. It is incomprehensible that a p:! rson co. n nitting a crim! s'loald have under Article 22(1) of the Constitution the right to consult and be defended by a legal practitioner of his choice, but a person under preventive detention more often than not for his political beliefs. should be deprived of this valuable right.

It cannot be denied that preventive detention is an anachronism in a democratic society like ours. The detention of individuals without trial for any length of time, however short, is wholly inconsistent with the basic ideals of a parliamentary system of government. In the nature of things. under the law as it exists, a person under preventive detention is not entitled to legal assistance. The matter is essentially political and as such it is the concern of the statesmen and, therefore, within the domain of the Legislature, and not Judiciary. [726 C·F] ORIGINAL JURISDICTION : Writ Petition (Criminal) No. 4975 of 1981. (Under Article 32 of the Constitution)· • Kapil Sibal, Ramesh C. Pathak, Subhash Sharma. R. K. Khindria and R. K. Randa for the Petitioner. 0. P. Sharma and M. S. Dhillon for the Respondent. The Judgment of the Court was delivered by SEN, J. This is a petition under Art. 32 of the Constitution by one Nand Lal Bajaj for the issuance of a writ of habea '.

it did not preclude the Board to allow such assistance to detenu, when it allowed the State to be represented by an array of lawyers. The matter can be viewed from another angle. We were informed that the Advisory Board did not forward the record of its proceeding to the State Government. If that be so, then procedure adopted was not in consonance:with the procedure established by law. The State Government wbile confirming the detention order under s. 12 of the Act has not only to peruse the report of the Advisory Board, but also to apply its mind to the material on record itself was not before the State Government, it follows that the order passed by the State Government under s. 12 of the Act was without due application of mind. This is a serious infirmity in the ca<e which \ makes the continued detention of the detenu illegal. We refrain from expressing any opinion on the other grounds raised.

It appears to us prima facie that the grounds for detention set out the facts with sufficient degree of particularity and that they did furnish sufficient nexus for forming the subjective satisfaction of the detaining authority. It seems to us that the order of detention cannot also be challenged that the grounds furnished were vague or indefinite or lacking in particulars or were not adequate or sufficient for the satisfaction of the detainiag authority, or, for that matter, for ! ht making of an effective representation. For the reasons stated above, the order of detention passed by the District Magistrate, Ropar dated June I, 1981 is quashed and we direct that the detenu Inderjit alias Billa be set at liberty forthwith. V. D. K. Petition allowed.