401
BAL CHAND CHORARIA
v.
UNION OF INDIA AND ORS.
December 13, 1977
[S. MURTAZA FAZAL ALI AND JASWANT SINGH, JJ.]
Constitution uf Indiu, 1950-Art. 22(5)-Rcpresentation n1ade by a Me111ber
of Parliament as counsel for the detenu 1111der Conservation of Foreign f,'xciianj:fe
llnd prevention of Sn1uggling Actirities Act, 1974-Whether a proper repre·
sentation u! A 22/ ( 5) of the Constitution.
The representation of the appellant, detenu through his counsel who is a
member of Parliament was not considered by the Advisory Board constituted
under the COFFPOSA, 1974.
The High Court of Delhi refused to quash
the detention and dismissed the \Vrit petition.
Allowing the appeal by special leave, the court.
HELD : Jn matters where the liberty of the subject is concerned and a highly
cherished right is involved, the representations made by the detenu should
be construed liberally and not technically so as to frustrate or defeat the con-
cept of liberty which is engrained in article 21 of the Constitution.
[401 H, 402 A!
A
B
c
In the instant case : (i) as the representation has not been considered at
D
all by the government \vhich it was duty bound to consider, that b}' itself
vitiates the order of detention. (ii) The representation clearly recites
that
Mr. Jethmalani acted not as a member of the Parliament but on in<>tructions
from his client, namely the detenu.
The counsel had no personal matter and
he \Vas only advocating the cause of his client. The High Court wa~ in error
in construing the representation made by the petitioner as having been made
not by him but by his counsel.
[401 G-H, 402 Al
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 413
E
of 1977.
Appeal by Special Leave from the Judgment and Order
dated
12-8-77 of the Delhi High Court in Criminal Writ No. 37 /77.
Ram Jethmalani, A. K. Sen, Harjinder Singh and M. N. Lodha for
the Appellant.
S. N. Kacker, Sol. General, R. P. Bhatt, Girish Chandra for the Res-
pondent.
The Order of the Court was delivered by
FAZAL Au. J.- In support of the rule Mr. Jethmalani submitted a
short point before us.
It was argued that the representation filed by
the detenu through his counsel has not been considered by the Go-
vernment at all.
The High Court was of the view that the aforesaid
representation was not given by the detenu
himself
but by Mr.
Jethmalani in his capacity as a member of the Parliament.
The
representation has been placed before us and it clearly recites that
Mr. Jethmalani acted not as
a member of the Parliament but on
instructions from his client, namely, the detenu. In the circumstances,
therefore, the High Court was in error in construing the representa-
tion made by the petitioner as being made not by him but by his coun-
sel. It is manifest that the counsel had no personal matter and he was
only advocating the cause of his client. In matters where the liberty
F
G
H
A
B
402
SUPREME COURT REPORTS
[1978] 2 S.C.R.
of the subject is concerned and a highly cherished right is involved,
the representations made by the detenu should be construed liberally
and not technically so as to frustrate or defeat the concept of liberty
which is engrained in article 21 of the Constitution. As the repre-
sentation has not been considered at all by the Government which it
was duty bound to consider, that by itself vitiates the order of deten-
tion.
We, th~refore, allow this appeal and direct the appellant to be
released forthwith.
The order of this Court releasing the appellant
on parole, passed by us on the last hearing, is vacated as having
become infructuous.
S.R,
Appeal allowed.
Lex