CHOITH NANIKRAM HARCHANDANI versus STATE OF MAHARASHTRA& ORS.

Citation: [2015] 11 S.C.R. 80 · Decided: 20-11-2015 · Supreme Court of India · Bench: JASTI CHELAMESWAR · Disposal: Appeal(s) allowed
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Judgment (excerpt)

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B 
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[2015) 11 S.C.R. 80 
CHOITH NANIKRAM HARCHANDANI 
v. 
STATE OF MAHARASHTRA& ORS. 
(Writ Petition (Crl.) No.134 of 2015) 
NOVEMBER 20, 2015 
[J. CHELAMESWAR AND 
ABHAY MANOHAR SAPRE, JJ.] 
Preventive Detention - Detention under COFEPOSA 
Act - Challenged in a Habeas Corpus writ petition u/Art 32 
of Constitution - Held: The detention order is liable to be 
quashed on the ground that that the detenu was denied an 
opportunity affair hearing inasmuch he was denied hearing 
o before Advisory Board - Since the Detaining Authority was 
represented by the officers, denial of opportunity to the detenu 
to take aid of legal practitioner also amounted to violation of 
Art 14 of the Constitution - Therefore, the detention order is 
passed by issuance of writ of certiorari - Constitution of India, 
E 1950 - Arts. 14 and 32 - Natural Justice - Fair hearing -
Conservation of Foreign Exchange and Prevention of 
Smuggling Activities Act, 1974- s.3(1). 
Allowing the petition, the Court 
F 
HELD: 1. The detenu has a right to appear through 
a legal practitioner in the proceedings before the 
Advisory Board. The petitioner in the present case, vide 
his representation/application dated 13/14..._05.2015 
(Annexure P-5) had prayed that he be permitted to be 
G represented by any legal practitioner/counsel of his 
choice before the Board. The Board did not grant any 
time to the petitioner and secondly, at the time of hearing 
of the case, officers of the sponsoring and detaining 
authority were present and heard in the course of 
H proceedings. [Paras 7, 8, 9] [84-G; 86-D-E, H; 87-A] 
80 
CHOITH NANIKRAM HARCHANDANI v. STATE OF 
81 
MAHARASHTRA 
2. If the Detaining Authority or Government takes A 
the aid of a legal practitioner or legal advisor before the 
Advisory Board, the detenu must be allowed the facility 
of appearing before the Board through a legal 
practitioner. If it is denied to him then a clear case of 
breach of Article 14 of the Constitution of India, 1950, is B 
made out in favour of detenu. The expression "legal 
practitioner" includes even the officers of the 
Government when they appear before the B~ard to 
assist the proceedings against the detenu, the detenu 
too has to be provided with equal facility of appearing C 
before the Board through legal practitioner. Since no 
such opportunity was afforded to the petitioner though 
claimed by him, he was denied an opportunity of a fair 
hearing before the Advisory Board, which eventually 0 
resulted in passing an adverse order. This ground alone 
is enough to quash the impugned order of detention. 
[Paras 10 -13] [87-E-F, H; 88-A-D] 
A.K. Roy vs. Union of/ndia & Ors. 1982 (2) 
SCR 272: (1982) 1 sec 271 - followed. 
Case Law Reference 
1982 (2) SCR 272 
followed 
Para 4 
E 
CRIMINAL ORIGINAL JURISDICTION : Writ Petition 
F 
(Criminal) Appeal No. 134 of 2015 
Under Article 32 of the Constitution of India 
WITH 
SLP (Crl.) No. 7010 of 2015 
Saurabh Kirpal, Sanjay Agarwal, Wattan Sharma, Nikhil 
Jain, Amit K. Nain for the Petitioner. 
Mahaling 
Pandarge, .Nishant 
Katneshwarkar for the Respondents. 
Ramakantrao 
G 
H 
82 
SUPREME COURT REPORTS 
[2015] 11 S.C.R. 
A 
The Judgment of the Court was delivered by 
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 
B bearing F.No. PSA-1215/CR-23/SPL-3(A) dated 16.04.2015 
issued by respondent No.2 -the Principal Secretary (Appeals 
& Security), Government of Maharashtra, Home Department 
& Detaining Authority against him under Section 3(1) of the 
Conservation of Foreign Exchange and Prevention of 
C Smuggling Activities Act, 1974 (hereinafter referred to as 
"COFEPOSAAct"). 
2. 
Challenging the same detention order dated 
16.04.2015 issued by respondent No.2 herein, the petitioner's 
D son filed a petition bearing Writ Petition No. 2076 of 2015 
before the High Court of Judir:ature at Bombay. By impugned 
judgment dated 03.07.2015, the High Court dismissed the 
petition. Against the said order, the petitioner's son has filed 
S.L.P. (Crl.) No. 7010 of 2015 under Article '136 of the 
E Constitution of India before this Court. 
3. 
Brief facts : 
(a) On 16.04.2015, a detention order was issued by 
F 
respondent No.2 herein under Section 3(1) of COFEPOSA 
Act for detaining the petitioner herein to prevent him from 
smuggling of goods in future. 
(b) On 20.4.2015, the detention order along with 
Groun
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