LexHARBANS LAL versus M.L. WADHAWAN & ORS.
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HARBANS LAL v. A '· ~ M.L. WADHAWAN & ORS. DECEMBER 4, 1986 [R.S. PATHAK AND V. KHALID, JJ.) B Section 3(1) and 8-Detenu-Right of-To lead evidence in rebuttal of allegations against him before Advisory Board - To choose between affidavit evidence and oral evidence. - >-- The petitioner's son was detained under s. 3(1) of the COFEPOSA Act, c 1974 pursuant to a detention order passed on March 31, 1986. tie wasfmindin possession of a large quantity of contraband goods worth over Rs. 21 lacs, --1 hidden in his premises, which be had brought from Hongkong. On April 29, 1986, ·before the Advisory Board the detenu wanted to prove that the premises in which the contraband goods were found was not in his D possession and in support thereof he wanted to examine five witnesses, who were present when the matter was being heard by the Advisory Board. The Board declined to examine the witnesses, but permitted the detenu to produce their affidavits. Since it was not possible to secure the affidavits, on the next hearing date, an application was made for their examination, but the Board decline this request and forwarded its proceedings to the Central Government E who confirmed the detention order. The detenu filed a petition under Article 226 of the .Constitution challenging the detention order. The High Court dismissed the petition holding - that the witnesses were not required under the law to be subjected to cross- examination, that the Advisory Board was right in suggesting to file the F affidavits of the witnesses, that the plea that the witnesses declined to file their ;\:- affidavits was flimsy and without any valid reason, that the plea that evidence in -~ the shape of affidavits is an inferior type of evidence hardly deserves any worthwhile consideration, that if on perusal of-the affidavits the Ad,isory_ Board considered to call any of the deponents it could have been done and that it cannot be said that the detenu was deprived of his right of defence before the G Advisory Board. ~ • In the Special Leave Petition;md the Writ Petition before this Court on -+ behalf of the detenu it was contended (i) that the Advisory Board acted in violation of law in denying the dctenu his right to examine witnesses in rebuttal, who were readily available and present on the dates of hearing; (ii) that the H 425 I I • 426 SUPREME COURT REPORTS [1987] I S.C.R. Advisory Board waS bound under law to send the entire records of tho A.. proceedings to the Central Government for applying its mind before making the ,order of confimiation; and (ili) that the Central Government, in this case, was not informed about the presence of five witnes,ses before the Advisory ., Board, rei.dy to be examined and the Board's refusal to record their evi<iu,ce. ' B Allowing the petitions,, the Court, HELD: 1. The Advisory Board committed an error in law in denying to the detenu the right to examine the witnesses, rendering his continued detention , bad. The detention order is quashed, the judgment of the High Court set aside and the detenu directed to be released forthwith. [434 E-F] 2. The "trinity of rights" available to the detenu before the Advisory Board are: (i) the right of legal represenbtion; (ii) the right of cross- examination; and (ili) the right to present his evidence in rebuttal. [ 429 E-F] 3. The law recognises the right in a detenu to lead evidence in rebuttal of D the allegation against him before the Advisory Board. All that is necessary is that the detenu should keep the witnesses ready for examination at the appointed time. There is no obligation cast on the Advisory Board to summon them. The Advisory Board is competent to regulate its own procedure within the constraints 'of the Constitution and the statute and this procedure is referable to the time limit within which the Advisory Board must complete its E inquiry. [430 D-E] \ .' 4. The right to adduce oral evidence by examining witnesses is a right . available to a detenu under the decision of this Court in A.K Roys case 1982, , 2 S.C.R. 272 and this 'should be deemed to be incorporated in the statute dealing with detention without trial. Therefore, the right in a detenu to adduce F oral evidence in rebuttal bemg a right in the nature of Constitutional safeguard embodied in Article 22(5) of the Constitution as construed by this Court in A.K Roys case (supra) has necessarily to be read into section 8(b) and (c
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