JOHNEY D' COUTO versus STATE OF TAMIL NADU

Citation: [1988] 1 S.C.R. 787 · Decided: 04-11-1987 · Supreme Court of India · Bench: RANGANATH MISRA · Disposal: Appeal(s) allowed

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Judgment (excerpt)

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JOHNEY D' COUTO 
A 
v. 
STATE OF TAMIL NADU 
NOVEMBER 4, 1987. 
[RANGANATH MISRA AND S. RANGANATHAN, JJ.] 
B 
Conservation of Foreign Exchange and Prevention of Smuggling 
Activities Act, 1974: s. 8(e)-Detenu's representation-Consideration 
of by Advisory Board-Detenu whether entitled to the assistance of a 
friend. 
The detenu, a clearing and forwarding agent aged around 26 or 27 c 
years, was detained under s. 3(1)(i) of the COFEPOSA Act. On the day 
the representation was heard by the Advisory Board the detaining 
authority was being assisted by a Deputy Collector and a Superin-
tendent of Central Excise. A specific request of the detenu to permit a 
retired Assistant Collector of Central Excise to assist him as a friend 
D 
was turned down on the ground that be was not a friend of the detenu, 
though the person was inclined to assist the detenu because of bis 
professional experience. The detention order was confirmed on the 
recommendation of the Advisory Board. 
In the writ petition under Art. 226 of the Constitution challenging 
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the order of detention it was contended for the detenu that he bad 
sought the assistance of the retired officer because the case before the 
Board involved certain facets which required acquaintance with the 
legal provisions and the procedure and practice adopted by the 
Customs authorities, with which he was not well versed. The writ peti-
lion having been dismissed, the father of the detenu filed special leave to 
F 
appeal to this Court. 
Allowing the appeal, 
HELD: 1.1 The detenu was entitled to the assistance of a 
friend. The refusal of the Advisory Board to permit him to be G 
assisted by the retired officer was bad and bis continued detention 
became vitiated. [793E-F] 
1.2 The detenu was not very much acquainted with the legal 
provisions and the procedure and practice adopted by the customs 
authorities. If the retired officer had been permitted to assist him, H 
787 
788 
SUPREME COURT REPORTS 
[ 1988] 1 S.C.R. 
A his case would have been better placed before the Advisory Board. 
~ 
Moreover, when the detaining authority had the assistance of the 
Deputy Collector and a Superintendent of Central Excise, who play 
B 
the role of legal advisers, the Board had no justification to refuse 
the assistance sought for by the detenu. There was, therefore, denial 
of a fair hearing before the Advisory Board. [792G-H] 
Nand Lal Bajaj v. State of Punjab, [1982] 1 SCR 718; 
Smt. Kavita v. State of Maharashtra, [1982] 1 SCR 138 and 
A.K. Roy etc. v. Union of India & Anr., [1982] 2 SCR 272, applied. 
2.1 The term 'friend' used in the judgments of this Court was 
more in the sense of 'an ally in a tight or cause, or a supporter', 
C than meaning 'a person known well to another and regarded with 
liking, affection and loyalty'. A person not being a friend in the 
normal sense could be picked up by a detenu for rendering assistance 
before the Advisory Board within the frame of the law as settled 
by this Court. [7938-C] 
D 
2.2 The advisory Board has, of course, to be careful in 
permitting assistance of a friend in order to ensure due observance 
of the policy of law that a detenu is not entitled to representation 
through a lawye~. What cannot be permitted directly should not 
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be allowed to be done in an indirect way. [793C-D] 
~ 
E 
3. Matters relating to preventive detention are strict proceedings 
and warrant full compliance with the requirements of law. It is not 
for this Court to examine and assess what prejudice has been caused 
to the detenu on account of denial of assistance. f793D-El 
p 
4. The order of detention is quashed. The detenu be set at 
liberty forthwith. 
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal 
No. 232 of 1987. 
G 
From the Judgment and Order dated 23.2.1987 of the Madras 
High Court in W.P. No. 6290 of 1986. 
) 
K.K. Venugopal, C.S. Vaidyanathan, Probir Chowdhry, S.R. 
'r 
Bhatt and S.R. Selia for the Appellant. 
H 
M.M. Abdul Khader and A. V. Rangam for the Respondent. 
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JOHNEY D' COUTO v. STATE OF TAMIL NADU [MISRA, J.] 
789 
The Judgment of the Court was delivered by 
A 
RANGANATH MISRA, J. This appeal is by special leave. 
Appellant challenged his order of detention under section 3(1)(i) 
of the Conservation of Foreign Exchange and Prevention of Smuggling 
Activities Act, 1974 (COFEPOSA for short) by filing a writ petition 
before the High Court and that application ,has been dismissed. As B 
_., many as six conten

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