NAND LAL BAJAJ versus THE STATE OF PUNJAB AND ANR.

Citation: [1982] 1 S.C.R. 718 · Decided: 15-09-1981 · Supreme Court of India · Bench: A.P. SEN · Disposal: Appeal(s) allowed
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Judgment (excerpt)

A 
B 
718 
NAND LAL BAJAJ 
v. 
THE ST A TE 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 Prose-
cutor, two attorneys, District Legal Advisor and one Legal Assistant, but the 
C 
detenu though prayed for assistance of a legal counsel in writing refused the sam~ 
Whether the refusal amounts to arbitrariness and unreasonableness off1ndiug 
Articles 14 and 21 of the Constitution-Prevention of Black.marketing and Main-
tenance of Supplies of Essential Commodities Act, 1980, section 11(4), scope of-
Confirmation of the detention order under section 12 of the Act without tM entire 
report of the Advisory Board before them vitiates the detention. 
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E 
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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. Sub-
section (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 of Maharashtra & Ors., [1982) l SCR p. 138 is an authority for the proposi-
tion. 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 
A 
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<pocted that the Advisory Board would set in 
a fair and impartial manner in making a report whether or not there is, in its 
opinion, sufficient cause for the detention of person. In coming to that conclu· 
sion, the Board has to make an objective determination on the question as to 
whether there was sufficient material on which the subjective satisfaction of the 
detaining authority could be based. 
Under sub-section (1) of section 11 of the 
Act, the Advisory Board may also call for such further information as it may 
deem necessary for the appropriate Govt. or from the person '.concerned and if, 
in any particular case, it considers essential to do so or if the person concerned 
desires to be heard, shall hear him in person. Arbitrariness is the very antithesis 
of Article 14. The principle of rea<>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
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