STATE OF ANDHRA PRADESH & ANR. versus BALAJANGAM SUBBARAJAMMA

Citation: [1988] SUPP. 3 S.C.R. 620 · Decided: 27-10-1988 · Supreme Court of India · Bench: G.L. OZA · Disposal: Dismissed
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Judgment (excerpt)

A 
STATE OF ANDHRA PRADESH & ANR. 
v. 
BALAJANGAM SUBBARAJAMMA 
OCTOBER 27, 1988 
B 
[G.L. OZA AND K. JAGANNATHA SHETIY, JJ.] 
c 
Constitution of India, 1950: Articles 22, 226, 136 and Schedule 
VII Entry 9 of List I, Entry 3 of List Ill-Preventive detention-Power 
of legislation-Safeguards provided in ·the Constitution-Advisory 
Board-Right to representation by legal practitioner-Whether per-
missible. 
Prevention of Blackmarketing and Maintenance of Supplies of 
Essential Commodities Act, 1980: Section 11-Advisory Board-Right 
to representation by a lawyer at proceedings-Whether permissible--
High ranking police officers appearing on behalf of Government and 
D detaining authority before Advisory Board-Detenu not permitted to 
have representation through a legal practitioner-Quashing of the 
detention order by the High Court-Justified: 
An order was passed by the District Magistrate, Nellore, directing 
the detention of the respondent under the Prevention of Black Market-
E ing and Maintenance of Supplies of Essential Commodities Act, 1980. 
The State Government approved the detention and referred the matter 
to t.he Advisory Board under section IO of the Act. The detenu's rep-
resentation was also forwarded by the Government to the Advisory 
Board. The Advisory Board heard the detenu and the top ranking 
. police officers, who represented the State, and expressed the opinion 
F that there was sufficient cause for the detention of the respondent. The 
Government agreed with the opinion and confirmed the respondent's 
detention for a period of six months. 
I 
The detenu challenged the validity of the order of detention. The 
High Court allowed the writ petition. The High Court found that there 
G was unequal treatment by the. Advisory Board in considering the rep-
resentation of the detenu. 
Dismissing the appeal, it was, 
HELD: (1) The Act by s. 11(4) expressly denies representation 
H through a legal practitioner. The Board may hear any person if neces-
620 
J 
STATE OF A.P. v. BALAJANGAM 
621 
sary. If the detenu desires to be heard, the Board may hear him also. A 
But no person has a right to be represented by a lawyer, much less the 
detenu. This provision is in conformity with Art. 22(3)(b) of the 
Constitution. [626B-C) 
(2) The power to detain a person without trial is a serious in-
road Into the liberty of individuals. It is a drastic power capable B 
of being misused or arbitrarily exercised. The framers of our Con-
stitution were not unaware of it, They had, therefore, specially 
incorporated in the Constitution enough safeguards against the abuse 
of such power. f630G-H) 
(3) The Advisory Board is a constitutional imperative. It has an 
important function to perform. There is no particular procedure pre-
C 
scribed for the Advisory Board since there is no lis to be adjudicated. 
Section 11 of the Act provides only the broad guidelines for observance. 
The Advisory Board, howeve~, may adopt any procedure depending 
upon varying circumstances. But any procedure that it adopts most 
satisfy the procedural fairness. [631F-G) 
D 
(4) It is important for laws and authorities not only to be just but 
also appear to be just. Therefore, the action that gives the appearance 
of unequal treatment or unreasonableness-whether or not any sub-
stance In it-should be avoided by the Advisory Board. It is the duty of 
the Advisory Board to see that the case of detenu is not adversely E 
affected by the procedure it adopts. It must be ensured that the detenu 
is not handicapped by the unequal representation or refusal of access to 
a friend to represent his case .. [632B-C) 
(5) In the Instant case, since the Advisory Board has heard 
the high ranking officers of the Police Department and others on F 
behalf of the Government and detaining authority, it ought to have 
permitted the detenu to have the assi.stance of a friend who could have 
made an equally effective representation on his behalf. Since that has 
been denied to the detenu, the High Court was justified in quashing 
the detention order. [632D-E) 
A.K. Roy v. Union of India, [1982) 2 SCR 272; Kavita w/o 
Sunder Shankardas Devidasani etc. v. State of Maharashtra, [1982) I 
SCR 138; Nand Lat v. State of Punjab, [1982] l SCR 718; Johney 
DaCouto v. State of Tamil Nadu, AIR 1988.SC 109, referred to. 
G 
CRIMINAL APPELLATE JURISDICTION: Petition for H 
Special Leave to Appeal (Crl) No. 1783/1988. 
622 
SUPREME COURT REPORTS 
[1988] Supp. 3 S.C.R. 
A 
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