LexSTATE OF MAHARASHTRA & ORS versus ZUBAIR HAJI QASIM
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
[2008] 10 S.C.R. 832 ' -t \ " A JULY 11, 2008 [A.K. MATHUR AND ALTAMAS KABIR, JJ.] Preventive Detention - Detention under COFEPOSA Act .B - Rejection of representation of detenu seeking permission 'i· , to be represented by legal practitioner by Advisory Board - Propriety of- Held: Detenu though has no legal right u/s 8 (e) of the Act, to legal assistance before Advisory Board, he is entitled to make such request and the Board is bound to con- sider the request - Detention under preventive detention en- c actments is serious and severe invasion on the fundamental rights - Safeguards provided in order to check indiscriminate exercise of powers should be considered not perfunctorily - Constitution of India, 1950 - Articles 19 and 21 - Conserva- tion of Foreign Exchange and Prevention of Smuggling Ac- D tivities Act, 1974 - ss. 3 (1) and 8 (e). r. Brother of respondent No. 1 was detained uls. 3 (1) of Conservation of Foreign exchange and Prevention of Smuggling Activities Act, 1974. Detenu filed a writ petition E through respondent No. 1. In the meantime his represen- tation to Advisory Board for permission to be represented by a legal practitioner was rejected on the ground that the prayer could not be considered "for some obvious reasons". High Court allowed the writ petition holding that F the Advisory Board rejected the representation of the detenu on erroneous grounds. Hence the present appeal. ).... ..... Dismissing the appeals, the Court HELD: 1. The order of the High Court does not war- rant interference. Although, a detenu has no right under G Section 8(e) of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, to legal as- ).... ... sistance in proceedings before the Advisory Board, he is entitled to make such a request to the Board and the Board H 832 STATE OF MAHARASHTRA & ORS. v. ZUBAIR HAJ! 833 QASIM is bound to consider such request when made. [Para 14] A [837-F & G] 2. In the instant case, the detenu's prayer for being allowed to be represented by a legal practitioner was re- r Y jected by the Advisory Board upon observing that such B prayer could not be considered "for some obvious rea- sons". It is quite clear that while rejecting the detenu's representation the Advisory Board took refuge in vague verbiage without really applying its mind as it was required to do, to the merits thereof. [para 15] [837-G & H; 838-B] c 3. Detention of a citizen under any of the preventive detention enactments is a serious and severe invasion on the Fundamental Rights guaranteed to citizens under Articles 19 and 21 of the Constitution. Recognising such ~·"f detention to be an evil necessity, various safeguards have D been placed at different stages of the detention proceed- ings to ensure that such powers were not used indiscrimi- nately to settle scores or to short-circuit the process of investigation and trial of an alleged offence. The represen- tation made by a detenu for legal assistance before the E1 Advisory Board, has, therefore, to be considered not per- functorily, as has been done in this case, but with due ap- plication of mind, since in each case of detention, the lib- erty of an individual is involved. [Para 16] [838-C,D,E & F] Ill' ...( Smt. Kavita vs. State of Maharashtra and Ors. 1981 (3) F SCC 558; Nand Lal Bajaj vs. State of Punjab 1981 (4) SCCF 327 - relied on. Kekalwa Samuele Kongwa vs. Union of India 1985 (1) Born. 742 C.R. 742 - approved. A.K. Roy vs. Union of India 1982 (1) sec 211 - re- G: I &> ferred to. ~ CRIMINALAPPELLATE JURISDICTION: Criminal Appeal No. 1064 of 2008 H 834 SUPREME COURT REPORTS [2008] 10 S.C.R. t A From the Judgment and final Order dated 30.6.2006 of the High Court of Judicature at Bombay in Crl. Writ Petition No. 2312 of 2005 Ravindra Keshavrao Adsure and Gautam Godara for the B Appellants. ~ "f Naresh Kaushik, Manish Kaushik and KL. Janjani for the Respondent. The Judgment of the Coutt was delivered by c ALTAMAS KABIR, J. 1. Leave granted. 2 .. One Abu Baker Haji Qasim, the brother of respondent No .1 herein, was placed under detention after his arrest on 10th September, 2005, pursuant to an order of detention dated 9th September, 2005, issued by the Principal Secretary (Appeals 't-~ D and Security) to the Government of Maharashtra, specially em- powered under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activitie
Excerpt shown. Read the full judgment & AI analysis in Lexace.