Holding

The Administrator may act independently of the Council of Ministers for COFEPOSA detention orders, and a detenu has no right to be represented by a lawyer before the Advisory Board; thus the detention order is valid.

Summary

The petitioners, detained under Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA), challenged the order of detention issued by the Administrator of Goa, Daman & Diu, arguing that the Administrator could not act without the advice of the Council of Ministers and that they were denied the right to be represented by a lawyer before the Advisory Board. The Court held that, under the Union Territories Act, 1963, the Administrator is not bound to act on ministerial advice for such executive or quasi‑judicial functions and may act at his own discretion, especially when a difference of opinion arises with the Council of Ministers. It further held that Section 8(e) of COFEPOSA expressly bars a detenu from appearing before the Advisory Board through a legal practitioner, and that this restriction is consistent with Article 22(3)(b) of the Constitution, which excludes the right to counsel for persons detained under preventive detention laws. The Court found that the grounds of detention were supplied in Gujarati, the procedural requirements were complied with, and the telegram response did not mislead the detenu. Consequently, the writ petitions were dismissed and the detention order upheld.

Issues considered

The Administrator's authority to issue a COFEPOSA detention order without the advice of the Council of Ministers.
Whether a person detained under COFEPOSA has a constitutional right to be represented by a legal practitioner before the Advisory Board.
Whether the refusal to allow legal representation violates Article 22(5) of the Constitution.
Whether procedural deficiencies (translation of grounds, service of order) render the detention order invalid.
Whether the Administrator's telegram response misled the detenu regarding the mode of representation.

Legislation cited

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974s. 3, s. 8(e)
Union Territories Act, 1963s. 44, s. 46

Subjects

preventive detentionCOFEPOSAAdministratorUnion Territorylegal representationArticle 22Advisory BoardCouncil of Ministersconstitutional law

Judgment

553 A
DEVJI VALLABHBHAI TANDEL ETC.
'
v.
THE ADMINJSTRATOR OF GOA, DAMAN &
DIU & ANR.,
March 29, 1982

[D.A. DESAI, A.P. SEN AND BAHARUL lsLAM, JJ.J
Conservation of Foreign Exchange and Prevention of Smuggling Activities
Act-Section 3-Detention order passed by Administrator of Goa-Administrator,
c
if coTnpetent to pas1 Juch order.

Detenu-W/tetMr .haJ a right to be represent~d by a legal practitioner, or
· friend or agent IMfore the Advisory Board.

'Union Territories Act, 1963-Sectlon 46(2)-Scope o~Administrator D
WhetMr bound by the advice of Council of Ministers.
:;J ,.,.

ij"' Iri thejr petitions under Article 32 of the Con,stitutioo the three petitioners,
;f;:
who were detained under sectii:>n 3 of the Conservation of Foreign Exchange and
Prevention of Smugglin's: Activities Act, 1974, contended that in the mattir of
discharge of executive •functions conferred upon him, the Administrator of the
E
Union Territory of Goa, Daman -and Diu who passed the impugned oi'ders, is in
the same pqsition as a Governor of a State of the President who must act on the
iid and advice of the Council of Ministers and,that in theinstant'case the orders
of detention having been passed by the Administrator himself instead of by the
Chief Minister io the name pf the Ad.;,iolstrator, were invalid.
, F
Dismissing the petitions,

HELD : I, (a) Although section 46(2) of the Union Territories Act, 1963
provides that aU executive action of the AdministratOr, Whet,her tak~n on the
advice of his Ministers or otherwise shall be expressed to be taken in the na•11e
of the Administrator, the Administrator is not pureiy a constitutional functionary G
who is bound to act on the advice of the Council of Miqisters and could not act
on his own. The language of Arts.· 74 and 163 on the one hand and the language
of section 44 of the Union Territories Act 1963 on the other shows that the
Administrator is siffiilarly situated with. thC Governor but not with the President
when he is to act in his discretio:i;i unde( the Act. While exercising judicial or
0

quasi judicial functions, the Administrator has to act on hi!i own unaided by. the H
Council of Ministers like the President who, while exercising power conferred.by
Article 217(3), disl'harl!OS a juqiciat [unction 11!\q is not required t.o act oq IQ<;
'
•
\
554 SUPREME COURT !lEPOR'rS (1982) 3 S.C.R.
-'
A advice of the Council of Ministers. But there the analogy ends. The Adminis-
trator, even in matters where he is not required to act in his diseretion u~der the
Act or where he is. not exercising any judicial or quasi-judicial functions, is not
bound to act according to the advice of the Council. of Ministers. In the event
of difference between him and his Ministers, ~he Administrator under the proviso
to section 44(1) of the Act, is required to refer the matter to the President for
decision and act according to that decision. Therefore in such a situation the
B rigb,t to give a decision on the difference of opinion between the two vests in the
Union Government and the Council of Ministers of the Union Territory is '
bound by the view of the Union Government. There are also powers in the
Administrator to act in derogation of the advice of the Council of Ministets.
' [560 C-D, 561 A-HJ

c (b) The proviso to section 44(1) of the Act a1so envisages that when a
difference of opinion between him and the Council of Ministers is referred to the
,-- ~
r-
Pfesident, if the Administrator considers the matter urgent and necessary to take
immediate action during the interregnu~, he can completely override the advice
\ of the Council of-Ministers and act according to his own lights which power ..J.-._
neither the Governor nor the President enjoys. [562 A-Cl

Shamsher Singh & Anr. v. State of Punjab, [1976] l SCR 814 held in-
D applicable.

2 .. The grievance that the detaining authority had no material from
which to infer that the petitioners Were engaged in smuggling activities is not
borne out by the material ,_on rCcord·. Copies of recorded statements and ct.her
relevant documents had been taken into-consideration by the deJaining a~thority.
E These copies were supplied to the detenu. [563 A-Bl

3. It cannot be said that there was. any violation of Article 22(5) of the
Constitution or that the detenu was in any way handicapped in submitting his
representation. A Gujarati translation of the grounds of detention was supplied
to the detenu. The order of detention was a formal recital OfsectiOn 3(1) of the

-
COFEPOSA Act showing the provision of law under which the order of deten·
lion had been made. Although the section of the COFEPOSA Act bas not been
mentioned, the grounds of detention were sufficiently clear to bring horn~ to the
detenu that he was engaged in smuggling activities. ,[565 F, C-E] , ___ __,/..
\
The State of Bombay v. Atma Ram Sridhar Vaidya, [1951] 2 SCR 167,
held inapplicable.
,G
4. (a) Clause (e) of <ection 8 of the ·COFEPOSA Act in express terms
disentitles a detenu to appeaJ through a legal practitioner in any matter connec~
ted with the reference to-the Advisory Board. It is now well settled that the right
t6 consult and be defended by a legal practitioner of one's choice conferred by a
Article 22(1) is denied by clause 3(b) to a person who is detained under any law
H providing for preventive detention. According to the express intendment of the
Constitution itself no person who is detained under any law which provides for
preventive ~etentio~ c~p ~l•i!D ti>• ri¥ht to consult a legal practitionef of hi&
o.v. TANDEL v.• ADMINISTRATOR (Baharul Islam, 'Jo) 555

choice or be defended by him. Therefore it cannot be said that a detenu has the
A
right of being represented by a legal practitioner in the proceedings before the
, Advisory Board. [570 F]

(b) The embargo on the appearance of legal ·practitioner does not apply
to a friend who in truth and substance is not a legal practitioner; but if such a ·
0
B
friend also happens to be a legal practitioner he cannot as of right appear before
the Advisory Board on behalf of the detenu. [574 Fl

(c) So is the case with reference to agents. If an agent is in troth and
substance ·an agent, the detenu maY appear through him; but if the agent is a
legal practitioner, appearance by him as of right would be barred. A friend or an
agent of the detenu who, is essentially a c'omrade in the .Profession of the detenu
for which he is detained. su~h a friend or agent would also be barred from appea.
c
ranee on behalf of the detenu. Although a person may have a common law right
to appoint an agent there is no obJigatioD On the other side to deal with the
agent. The other si~e hits an equal right to refuse to deal with ari agent. ·
(574 G-H, 575 A]

In the instant case the sender of the telegram stated in. clear terms that he D
was an advocate and was representing the detenu. He had not stated that he
wa~ a f~iend or agent Of the detenu and therefore the Administrator was justified
in refusing permission to ~he advocate to assist the detenu. [575 C·E]

5. A persop detained under a Jaw providing for preventive detention ·
cannot claim as a matter of constitutional right to consult and be defended by
a lawyer of his choice; nor can tie insist upon being ptoduced before a Magistrate E
within 24 hours or Jiis arrest. This is evident from A.rticle 22 (3) (b) which provi-
des that nothing in clauses (I) and (2) of this Article shall apply to any person
who is arrested or detained under any law providing for preventive dete1;1tion.
,• (575 G·fI; A-BJ

6. It is implicit in Articles 22(5) that the representation has to be a
written representation communicated throllgh the jail authorities or through F
any other mode which the detenu thinks. fit of adopting. But the detaining au tho·
rity is under no obligation to grant any oral hearing at the time of considering
the representation. If the representation has to .be a written representation, there
is no question ofhearing_anyone much less-a lawyer. Therefore; the Administra·
tor's r~fusal to hear the advocate of the detenu while" considering the representa·
tion would not be deniaJ of the common Jaw right of the detenu to be represented
by an agent. [577 A-CJ G
Francis Coralie Mullin v. The AdNJfnislrator, Union Territory of D,el/ii
Ors.. (1981] 2 SCR 516, held inapplicable,

ORIGINAL JURISDICTION : 'Writ Petition (CRL ) Nos. 8070 of
19s1, z3 1111\i 79 or 19s2. H
(Under Article 32 of the Constitution)
~' ~ • -. • . ' • • • - - I
556
•
SUPREME COURT REPORTS
- (1982) 3 s.c.ll.

A Ram Jethmalani and Miss Rani Jethmalani for the Petitioners.

Eduardo Falireo and Miss A. Subhashini for the Respondents.

The Judgment of the Court was deliv.ered by ,

BARARUL l!LAM, J. These three .writ petitions under Article
32 of the Constitution of India involve~ common questions of facts
.,. and law. This common order of ours, therefore, will dispose of all
" of them. It will be sufficient .jf we refer to the facts only of Writ
Petition No. 8070 .of 1~81. This petition is directed against the
order dated !Ith September, 1981 made under Section 3 of the
c Conservation of Foreign Exchange a·nd Prevention of Smuggling
Activities Act, 1974 (the COFEPOSA) by the Administrator of Goa,
Daman and Diu (hereinafter 'the Administrator'), detaining .the
petitioner "with a view to pre\'.enting him from smuggling goods".

D 2. The material facts in a nutshell as alleged in the grounds
of detention in Writ Petition No. 8070 of 1981 are that the peti-
. tioner along with Lallu Govan Tande! alias Lallu Malbari, Narsingh
Vallabhbhai Tande! (the petitioners in the ot-her two writ petitions)
and Narsinghbhai Daulabhbhai (detenu since released) indulged in
smuggling of foreign goods such as fabrics, speakers, cassettes,
E video cassettes, wrist watches, refrigerators, silver, etc. The goods
in 36'packages were .recovered from House No. 12/134 of Daman
Municipal Area. These goods were kept there by two persons,
namely; Tulsibhai -Ranchhodhbhai Tande! and Mangalbhai Bh~Ia:
bbai Tande! engaged by the aforesaid four detenus for lifting the

-
said 36 packages from a vessel grounded in sea off Ghati SUeri;
F Nani Daman. The contraband goods recovered were worth
Rs.5,30,281.50. The aforesaid Tulsidas ITT!~ Mangalbhai made certain
statements on 2nd July, 1981 implicating the aforesaid four persons
including the pedtioner. Wh~n the Customs squad was keeping a
watch on Nani Daman coast, a vessel was found in the sea and goods
G were being unloaded. fo the process Tulsibhai Ranchhodhbhai and
· Manga!bhai Bhulabhai were accosted and each had a package with
him and on being led by them ihe customs squad reached the house
bearing.municipal No. 12/134. On being questioned, the aforemen-
tioned two labourers Tulsibhai and Mangalbhai stated that. they
H were engaged as laboure.rs for tran$porting packages of contraband
goods from a vessel grounded in sea on Ghatisheri to the said house·
bearin(l No. 12/ 134. -Tulsi\>hai iind 1'4ang11l!J!iai, in the course of
' '
.
b.\r. TANDEL V, ADMINISTRATOR (Baharu' fs/am, J,) 551

interrogation, admitted· that they .were engaged by detenu Devji A
' Vallabhbhai Tande! and Lallu Govan for unloading the packages
containing contraband goods.
'
3. The impugned order of detention datei! 11th September,
1981 (Annexure 'A,') together with the grounds of detention B
(
(Annexure 'B') were served cin the petitioner on June 30,1981, which
was,the date of apprehension.

4. The first submission of Mr. Ram Jethmalani, ·learned
counsel for the petitioner, is that under the Government of Union
Territories Act, 1963, (hereinafter the Act), the order of detention c
can be made only by the Chief Minister and in the name of the
Administrator and not by the Administrator, though it can be made
in the name of the Administrator. In the instant case, the order of
detention was made, and the representation dated 10th October,
1981 of the petitioner was disposed of, by the Administrator, which
it is submitted, is not permissible in law. D

'
The argument sought to be made seems to be that the status
· of the Administrator is s.imilar to that of the Governor of a State
and as such· the Administrator had to act with the aid and advice of
the. Council of Ministers. ·Admittedly, there is an elected Assembly E
with a Council of Ministers in the Union Territory of Goa, Daman
and Diu.. Therefore, the argument. proceeds, the Administrator on
his own cannot make an order of detention. The order can be made
' I
by the Chief Minister or any oiher persorl authorised under section
3 of the COFEPOSA in the tiame of the Administrator. ·
·.i.._ ·.F
On the other hand in paragraph 7 of the qounter~affidavit, it
has been stated by the respondent, "that the respondent has full
authority to make the. order of detention under· COFEPOSA in
exercise of the powers conferred under the statute. In case of the
Union Territories the power of detention 1s specifically conferred on
the Administrator by virtue.of the definition of the "State Govern- G
ment" under Section 2 (fl of the COFEPOSA Act, 1974 and as such
the Administrator as the detaining authority, has to form his own
opinion and is not bound to act on the aid and advice of his Council
of Ministers .......... Even, then the Administ~ator has 'considered
H
the advice of the Chief Minister, who is' the Minister in-charge of
the department dealing with COFEPOSA matters". ·
...
sui>kiiMii cobar RlliioRfs [19s2J 3 s.c.11..
5. Mr. Eduardo Faleiro, learned counsel appearing for
Respondent No. 1 (the Administrator) has placed the entire records
before us. On a perusal of the relevant papers, we find that the
matter was routed through the Chief Minister. who considered the
case and sent it to the Aaministrator, wjJ.o thereafter, passed the
order of detention. There is thus a substantial compliance of
B Section 3 of the COFEPOSA. Even so, the legal submission of
learned counsel has to ·be answered, as he urged it with vehemence.

6. Section 2 (f) of the COFEPOSA provides :

"In this Act, unless the context otherwise requires,-
c
(f) "State Government", in relation to a Union
Territory, means the administrator thereof".

In the Union 'Territories. Act, 1963 (hereinafter the 'Act'),
under clause (a) of sub-section (1) of Section 2, 'Administrator' has
D been defined as :

" 'Administrator' means the administrator of a Union
Territory appointed by the President under article 239".

E Under clause (h) of sub-section (1) of Section 2, "Union
Territory" has been defined as :

" 'Union Therritory' means any of the Union Terri-
tori~s of............ Goa, Daman and Din ......... ". (Material
portion only)
F
Sub-section (I) of Section 3 of the COFEPOSA Provides : __ j

"The Central Government or the State Government
or any officer of the Central Government, not below the
rank of a Joint Secretary to that Government, specially
G empowered for the purposes of this section by that Govern-
ment, or any officer of a State Government, not below the
rank of a Secretary to that Government, specially empower-
ed for the purposes of this section by that Government,
may, if satisfied, with respect to any person (including a
H foreigner), that, with a view to preventing him from acting'
..
in any manner prejudicial to the conservation or augmenta-
1·'
b.v. 'r_ANDEL v. ADMiNIS'ri\A'rOR (Baharu/ lsl~m, J.) ss~ •

tion of foreign exchange or with a view to preventing him A
from

(i) smuggling goods, or

(ii) abetting the smuggling of goods, or
B
(iii) engaging in transporting· ot conc~aling or keeping
smuggled_ goods; or '

(iv) .dealing in smuggled goods otherwise than by
engaging in traqsporting o.r concealing or keeping
smuggled goods, or c
(v) harbouring persons engaged in smuggling goods
\. or in abetting the smuggling of goods,

it is necessary so to do, make.an order directing that D
such person be detained".

The fasciculus of Sections 44 to 46. in Part IV of the Act
provides for setting up a Council of Ministers. Section 44 reads as
under: E
'
I. "44. Council of Ministers '- (!) There shall be a
Council of Ministers in each Union Tetritory with the Chief
Minister at the head. to aid and advise the Administrator
in the exercise of his functions in relation to matters with
respect to which the Legislative Assembly of the Union F
Territory has power to make laws except in so far as he is
required by or under this Act to act_in his discretion or by
-. or under any law to exercise any judicial or quasi judicial
functions :
. .
Provided that in case of difference of opinion b~tween
G
the Administrator and his Ministers on any' matter, .the
Administrator shall refer it to the President for decision
and act according to the decision given thereon by the
President, and pending such decision it shall be competent H
for the Administrator in any case where the matter is in his
opinion so urgent that it is necessary forJ1iin to t!!.ke imme·
' , i I \ ': I
'-

SuPREMB COUil~ REPORts (1982] 3 s.c.il.·_

A diate action, to take such action or to give such direction
in the matter as he deems necessary".

x. x x x

Section 46 confers power on the President to make rules :
B. · {a) for the all(lcation of business to the Ministers; and (b) for the
more convenient transaction of business with the Ministers including
the procedure to be adopted in the case of difference of opinion
between -the Administrator .and the Council of Ministers or a
Minister. Sub-section (2) provides that save as otherwise provided
in the Act, all executive action of the Administrator, whether taken
c on the advice of his Ministers or'otherwise, shall be expressed to be
t~ken in the name of the Administrator. The contention is that the
Administrator of the Union Territory appointed under Article 239
of the Constitution by .the President is in the same position as the
Governor of a State or the President of India in the matter of dis-
charge of executive functions conferred upon him and he must
D act on the advice of the Council of Ministers. It was accordingly
'further submitted that the Administrator cannot act on his own and
in this cas_e it is claimed on behalf of the Administrator in the
affidavit that he can act _on his own as stated above. Reliance
was placed on Shamsher Singh & Anr. v. State of Punjab(')
wherein it was held that the Presideot or the Governor acts on th_e
E
aid and advice of the Council of Ministers with the Prime Minister
at the head in the case of the Union and the Chief Minister at the
head in the case of a State in all matters which ves't in the executive
whether those functions are executive or legislative in character. It
·was further held that neither the President nor the Governor is to
F exercise the executive functions ,personally. It is _not possible to
accept this submission.

Article 74 provides that there shall be a Council of Ministers
with the Prime Minister at the head to aid and advise the President
who shall, in the exercise of his functions, act in accordance-With
G such advice. The proviso to the Article is not material. Simil~rly,
Article 163 provides that there shall be a Council of Ministers with
the Chief Minister at the head to aid ano advise the Governor in the
exercise of his functions, except in so far as lie is by or under this
Constitution required to exercise his functions or any of them in his
H
<I) (1975] I SCR 814.
' t>.v. TANDEL v. ADMINISTRATOR (Baharul lslam, 1.) S6i
discretion. Once we compare the language or' Articles 74 and A
163 with. the language of Section 44 of the Act, the difference
between the position of the President and the Governor on the one
hand and the. Ad.ministrator of the Jn-oin territory ~n the other
becomes manifest. The first difference is that he is similarly situated
with the Governor hut not 'with, the President when he is to act in
his discretion under the Act. Further, the Administrator has to act
on his own unaided by the Council of Ministers when he is to exer-
cise any judicial or quasi judicial functions. The· nearest analogy to
. this provision is one to. be found in Article 217 (3) when the
President has to determine the age 0£ a Judge of the High Court.· It
has been held 'that while exercising the power conferred by Article
21i (3), the President discharges a judicial function and .is ~ot
c
~equired to agi on the advice of the Council of Ministers, his only
obligation being to decide the question about the age of the Judge
~fter consulting the Chief Justice of India (see Union of Initia v. J.P.
Mitter.( 1 ) But there the analogy ends. The Administrator even in
matters where he is not required to act in his discretion under th~ D
Act or where he is not exercising any judicial or quasi judicial
functions, is not bound to act according to the advice of the Council
of Ministers. This becomes manifest from the proviso to Seciion
44 (!). It transpires from the proviso that in the event of a difference
· of opinion between th~ Administrator and ·his· Ministers on any
matter, the Administrator shall refer the matter to the President for
decision and act accordiiig to the decision given thereon by the
0

-.J. President. If the President 'in a given. situation agrees with what
the Administrator opines contrary to the advice of the Council of'
• Ministers, the Administrator would be able to overriM the advice
, of the Council of Ministers and on a reference to the President
under the proviso, obviously the. President would not according to
the advice of the Council of Ministers given under. Article 74.
Virtually, therefore, in the event of a difference of opinion between
the Cou~cil of Ministers of the Union territory and. the Administ- ·
t.o
rator, the right decide would vest in the.Union Government and
the Council of Ministers of the Un ion territory would be bound
by tlie view faken b} the Union Government. Further, the Admi- G
nistrator enjoys still some more power to act in derogation of the
advice of the Council of Minisiers.

(I) [1971) 3 S.C.R. 483@ 504-SOS.
H
562 §_UPREME COURT REPORTS [1982] ~ s.c.R.

A The second limb of the proviso to Section 44' (I) enables the
Administrator that in the .event of a difference of opinion between
him and the Council of Ministers not only he can refer the matter
to the President but during the interregnum where the matter is in
his opinion so urgent that it is necessary for him to take' immediate
action, he has the power to take such action or to give such direc-
B tions in the matter as be deeins necessary. Jn other words, during
the interregnum he can completely override the advice of the Council
·of Ministers and act according to his light. Neither the Governor
nor the President enjoys any such power. This basic functional
difference in the powers and position enjoyed by the Governor and
the President on the one hand· and the Administrator on the other is
c so glaring that it is not possible to Mid on the analogy of the deci·
.sion in Shamsher Singh' s case that the Administrator is purely a
constitutionai functionary bonnd to act on the advice of the Council
of Ministers and cannot act on his own. · Therefore, for this addi-
tional reason also the submission of Mr. Jethmalani must be
rejected.
D

7. The second submission of learned counsel was to the
effect that the statements of labourers Tulsibbai and Mangalbhai of
30th June, 1981, being the earlier'statements of the two labourers
were not supplied to the detenu but only the two' statements of !st
E • July; 1981, were supplied and, therefore, the detenu was prevented
from making an effective representation· by which he wanted to
controvert the statements of 'Tulsibhai and Mangalbbai. The
· submission was that in their statements recorded on J:st July, 1981,
·they did not state that during the earlier interrogation on the night
of 30th June, 1981, they informed the Customs authorities that they,
F were employed as labourers .by the detenu and Lalubhai Govan.
Consequently, it was contended, the detaining authority ·bad no
material from which to infer that on being first accosted by the
customs squad the two labourers gave out that they were engaged in
this unlawful activity as wage earners by the detenu and Lallo
G Govan. The submission has no merit because there are two state-
ments, one of Customs Inspector, Mr. Patel, and the other of Cus-
toms Officer, Mr. Fitter, both of which show that on being interro-
gated ·during the night of 30th June, 1981, the aforeme!ltioned two
labourers gave out that they were engaged for unloading packages
H containing contraband goods from the grounded vessel to a .house in
Nani Daman by the detenu and Lallo Govan; and there is no
dispute that the statemenis of Mr. Patel and Mr. Fitter were given
D.V. TANDEL •• ADMINISTRATOR (Baharul Islam, J.) 563

to the detenu. Further, the grievance made by the detenu · is not A
warranted by the materials 9n record. For, in the penultimate
paragraph of the grounds of detention, it was stated, "copies of the
statements and other documents which have been taken into consi-
deration by the detaining authority are also enclosed as per the indeJ!:
• attached" (underline mine). Thereafter, no grievance appears
to !}ave been made by the detenu in his representation. Even from
B
the grounds in the Writ J>etition, it does not appear which docu-
ments, if any, were not supplied to the detenu. The records show
that there was great tension on the date at the place of apprehen-
sion and as such no statements could be and were recorded on the
date of apprehension, but subsequently recorded on 2nd July, 1981.
The submission therefore has no substance. ·
c
8. The third submission of learned counsel is, ''that the order
r
of detention was not properly served" .. The submission is that the ·
Gujarati translatioµ of the.order was not supplied to the detenu.
According to the learned counsel, "the petitioner does not know and D
cannot speak or write in a language other than /Gujarati, and that
Annexure 'A' ought to have been translated Jnto Gujarati. The
petitioner was thereby deprived of an opportunity of making an
effective representation against his detention". The submission is
not wholly correct on facts. Annexure 'A' is the 'ORDER'. exprrssed
in terms of Section 3 (1) of the COFBPOSA. It is in English and. E
reads :
-+
"SECRET
•
No. 14/3/80/HD (G) F
Administrator of Goa,
Daman & Diu, Cabo Raj Niwas,
Caranzalem (P.O.)
Goa.

ORDER G
WHEREAS, I, Jagmohan, Administrator of Goa,
Daman and Biu, am satisfied with respect to, the person
known as Shri Devji Vallabhbhai Tande! alias Devji Boss
son of Shri Vallabhbhai Tande! residing at .H. No. 1/255, .H
Penta Sheri, Vadi Falia, Nani Daman, t~at with a vfew
· to preyenting him from smugg,ling goods:
•
~64 SUPltEME coUkt REl'olt'ts !J 982] 3 s.c.11..
· A It is necessary to make the following order :

Now, therefore, in exercise of the powers conferred by
.. section 3 (1) of the,Ccinservation of Foreign· Exchange and
Prevention. of Smuggling Activities Act, 1974;

B
I, Jagmo~an, Administrator of Goa, Daman and Diu
direct that 'the said Shri Devji Vallabhbhai Tande! be
detained at the Central Jail, Aguada, and the enclosed
grounds of detention be served on him.

c
SEAL

Place :-Cabo Raj Niwas
Date :-11.9.81
'
Encl : As above
-
D
Sd/-
(Jagmohan)
• Administrator of Goa, Daman
and Diu.
E

To
+-
/ Shri Devji Vallabhbhai Tande!
alias Oevji Boss,
F
H. No. 1/255, Fenta Sheri,
Vadi Falia, N~ni Daman"

Admittedly, this 'ORDER' -as per Annexure •A' was in English
but the enclosure, Annexure 'B' which contains the grounds . of
detention together with the materials on which the grounds were
G based was in Gujarati. In paragraph 8 of the counter-affidavit filed
on behalf of th.e Administrator, i~ has been stated :

"As regards Ground D it is denied that the detaining
authority bas not furnished Gujarati version of the order
H of detention as alleged by the petitioner................... ..
The petitioner by his own. admission kiiows Gujarati and
·,
o.v. TANDEL v.°AD¥1NISTRATOR (Baharul Islam, J.) 565

accordingly the grounds of detention have been com- A
municated to the petitioner in Gujarati language. The
aJlegatitm is, therefore, untenable".

The above statement of the respondent is supported by the
internal evidence of Annuextre 'B' itself. For, in the penultimate
• paragraph of the "grounds" it has been stated : B

"The Gujarati version of the grounds of detention is
I enclosed to enable you to understand the grounds for which
detention order is passed agai!ht you".

This shows that the Gujarati version of the grounds as per c
Annexute 'B' was . sent to the detenu alongwi th the ORDER as
per Annexure 'A'. Admittedly,, the deten.u is a Gujarati speaking
person.
•
I So far as
the non-supply of the Guj;irati version of the ORpER
as per Annexure 'A' is concerned, in our opinion, there has been no D
violation of Article 27
(5) or any other law.' The ORDER as per·
Annexure 'A' was a mere formal recital of section 3 (I) of the
COFEPOSA, showing the . provision of law under which the order
of detention has beeni made. Although, the section of the COFE-
POSA has n~t been nlentioned in the last but two paragraphs of the .
"groun,ds", it has been stated that the detenu engaged himself"i!t E
smuggling goods and that there is sufficient cause to pass detention
order against you with a view to preventing you from smuggling
goods", which was in Gujarati. It cannot, therefore, be said that'
the detenu was in any way handicapped in submitting his represen-
t~tion, or there has been any violation of Article 22 (5) of the
Const.itution. .F

9.. The learned couns.el, in -support of his third submission, ·--..
cited before us the decision of this Court in the case' of The State
.• Bombay v. Atma Ram Sridhar Vaidya.(') The decision is beside .
the point and need not be referred to.
G
,Learned Counsel for the petitioner also cited another decision
of this Court reported in (1980) 4 SCC 427. 1n· that case, it .has
been held that failure to supply the grounds of detention in the ·
language understood by the detenu violates Article 22 (5) of the
Constitution. In the instant case, as we have found above the H
. I

(I) [1951) ~·s.C.R. 167•

.
566 SUPREME COUll.T REP<)JlTS (198213 s.c.tt.

A Gnjarati translation of the grounds was supplied to the detenu. The
de~ision cited has not held that the.. ORDER expressed in terms of
Section 3 (l) of the COFEPOSA must.also be in the language under-
stood by the detenu. Section 3 (l) as stated above merely gives
power of detention to the detaining au4hority. This submission also
has no substance. .
B
• -10. The fourth submission of learned counsel was that by a
telegrari) dated lst October, 1981, the detenu requested for an imme-
diate !hearing through his lawyer but this request was denie~. There
was a delay of six days in deciding the matter. This was contrary
c to Jaw. That apart, the "respondent misled the detenu by indicating
to him that the only way by which the Administrator could be per-·
suaded would be a representation through the jail'\ The factual part
of the submission is not correct. Ori !st October, 1981, one Shri
Thaku Ajwani, Advocate for the pe.titioner, sent a telegram to the
Administrator. It was in the following 'terms :
D
"JAGMOHAN
ADMINISTRATOR OF GOA
DAMAN & DIU
-CABO RAJ NIWAS
E CARANZALER GOA

ORDINARY +-
\ -
DETENUS DEVJI VALLABHBHAI TANDEL AND
F NARSINBHAI DURLABHBHAI TANDEL DETAINED
UNDER COFEPOSA ORDERS DATED liTH SEPTEM-
BER !981 HAVE INSTRUCTED ME TO APPEAR
BEFORE YOU AND REPRESENT THEIR CASE FOR·
REVOKING DETENTION ORDERS (Stop) KINDLY
G INTIMATE FORTHWITH DATE, TIME AND PLACE.

THAKU AJW ANI AI'.>VOCATE 22
PANCHSHILA C ROAD CHURCHGATE
•
BOMBAY 400 020
H
11"-!!l''''""l;; "
i>.v. TANDEL v. ADMINi§TRATOR (Baharul Islam, J.) 561
A
There was a reply telegram by the Chief Secretary of the
Union Territory in question. The post copy of the reply telegram
• reads thus : (material portions only) :

"STATE TELEGRAM EXPRESS
6
ADVOCATE SHRI THAKU AJWANI
CHAMBERS C/.0 RAM JETHMALANI
ADVOCATE SUPREME COJJRT
22 PANCHSHILA C ROAD,
CHURCHGATE, BOMBAY-400 020 c

........ No. 14/3/80/HD (G) (.) REFERENCE YOUR
LETTER DATED !ST OCTOBER 1981 REGARDING
DETENTION OF SARVASHRI DEVJI. VALLABHBHAI
D
TANDEL AND NARSINBHAI DURLABBHAI TANDEL
. DETAINED UNDER COFEPOSA ACT RECEIVED IN
THE OFFICE OF THE ADMINISTRATOR ON 5/10/1981
(.) "YOUR TEI,EGRAM DATED !ST OCTOBER 198t
REFERRED THEREIN HAD BEEN REPLIED UNDER
THIS DEPARTMENT'S TELEGRAM OF EVEN NUM-
' E
BER DATED 6TH OCTOBER 1981 AND ITS COPIES
HA VE ALSO BEEN SENT TO THE CONCERNED
DETENUS AT (::ENTRAL JAIL AGUADA (.) CON·
• TENTS OF THE SAID TELEGRAM ARE REPRODUC-
F
ED BELOW(.) QUOTE(.) YOUR TELEGRAM DATED
!ST OCTOBER 1981 ADDRESSED TO THE ADMINI-
STRATOR GOA DAMAN AND DIU REGARDING
DETENTION OF SARYASHRI DEVJI VALLABHBHAI
1 TANDEL AND NARSINBHAI DURLABHBHAI TAN-
G
DEL DETAINED UNDER. COFEPOSA ACT(.) YOUR
· REQUEST FOR APPEARANCE BEFORE THE ADMI-
NISTRATOR AND REPRESENT THE CASE OF THE
AFORESAID DETENUS HAS BEEN CAREFULLY
CONSIDERED BY THE ADMINISTRATOR AND HE
H
HAS DECIDED THAT THE DETllNUS CAN .Mi\Ke
568 '
SUPREMF COURT REPORTS [1982J 3 s.c.tt.

REPRESENTATION TO THE ADMINISTRATOR
THROUGH CENTRAL JAIL AGUADA WHERE THEY
ARE. DETAINED (.) THE REPRESENTATION OF
THE AFORESAID DETENUS WILL RECEIVE HIS
DUE CONSIDERATION AS. AND WHEN THEY ARE
B RECEIVED (.) UNQUOTE (.)

--CHIEF SEC--"
'
It has been stated in paragraph 9 of the counter affidavit as
follows:

" .......................... ., it is admitted that the telegram ·
dated !st October, 1981, purported to have been made by
. the Advocate on behalf of petitioner requesting the Ad-
ministrator for. grant of personal appearance' before him
D for'revocation of detention order was received in the office
of the Administrator on 3,rCI October, 1981. This request ..
was duly examined and it was felt that under the law, the
detenu is not entitled to be represented by an Advocate and
. the Detaining Authority is not legally bound to grant the
prayer made on behalf of the detenu. The Advocate of the
E petitioner was telegraphically informed on 6th October 1981
that the request had been duly considered by the Adminis-
trator who had decided that the detenl} could m·1ke a repre-
sentation to the Administrator through the Superintendeqt,
Central Jail, Aguada, where he was. detained and that the
same would receive his due consideration as and when it
was received. A copy of the said telegram sent to the Advo-
cate was also e11dorsed- to the detenu and the same was
received by him on 7th October, 1981. A letter in confirma-
tion of the Advocate' s telegram was received from. the
Advocate of the petitioner in the office. of the Administra· I

tor on 5.10.193·1 and the.same was replied to telegraphically '"j
G
on 7th October, 1981, reiterating the earlier position as con-
veyed in the said telegram of 6th October.

_ The allegation that IO days were. taken by the respon-
dent in only deciding the .representation and in coming to ·
the conclusio11 thiit he would not permit a lawyer to plead
D.V. TANDEL v. THE ADMINl>TRATOR (Baharul Islam, J.) 569

for revocation of the order of de1ention is, therefore, not A
correct. To give further details, the telegram of the peti-
tioner's Advocate was received in the Administrator's office
on 3rd October, 1981, and was sent to the Joint Secretary
(Home) the same day. It was referred to the law Depart-
ment on 3rd October, 1981 itself and through usual
channels reached the Law Secretary on 5th October, 1981, B
the 4th of October being a Sunday. The Law Secretary
gave his opinion and referred the telegram to the Home
Department on the same day Le. 5th October, 1981. In the
Home Department 'it was sent by the Under Secretary
(Home) to the Chief Secretary and by the latter to the
Chief Minister the same day. On 6th October, 1981, it
c
was examined by the q, Governor and the reply was sent
to the petitioner on the same day. The reply was received
by the petitioner/detenu on 7th October, 198)". ·

In addition to the above explanation of the respondent in para
D
9 of the counter-affidavit, we peruied the file and we are satisfied
that there was no delay in disposal. On the contrary, it may be said
to the credit of the administration that it was dealing with the matter
;;Ji'
with utmost promptitude.

11. Now to examine the second part of the fourth contention
of learned counsel. His submission is that the Administrator
committed an illegality not only by refusing the detenu to be heard
through a lawyer, but, in addition, by misleadiog the detenu by his
telegram. The detenu's counsel, Mr. Ajwani, informed the Ad-
. ministrator that the detenu had instructed him to represent his case
before the Administrator. He made a request to 'the. Administrator- F
to Jet him know the date, time and place of his appearance before
the Administrator. The reply telegram quoted above ha~ stated
that his request has been "carefully considered by the Administra-
tor" who, by implication, rejected the request. Besides, it was furthsr
' ·~
stated in the telegram that the Administrator "has decided that the
detenu can make representation to the Administrator through the G
jailor and that the representation so s~nt would be duly considered
by the Administrator to which exception has been taken. In th'ese
circumstances, the following questions arise :

(1) whether the detenu has a right to ;ippear before
!he detainin~ 11u,t4oritr through a lawrer;
"
570 SUPREME COURT REPORTS (1982] 3 s.c.R.

A (2) \\bether the last sentence in tte telegram has
misled the detenu.

Mr. Jethmalani submits that Article 22 (3) enables the legis-
lature to take away the common law right of acting through an agent
generally or through a particular class of agents. Tbe statute does
B not deal with the general but with . a particular class, namely, the
legal practitioners. The statute confines this legal disability to the
matter connected with reference to the Advisory Board. So he
submits that lawyers are not compeletely sought to be excluded. l---·-
Under Article 22 counsel submits there are two distinct and indepen-
dent rights : (I) to persuade the detaiqing authority to revoke the
c order of detention and (2) to-persuade the Advisory Board to dis-
··~
approve the detention. It is only in the second process that the
agent called lawyer is excluded. The learned counsel further submits
that every person has a common law right to employ an agent and
do an act through him. The detenu could, therefore, send an 'agent'
or a 'friend' who might have been his law.yer.
D
Let us first examine whether the detenu has aright to appear
through a lawyer. This examination need not detain us long.

Section 8 (e) of the COFEPOS A reads: (material portion only)

E "For the purposes of sub-clause (a) of clause (4) and
sub-clause (c) of clause (7), ·of Article 22 of the Constitu-
tion,-(e)-a person against whom ·an order of detention·
has been made under this Act shall not be entitled to appear
by any legal practitioner in any matter connected with the
..
·~ ·~-
· reference to the Advisory Board....... " (emphasis added).
F
Clause (e) in express terms disent.itles the detenu to appear
through a legal practitioner in any matter connected with the reference
to the Advisory Board. It is indisputable that a detention matter
which is pending before the Administrator is nndoubtedly a matter
connected with the reference to the Advisory Board. The detenu,
G therefore, has no right to appear before the detaining authority
or before the Advisory Board by a legal practitioner.

This Court in the case of Smt. Hemlata Kanti/4/ Shah ;:-The
State of Maharashtra & Anr.(1) have held :
H
(1)£(1981) 3 Sqile 165?,
D.V. TANDBL v. THE ADMINISTRATOR (Baharul ls/am, J.) 571

"Section 8 (e) has not barred representation of a A
detenu by a lawyer. It only lays down that the detenu
cannot claim ropresentation by a lawyer as of right. It has
given the Board a discrection tolpermit or not to permit
representation of the detenu by counsel according to the
necessity in a particular case".
.B
In the case of A.K. Roy v. Union of India(') relied on by .
Mr. Jethmalani, a Constitution Bench of this Court has held :

"First and foremost, we must consider whether and to
what extent the detenu is entitled to exercise the trinity of
rights before the Advisory Board; (i) the right of legal c
representation; (ii) the right of cross:examination and (iii)
the right to present his evidence in rebuttal. These rights
undoubtedly constitute the core of just process because
without them, it would be difficult for any person to dis-
prove the allegations made against him and to establish the
truth. But there are two considerations of primary impor-
D
tance which must be borne in m.ind in this regard. There
is no prescribed standard of reasonableness and therefore,
what kind of processual rights should be made available
to a person in. any proceeding depends upon the nature of
the proceedings in relation to which the rights are claimed.
The kind of issues involved in the proceeding determine the
E
kind of rights available to the persons who are parties to
that proceeding. Secondly the question as to the availability
of rights has to be decided not generally but on the basis of
the statutory provisions which govern the proceeding,
provided of course that those provisions are valid ......... " F
(para 84)

'Turning first to the right of legal representation which
is claimed by the petitioners, the relevant article of the
Constitution to consider is Article 22 which bears the
marginal note "protection against arrest and detention in G

'
certain cases". That article provides by clause (J) that no
person who is arrested shall be detained in custody without
being informed, as soon as may be, of the grounds for
such arrest nor shall q~ Qe <lenieq the ri~ht to consult, an<!

···~ (I) (1982l 1 s.c.c. 271,
572 , SUPREME COURTi.REPORTS [1982) 3 s.c.R.

A to be defended by, a legal practitioner of his choice. Clause
(2) requires that every person who is arrested and detained
in custody shall be produced before the nearest magistrate
within a period of 24 hours of such arrest and that no
person shall be detained in.custody beyond the said period
without the authority of a magistrate. Clause (3) provides
e· that nothing in clauses (I) and (2) shall apply (a) to any
person who for the. time being is an enemy alien; or (b) to
any person who is arrested or detained under any law
providing for preventive detention. It may be recalled that
clause (4) (a) of Article 22 provides that no law of preven·
tive detention shall authorise ·the detention of a person for
,C a period longer than three months unless the Advisory
Board has reported -before the expiry of. the said period of
three months that there is in its opinion sufficient cause
for such detention. By clause (7) (c) of Article 22, the
Parliament is given the.power to • prescribe by law the-pro-
cedure to be followed by the. Advisory Board in an inquiry
D under clause (4) (aJ:'. (para 85)

"On a combined reading of clauses (I) and (3) (b) of
Article 22, it is clear that the .right to consult and to be
E defended by a legal practitioner of one's choice, which is
conferred by clause (I), is denied by clause J (b) to a person
who is detained under any law providing for preventive
detention. Thus, according to the express intendment of
the Co.nstitution itself, no person who is detained under
any law, which provides for preventive detention, can claim
F the right to consult a legal practitioner of his choice or to
be defended by him. In view of this, it seems to us difficult
to hold, by application of abstract, general principles or on
a priori considerations that the detenu has the right of being •
represented by a legal practioner in the proceedings before
the Advisory Board ... ,, ...... It is indeed true to say, after the
G decision in the Bank Nationalisation case, that though the
subject of preventive detention is specifically dealt with in
Article 22, the requirements of Article 21 have· neverthe-
less to be satisfied. It is therefore necessary that the pro-
cedure prescribed by )aw for the proceedings before the
H Advisory Boards must be fair, just and reasonable. But
then, the Constitutioq itself has providN a )'llr<lstiqk for
b.v. tANbEL v. ni~ ADMiN!stRATOR (fJaharui Isiam, J.) SH
• A
the application of that standard, through the medium of the
provisions contained in Article 22 (3) (b). Howsoever
much we would have liked to hold otherwise, we experience
serious difficulty in taking the view that the procedure of
the Advisory Boards in which the detenu is denied the
• right of legal representation is unfair, unjust or unrea-
sonable. If article 22 were silent on the question, B
of the right of legal representation, it would have
been possible, indeed right. and proper, to hold that
the detenu cannot be denied the right of legal representa-
tion in the proceedings before the Advisory Boards. It
is unfortunate that courts have been deprived of that choice
by the express language of Article 22 (3) (b) read with Article
C.
22 (I)". (para 86).

"To read the riglit of legal representation in Article ·
22 (5) is straining the language of that article. Clause (5)
confers upon the detenu the right to be informed of the D
grounds of detention and the right to be afforded the
earliest opportunity of making a representation against the
order of detention. That right has undoubtedly to be '
effective, but it does not carry with it the right to be repre-
sented by a legal practitioner before the Advisory Board
merely because, by Section 10 of the National Security Act, E
the representation made by tlie detenu is required to be
forwarded to the Advisory Board for its consideration.
If anything, the effect of Section 11 (4) of the Act, which
conforms to Article 22 (3) {b), is that the ·detenu cannot

- appear before the Advisory Board through a legal practi-
tioner. The written ·representation of the detenu does
not have to be expatiated upon by a legal ·practitioner".
(para 88)
F

"We must therefore hold, regretfully though, that
the detenu has no right to uppear through a legal practitioner G
in the proceedings before the Advisory Board; It is, however,
necessary to add an important caveat. The reason behind
the provisions contrained in Article 22 (3) (b) of the Consti-
tution clearly is that a legal practitioner should not be
permitted to appear before the Advisory Board for any H
party................ ,........ ". {para 93) (underlines added)
514 sbt>kEMB cotritt RBPbl!.ts fl 982] 3 s.t.lt.
A What bas been said above about appearance through lawyer
before the Advisory Board under the National Security Act equally
apply to appearance by lawyer before the ·Advisory Board under
COFEPOSA.
B With regard to appearance through a 'friend', the Court
observed :

"Another aspect of this matter which needs to be
mentioned is that the embargo on· the appearance of legal
0 practitioners should not be extended so as to prevent the
detenu from being aided or assisted by, a friend who, in
truth and substance, is not a legal practitioner. Every person
whose interests are adversely affected as a result of the
.proceedings which have a serious import, is entitled
to be heard in those proceedings .and be assisted by a
D friend .

.. . .. . .. . . . .. .. ". (para 94) (emphasis added).

But the Court observed :

E "The appearance of the legal practitioners should not
be extended so as to prevent the detenu from being aided
or assisted by a friend who, in truth and substance, is not a
legal practitioner." (emphasis added).

In other words, a 'friend' who, in truth and ·substance, is a
F friend of the detenu may appear for the detenu but if such a· 'friend'
'.l
also happens to be a legal practitioner, he cannot, as of right, appear
before the Advisory Board on behalf of the detenu.

12. The same reasoning will apply to appearance by an
'agent' .. In other words, if an 'agent' is in 'truth and substance' an
G agent, t)le detenu .may appear through h.im. But if the 'agent' is a
legal prJ1ctitioner, appearance by him as of right will be barred.
But a 'friend: or an 'agent' of the detenu who is essentially a com-
rade in the profession of.the detenu for which be is detained, such
H a 'friend' or 'agent' will also be barred from appearance on behalf
1 of the detenu.
h.v. TANDEL v. THE AOMiNISTRATOR (Baharul ls/am, J.) s7s
In passing it must be stated that a man has a right to appoint A
an agent.. One may call it a common law right: But there is no
obligation on the other side io deal with the agent. The other side
has an equal right to refuse to deal with an agent. In any view of
the matter, in the absence of any right to give an oral hearing in the

If form of making a representation under Article 22 (5), the question
of hearing a legal practitioner on behalf of the detenu does not. arise.
It .cannot, therefore, be said that refllsal to hear Mr. Ajwani,
8

advocate engaged by the detenu, by the Administrator has resulted
...,.,..__.. in denial of constitutional right to make a representation .

That apart, in this case, the case, the ielegram in express terms
has described the sender, Thaku Ajwani, as an advocate, who in
c
clear terms stated that he ,had been iitslr!Jcted by the detenu to
appear before the detaining authority tci·represent the case of the
detenti; In other words, Mr. Ajwani cleirly told the Administrator
that· the detenu was his client and that Ile himself was his counsel
and·tbat he desired to represent the case of the detenu in his D
capacity as a legal practitioner. The telegram was not sent by
Mr: Ajwani telling the Administrator that he wanted to appear
before the Administrator as a 'friend' or an 'agent' of the detenu
in order to represent his·case. It, therefo,re, cannot be said that the
Administrator refused a 'friend' or an 'agent' of the detenu to appear
before him to assist the detenu. E
: ·13. Article 22 (I) and (2) confer fundamental right of protec-
tion· against arrest and detention in. certain cases. Sub.Article (!)
... .\
enjoins il duty on the person arfesting any person to inform the
person arrested, as soon as may be, of the grounds for such arrest
: ';'. '-.before detaining him in custody and s·1ch detained person shall oot F
(,c • be denied the right to consult and to be defended by a legal practi-
t1, _ tioner, of his choice. Sub-Article (2) enjoins a duty on the person
arresting and detaining any one to produce him before the nearest
Magistrate within a period of 24 hours of such arrest excluding
the time necessary fo1 the journey from .the place of arrest to the
Court of the Magistrate and no such person shall be detained in G
custody beyond the said period without the authority of a magist-
rate. These two fundamental rights, namely, right to be informed
of the grounds of detention at the time of arrest and the right to
_ consult and be defended by a lawyer or his choice, and any deten-
tion beyond the period of 24 hours plus the time taken in the H
•

siJPRilMB couRt RBi>ORTS [1982] ~ s.c.ll.

journey, unless authorised by ·a magistrate to be illegal would have
also been available to any one detained under the preventive deten·
tion laws but for sub-Article (3). Sub-Article (3) provides that
nothing in clauses (1) and (2) shall apply (a) to any person who for
the iime being is an enemy alien; or (b) to any person w)lo is
arrested or drtained under any law providing for preventive deten·
tion. As a necessary corrollary, any law providing for preventive
detention would not be unconstitutional even if it contravenes
Article 22 (1) and (2). In other words, a person detained under a
law providing for preventive detention cannot claim as a matter of
constitutional right to consult and be defended by a lawyer of his
choice. Nor can he insist upon being produced before a magistrate
c within 24 hours of his arrest.

14. Section 8 of the COFEPOSA soows as noticed above that
a person against whom an order of detention has been made under
the Act sha!I not be entitled .to appear by any legal practitioner in
0 any matter connected with the reference to the Advisory Board.
Assuming that the right to make a representation and tbe corres·
ponding obligation cast on the detaining authority to consider the
representation expeditiously is not a matter connected with· the
reference to the Advisory Board and that both are independent
· stages, it cannot be said that the refusal of the Administrator to hear
E the advocate of the detenu while considering the representation
would be denial of common law right of the detenu to be represented
.bY an agent. Article 22 (S) which has provided a safeguard in the
matter of preventive detention confers the right on the detenu and
simultaneously casts an obligation on the detaining authority, as
soon as may be, after the arrest to communicate to the detenu the
F grounds on which the order bas been made and to afford the earliest
opportunity of making a representation against the order. Represen-
tation is to be made by the detenu. Detenu is a person who is already
deprived of his liberty. Giving the ordinary connotation to the
expression 'earliest opportunity of making a representation' as set
out in sub-Article (S) would only imply that the person can send his
G written representation through the jail. authorities. It would be
open to him to send it by ·any other communicating media but the
opportunity to make a representation does not comprehend an oral
hearing. If it does, the detenu will have to be taken from the jail
·where he is detained to the detaining authoricy which in a given
H situation may not even be feasible and the delay in transit may be
•
!>,V, TANbEl v. THE ADMINISTRATOR (!Jaharui [s/am, J.) 511

counterproductive to the earliest opportunity to be afforded to make A
a representation. It is, therefore, implicit in Sub-Article (5) of
Article 22 that the representation has to be a written representation
communicated through the jail authorities or through any other
mode which the detenu thinks fit of adopting but the detaining
authority is under no obligation to grant any oral hearing at the
time of considering the representation. Now, if the.representation B
has to be a written representation, there is no question of hearing
any one much less a lawyer. Reliance was, however, placed on
Francis Coralie Mullin v. The Administrator, Union Territory of Delhi
& Ors.,(1) In that case the detenu challenged the validity of clause
3 (b) (i) and (ii) of the Condition of Detention laid down by the
jail administration under an order dated 23rd August, 1975, issued c
in exercise of the powers conferred under Section 5 of the COFE·
POSA. The relevant condition was as under :
0

" 3. The conditions of detention in respect of classi-
fication and interviews shall be as under :
o-
(b) Interviews : Subject to the direction issued by
the Administrator from time to time, permission
for the grant of interviews with a detenu shall be
granted by the District Magistrate, Delhi as
under:
E
(i) Interview with legal adviser :

Interview with legal adviser. in connection
with defence of a detenu in a criminal case
or in regard to writ petitions and the like,
may be allowed by prior appointment, in the
F
presence of an officer of Customs/Central
Excise/Enforcement to be ·nominated by the
local collector of Customs/Central Excise or
Deputy Director of Enforcement who sponsors
the case for detention.
G
(ii) Interview with family members :

(2) [1981] 2 S.C.R. 516.
H
51s. SUPREME COURT REPORTS (1982j 3s.c:ii..
A A monthly dnterview may be permitted for
members of the family consisting of Wife,
children or parents of the detenu ..... "

The contention was that the condition in clause 3 (b) (ii) which
restricts the interview.to only• o.ne in a month in case of a dete~u is ·
B unreasonable and arbitrary ·when contrasted with an under·trial
prisoner who was entitled to the faeility of interviews with friends
and relatives twice in a· week and e'1en thoiigh a detenu stands on a · ·
higher pedestal than an:under-trial prisoner or a convict, the Jimi!atioh ·
of interview to one in a month is utterly ar&ittary. · This contehlion\ i.
found fav.our wi.th the.Court oil the ground· ·that restrictions Placed
c on a detenu must, consistent with the effectiveness Of detention; be
minimal (see Sampat Prakash v. State of Jammu & Kashmir, [1969]
3 $.C.R. 574. Proceeding further, this Court held that sµb-clause
(i) of clause 3 (b) which prescribes that the detenu can have an inter·
view with a legal adviser:of his choice with prior permission of the
District Magistrate and the interview has to take place in the
D presence of a Customs/Central Excise/Enforcement officer nominated
by the local Collector of Customs/Central Excise/Deputy Director of
Enforcement, was unreas.,nable and hence invalid. Now, this judg-
ment is not an authority for- the proposition that a detenu as a
matter of right is entitled fo make his representation by an oral
bearing before th1! detaining authority under Article 22 (5), The
E right to consult a lawyer was granted •by· the conditions of detention
prescribed under Section 5. This right was not spelt out as an
incident of Article 21 and what has· been found invalid is the
presence of officers at. the interview and the number of interviews.
Therefore, Francis Coralie Mullin' s case is not an authority for the
proposition and frankly, cannot be one for the putpose of spelling
F
out a right to be represented by a lawyer ..y.hile ~\)-king representa·
tion before th~ detaining authority. Everfthoiign there are some
observations'w!licb may imply sµch a . right, they would be comple-.
tely obiter for the obvious reasd~ that a right was conferred by the
Conditions of Detention and not for the first time a right was being
spelt out by the expanded horizons of right to life and liberty as
enshrined in Article 21 .. The attempt to read or imply something in
Article 21, which is positively reflected by Article 22 (5) would be
contrary to any canon of construction because it is wen settled) th.at
what is expressly reflected cannot be brought in by the back door of
implication. It was not necessary to spell out these rights in the
facts of that case for the obvious reason that the right was conferred
b.v. TANhEL v. TllB Ai>i.dNISTRATOR (Baharul Islam J.) 519 ,

by the conditions of detention. One need not go in search of some A
such right implicit in Article 21 by a process of interpreta,tion .when
it was expressly granted in the Conditions of Detention under the
Act. Therefore, with respect, the decision in Mullin's case cannot
help the petitioner to spell out right to be represented by a fawyer
before the detaining authority.
B

- 15. Now the other aspect oftbe submission, namely; whether
the respondent misled the detenu by bis telegram. Objection has
been taken to the following sentence of the telegram :

"He (administrator) has decided that the detenus can
make representation to the adminimator through Central c
jail, Aguada, where they are detained".

It may be remembered that the telegram was sent to the
detenus' advocate, Mr. Ajwani, and not to the detenus. The above
sentence conveying an advice, albeit gratuitious, could hardly mis-
lead a lawyer who is supposed to know bow a representation of a D
detenu is to b~ sent to the detaining authority. The submission of
Mr. Jethmalani was that the sentence give the impression that the
representation if sent through the jail only, and in no other way,
would be, considered. The submission was hypothetical. The
detenu was in jail. The_ representation, of necessity, had to be sent
through the Superintendent of the jail where be was detained with E
the former's necessary endorsement and seal. It would be difficult
for the detaining authority to immediately ascertain whether the
representation sent otherwise than through the jailor was genuine.
Even so the Administrator did not say that the detenu's representa·
tion, unless sent through the jail would be considered. There is no
F
merit in the submission.

16. The sixth point raised by learned counsel for the peti·
tioner is that illegalities were committed in dealing with the represen-
tation of the detenu in that :
G'
"(a) the detenu was not heard.

(b), his advocate was not heard.

(c) he was not told that be could be represented by a H
friend.
A (d) he wa.s not permitted cross-examination. of re,
butt al evidence."

The submission of learned counsel has no substance.

(a). A perusal of the record shows that the detenu was
B heard in person, was questioned by the Board on
several points in Gujarati which was the language of
the detenu, and necessary answers elecited. He does
not have any right to be heard in person by the detain-
ing authority.

c (b) It is true that the advocate of the detenu was not
heard but the former's right to be heard either by the
detaining authority or by the Advisory Board has been
answered above.

(c) The contention has been dealt with above.
D
(d) This Court in A.K. Roy's case (supra) dealt with the
detenu"s plea of cross-examination, and bas held ;
•• ..... It seems to us difficult to bold that a detenu can
claim the right of cross;examination ·in the proceeding
before the Advisory Board. First and foremost; cross•
E examination of whom? The principle that witnesses must•
be. confronted and offered for cross-examination applies
generally to prop~dings in . which witnesses are examined
or docmµen(s are adduced in .evidence in order to prove a
poi9t. Cro:ss-examination then becomes a powerful·
weapon for showing the untruthfulness of that evidence.
F
In proceedings before the Advisory Board, the question
for consideration of the Board is not whether the detenu is
guilty of any charge but whether there is sufficient cause
for the detention of. .the person concerned. The detention,
it must be remembered, is based not onfacts. proved either
G by applying the test of preponderance of probabilities or of
reasonable doubt. The det,ention is based on the. subjective
satisfaction of the detaining authority that it is necessary
to detain a particular person in order to prevent him from
acting in a manner prejudicial to certain stated objects.
H The proceeding of the Advisory Board has therefore to be
o;v. TANDEL v. THE ADMINISTRATOR (Baharul Islam, J.) 581

A
structed differently from the. proceeding of judicial° or quasi
judicial tribunals, before which there is a tis to adjudicate
upon."

Finally, the Court observed

".We are therefore ofthe opmton, that, in the procee-
B
dings before the Advisory Board, the detenu has no right
to cross-examine either the persons on the basis of whose
statement the order of detention is made or the detaining
authority."
·-~
17. Faced with the difficulty created by the above decision,
c
learned counsel submits that he bas not used the word 'cross-exami-
nation' in the technical sense but used it loosely in the sense that
the detenu would have examined as bis witnes~es the persons on
whose statements the order of the detention has been based, to
establish bis iooococe particularly before the judicially trained minds
of the Members of the Advisory B ··ard. Even if the word 'cross-
-examination' is taken in the loose sense as submitted by the learned
counsel, the Advisory Board cannot be blamed; for, there was no
request by the deteou for the production of those persons
before the Advisory Board to examine them as bis defence witnesses.
The sixth submission also bas no substance.

18. The seventh point formulated by learned counsel was
..._ _,,: "that the Advisory Board was required 10 decide two issues :

(i) whether the detention was justified when made;

(ii) whether it was justified on the date of the Advisory F
Board's report".

Mr. Jethmalani did not press before us sub-point (i). But he
submitted that the Board ought to have found whether or not the
order of detention was justified on the date of its report. We have
perused the report of the Advisory Board and find that the report G
covers both sub.points (i) and (ii) enumerated above.

I~. The eight point raised by learned counsel for the petitioner
is that the procedure before the Advisory Board was 'totally unjust
and discriminatory'. His submission was that although the detaining H
1111thoritr was not present in perso11 before the Advisory Board, bi~
582 ' '.'
SUPREME COURT REPORTS /198,2] 3 s.c.li..

representatives were present to assist the Advisory Board on issues
of law and fact in support of the order of detention while there was
none to assist the detenu. The submission has been b_ased on suspi-
cion or guess, and is not borne out by records. The record shows
that the detenu - was produced before the Advisory Board and
necessary questions were put to him and answers elicited by the
B Chairman and the Member of the Advisory Board and there was
none present on behalf of the detaining authority. This submission
also has no substance.
--- ---
20. The last point raised by Mr. Jethmalani was that the
cases of the four cletenus connected with the same incident were
c reviewed by the Board; after having released one co-detenu, namely;
Narasinghbbai Durlabhbbai, in pursuance of the Advisory Board's
order, it was incumbent on the detaining authority to review the
order of detention of the petitio1Jers before us namely; Devji
Vallabhbhai Tande(, (petitioner in Writ Peiition No. 8070 of 1981),
Narsingh Vallabhbhai Tande!, (petitioner in Writ Petition No. 23 of
D 1982) and Lallubhai Govanbbai Tande! (petitioner in Writ Petition
No. 29 of 1982). As on a perusal of the report of the Advisory
Board, it was found that Narsinh Vallabhbbai Tande! was advised
to be released on the ground of tender age, learned counsel did not
press the submission._

E 21. These petitions have no merits and are dismissed.
P.B.R. Petitions dismissed.