Holding

The Advisory Board erred in denying the detenu the right to examine witnesses, a right read into Section 8 of the COFEPOSA Act, and the detention order was therefore quashed.

Summary

Om Prakash was detained under Section 3(1) of the COFEPOSA Act for allegedly possessing contraband goods. At the Advisory Board hearing he sought to examine five witnesses present to rebut the allegation, but the Board refused and allowed only affidavits, which could not be produced. The Board’s report was forwarded to the Central Government, which confirmed the detention. The Delhi High Court dismissed the petition, holding that the witnesses need not be cross‑examined and that the Board’s procedure was valid. The Supreme Court held that the Advisory Board erred in denying the detenu the right to examine witnesses, a right that forms part of the "trinity of rights" under Article 22(5) and must be read into Section 8 of the COFEPOSA Act, and consequently quashed the detention order and ordered the release of the detenu.

Issues considered

The Advisory Board’s authority to deny a detenu the right to examine witnesses in rebuttal under the COFEPOSA Act and Article 22(5).
Whether the Advisory Board must forward the complete record of its proceedings to the Central Government for consideration before confirming a detention order.
Whether denial of the right to oral evidence deprives the detenu of a constitutional safeguard, rendering the detention illegal.

Legislation cited

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA)s. 11, s. 12, s. 3, s. 8

Subjects

preventive detentionadvisory boardright to examine witnessesArticle 22(5)COFEPOSAconstitutional safeguardoral evidencedetention order

Judgment

HARBANS LAL
v. A
'· ~ M.L. WADHAWAN & ORS.

DECEMBER 4, 1986

[R.S. PATHAK AND V. KHALID, JJ.) B

Section 3(1) and 8-Detenu-Right of-To lead evidence in rebuttal of
allegations against him before Advisory Board - To choose between affidavit
evidence and oral evidence.

- >-- The petitioner's son was detained under s. 3(1) of the COFEPOSA Act,
1974 pursuant to a detention order passed on March 31, 1986. tie wasfmindin
possession of a large quantity of contraband goods worth over Rs. 21 lacs,
c

hidden in his premises, which be had brought from Hongkong.
--1
On April 29, 1986, ·before the Advisory Board the detenu wanted to prove
that the premises in which the contraband goods were found was not in his D
possession and in support thereof he wanted to examine five witnesses, who
were present when the matter was being heard by the Advisory Board. The
Board declined to examine the witnesses, but permitted the detenu to produce
their affidavits. Since it was not possible to secure the affidavits, on the next
hearing date, an application was made for their examination, but the Board
decline this request and forwarded its proceedings to the Central Government E
who confirmed the detention order.

The detenu filed a petition under Article 226 of the .Constitution

- challenging the detention order. The High Court dismissed the petition holding
that the witnesses were not required under the law to be subjected to cross-
examination, that the Advisory Board was right in suggesting to file the F
affidavits of the witnesses, that the plea that the witnesses declined to file their
;\:- affidavits was flimsy and without any valid reason, that the plea that evidence in
the shape of affidavits is an inferior type of evidence hardly deserves any
-~
worthwhile consideration, that if on perusal of-the affidavits the Ad,isory_
Board considered to call any of the deponents it could have been done and that
it cannot be said that the detenu was deprived of his right of defence before the G
Advisory Board.
~

• In the Special Leave Petition;md the Writ Petition before this Court on
-+ behalf of the detenu it was contended (i) that the Advisory Board acted in
violation of law in denying the dctenu his right to examine witnesses in rebuttal,
who were readily available and present on the dates of hearing; (ii) that the H

425
I
I
•
, '
426 SUPREME COURT REPORTS [1987] I S.C.R.

Advisory Board waS bound under law to send the entire records of tho
A.. proceedings to the Central Government for applying its mind before making
the ,order of confimiation; and (ili) that the Central Government, in this case,
was not informed about the presence of five witnes,ses before the Advisory
., Board, rei.dy to be examined and the Board's refusal to record their evi<iu,ce.
'
B Allowing the petitions,, the Court,

HELD: 1. The Advisory Board committed an error in law in denying to
the detenu the right to examine the witnesses, rendering his continued detention ,
bad. The detention order is quashed, the judgment of the High Court set aside
and the detenu directed to be released forthwith. [434 E-F]

2. The "trinity of rights" available to the detenu before the Advisory
Board are: (i) the right of legal represenbtion; (ii) the right of cross-
examination; and (ili) the right to present his evidence in rebuttal. [ 429 E-F]

3. The law recognises the right in a detenu to lead evidence in rebuttal of
D the allegation against him before the Advisory Board. All that is necessary is
that the detenu should keep the witnesses ready for examination at the
appointed time. There is no obligation cast on the Advisory Board to summon
them. The Advisory Board is competent to regulate its own procedure within
the constraints 'of the Constitution and the statute and this procedure is
referable to the time limit within which the Advisory Board must complete its
E inquiry. [430 D-E]
\

.' 4. The right to adduce oral evidence by examining witnesses is a right
. available to a detenu under the decision of this Court in A.K Roys case 1982,
, 2 S.C.R. 272 and this 'should be deemed to be incorporated in the statute
dealing with detention without trial. Therefore, the right in a detenu to adduce
F oral evidence in rebuttal bemg a right in the nature of Constitutional safeguard
embodied in Article 22(5) of the Constitution as construed by this Court in A.K
Roys case (supra) has necessarily to be read into section 8(b) and (c) of the
COFEPOSA Act. If this right is denied to a detenu, the necessary consequence
must follow. [430 G, 431 C]

G A.K Roy v.
Union of India, [1982] 2 S.C.R. 272 and Narendra
Purshotam Umrao v. B.B. Gujra/ & Ors., [1979] 2 S.C.C. 637, followed.

5. Article 22(7)(e) enables Parliament to prescribe by law the procedure to
be followed by an Advisory Board in an inquiry under Article 22( 4)(a). Section
8 of the COFEPOSA Act is sequel to this prescription. There is nothing ins. 8
H a
prohibiting oral evidence of wit'lesses tendered by detenu being taken. The
HARBANS LAL v. M.L. WADHAWAN 427

)( concept of inquiry by the Advisory Board takes within its ambit this aspect of A
'hearing' also. [431 DJ

6. The High Court was wrong in saying that the Witnesses were not
required under law to be subjected. to cross-examination "admittedly". This
Court has only laid down that witnesses on behalf of the detaining authority
cannot be cross-examined by the detenu. It has nowhere been held that the B

" witnesses on behalf of the detenu produced in rebuttal of the allegation against
him cannot be cross-examined. Cross-examination of such witnesses has to be
by the detaining authority and that right cannot be denied to them.

-~ '
7. Unless there is any legal bar for oral evidence of the detenu being
adduced before the Advisory Board it should be left to the detenu to choose c
between affidavit evidence and oral evidence subject of cpurse to the rigorous
-1 limitation placed upon this right relating to constraints of time. [433 C]

8. In the instant case in deying the right to examine witnesses present·
before the Advisory Board, the Board acted in violation of the law. [433 DJ
D
9. The complaint that the report of the Advisory Board did not contain
all the necessary information regarding the availability of the witnesses on
29.4.1986 and 1.5.1986, the readiness of the detenu to examine them, rejection
of the requests to examine them and directing instead fding of the affidavits
cannot he said to be wholly unjustified. [434 DJ
E
10. Tlie Central Government is under an obligation to apply its mind to
the entire material before confirming the order of detention.

- CRIMINAL .APPELLATE JURISDICTION Special Leave petition
(Criminal) No. 2466 of 1986
I
F
-~::
From the Judgment and Order dated 26.8.1986 of the Delhi High Court
~ in Crl. Writ No. 170 of 1986.

and

Writ Petition (Criminal) No. 530 of 1986 G
.
-+ (Under Article 32 of the Consiitution of India)

Ram Jethmalani, A. K. Sharma and Ms. Rani Jethmalani for the
Petitioner. ·
H

•
428 SUPREME COURT REPORTS [1987] I S.C.R.

A V.C. Mahajan, A.S. Rao, Ms. Halida Khatun and C.V. Subba Rao for )(
the Respondents.

The Judgment of the Court was delivered by

KHALID, J. The Special Leave Petition is directed against the Judgment
B dated 26.8.1986 of a Single Judge of the Delhi High Court in Criminal Writ
No.170/86 filed by Shri Harbans L>I father of the detenu Om Prakash. The f!'
Writ Petition is also by the same person. Both these matters are being disposed
of by this common Jlidgment. Special Leave granted.

The eases relate to the detenti"n of Shri Om Prakash under Section 3(1)
of the COFEPOSA Act. An order of detention was passed against him on 31st
··-\. -
c March, 1986 by the Additional Secre·:ary to the Government oflndia, Ministry
of Finance, Department of Revenue-the Respondent No. 1 herein. The >-
detenu was served with ihe grounds of detention on the same date:The ease
against the detenu is that he was in possession of a large quantity of contraband
goods hidden in his premises-No. 5123, West Patel Nagar, N\'w Delhi. These
D premises were searched by the officers of the Directorate of Revenue
Intelligence in the early hours of 20/:l/ 1986; as a result of which foreign goods·
worth Rupees Twentyone lakhs and odd were recovered. The accusation
against the detenu is that he brought these articles during the various trips that
he made to Hong Kong between I0 . 12/ 1985 and 19/3/'1986.
,..
E On 29th of April, 1986, the Advisory Board met to consider the propriety
of the detention order. The detenu wanted to prove that the premises in which
the alleged contraband goods were found was not in his possession and that in
fact he lived at some other place. In support of this case he wanted to examine ~

five witnesses before the Advisory Bo>rd. These 5 witnesses were present when
the matter. was to be heard by the Ad' isory Board on 29th April, 1986. This fact
F was made known to the Advisory Board. The Board intimated the detenu's j
legal Adviser that it would not examine the said witnesses but would instead
~
permit the de\enu to produce their aflidavits. Thus an opportunity was lost to
him that day to examine the witnesses in rebuttal. It is the detenu's ease that
despite best efforts by his legal Adviser it was not possible to secure the
affidavits of the witnesses. The said witnesses were therefore broguht again on
.G the !st of May, 1986,· when the Board resumed its .hearing and.an application
was made to the Board to examine them. Annexure-C attached to the Writ
Petition shows that the detenu filed an application before the Advisory Board
~
on 29th April, 1986, requesting the Board to examine the witnesses brought in
his defence both on 29-4-1986 and l-5· 1986and without making any request for
an adjournment. The Advisory Board declined this request. The High Court
H considered this aspect of the case and j·1stified the rejection of this requesfon the

•
HARBANS LAL v. M.L. WADHAWAN [KHALID, J.) 429

)( plea that the detenu could not waste the time of the Advisory Board by asking A .
, the Board to record oral evidence. The records of proceedings of the Advisory
Board were forwarded to the Central Government and the order of detention
was confirmed.

., The learned counsel for the dete~u raised two questions of law, for our
consideration, in his attempt to .persuade us to accept his plea that the detention
in question had to be quashed: (i)th~ Advisory.Board acted in violation of law
as mandated by a Constitution Bench Judgment of this Court in denying to the
B

detenu his right to examine witnesses, who were readily available and present
on the dates of hearing before the Advisory Board, in rebuttal of the case of the
detaining authority, (ii) the Advisory Board was bound under law to send the
entire records of the proceedings before it to the Central Government and the c
Central Government in turn bound to apply its mind to the entire materials
1 before proceeding tci make the order of confirmation. The Central
Government, in this case, was not informed about the presence of 5 witnesses
before the Advisory Board, ready to be examined and the Board's refusal to
record their evidence.
D
Jn support of the first contention, the learned counsel for the petitioner
relied upon the following observation by a ·constitution Bench of this Court in
A.K. Roy v. Union o.flndia, [1982] 2 S.C.R. 272. In that case this Court had to
consider the extent of the "trinity of rights" which was available to the detenu
before the Advisory Board. These rights are:
E
(i) The right of legal representation,

(ii) The right of cross-examination and

(iii) The right to present his evidence in rebuttal.
F
We are here concerned with the third right; namely the right of the detenu
to lead evidence in rebuttal before the Advisory Board. The Constitution Bench
repelled the plea that the detenu had a right to cross-examine either the persons
on the basis of whose statements the order of detention was made or the
detaining authority but observed as follows on the third right:
G
"The last of the three rights for which Shri Jethmalani contends
is the righ( of the detenu to lead evidence in rebuttal before the
Advisory Board. We do not see any objection to this right being
granted to the detenu. Neither the Constitution nor the National
Security Act contains any provisions denying to the detenu the
right to present his own evidence in rebuttal of tl,e allegations
430 • SUPREME COURT REPORTS [1987] I S.C.R.

A made against him. The detenu may therefore offer oral and -x·
documentary evidence before the Advisory Board in order to
rebut the a/legations which are made against him. We would
only like to add that ifthe detenu desires to examine any witness,
he shall have to keep them present at the appointed time and no
obligation can be cast on the Advisory Board to summon them.
B The Advisory Board, like any other tribunal, is free to regulate
its own procedure within the constraints of the Constitution and
the statute. It would be open to it, in the exercise of that power,
to limit the time within which the detenu must complete his
evidence. We consider it necessary to make this observation
particularly in view of the fact that the Advisory Board is under -\
c an obligation under section 11(1) of the Act to submit its report
to the appropriate Government within seven weeks from the
date of detention of the person concerned. The proceedings }-
before the Advisory Board have therefore to be completed with
the utmost expedition " (Emphasis supplied).

D The law laid down thus recognises the right in a detenu to lead evidence in
rebuttal of the allegation against him before the Advisory Board. All that ·is
necessary is that the detenu should keep the witnesses ready for examination at
the appointed time. There is no obligation cast on the Advisory Board to
summon them. This Court recognises a right in the Advisory Board to regulate
its own procedure within the constraints of the Constitutbn and the statute and
E this procedure is referable to the time limit within which the Advisory Board
must complete its enquiry. It is in the light of the law laid down by this Court in
the above decision that the first quest.on, raised by the learned counsel, has to
be considered.

We have not been told that che Advisory Board has regulated any
F prooedure that oral evidence will not be permitted when it enquires into orders
of detention. Even if there is any such procedure it will be of no legal
consequence after the law in this behalf had been laid down by this Court in
A.K. Roy case (supra). The right t•> adduce oral evidence by examining
witnesses is a right available to a detenu under the above decision and this
should be deemed to be incorporated in the statute dealing with detention
G without trial. Support for this positio 1 was sought by the learned counsel for
the petitioner from a decision. of this Court in Norendra Purshotam Umrao v.
B.B. Gujral & Ors., [1979] 2 S.C.C. 637. In that case, this Court was dealing
with the absence of any express provi>.ion in Section 8(b) of the COFEPOSA
Act placing an obligation to forward the representation made by a detenu
H alongwith the reference to the Advi:;ory Board unlike those contained in
Section 9 of the Preventive Detention Act, 1950 and Section IO of the
HARBANS LAL v. M.L. WADHAWAN [KHALID, J.] 431

Maintenance of Internal Security Act, 1971. It was contended in that case that A
in the absence of an express provision in this behalf no obligation was cast on
the Government to consider the representation made by the detemi before
forwarding it to the Advisory Board or to forward the same to the Advisory
Board. After discussing the scope· of Article 22(5), this Court held "the
constitutional safeguards embodied in Article 22(5) of the Constitution, as
construed by this Court, must, therefore, be read into the provisions of Section B
8(b) of Conservation of Foreign Exchange and Prevention of Smuggling
Activities Act, 1974_ to prevent any arbitrary Executive action."

- )- This decision rendered by a three Judge Bench of this Court has !_aid
down that the Constitutional safeguards embodied in Article 22(5) of the
Constitution as understood by this Court must be read into Section 8(b) of the
COFEPOSA Act. Therefore, the right in a detenu to adduce oral evidence in
c
""
I
rebuttal, being a right in the nature of a Constitutional safeguard embodied in
Article 22(5) of the Constitution as construed by this Court in A.K. Roy's case
(supra) has necessarily to be read into Section 8(b) and (c) of the COFEPOSA
· Act. If this right is denied to a detenu, the necessary consequence must follow.
Article 22(7) enables Parliament to prescribe by law the proCedure to be D
· followed by an Advisory Board an enquiry under Article 22(4)(a). Section 8 of
the COFEPOSA Act is a sequel to this prescription, There is nothing in Section
8 prohibiting oral evidence of the witnesses tendered by a detenu being taken.
The concept of enquiry by the Advisory Board takes within its ambit this aspect
of'hearing' also. This right has received the seal ofapproval inA.K. Roy'scase.
E
The facts are not very much in dispute in this case. The Advisory Board

- met on 29th April, 1986. On that day an application (Annexure-C) was made to
the Advisory Board by the detenu, requesting examination of witnesses to rebut
the evidence against him. It was mentioned therein that his witnesses were
present at the time of hearing before the Advisory Board. A further request was
made that the witnesses may be permitted to be examined on the nex.t hearing F
date, that is 1-5-1986. Annexure-C is a communication from the detenu to the
Chairman and members of the Advisory Board. This Annexure gives the
names of the 5 witnesses whom he proposed to be examined.

In the Counter Affidavit filed in the Writ Petition by the Under
Secretary, Ministry of Finance, Department of Revenue, it is stated that the G
Advisory Board gave opport1mity to the detenu to file affidavits of the witnesses
present, that. the detenu
, agreed to file the affidavits and obtained time till
1-5-1986. On that day a statement was made that these witnesses were not
willing to file affidavits. "Therefore, the Advisory Board is justified in stating
· that it is not necessary to fecord eviCience of the persons who were not
prepared to give affidavits". There is some factual dispute in the two versions, H
432 SUPREME COURT REPORTS [1987] 1 S.C.R.

A one by the detenu and the other seen in the Counter Affidavit. The petitioner's
case is that the witnesses were present both on 29-4-1986 & 1-5-1986. No
request for any adjournment was made. The Counter Affidavit would indicate
that time was sought for by the detenu to file affidavits and the matter was
adjourned to 1-5-1986 on this request.

B For the purpose of this case we will accept the version in the Counter
Affidavit. Two facts that are not in dispute are that the witnesses were present
on both the days and that on 1-5-1%6, they were not permitted to be examined.

This aspect of the case is seen discussed by the High Court as follows: ~.

"Admittedly, these w:tnesses were not required under the law to
c be subjected to cross-·exmination, the Advisory Board was right
in suggest'ing to the learned counsel for the detenu to file the
affidavits of those witnesses. Whatever those witnesses were to
depose to by them in tM affidavits and that could have saved the
hard-pressed time of ·:he Advisory Board. The detenu could not
D gair anything further by producing the witnesses before the
Advisory Board for :heir statements. Even though the detenu
was in custody, his father Harbans Lal-petitioner could not
· procure the affidavits of the witnesses and file the same before
the Advisory Board. The plea that the witnesses declined to file
their affidavits is just flimsy and without any valid reason. The
E further contention of the learned counsel for the petitioner that
evidence in the shap'' of affidavits which are not subjected to
cross examination or close scrutiny by questions asked by the
Advisory Board, is an inferior type of evidence and that honest
witnesses may create much more favourable impression by
deposing before the Advisory Board than by reducing their
F testimony, in the fr•rm of affidavits, hardly deserves any
worthwhile considen .tion. If on perusal of the affidavits the
Advisory Board considered to call any of those deponents
before them it could have been done. The matter of any more
favourable impression by deposing bef~re the Advisory Board
is a factor quite far-fetched. As already pointed out above cross
G examination of these witnesses is not permissible under the law.
For these reasons it c"nnot be said that the detenu was deprived
of his right of defenc' before the Advisory Board."

In our view the High Court has committed a few mistakes in the above ·
discussion. One fails to understand how the High Court says that the witnesses
H were not required und.er law to be subjected to cross-examination "admittedly".
HARBANS LAL v. M.L. WADHAWAN [KHALID, 1:J 433

In A. K. Roy's case all that this Court has laid down is that the witnesses on A
behalf of the detaining authority cannot be cross examined by the detenu. It is
not stated in.that Judgment nor in any other Judgment of this Court that the
witnesses on behalf of the detenu produced in rebuttal of the allegation against
him cannot be cross-examined. Cross-examination of such witnesses has to be
by the detaining authority and that right cannot be denied to them. The second B
mistake committed by the High Court is. in its assessment of the worth of the.
affidavit evidence and the oral evidence. This is a matter to be decided by the
detenu. Unless there is any legal bar for oral evidence of the detenu being
adduced before the Advisory Board it should be left to the detenu to choose
between affidavit evidence and oral evidence subject of course to the rigorous
limitation placed upon this right by this Court in A.K. Roy's case relating to
constraints of time. The High Court disbelieved the case of the detenu that the C
witnesses d~clined to file their affidavits and has characterised it as "just flimsy
1 and without any valid reason."

We do not agree with the wide statement made by the High Court that by
denying oral evidence it cannot be said -that the detenu was deprived of his right
0
(l
of defence before the Advisory Board. On the strength of the law laid down by
this Court, there is no escape from the conclusion that by denying the right to
examine witnesses present before the Advisory Board, the Board acted in
violation of the law laid down by this Court in A.K. Roy's case.

The second contention raised on behalf of the detenu is that the Advisory
E
Board failed to send the entire records of proceeding before it to the _Central
Government. The gravamen of the charge is that the Central Government
should have been made aware of the fact that the detenu had got ready
witnesses to be examined on 29-4-1986 and 1-5-1986 and that the Advisory
Board denied the right of examination of witnesses but only permitted
affidavits to be filed which could not ultimately be filed. The Central
F
Government was under an obligation to apply its mind to the entire material
before making the order of confirmation of the detention order.

The petitioner's learned counsel suggested that the report to the Advisory
Board contained factual mistakes. The learned counsel for the respondents
made available to us the records of the proceedings.of the Advisory Board. G
They are confidential. However, releva.nt portions were shown to the
petitioner's Advocate. He persisted that the report did not reflect what really
happened before the Advisory Board. If the Central Government was told that
the witnesses were present and that they were not permitted to be examined,
argues the counsel, different consequences might h:ive ensued. In Nand Lal
Bajaj v. State of Punjab & Anr., [1981] 4 S.C.C. 327. A similar question arose H
and this Court observed as follows i~ para 11 of its Judgment:
434 SUPREMF COURT REPORTS [ 1987] 1 S.C. R.

A "The matter can he viewed from another angle. we were
informed that the Advisory Board did not forward the record of
its proceedings to the State Government. If that be so, then the
procedure adopted was not in consonance with the procedure
established by law. The State Government while confirming the
detention order uncer Section 12 of the Act has not only to
B
persue the report of the Advisory Board, but also to apply its
mind to the material on record. If the record itself was not before
the State Government, it follows that the order passed by the
State Government u oder Section 12 of the Act was without due
application of mind. This is a serious infirmity in the case which ~ -
makes the continued detention of the detenu illegal."
c
In view of our finding on the first contention we do not think it necessary ~
to resolve this dispute and enter into a finding of the second ground urged
before us. Suffice it to say that the complaint by the petitioner's counsel that the
report did not contain all the necem.ry information regarding the availability of
D the witnesses on 29-4-1986 and 1-5-1986, the readiness of thedetenu to examine
them, rejection of the request to examine them and directing instead ftling of the
affidavits, cannot be said to be wholly unjustified. .

After giving our careful consideration on the important question of law
involved in this case, we hold that, ao; we are bound by the law laid down by the
E Constitution Bench of this Court in A.K. Roy's case, the Advisory Board
committed an error in law in denying to the detenu the right to examine the
witnesses, rendering his continued detention bad. Upon the particular facts and
circumstances of this case, we quash the order of detention, set aside the
Judgment of the Delhi High Comt and direct that the petitioner's son be
released forthwith.
F
A.P.J. Petitions allowed.

I
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