Holding

The Advisory Board is not obligated to summon witnesses; the detenu must produce his own witnesses, and the absence of such witnesses does not constitute a denial of the right to a fair hearing.

Summary

The Commissioner of Police, Mumbai detained Shri Ramchandra Rammilan Mishra @ Pandey under Section 3(2) of the Maharashtra Prevention of Dangerous Activities (Bootleggers) Slumlords and Drug Offenders Act, 1981 to prevent activities prejudicial to public order. The detenu challenged the detention, contending that the Advisory Board denied him the opportunity to produce or examine witnesses, violating natural‑justice principles and Article 22(5) of the Constitution. The Bombay High Court quashed the detention order on that ground. On appeal, the Supreme Court held that the Advisory Board is not obliged to summon witnesses; the burden is on the detenu to keep his witnesses present, and he had neither produced any witnesses nor requested to examine them. Consequently, the High Court’s finding of a denial of opportunity was erroneous and its judgment was set aside. The Court clarified that a fresh detention order may be issued if warranted, but expressed no view on whether such an order should be made.

Issues considered

Whether the denial of an opportunity to produce or examine witnesses before the Advisory Board violates the principles of natural justice and Article 22(5) in a preventive detention case.
Whether the Advisory Board under the Maharashtra Prevention of Dangerous Activities Act has a duty to summon witnesses for the detenu.
Whether the High Court was correct in quashing the detention order on the ground of denial of opportunity.

Legislation cited

Constitution of Indias. Article 22(5)

Subjects

preventive detentionnatural justiceadvisory boardright to produce evidenceArticle 22(5)Maharashtra Actdetention orderappeal

Judgment

STATE OF MAHARASHTRA AND ORS. A
V.

SHRI RAMCHANDRA RAMMILAN MISHRA @ PANDEY

MARCH 22, 2004

[DORAISWAMY RAJU AND ARIJIT PA SA YAT, JJ.] B

Maharashtra Prevention of Dangerous Activities (Bootleggers) Slumlords
\ ~ and Drug Offenders Act, 1981; Section 3(2): Preventive detention ofrespondent
on ground of maintenance ofpublic order-Challenge to-High Court quashed C
the order holding that the Board by not affording an opportunity ofproducing
witnesses to detenu violated principles of natural justice-On appeal, Held:
There was no obligation on the Advisory Board to summon witnesses but the
detenu himself has to keep his witnesses present at the appointed time-
Detenu failed to produce witnesses-Since High Court proceeded on the wrong
premise, its judgment could not be sustained-Competent authority could pass D
fresh order of detention if the circumstances so warrant-However, no opinion
expressed on the desirability or otherwise ofpassing afresh order-Constitution
of India, 1950; Article 22(5).

The Commissioner of Police, Mumbai in exercise of powers under
Section 3(1.) of the Maharashtra Prevention of Dangerous Activities E
(Bootleggers) Slumlords and Drug Offenders Act passed order of detention
of the respondent to prevent him from indulging in any activity in any
manner prejudicial to the maintenance of public order. Detenu challenged
the order of detention mainly on the ground that he was not afforded an
opportunity of producing the witnesses before the Advisory Board to prove F
his innocence. High Court quashed the order holding that there was
violation of the pri.nciples of natural justice as welt-as th~ fundamental
rights as protected under Article 22(5) of the Constitution. Hence the
present appeal.

It was contended by the appellant-State that the detenu neither G
produced any witness nor stated before the Advisory Board that he desired
to examine witnesses; and that the High Court had overlooked the facts
in arriving at its findings.

Respondent-Detenu submitted that the High Court was right in
295 H
296 SUPREME COURT REPORTS [2004) 3 S.C.R.

A holding that the Advisory Board did not afford him opportunity to +
examine witnesses to prove his innocence.

Partly allowing the appeal, the Court

HELD: I. I. The detenu was free to produce the witnesses bdore the
B Advisory Board in order to rebut the allegations levelled against him.
However, there was no obligation on the Advisory Board to summon
witnesses and it was for the detenu to keep his witness present at the
appointed time. The approach of the High Court by proceeding on the L J
basis as if there was such an obligation on the Advisory Board was not
C correct. That apart, High Court had nothing concrete before it to surmise
that any witness was present, and the failure on the part of the Advisory
Board to verify about the same constituted denial of an opportunity. Hence
the Judgment of the High Court is set aside. Since the detenu has been
released pursuant to the judgment of the High court, it shall be open to
the appellants or any competent authority to pass fresh order of detention
D if the circumstances so warrant. However, it is clarified that no opinion
has been expressed about the desirability or otherwise of passing any fresh
order of detention. 1298-E; 299-D-E-FI

A.K. Roy v. Union of India, 1198211 SCC 271, followed.

E CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 746
of 1998.

From the Judgment and Order.dated 4.11.97 of the Bombay High Court
in Crl. W.P. No. 486 of 1997.

p Mukesh K. Giri, Manish Kumar Saran and Ravindra Keshavrao Adsure
for the Appellants.

Ashok Kumar Sharma for the Respondent.

The Judgment of the Court was delivered by
G
ARIJIT PASA Y AT, J. State of Maharashtra in this appeal questions
legality of the judgment rendered by a Division Bench of the Bombay High
Court quashing order of detention passed by the Commissioner of Police,
Mumbai in purported exercise of powers under· Section 3(2) of the Maharashtra
Prevention of Dangerous Activities (Bootleggers) Slumlords and Drug
H Offenders) Act, 1981 (in short 'the Act'). The High Court quashed the order
.-l_

STATE OF MAHARASHTRA v. R.R. MISHRA@ PANDEY [PASAYAT, .I] 297
.
-!-
only on the ground that there was violation of the prii1ciples of natural justice A
as well as the fundamental rights protected under Article 22(5) of the
Constitution of India, 1950 (in short 'the Constitution'). The order of detention
was passed on the ground that detention of respondent (hereinafter referred
to as the 'detenu') was necessary in order to prevent him from acting in any
manner prejudicial to the maintenance of public order. Order of detention
was passed on 20.2.1997. Along with detention order detenu was served with
B
grounds of detention and other relevant documents on 21.2.1997. Pursuant to
the said mittimus, the detenu was lodged in the Nasik Road, Central Prison.

' __}
The order of detention was challenged before the High Court on several
grounds. The major ground of challenge was that the detenu was not granted
opportunity of producing witnesses before the Advisory Board to prove his c
innocence, though a representation was made in this regard on 1.3.1997. The
Advisory Board approved the detention. The High Court was of the view that
it was not necessary to deal with the other aspects, and only on the ground
that the detenu was denied opportunity to produce witnesses quashed the
order of detention.
D
The High Cou1i was of the view that since there was no material to
show that Advisory Board had enquired from the detenu whether his witnesses
/'I were present, opportunity of examining witnesses when he was interviewed
by the Advisory Committee on 5th April, 1997, was denied.

Learned counsel for the appellant-State submitted that the approach of E
the High Court is clearly erroneous. The Secretary to the Advisory Committee
had filed an affidavit before the High Court which clearly stated as follows:

"The detenu did not produce any witness for examination and did not
state before the Advisory Board that he wanted to examine witnesses".
F
Learned counsel for the appellant submitted that the High Court has
overlooked the factual position and its conclusions are not :;upportable in
law. Learned counsel for the respondent-detenu submitted that after long
passage of time issues have become academic. In addition, the High Court
was justified in holding that the Advisory Board did not afford opportunity
G
to detenu to examine witnesses.

In order to appreciate rival submission it would be appropriate to refer
;(,
to a Constitution Bench decision in A. K Roy v. Union of India, [1982] 1 SCC
271, where it was observed as follows:
H

-
>·

298 SUPREME COURT REPORTS [2004] 3 S.C.R.

A "Tlie last of the three rights for which Shri. Jethmnlani contends it the +
right 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 provision denying to the detenu the right to present his own
evidence in rebuttal of the allegations made against him. The detenu
B may therefore offer oral and documentary evidence before the
Advisory Board in order to rebut the allegations which are made
against him. We would only like to add that if the detenu desires to
examine any witnesses, he shall have to keep them present at the L,
appointed time and no obligation can be cast on the advisory Board
c to summon them. 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 an obligation under
D Section I l [I] of the Act to submit its report to the appropriate
Governments 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."

(underlined for emphasis)
E
The position, therefore, is clear that detenu was free to produce the
witnesses before the Advisory Board in order to rebut the allegations levelled.
There was no obligation on the Advisory Board to summon witnesses and it
was for the detenu to keep his witness present at the appointed time. In the
p instant case specific affidavit of the Secretary which was noted by the High
Court, inter alia, stated as under:

"With reference to para 8(0 & K) of the petition, it is stated that
the detenu Shri Ramchandra Rammi/an @ Pandey was informed by
the Advisory Board; through the Superintendent, Nasik Road Central
G Prison, Nasik to make representation to the Chairman, Advisory Board,
M.P.D.A. 1981 and for taking assistance of his friend who is not a
legal practitioner or examine witnesses and keep him/them present at
the time of his interview before the Advisory Board.

The said detenu has submitted two representations dated the I st
H March, 1997 and 21st March, 1997 through the Superintendent, Nasik

-
STATE OF MAHARASHTRA 1•. R.R. MISHRA@PANDEY [PASAYAT, .I] 299
Road Central Prison, Nasik. Both the representations were duly A
considered by the Advisory Board. He was heard against the detention
order. The detenu did not produce any witness for examination and
did not state before the Advisory Board that he wanted to examine
witnesses".

(underlined for emphasis) B
The undisputed position, therefore, is that the detenu did not produce
any witness for examination and even did not state before the Advisory
Board that he wanted to examine the witness or that the witness was present.
The High Court seems to have proceeded on the basis.that once a representation
is made indicating the desire to examine witness, there was no necessity for C
any oral prayer. That may be so. But as noticed in A.K. Roy's case (supra),
it was for the detenu to keep his witness ready for e>.amination. The specific
statement of the Secretary to the Advisory Board on affidavit is that detenu
did not produce any witness for examination. It was not for the Advisory
Board to summon any witness. When the detenu did not produce any witness D
for examination, there was no necessity for the Advisory Board to require the
detenu to produce witnesses. The approach of the High Court which proceeded
.x on the basis as if there was such an obligation on the Advisory Board,
therefor~, is not right. That apart the Court had nothing concrete before it to
surmise that any witness was present, and the failure on the part of the
Advisory Board'to verify about the same constituted denial of an opportunity. E
We set aside the judgment of the High Court.

Since the detenu has been released pursuant to the judgment of the
High Court, it shall be open to the appellants or any competent authority to
pass fresh order of detention if the circumstances so warrant. We make it F
clear that we have not expressed any opinion about the desirability or otherwise
of passing any fresh order of detention. The appeal is allowed to the extent
indicated.

S.K.S. Appeal partly allowed.