Buvaneswari vs State of Tamil Nadu

M. Chockalingam, J.—This petition challenges an order of the second respondent made in No. 02/BDFGISSV/2010 dated 29.01.2010,

whereby the son of the petitioner by name Krishnakumar was ordered to be detained under Act 14/82 branding him as a Goonda.

The Court heard the learned Counsel for the petitioner and also looked into all the materials available including the order under challenge.

It is not in controversy that pursuant to the recommendation made by the sponsoring authority that the detenu was involved in three adverse

cases namely (i) C3 SS Colony PS Cr. No. 1767/2009 under Sections 387 and 506(ii) IPC; (ii) D2 Sellur PS Cr. No. 3331/2009 under Sections

147, 148, 323, 307 and 506(ii) IPC and (iii) D1 Thallakulam PS Cr. No. 3182/2009 under Sections 387 and 506(ii) IPC, and in one ground case

registered by D2 Sellur PS in Crime No. 3342/2009 under Sections 395 read with 397, 506(ii) IPC and 25(1) of Arms Act & 3, 4(b) of the

Explosive Substances Act 1908, the detaining authority after scrutiny of all the materials available, recorded its subjective satisfaction that the

activities of the detenu were prejudicial to the maintenance of the public order and hence made the order under challenge.

Advancing arguments on behalf of the petitioner, the learned Counsel would inter alia urge two grounds as primary grounds by which he made

his sincere attempt of attacking the order. According to the Counsel, he was involved in three adverse cases and one ground case; but he has not

made any bail application in any one of the cases in question, and the detaining authority after observing so, has stated that there was a real

possibility of the detenu coming out on bail, and this was without any material, much less cogent material which the law would require.

Added further the learned Counsel that the petitioner has made a post-detention representation on 15.2.2010, to the Advisory Board to have

the legal assistance; that the Advisory Board though received on 19.2.2010, instead of considering the representation made, sent the matter to the

Government before affirming the order by the State; and that the non-consideration of the representation by the Advisory Board would also be

fatal to the order in question.

In order to fortify the contention, the learned Counsel relied on a decision of the Division Bench of this Court reported in (2009) 4 MLJ 443

(Sugumath Kanish v. State of T.N. and Ors.).

The Court heard the learned Additional Public Prosecutor on the above contentions. According to him, it is true that no bail application was filed

by him before any Court of criminal law; but, at the same time, the sponsoring authority has recorded the statement of an Auto Driver namely

Kannan, from which it was found that the brother of the detenu was going to the Court for the purpose of moving bail, and under the

circumstances, it cannot be stated that there was no material, and there was specific material which was placed by the sponsoring authority and

was acted upon by the detaining authority, and under the circumstances, the first ground has got to be rejected.

As far as the second ground is concerned, the learned Additional Public Prosecutor would submit that the legal assistance cannot be claimed as

a matter of right, and hence both the grounds have got to be rejected, and the petition be dismissed.

As could be seen from the available materials, the sponsoring authority placed its recommendation on the strength of three adverse cases and

one ground case as referred to above. It is pertinent to point out that in all the cases he has not moved bail before any Court of criminal law. While

the fact stood admitted, the detaining authority in paragraph 5 of the order under challenge has stated as follows:

I am aware that Tr.Krishnakumar, S/o. Pitchai Servai, is now in remand in the ground case in D2 Sellur P.S. Cr. No. 3342/2009 and also in the

adverse cases in C.3 SS Colony P.S. Cr. No. 1767/2009; D.2 Sellur P.S. Cr. No. 3331/2009 and D.1 Tallakulam P.S. Cr. No. 3182/2009 and

lodged at the Central Prison, Madurai; and that he has not filed bail application in any of the adverse cases and the ground case before any Court.

However I am aware through the statement of Tr. Kannan, s/o Alagar, Periyar Street, Nandavanam, Sellur, Madurai that Tr. Krishnakumar S/o

Pitchai Servai is making efforts to file bail applications in the cases in which he is in remand, before the court. Hence I am also aware that there is a

possibility of his coming out on bail by filing bail application in the said ground case and adverse cases, since in similar cases bail is granted by the

concerned Court or Higher Court.

The very reading of the above would indicate that though the authority has got the clear knowledge that no bail application was filed in any one

of the above mentioned four cases, he has stated that there was a real possibility of the detenu coming out on bail. Now, the contention put forth

by the learned Additional Public Prosecutor is that the sponsoring authority recorded a statement from one Kannan, an auto driver, by whom it

was informed that the brother of the detenu has given a statement that he was going to the Court to take the detenu on bail. This Court is of the

considered opinion that this cannot be a material, much less cogent material. It is only a bald statement by an auto driver. What he has stated is that

the brother of the detenu informed him that he was going to the Court for taking out the detenu on bail. There is no reference or anything to infer

that even the brother of the detenu went to the Court to take him out on bail in any one of the four cases. Under the circumstances, it cannot be

considered to be a cogent material. Hence the contention put forth by the State has got to be rejected.

Equally, it is an admitted position that a post-detention representation was made by the petitioner to the Advisory Board to have the legal

assistance. It is true that it was received on 19.2.2010. But the learned Additional Public Prosecutor for the State would represent that it cannot be

made as of right. It is true that it is not a matter of right. It is settled proposition of law that it was not a matter of right; but, when a representation is

made to that effect, a duty is cast upon the Advisory Board to consider the same and pass suitable orders thereon. On one occasion, it was

considered by the Division Bench of this Court in a case reported in (2009) 4 MLJ 443 (Sugumath Kanish v. State of T.N. and Ors.) and held as

follows:

Added circumstances, it is brought to the notice of the Court that after passing the detention order dated 6.11.2008 and after constitution of the

Advisory Board, the detenu was directed to appear before the Advisory Board on 7.1.2009. Accordingly, he appeared and sought for permission

to engage a counsel to represent him. It is not in dispute that such a representation was actually made before the Advisory Board. On perusal of

the order made by the Advisory Board, nowhere it is indicated that such a representation was considered. The question whether the detenu has

got a right to have the assistance of a lawyer before the Advisory Board came up for consideration before the Apex Court on number of

occasions. On one occasion, the Supreme Court in Smt. Kavita Devidasani Vs. State of Maharashtra and Others, has held as follows:

Though a detenu has no right u/s 8(e) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 to appear

through a legal practitioner in the proceedings before the Advisory Board, he is entitled to make a representation for the services of a lawyer to

appear before the said Board which is under obligation to consider the same dispassionately in the facts of a particular case. The representation

made by a detenu for legal assistance before the Advisory Board, has to be considered not perfunctorily but with due application of mind, since in

each case of detention, the liberty of an individual is involved.

It would be quite clear that from the very reading of the decision that the detenu is not vested with any right under the provisions of COFEPOSA

Act to appear through his counsel in proceeding before the Advisory Board. But, he is entitled to make a representation for the service of a lawyer

to appear before the Board and the Board is also under obligation to consider the same. In the instant case, though the representation was made

before the Board to take assistance of a legal practitioner, nothing is found indicating whether such a representation was considered by the Board

at all. Under such circumstances, the decision of the Apex Court, if applied, would also make the order under challenge defective.

This Court is unable to see any reason to deviate from the earlier decision taken by the Court. Once the submission of a representation seeking

legal assistance, to the Advisory Board, is an admitted fact, the Advisory Board should have considered the same and passed orders, but failed to

do so. Hence both the grounds have got to be applied in favour of the detenu.

Accordingly, this habeas corpus petition is allowed setting aside the order of the second respondent. The detenu is directed to be set at liberty

forthwith unless his presence is required in connection with any other case.