HARBANS LAL Vs. M L WADHAWAN

JUDGEMENT

(1.) The Special Leave Petition is directed against the judgment dated 26-8-1986 of a single Judge of the Delhi High Court in Criminal Writ No. 170/86 filed by Shri Harbans Lal father of the detenu Om Prakash. The Writ Petition is also by the same person. Both these matters are being disposed of by this common judgment. Special Leave granted.

(2.) The cases relate to the detention of Shri Om Prakash under S. 3(l) of the COFEPOSA Act. An order of detention was passed against him on 31st March, 1986 by the Additional Secretary to the Government of India, Ministry of Finance, Department of Revenue - the respondent No. 1 herein. The detenu was served with the grounds of detention on the same date. The case against the detenu is that he was in possession of a large quantity of contraband goods hidden in his premises - No. 5/23, West Patel Nagar, New Delhi. These premises were searched by the officers of the Directorate of Revenue Intelligence in the early hours of 20-3-1986, as a result of which foreign goods worth Rupees twenty one 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 10-12-1985 and 19-3-1986.

(3.) 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 Board. These 5 witnesses were present when the matter was to be heard by the Advisory Board on 29th April, 1986. This fact was made known to the Advisory Board. The Board intimated the detenu's legal Adviser that it would not examine the said witnesses but would instead permit the detenu to produce their affidavits. Thus an opportunity was lost to him that day to examine the witnesses in rebuttal. It is the detenu's case that despite best efforts by his legal Adviser it was not possible to secure the affidavits of the witnesses. The said witnesses were therefore brought again on the 1st 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 on 1-5-1986 and without making any request for an adjournment. The Advisory Board declined this request. The High Court considered this aspect of the case and justified the rejection of this request on the plea that the detenu could not waste the time of the Advisory Board by asking 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.