HARBANS LAL Vs. M L WADHWAN

JUDGEMENT

(1.) This criminal writ is directed against the order of detention dated 31.3.1986 passed by Shri M. L. Wadhawan, Additional Secretary to the Government of India specially empowered under section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities (COFEPOSA) Act, 1974 (As Amended) who felt satisfied about the passing of the same with respect to am Prakash Sb. Harbans Lal rIo 5/23, West Patel Nagar, New Delhi (hereinafter to be referred to as the detenuTT) with a view to preventing him from smuggling goods, engaging in keeping smuggled goods and dealing in smuggled goods otherwise than by engaging in transporting and concealing smuggled goods and who further ordered that the detenu be detained and kept in custody in Central Jail Tihar, New Delhi. The petitioner Harbans Lal is the father of the detenu.

(2.) The allegations, as per the grounds of detention, are that a specific information was received from Deputy Commissioner of Police, South by the Directorate of Revenue Intelligence on 19.3.1986 that large quantities of contraband goods were in possession of the detenu reportedly owner of New Lahore Dairy at Shadipur Main Bazar and that the Contraband goods had been hidden in his premises No. 5/23, West Patel Nagar, New Delhi-Consequently, officers of Directorate of Revenue Intelligence conducted search of detenus house No. 5/23, West Patel Nagar (ist Floor) New Delhi in the early hours of 20.3.1986 and as a result of the search wrist watches, watch movements, watch parts, foreign liquor and other goods of the total value of Rs. 21,86,330/- were recovered from the aforesaid house and the same were seized under a panchnama dated 20.3.1986. The detenu had made a number of trips to Hong Kong between 10.12.1985 and 19.3.1986 when he is alleged to have brought the seized articles. He was arrested on 20.3.1986. He was, however, granted bail by Shri V. B. Bansal, Additional Sessions Judge, New Delhi vide his order dated 29.3.1986.

(3.) The learned counsel for the petitioner pointed out that five witnesses were kept present by the detenu on 29.4.1986 which was the date of hearing before the Advisory Board and the detenus legal adviser intimated the presence of those witnesses to the Advisory Board and by the testimony of these witnesses the detenu wanted to prove that the premises No. 5/23 West Patel Nagar, New Delhi in which the alleged contraband was found were not the premises ill possession of the detenu who, in fact, lived at some other place, viz., House No. 2671, Shadipur Main Bazar, New Delhi and further that a false confession had been extorted from him by the use of third degree methods. It was further pointed out by the learned counsel that the Advisory Board told the counsel of the detenu that it would not examine those witnesses and instead suggested that their affidavits should be filed. On these allegations it was urged that the detenu, thus, lost an opportunity of examining his witnesses in defence whereas he was within his right to have those witnesses examined and that the Advisory Board violated his constitutional right as declared by the Supreme Court in A. K. Roy v. Union of India, which is set out below: The last of the three rights for which Shri Jethmalani contends is 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 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 appointed time and no obligation can be cast on the Advisory Board, 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 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. It was further pointed out that the detenu being in custody could not personally do anything in the matter of securing the affidavits of his witnesses and in fact even the detenuTs legal advisers did their best to secure their affidavits but for some reasons did not succeed and so when the Advisory Board resumed hearing on 1.5.1986, the said witnesses were brought again and written application was made to the Board to examine them but the Board, inspite of that written application, chose not to examine, those witnesses, and thereby the detenu, constitutional right of examining his witnesses in defence having been violated, his continued detention was rendered illegal. On the other hand, the counter-affidavit deposed to by Shri A.K. Agnihotri, Under Secretary, Ministry of Finance, Govt. of India, New Delhi and filed by the respondents goes to show that the Advisory Board directed the detenu that he may file first their affidavits for which he took an adjournment for 1.5.1986 on which date the counsel for detenu submitted that the witnesses were not prepared to file the affidavits and as the witnesses were not willing to file the affidavits the Board did not think it proper to adjourn the case for recording oral evidence. Admittedly as these witnesses were not required under the law to be subjected to cross-examination, the Advisory Board was right in suggesting to the learned counsel for the detenu to file the affidavits of those witnesses. Whatever those witnesses were to depose before the Advisory Board the same could have deposed to by them in the affidavits and that could have saved the hard-pressed time of the Advisory Board. The detenu could not gain anything further by producing the witnesses before the Advisory Board for their statements. Even though the detenu was in custody, his father Harbans Lal petitioner could 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 further contention of the learned counsel for the petitioner that evidence in the shape of affidavit which arc 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 my create much more favourable impression by deposing before the Advisory Board than by reducing their testimony in the form of affidavits, hardly deserves any worthwhile consideration. 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 before the Advisory Board is a factor quite farfetched. As already pointed out above cross examination of these witnesses is not permissible under the law. For these reasons it cannot be said that the detenu was deprived of his right of defence before the Advisory Board.