DHANAKODI AMMAL Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) IN this writ petition, one Dhanakodi Ammal prays for the issue of a writ of habeas corpus to secure the liberty of her son one Parirajan, who is detained under S. 3(1)(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, which will hereinafter be referred to as COFEPOSA if occasion arises therefor. This writ petition has the support of an affidavit filed by one K. An-barasu, who is stated to be the brother-in-law of the detenu. We do not propose to delineate and dwell upon the facts and circumstances which led to the detention of the detenu under COFEPOSA for Mr. B. Kumar, learned counsel for the petitioner, has successfully advanced before us a contention which is based upon a post-detention factor. The order of detention is dt. 22-10-1982. The grounds of detention were served on the detenu. According to the detenu, he was informed on 27-11-1982 that the Advisory Board will afford him a personal hearing on 2-12-1982. The detenu, on the same day, namely, 27-11-1982, sent a petition to the Chief Secretary to the Government of Tamil Nadu, seeking permission to have the assistance of a legal practitioner or if that is not possible, to permit him to have a friendly assistance at the time of the personal hearing before the Advisory Board. The said petition was sent to the Advisory Board by the Government along with a letter dt. 29-11-1982 and it was received by the Advisory Board on 30-11-1982 with a request that the decision of the Advisory Board on the representation of the detenu may be intimated to the detenu. Since the detenu had been asked to appear before the Advisory Board on 2-12-1982, the Advisory Board met on 2-12-1982 and considered the detenu's petition before his case was taken up for personal hearing and the detenu was also heard on his request. The detenu's request for legal and friendly assistance was rejected by the Advisory Board and the same was communicated to the detenu by a letter dt. 6-12-1982 through the Joint Secretary, Public (Law & Order-D) Department, Government of Tamil Nadu.

(2.) THE decision of the Advisory Board on the request of the detenu for legal aid or in the alternative, for friendly assistance needs extraction and it runs as follows :

(3.) THE point made by Mr. B. Kumar, learned counsel for the petitioner, is that though there may be a reservation with reference to the request of the detenu for legal assistance and the detenu cannot, as of right, insist for being represented before the Advisory Board by a legal practitioner, when the detenu asked for the aid of a friend, the Advisory Board must grant the facility and if there is a failure to do so, the order of detention thereafter would become illegal and the same will have to be quashed. This proposition which the learned counsel advances has the support of the decisions of the highest Court in the land.