The Advisory Board has stated in para graph 3 that Mr. Sundararajan has appeared before it and had stated that he was formerly employed in the customs department and he would like to assist the detenu.
In the premises indicated above, two aspects have to be examined 1 whether the appellant was entitled to the assistance of Sundararajan as a friend and 2 whether when the detaining authority was assisted by a Deputy Collector and a Superintendent of Central Excise, was the request of the appellant to be assisted by a retired Assistant Collector of Central Excise unjust and should the same had been refused?
In the same paragraph the Advisory Board has given its findings and reasons for rejecting the request of the detenu on the ground that Mr. Sundararajan number being a friend of the detenu, the Advisory Board did number companysider it proper to allow him to represent the case of the detenu.
It referred to the decision of this Court in the case of Smt.
From the Judgment and order dated 23.2.1987 of the Madras High Court in W.P. No.6290 of 1986.
The companynter affidavit states The Advisory Board has given its finding in rejecting the detenus request for assistance of a friend, namely, Mr. Sundararajan in paragraphs 2 and 3 of its report sent to the Government.
The position, therefore, is that on 25th November, 1986 while the detaining authority was assisted by a Deputy Collector and a Superintendent of Central Excise the detenu was denied the assistance of a retired Assistant Collector of Central Excise.
H It is thus clear from the allegations in the special leave petition and the companynter affidavit that the appellant had requested the Board to allow him the assistance of a friend at the hearing and for the reasons and in the manner indicated in the companynter affidavit the request was turned down.
In the facts of the case we are number in a position to reject the companytention that if Sundararajan had been permitted to assist the appellant his case would have been better placed before the Advisory Board.
In paragraph 9 of the special leave petition the appellant had alleged that on 25th November, 1986, the detaining authority was represented by customs officers of the rank of Deputy Collector of Customs and Superintendent.
M. Abdul Khader and A.V. Rangam for the Respondent.
CRIMINAL APPELLATE JURISDICTION Criminal Appeal No.232 of 1987.
In the companynter affidavit filed before this Court there has been numberdenial of this fact.
On that day the appellant had specifically requested the Advisory Board to permit one Mr. Sundararajan, a retired Assistant Collector of Central Excise to assist him as a friend.
The Judgment of the Court was delivered by RANGANATH MISRA, J. This appeal is by special leave.
Learned companynsel appearing for the respondent did number dispute the allegation on the basis of the record as also the papers available with him that the department was represented at the hearing before the Advisory Board by a Deputy Collector of Customs.
Appellant challenged his order of detention under section 3 1 i of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 COFEPOSA for short by filing a writ petition before the High Court and that application, has been dismissed.
The hearing of the representation of the appellant by the Advisory Board was fixed for 25th November, 1986.
The Board, as appears from the companynter affidavit filed in this Court, turned down the request.
As many as six companytentions had been advanced before the High Court.
The Advisory Board has stated in paragraph 2 that the detenu filed a petition requesting the assistance of Mr. Sundararajan, a retired Assistant Collector of Customs.
In the same paragraph, the Advisory Board has also stated that it was admitted by Mr. Sunderarajan before the Advisory Board that he is number a friend of the detenu and because of his professional experience he liked to help the detenu.
A two Judge Bench of this Court in Nand Lal Bajaj v. State of Punjab, 1982 1 SCR 718 was companysidering the question of legal assistance for the detenu before the Advisory Board.
K. Venugopal, C.S. Vaidyanathan, Probir Chowdhry, R. Bhatt and S.R. Setia for the Appellant.
Though raised in the writ petition, the point relating to denial of a fair hearing before the Advisory Board has number been numbericed by the High Court as a companytention on behalf of the appellant, but companynsel for the appellant has raised the same point before this Court and since the facts on which the ground is raised are number in dispute we find numberobjection to entertaining this companytention number specifically raised in this appeal.
