# ' :;J ,.,. "' ij ;f;: DEVJI VALLABHBHAI TANDEL ETC v. THE ADMINJSTRATOR OF GOA, DAMAN & DIU & ANR

- **Citation:** [1982] 3 S.C.R. 553
- **Court:** Supreme Court of India
- **Decided:** 1982-03-29
- **Bench:** D.A. Desai, A.P. Sen, BAHARUL lsLAM
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/j-ij-f-devji-vallabhbhai-tandel-etc-v-the-adminjstrator-of-goa-daman-diu-anr-8345
- **Pages:** 30

## Headnote

553
Conservation of Foreign Exchange and Prevention of Smuggling Activities
Act-Section 3-Detention order passed by Administrator of Goa-Administrator,
if coTnpetent to pas1 Juch order.
Detenu-W/tetMr .haJ a right to be represent~d by a legal practitioner, or
· friend or agent IMfore the Advisory Board.
'Union Territories Act, 1963-Sectlon 46(2)-Scope o~Administrator
WhetMr bound by the advice of Council of Ministers.
Iri thejr petitions under Article 32 of the Con,stitutioo the three petitioners,
who were detained under sectii:>n 3 of the Conservation of Foreign Exchange and
Prevention of Smugglin's: Activities Act, 1974, contended that in the mattir of
discharge of executive •functions conferred upon him, the Administrator of the
Union Territory of Goa, Daman -and Diu who passed the impugned oi'ders, is in
the same pqsition as a Governor of a State of the President who must act on the
iid and advice of the Council of Ministers and,that in theinstant'case the orders
of detention having been passed by the Administrator himself instead of by the
Chief Minister io the name pf the Ad.;,iolstrator, were invalid.
Dismissing the petitions,
HELD : I, (a) Although section 46(2) of the Union Territories Act, 1963
provides that aU executive action of the AdministratOr, Whet,her tak~n on the
advice of his Ministers or otherwise shall be expressed to be taken in the na•11e
of the Administrator, the Administrator is not pureiy a constitutional functionary
who is bound to act on the advice of the Council of Miqisters and could not act
on his own. The language of Arts.· 74 and 163 on the one hand and the language
of section 44 of the Union Territories Act 1963 on the other shows that the
Administrator is siffiilarly situated with. thC Governor but not with the President
when he is to act in his discretio:i;i unde( the Act. While exercising judicial or
0quasi judicial functions, the Administrator has to act on hi!i own unaided by. the
Council of Ministers like the President who, while exercising power conferred.by
Article 217(3), disl'harl!OS a juqiciat [unction 11!\q is not required t.o act oq IQ<;
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SUPREME COURT !lEPOR'rS
(1982) 3 S.C.R.
advice of the Council of Ministers. But there the analogy ends. The Administrator, even in matters where he is not required to act in his diseretion u~der the
Act or where he is. not exercising any judicial or quasi-judicial functions, is not
bound to act according to the advice of the Council. of Ministers. In the event
of difference between him and his Ministers, ~he Administrator under the proviso
to section 44(1) of the Act, is required to refer the matter to the President for
decision and act according to that decision. Therefore in such a situation the
rigb,t to give a decision on the difference of opinion between the two vests in the
Union Government and the Council of Ministers of the Union Territory is
bound by the view of the Union Government. There are also powers in the
Administrator to act in derogation of the advice of the Council of Ministets.
'
[560 C-D, 561 A-HJ
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(b) The proviso to section 44(1) of the Act a1so envisages that when a
,--~
difference of opinion between him and the Council of Ministers is referred to the
rPfesident, if the Administrator considers the matter urgent and necessary to take
immediate action during the interregnu~, he can completely override the advice
of the Council of-Ministers and act according to his own lights which power
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neither the Governor nor the President enjoys. [562 A-Cl
Shamsher Singh & Anr. v. State of Punjab, [1976] l SCR 814 held inapplicable.
2 .. The grievance that the detaining authority had no material from
which to infer that the petitioners Were engaged in smuggling activities is not
borne out by the material ,_on rCcord·. Copies of recorded statements and ct.her
relevant documents had been taken into-consideration by the deJaining a~thority.
These copies were supplied to the detenu. [56

## Text

_Characters 0–39,959 of 65,674. This is a partial read: ask again with offset=39959 for what follows._

'
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,.,.
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;f;:
DEVJI VALLABHBHAI TANDEL ETC.
v.
THE ADMINJSTRATOR OF GOA, DAMAN &
DIU & ANR.,
March 29, 1982
[D.A. DESAI, A.P. SEN AND BAHARUL lsLAM, JJ.J
553
Conservation of Foreign Exchange and Prevention of Smuggling Activities
Act-Section 3-Detention order passed by Administrator of Goa-Administrator,
if coTnpetent to pas1 Juch order.
Detenu-W/tetMr .haJ a right to be represent~d by a legal practitioner, or
· friend or agent IMfore the Advisory Board.
'Union Territories Act, 1963-Sectlon 46(2)-Scope o~Administrator
WhetMr bound by the advice of Council of Ministers.
Iri thejr petitions under Article 32 of the Con,stitutioo the three petitioners,
who were detained under sectii:>n 3 of the Conservation of Foreign Exchange and
Prevention of Smugglin's: Activities Act, 1974, contended that in the mattir of
discharge of executive •functions conferred upon him, the Administrator of the
Union Territory of Goa, Daman -and Diu who passed the impugned oi'ders, is in
the same pqsition as a Governor of a State of the President who must act on the
iid and advice of the Council of Ministers and,that in theinstant'case the orders
of detention having been passed by the Administrator himself instead of by the
Chief Minister io the name pf the Ad.;,iolstrator, were invalid.
Dismissing the petitions,
HELD : I, (a) Although section 46(2) of the Union Territories Act, 1963
provides that aU executive action of the AdministratOr, Whet,her tak~n on the
advice of his Ministers or otherwise shall be expressed to be taken in the na•11e
of the Administrator, the Administrator is not pureiy a constitutional functionary
who is bound to act on the advice of the Council of Miqisters and could not act
on his own. The language of Arts.· 74 and 163 on the one hand and the language
of section 44 of the Union Territories Act 1963 on the other shows that the
Administrator is siffiilarly situated with. thC Governor but not with the President
when he is to act in his discretio:i;i unde( the Act. While exercising judicial or
0quasi judicial functions, the Administrator has to act on hi!i own unaided by. the
Council of Ministers like the President who, while exercising power conferred.by
Article 217(3), disl'harl!OS a juqiciat [unction 11!\q is not required t.o act oq IQ<;
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SUPREME COURT !lEPOR'rS
(1982) 3 S.C.R.
advice of the Council of Ministers. But there the analogy ends. The Administrator, even in matters where he is not required to act in his diseretion u~der the
Act or where he is. not exercising any judicial or quasi-judicial functions, is not
bound to act according to the advice of the Council. of Ministers. In the event
of difference between him and his Ministers, ~he Administrator under the proviso
to section 44(1) of the Act, is required to refer the matter to the President for
decision and act according to that decision. Therefore in such a situation the
rigb,t to give a decision on the difference of opinion between the two vests in the
Union Government and the Council of Ministers of the Union Territory is
bound by the view of the Union Government. There are also powers in the
Administrator to act in derogation of the advice of the Council of Ministets.
'
[560 C-D, 561 A-HJ
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(b) The proviso to section 44(1) of the Act a1so envisages that when a
,--~
difference of opinion between him and the Council of Ministers is referred to the
rPfesident, if the Administrator considers the matter urgent and necessary to take
immediate action during the interregnu~, he can completely override the advice
of the Council of-Ministers and act according to his own lights which power
..J.-._
neither the Governor nor the President enjoys. [562 A-Cl
Shamsher Singh & Anr. v. State of Punjab, [1976] l SCR 814 held inapplicable.
2 .. The grievance that the detaining authority had no material from
which to infer that the petitioners Were engaged in smuggling activities is not
borne out by the material ,_on rCcord·. Copies of recorded statements and ct.her
relevant documents had been taken into-consideration by the deJaining a~thority.
These copies were supplied to the detenu. [563 A-Bl
3. It cannot be said that there was. any violation of Article 22(5) of the
Constitution or that the detenu was in any way handicapped in submitting his
representation. A Gujarati translation of the grounds of detention was supplied
to the detenu. The order of detention was a formal recital OfsectiOn 3(1) of the
COFEPOSA Act showing the provision of law under which the order of deten·
lion had been made. Although the section of the COFEPOSA Act bas not been
mentioned, the grounds of detention were sufficiently clear to bring horn~ to the
detenu that he was engaged in smuggling activities. ,[565 F, C-E]
, ___ __,/..
The State of Bombay v. Atma Ram Sridhar Vaidya, [1951] 2 SCR 167,
held inapplicable.
4. (a) Clause (e) of <ection 8 of the ·COFEPOSA Act in express terms
disentitles a detenu to appeaJ through a legal practitioner in any matter connec~
ted with the reference to-the Advisory Board. It is now well settled that the right
t6 consult and be defended by a legal practitioner of one's choice conferred by a
Article 22(1) is denied by clause 3(b) to a person who is detained under any law
providing for preventive detention. According to the express intendment of the
Constitution itself no person who is detained under any law which provides for
preventive ~etentio~ c~p ~l•i!D ti>• ri¥ht to consult a legal practitionef of hi&
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o.v. TANDEL v .• ADMINISTRATOR (Baharul Islam, 'Jo)
555
choice or be defended by him. Therefore it cannot be said that a detenu has the
right of being represented by a legal practitioner in the proceedings before the
Advisory Board. [570 F]
(b) The embargo on the appearance of legal ·practitioner does not apply
A
to a friend who in truth and substance is not a legal practitioner; but if such a ·
B
friend also happens to be a
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legal practitioner he cannot as of right appear before
the Advisory Board on behalf of the detenu. [574 Fl
(c) So is the case with reference to agents. If an agent is in troth and
substance ·an agent, the detenu maY appear through him; but if the agent is a
legal practitioner, appearance by him as of right would be barred. A friend or an
agent of the detenu who, is essentially a c'omrade in the .Profession of the detenu
for which he is detained. su~h a friend or agent would also be barred from appea.
ranee on behalf of the detenu. Although a person may have a common law right
to appoint an agent there is no obJigatioD On the other side to deal with the
agent. The other si~e hits an equal right to refuse to deal with ari agent.
·
(574 G-H, 575 A]
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In the instant case the sender of the telegram stated in. clear terms that he
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was an advocate and was representing the detenu. He had not stated that he
wa~ a f~iend or agent Of the detenu and therefore the Administrator was justified
in refusing permission to ~he advocate to assist the detenu. [575 C·E]
5. A persop detained under a Jaw providing for preventive detention ·
cannot claim as a matter of constitutional right to consult and be defended by
a lawyer of his choice; nor can tie insist upon being ptoduced before a Magistrate
within 24 hours or Jiis arrest. This is evident from A.rticle 22 (3) (b) which provides that nothing in clauses (I) and (2) of this Article shall apply to any person
who is arrested or detained under any law providing for preventive dete1;1tion.
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6. It is implicit in Articles 22(5) that the representation has to be a
written representation communicated throllgh the jail authorities or through
any other mode which the detenu thinks. fit of adopting. But the detaining au tho·
rity is under no obligation to grant any oral hearing at the time of considering
the representation. If the representation has to .be a written representation, there
is no question ofhearing_anyone much less-a lawyer. Therefore; the Administra·
tor's r~fusal to hear the advocate of the detenu while" considering the representa·
tion would not be deniaJ of the common Jaw right of the detenu to be represented
by an agent. [577 A-CJ
Francis Coralie Mullin v. The AdNJfnislrator, Union Territory of D,el/ii
Ors .. (1981] 2 SCR 516, held inapplicable,
ORIGINAL JURISDICTION : 'Writ Petition (CRL ) Nos. 8070 of
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19s1, z3 1111\i 79 or 19s2.
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(Under Article 32 of the Constitution)
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Ram Jethmalani and Miss Rani Jethmalani for the Petitioners.
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Eduardo Falireo and Miss A. Subhashini for the Respondents.
The Judgment of the Court was deliv.ered by
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BARARUL l!LAM, J. These three .writ petitions under Article
32 of the Constitution of India involve~ common questions of facts
and law. This common order of ours, therefore, will dispose of all
of them. It will be sufficient .jf we refer to the facts only of Writ
Petition No. 8070 .of 1~81. This petition is directed against the
order dated !Ith September, 1981 made under Section 3 of the
Conservation of Foreign Exchange a·nd Prevention of Smuggling
Activities Act, 1974 (the COFEPOSA) by the Administrator of Goa,
Daman and Diu (hereinafter 'the Administrator'), detaining .the
petitioner "with a view to pre\'.enting him from smuggling goods".
2.
The material facts in a nutshell as alleged in the grounds
of detention in Writ Petition No. 8070 of 1981 are that the peti-
. tioner along with Lallu Govan Tande! alias Lallu Malbari, Narsingh
Vallabhbhai Tande! (the petitioners in the ot-her two writ petitions)
and Narsinghbhai Daulabhbhai (detenu since released) indulged in
smuggling of foreign goods such as fabrics, speakers, cassettes,
video cassettes, wrist watches, refrigerators, silver, etc. The goods
in 36'packages were .recovered from House No. 12/134 of Daman
Municipal Area. These goods were kept there by two persons,
namely; Tulsibhai -Ranchhodhbhai Tande! and Mangalbhai Bh~Ia:
bbai Tande! engaged by the aforesaid four detenus for lifting the
said 36 packages from a vessel grounded in sea off Ghati SUeri;
Nani Daman.
The contraband goods
recovered were worth
Rs.5,30,281.50. The aforesaid Tulsidas ITT!~ Mangalbhai made certain
statements on 2nd July, 1981 implicating the aforesaid four persons
including the pedtioner.
Wh~n the Customs squad was keeping a
watch on Nani Daman coast, a vessel was found in the sea and goods
were being unloaded.
fo the process Tulsibhai Ranchhodhbhai and
· Manga!bhai Bhulabhai were accosted and each had a package with
him and on being led by them ihe customs squad reached the house
bearing.municipal No. 12/134. On being questioned, the aforementioned two labourers Tulsibhai and Mangalbhai stated that. they
were engaged as laboure.rs for tran$porting packages of contraband
goods from a vessel grounded in sea on Ghatisheri to the said house·
bearin(l No. 12/ 134. -Tulsi\>hai iind 1'4ang11l!J!iai, in the course of
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b.\r. TANDEL V, ADMINISTRATOR (Baharu' fs/am, J,)
551
interrogation, admitted· that they .were engaged by detenu Devji
Vallabhbhai Tande! and Lallu Govan for unloading the packages
containing contraband goods.
3. The impugned order of detention datei! 11th September,
1981 (Annexure 'A,') together with the grounds of detention
(Annexure 'B') were served cin the petitioner on June 30,1981, which
was,the date of apprehension.
4.
The first submission of Mr. Ram Jethmalani, ·learned
counsel for the petitioner, is that under the Government of Union
Territories Act, 1963, (hereinafter the Act), the order of detention
can be made only by the Chief Minister and in the name of the
Administrator and not by the Administrator, though it can be made
in the name of the Administrator. In the instant case, the order of
detention was made, and the representation dated 10th October,
1981 of the petitioner was disposed of, by the Administrator, which
it is submitted, is not permissible in law.
'
The argument sought to be made seems to be that the status
· of the Administrator is s.imilar to that of the Governor of a State
and as such· the Administrator had to act with the aid and advice of
the. Council of Ministers. ·Admittedly, there is an elected Assembly
with a Council of Ministers in the Union Territory of Goa, Daman
and Diu .. Therefore, the argument. proceeds, the Administrator on
his own cannot make an order of detention. The order can be made
by the Chief Minister or any oiher persorl authorised under section
3 of the COFEPOSA in the tiame of the Administrator.
·
On the other hand in paragraph 7 of the qounter~affidavit, it
has been stated by the respondent, "that the respondent has full
authority to make the. order of detention under· COFEPOSA in
exercise of the powers conferred under the statute. In case of the
Union Territories the power of detention 1s specifically conferred on
the Administrator by virtue.of the definition of the "State Government" under Section 2 (fl of the COFEPOSA Act, 1974 and as such
the Administrator as the detaining authority, has to form his own
opinion and is not bound to act on the aid and advice of his Council
of Ministers .......... Even, then the Administ~ator has 'considered
the advice of the Chief Minister, who is' the Minister in-charge of
the department dealing with COFEPOSA matters".
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5. Mr. Eduardo Faleiro, learned counsel appearing for
Respondent No. 1 (the Administrator) has placed the entire records
before us. On a perusal of the relevant papers, we find that the
matter was routed through the Chief Minister. who considered the
case and sent it to the Aaministrator, wjJ.o thereafter, passed the
order of detention.
There is thus a substantial compliance of
Section 3 of the COFEPOSA. Even so, the legal submission of
learned counsel has to ·be answered, as he urged it with vehemence.
6.
Section 2 (f) of the COFEPOSA provides :
"In this Act, unless the context otherwise requires,-
(f) "State Government", in relation to a Union
Territory, means the administrator thereof".
In the Union 'Territories. Act, 1963 (hereinafter the 'Act'),
under clause (a) of sub-section (1) of Section 2, 'Administrator' has
been defined as :
" 'Administrator' means the administrator of a Union
Territory appointed by the President under article 239".
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Under clause (h) of sub-section (1) of Section 2, "Union
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Territory" has been defined as :
" 'Union Therritory' means any of the Union Territori~s of ............ Goa, Daman and Din ......... ". (Material
portion only)
Sub-section (I) of Section 3 of the COFEPOSA Provides :
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"The Central Government or the State Government
or any officer of the Central Government, not below the
rank of a Joint Secretary to that Government, specially
empowered for the purposes of this section by that Government, or any officer of a State Government, not below the
rank of a Secretary to that Government, specially empowered for the purposes of this section by that Government,
may, if satisfied, with respect to any person (including a
foreigner), that, with a view to preventing him from acting'
in any manner prejudicial to the conservation or augmenta1·'
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tion of foreign exchange or with a view to preventing him
from
(i)
smuggling goods, or
(ii) abetting the smuggling of goods, or
(iii) engaging in transporting· ot conc~aling or keeping
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smuggled_ goods; or
(iv) .dealing in smuggled
goods otherwise than by
engaging in traqsporting o.r concealing or keeping
smuggled goods, or
(v) harbouring persons engaged in smuggling goods
or in abetting the smuggling of goods,
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it is necessary so to do, make.an order directing that
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such person be detained".
The fasciculus of Sections 44 to 46. in Part IV of the Act
provides for setting up a Council of Ministers.
Section 44 reads as
under:
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"44. Council of Ministers '- (!) There shall be a
Council of Ministers in each Union Tetritory with the Chief
Minister at the head. to aid and advise the Administrator
in the exercise of his functions in relation to matters with
respect to which the Legislative Assembly of the Union
Territory has power to make laws except in so far as he is
required by or under this Act to act_in his discretion or by
or under any law to exercise any judicial or quasi judicial
functions :
Provided that in case of difference of opinion b~tween
the Administrator and his Ministers on any' matter, .the
Administrator shall refer it to the President for decision
and act according to the decision given thereon by the
President, and pending such decision it shall be competent
for the Administrator in any case where the matter is in his
opinion so urgent that it is necessary forJ1iin to t!!.ke imme·
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diate action, to take such action or to give such direction
in the matter as he deems necessary".
x.
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Section 46 confers power on the President to make rules :
· {a) for the all(lcation of business to the Ministers; and (b) for the
more convenient transaction of business with the Ministers including
the procedure to be adopted in the case of difference of opinion
between -the Administrator .and the Council of Ministers or a
Minister. Sub-section (2) provides that save as otherwise provided
in the Act, all executive action of the Administrator, whether taken
on the advice of his Ministers or'otherwise, shall be expressed to be
t~ken in the name of the Administrator. The contention is that the
Administrator of the Union Territory appointed under Article 239
of the Constitution by .the President is in the same position as the
Governor of a State or the President of India in the matter of discharge of executive functions conferred upon him and he must
act on the advice of the Council of Ministers. It was accordingly
'further submitted that the Administrator cannot act on his own and
in this cas_e it is claimed on behalf of the Administrator in the
affidavit that he can act _on his own as stated above. Reliance
was placed on Shamsher Singh & Anr. v. State of Punjab(')
wherein it was held that the Presideot or the Governor acts on th_e
aid and advice of the Council of Ministers with the Prime Minister
at the head in the case of the Union and the Chief Minister at the
head in the case of a State in all matters which ves't in the executive
whether those functions are executive or legislative in character. It
·was further held that neither the President nor the Governor is to
exercise the executive functions ,personally. It is _not possible to
accept this submission.
Article 74 provides that there shall be a Council of Ministers
with the Prime Minister at the head to aid and advise the President
who shall, in the exercise of his functions, act in accordance-With
such advice. The proviso to the Article is not material.
Simil~rly,
Article 163 provides that there shall be a Council of Ministers with
the Chief Minister at the head to aid ano advise the Governor in the
exercise of his functions, except in so far as lie is by or under this
Constitution required to exercise his functions or any of them in his
<I)
(1975] I SCR 814.
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discretion.
Once we compare the language or' Articles 74 and
163 with. the language of Section 44 of the Act, the difference
between the position of the President and the Governor on the one
hand and the. Ad.ministrator of the Jn-oin territory ~n the other
becomes manifest. The first difference is that he is similarly situated
with the Governor hut not 'with, the President when he is to act in
his discretion under the Act.
Further, the Administrator has to act
on his own unaided by the Council of Ministers when he is to exercise any judicial or quasi judicial functions. The· nearest analogy to
. this provision is one to. be found in Article 217 (3) when the
President has to determine the age 0£ a Judge of the High Court.· It
has been held 'that while exercising the power conferred by Article
21i (3), the President discharges a judicial function and .is ~ot
~equired to agi on the advice of the Council of Ministers, his only
obligation being to decide the question about the age of the Judge
~fter consulting the Chief Justice of India (see Union of Initia v. J.P.
Mitter.(1)
But there the analogy ends. The Administrator even in
matters where he is not required to act in his discretion under th~
Act or where he is not exercising any judicial or quasi judicial
functions, is not bound to act according to the advice of the Council
of Ministers. This becomes manifest from the proviso to Seciion
44 (!). It transpires from the proviso that in the event of a difference
· of opinion between th~ Administrator and ·his· Ministers on any
matter, the Administrator shall refer the matter to the President for
decision and act accordiiig to the decision given thereon by the
President. If the President
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'in a given. situation agrees with what
the Administrator opines contrary to the advice of the Council of'
Ministers, the Administrator would be able to overriM the advice
, of the Council of Ministers and on a reference to the President
under the proviso, obviously the. President would not according to
the advice of the Council of Ministers given under. Article 74.
Virtually, therefore, in the event of a difference of opinion between
the Cou~cil of Ministers of the Union territory and. the Administ- ·
rator, the right t.o decide would vest in the.Union Government and
the Council of Ministers of the Un ion territory would be bound
by tlie view faken b} the Union Government. Further, the Administrator enjoys still some more power to act in derogation of the
advice of the Council of Minisiers.
(I) [1971) 3 S.C.R. 483@ 504-SOS.
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The second limb of the proviso to Section 44 (I) enables the
Administrator that in the .event of a difference of opinion between
him and the Council of Ministers not only he can refer the matter
to the President but during the interregnum where the matter is in
his opinion so urgent that it is necessary for him to take' immediate
action, he has the power to take such action or to give such directions in the matter as be deeins necessary. Jn other words, during
the interregnum he can completely override the advice of the Council
·of Ministers and act according to his light. Neither the Governor
nor the President enjoys any such power. This basic functional
difference in the powers and position enjoyed by the Governor and
the President on the one hand· and the Administrator on the other is
so glaring that it is not possible to Mid on the analogy of the deci·
.sion in Shamsher Singh' s case that the Administrator is purely a
constitutionai functionary bonnd to act on the advice of the Council
of Ministers and cannot act on his own. · Therefore, for this additional reason also the submission of Mr. Jethmalani must be
rejected.
7. The second submission of learned counsel was to the
effect that the statements of labourers Tulsibbai and Mangalbhai of
30th June, 1981, being the earlier'statements of the two labourers
were not supplied to the detenu but only the two' statements of !st
• July; 1981, were supplied and, therefore, the detenu was prevented
from making an effective representation· by which he wanted to
controvert the statements of 'Tulsibhai and Mangalbbai.
The
· submission was that in their statements recorded on J:st July, 1981,
·they did not state that during the earlier interrogation on the night
of 30th June, 1981, they informed the Customs authorities that they,
were employed as labourers .by the detenu and Lalubhai Govan.
Consequently, it was contended, the detaining authority ·bad no
material from which to infer that on being first accosted by the
customs squad the two labourers gave out that they were engaged in
this unlawful activity as wage earners by the detenu and Lallo
Govan. The submission has no merit because there are two statements, one of Customs Inspector, Mr. Patel, and the other of Customs Officer, Mr. Fitter, both of which show that on being interrogated ·during the night of 30th June, 1981, the aforeme!ltioned two
labourers gave out that they were engaged for unloading packages
containing contraband goods from the grounded vessel to a .house in
Nani Daman by the detenu and Lallo Govan; and there is no
dispute that the statemenis of Mr. Patel and Mr. Fitter were given
•
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•
•
D.V. TANDEL •• ADMINISTRATOR (Baharul Islam, J.)
563
to the detenu. Further, the grievance made by the detenu · is not
warranted by the materials 9n record. For, in the penultimate
paragraph of the grounds of detention, it was stated, "copies of the
statements and other documents which have been taken into consideration by the detaining authority are also enclosed as per the indeJ!:
attached" (underline mine).
Thereafter, no grievance
appears
to !}ave been made by the detenu in his representation.
Even from
the grounds in the Writ J>etition, it does not appear which documents, if any, were not supplied to the detenu. The records show
that there was great tension on the date at the place of apprehension and as such no statements could be and were recorded on the
date of apprehension, but subsequently recorded on 2nd July, 1981.
The submission therefore has no substance. ·
8. The third submission of learned counsel is, ''that the order
of detention was not properly served" .. The submission is that the ·
Gujarati translatioμ of the.order was not supplied to the detenu.
According to the learned counsel, "the petitioner does not know and
cannot speak or write in a language other than /Gujarati, and that
Annexure 'A' ought to have been translated Jnto Gujarati. The
petitioner was thereby deprived of an opportunity of making an
effective representation against his detention".
The submission is
not wholly correct on facts. Annexure 'A' is the 'ORDER'. exprrssed
in terms of Section 3 (1) of the COFBPOSA. It is in English and.
reads :
"SECRET
No. 14/3/80/HD (G)
Administrator of Goa,
Daman & Diu, Cabo Raj Niwas,
Caranzalem (P.O.)
Goa.
ORDER
WHEREAS, I, Jagmohan,
Administrator of Goa,
Daman and Biu, am satisfied with respect to, the person
known as Shri Devji Vallabhbhai Tande! alias Devji Boss
son of Shri Vallabhbhai Tande! residing at .H. No. 1/255,
Penta Sheri, Vadi Falia, Nani Daman,
t~at with a vfew
· to preyenting him from smugg,ling goods:
A
B
c
D
E
F
G
.H
~64
SUPltEME coUkt REl'olt'ts
!J 982] 3 s.c.11..
· A
It is necessary to make the following order :
B
c
D
•
E
F
G
H
..
Now, therefore, in exercise of the powers conferred by
section 3 (1) of the,Ccinservation of Foreign· Exchange and
Prevention. of Smuggling Activities Act, 1974;
I, Jagmo~an, Administrator of Goa, Daman and Diu
direct that 'the said Shri Devji Vallabhbhai Tande! be
detained at the Central Jail, Aguada, and the enclosed
grounds of detention be served on him.
Place :-Cabo Raj Niwas
Date :-11.9.81
' Encl : As above
SEAL
Sd/-
(Jagmohan)
Administrator of Goa, Daman
and Diu.
To
/ Shri Devji Vallabhbhai Tande!
alias Oevji Boss,
H. No. 1/255, Fenta Sheri,
Vadi Falia, N~ni Daman"
Admittedly, this 'ORDER' -as per Annexure •A' was in English
but the enclosure, Annexure 'B' which contains the grounds . of
detention together with the materials on which the grounds were
based was in Gujarati. In paragraph 8 of the counter-affidavit filed
on behalf of th.e Administrator, i~ has been stated :
"As regards Ground D it is denied that the detaining
authority bas not furnished Gujarati version of the order
of detention as alleged by the petitioner ................... ..
The petitioner by his own. admission kiiows Gujarati and
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•
I
.•
·,
o.v. TANDEL v.°AD¥1NISTRATOR (Baharul Islam, J.)
565
accordingly the grounds of detention have been communicated to the petitioner in Gujarati language. The
aJlegatitm is, therefore, untenable".
A
The above statement of the respondent is supported by the
internal evidence of Annuextre 'B' itself. For, in the penultimate
paragraph of the "grounds" it has been stated :
I
"The Gujarati version of the grounds of detention is
enclosed to enable you to understand the grounds for which
detention order is passed agai!ht you".
This shows that the Gujarati version of the grounds as per
Annexute 'B' was . sent to the detenu alongwi th the ORDER as
per Annexure 'A'. Admittedly,, the deten.u is a Gujarati speaking
person.
•
So far as the non-supply of the Guj;irati version of the ORpER
B
c
as per Annexure 'A' is concerned, in our opinion, there has been no
D
violation of Article 27 (5) or any other law.' The ORDER as per·
Annexure 'A' was a mere formal recital of section 3 (I) of the
COFEPOSA, showing the . provision of law under which the order
of detention has beeni made.
Although, the section of the COFEPOSA has n~t been nlentioned in the last but two paragraphs of the .
"groun,ds", it has been stated that the detenu engaged himself"i!t
E
smuggling goods and that there is sufficient cause to pass detention
order against you with a view to preventing you from smuggling
goods", which was in Gujarati. It cannot, therefore, be said that'
the detenu was in any way handicapped in submitting his represent~tion, or there has been any violation of Article 22 (5) of the
Const.itution.
. F
9 .. The learned couns.el, in -support of his third submission,
·--...
cited before us the decision of this Court in the case' of The State
Bombay v. Atma Ram Sridhar Vaidya.(') The decision is beside .
the point and need not be referred to.
,Learned Counsel for the petitioner also cited another decision
of this Court reported in (1980) 4 SCC 427.
1n· that case, it .has
been held that failure to supply the grounds of detention in the ·
language understood by the detenu violates Article 22 (5) of the
Constitution. In the instant case, as we have found above the
.
I
(I) [1951) ~·s.C.R. 167 •
.
G
H
A
B
•
c
D
E
F
G
H
566
SUPREME COUll.T REP<)JlTS
(198213 s.c.tt.
Gnjarati translation of the grounds was supplied to the detenu. The
de~ision cited has not held that the.. ORDER expressed in terms of
Section 3 (l) of the COFEPOSA must.also be in the language understood by the detenu. Section 3 (l) as stated above merely gives
power of detention to the detaining au4hority.
This submission also
has no substance.
.
-10. The fourth submission of learned counsel was that by a
telegrari) dated lst October, 1981, the detenu requested for an immediate !hearing through his lawyer but this request was denie~. There
was a delay of six days in deciding the matter.
This was contrary
to Jaw. That apart, the "respondent misled the detenu by indicating
to him that the only way by which the Administrator could be per-·
suaded would be a representation through the jail'\ The factual part
of the submission is not correct. Ori !st October, 1981, one Shri
Thaku Ajwani, Advocate for the pe.titioner, sent a telegram to the
Administrator. It was in the following 'terms :
ORDINARY
\ -
"JAGMOHAN
ADMINISTRATOR OF GOA
DAMAN & DIU
-CABO RAJ NIWAS
CARANZALER GOA
DETENUS DEVJI VALLABHBHAI TANDEL AND
NARSINBHAI DURLABHBHAI TANDEL DETAINED
UNDER COFEPOSA ORDERS DATED liTH SEPTEMBER !981 HAVE INSTRUCTED ME TO APPEAR
BEFORE YOU AND REPRESENT THEIR CASE FOR·
REVOKING DETENTION ORDERS (Stop) KINDLY
INTIMATE FORTHWITH DATE, TIME AND PLACE.
THAKU AJW ANI AI'.>VOCATE 22
PANCHSHILA C ROAD CHURCHGATE
•
BOMBAY 400 020
"
11"-!!l''''""l;;
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i>.v. TANDEL v. ADMINi§TRATOR (Baharul Islam, J.)
561
There was a reply telegram by the Chief Secretary of the
Union Territory in question. The post copy of the reply telegram
reads thus : (material portions only) :
"STATE
TELEGRAM
ADVOCATE SHRI THAKU AJWANI
CHAMBERS C/.0 RAM JETHMALANI
ADVOCATE SUPREME COJJRT
22 PANCHSHILA C ROAD,
CHURCHGATE, BOMBAY-400 020
EXPRESS
........ No. 14/3/80/HD (G) (.) REFERENCE YOUR
LETTER DATED !ST OCTOBER 1981 REGARDING
DETENTION OF SARVASHRI DEVJI. VALLABHBHAI
TANDEL AND NARSINBHAI DURLABBHAI TANDEL
. DETAINED UNDER COFEPOSA ACT RECEIVED IN
THE OFFICE OF THE ADMINISTRATOR ON 5/10/1981
(.)
"YOUR TEI,EGRAM DATED !ST OCTOBER 198t
REFERRED THEREIN HAD BEEN REPLIED UNDER
THIS DEPARTMENT'S TELEGRAM OF EVEN NUMBER DATED 6TH OCTOBER 1981 AND ITS COPIES
HA VE ALSO BEEN SENT TO THE CONCERNED
DETENUS AT (::ENTRAL JAIL AGUADA (.) CON·
TENTS OF THE SAID TELEGRAM ARE REPRODUCED BELOW(.) QUOTE(.) YOUR TELEGRAM DATED
!ST OCTOBER 1981 ADDRESSED TO THE ADMINISTRATOR GOA DAMAN AND DIU REGARDING
DETENTION OF SARY ASHRI DEV JI VALLABHBHAI
1
TANDEL AND NARSINBHAI DURLABHBHAI TANDEL DETAINED UNDER. COFEPOSA ACT(.) YOUR
· REQUEST FOR APPEARANCE BEFORE THE ADMINISTRATOR AND REPRESENT THE CASE OF THE
AFORESAID DETENUS HAS BEEN CAREFULLY
CONSIDERED BY THE ADMINISTRATOR AND HE
HAS DECIDED THAT THE DETllNUS CAN .Mi\Ke
A
6
c
D
' E
F
G
H
B
D
E
G
568
'
SUPREMF COURT REPORTS
[1982J 3 s.c.tt.
REPRESENTATION
TO THE
ADMINISTRATOR
THROUGH CENTRAL JAIL AGUADA WHERE THEY
ARE. DETAINED (.)
THE REPRESENTATION OF
THE AFORESAID DETENUS WILL RECEIVE HIS
DUE CONSIDERATION AS. AND WHEN THEY ARE
RECEIVED (.) UNQUOTE (.)
--CHIEF SEC--"
'
It has been stated in paragraph 9 of the counter affidavit as
follows:
" .......................... ., it is admitted that the telegram ·
dated !st October, 1981, purported to have been made by
. the Advocate on behalf of petitioner requesting the Administrator for. grant of personal appearance' before him
for'revocation of detention order was received in the office
of the Administrator on 3,rCI October, 1981. This request
was duly examined and it was felt that under the law, the
detenu is not entitled to be represented by an Advocate and
. the Detaining Authority is not legally bound to grant the
prayer made on behalf of the detenu. The Advocate of the
petitioner was telegraphically informed on 6th October 1981
that the request had been duly considered by the Administrator who had decided that the detenl} could m·1ke a representation to the Administrator through the Superintendeqt,
Central Jail, Aguada, where he was. detained and that the
same would receive his due consideration as and when it
was received. A copy of the said telegram sent to the Advocate was also e11dorsed- to the detenu and the same was
received by him on 7th October, 1981. A letter in confirmation of the Advocate' s telegram was received from. the
Advocate of the petitioner in the office. of the Administra·
tor on 5.10.193·1 and the.same was replied to telegraphically
on 7th October, 1981, reiterating the earlier position as conveyed in the said telegram of 6th October.
_ The allegation that IO days were. taken by the respondent in only deciding the .representation and in coming to ·
the conclusio11 thiit he would not permit a lawyer to plead
..
I '
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D.V. TANDEL v. THE ADMINl>TRATOR (Baharul Islam, J.)
569
for revocation of the order of de1ention is, therefore, not
correct. To give further details, the telegram of the petitioner's Advocate was received in the Administrator's office
on 3rd October, 1981, and was sent to the Joint Secretary
(Home) the same day.
It was referred to the law Department on 3rd October,
1981
itself and through usual
channels reached the Law Secretary on 5th October, 1981,
the 4th of October being a Sunday. The Law Secretary
gave his opinion and referred the telegram to the Home
Department on the same day Le. 5th October, 1981. In the
Home Department 'it was sent by the Under Secretary
(Home) to the Chief Secretary and by the latter to the
Chief Minister the same day.
On 6th October, 1981, it
was examined by the q, Governor and the reply was sent
to the petitioner on the same day. The reply was received
by the petitioner/detenu on 7th October, 198)".
·
In addition to the above explanation of the respondent in para
9 of the counter-affidavit, we peruied the file and we are satisfied
that there was no delay in disposal. On the contrary, it may be said
to the credit of the administration that it was dealing with the matter
with utmost promptitude.
11. Now to examine the second part of the fourth contention
of learned counsel.
His submission is that the Administrator
committed an illegality not only by refusing the detenu to be heard
through a lawyer, but, in addition, by misleadiog the detenu by his
telegram. The detenu's counsel, Mr. Ajwani, informed the Administrator that the detenu had instructed him to represent his case
before the Administrator. He made a request to 'the. Administratorto Jet him know the date, time and place of his appearance before
the Administrator. The reply telegram quoted above ha~ stated
that his request has been "carefully considered by the Administrator" who, by implication, rejected the request. Besides, it was furthsr
stated in the telegram that the Administrator "has decided that the
detenu can make representation to the Administrator through the
jailor and that the representation so
s~nt would be duly considered
by the Administrator to which exception has been taken. In th'ese
circumstances, the following questions arise :
(1) whether the detenu has a right to ;ippear before
!he detainin~ 11u,t4oritr through a lawrer;
A
B
c
D
F
G
"
A
B
c
D
E
F
G
H
570
SUPREME COURT REPORTS
(1982] 3 s.c.R.
(2)
\\bether the last sentence in tte telegram has
misled the detenu.
Mr. Jethmalani submits that Article 22 (3) enables the legislature to take away the common law right of acting through an agent
generally or through a particular class of agents. Tbe statute does
not deal with the general but with . a particular class, namely, the
legal practitioners. The statute confines this legal disability to the
matter connected with reference to the Advisory Board. So he
submits that lawyers are not compeletely sought to be excluded.
Under Article 22 counsel submits there are two distinct and independent rights : (I) to persuade the detaiqing authority to revoke the
order of detention and (2) to-persuade the Advisory Board to disapprove the detention. It is only in the second process that the
agent called lawyer is excluded. The learned counsel further submits
that every person has a common law right to employ an agent and
do an act through him. The detenu could, therefore, send an 'agent'
or a 'friend' who might have been his law.yer.
Let us first examine whether the detenu has a right to appear
through a lawyer. This examination need not detain us long.
Section 8 (e) of the COFEPOS A reads: (material portion only)
"For the purposes of sub-clause (a) of clause (4) and
sub-clause (c) of clause (7), ·of Article 22 of the Constitution,-(e)-a person against whom ·an order of detention·
has been made under this Act shall not be entitled to appear
by any legal practitioner in any matter connected with the ..
· reference to the Advisory Board ....... " (emphasis added).
·~
·~-
Clause (e) in express terms disent.itles the detenu to appear
through a legal practitioner in any matter connected with the reference
to the Advisory Board. It is indisputable that a detention matter
which is pending before the Administrator is nndoubtedly a matter
connected with the reference to the Advisory Board. The detenu,
therefore, has no right to appear before the detaining authority
or before the Advisory Board by a legal practitioner.
This Court in the case of Smt. Hemlata Kanti/4/ Shah ;:-The
State of Maharashtra & Anr.(1) have held :
(1)£(1981) 3 Sqile 165?,
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D.V. TANDBL v. THE ADMINISTRATOR (Baharul ls/am, J.)
571
"Section 8 (e) has not barred representation of a
detenu by a lawyer. It only lays down that the detenu
cannot claim ropresentation by a lawyer as of right. It has
given the Board a discrection tolpermit or not to permit
representation of the detenu by counsel according to the
necessity in a particular case".
In the case of A.K. Roy v. Union of India(') relied on by .
Mr.