Criminal Appeal No232 of 1987
From the Judgment and order dated 2321987 of the Madras High Court in WP No6290 of 1986
KK Venugopal CS Vaidyanathan Probir Chowdhry SR Bhatt and SR Setia for the Appellant
MM Abdul Khader and AV Rangam for the Respondent
789 The Judgment of the Court was delivered by RANGANATH MISRA J
This appeal is by special leave
Appellant challenged his order of detention under section 31i of the COFEPOSA for short by filing a writ petition before the High Court and that application has been dismissed
As many as six contentions had been advanced before the High Court
Though raised in the writ petition the point relating to denial of a fair hearing before the Advisory Board has not been noticed by the High Court as a contention on behalf of the appellant but counsel for the appellant has raised the same point before this Court and since the facts on which the ground is raised are not in dispute we find no objection to entertaining this contention now specifically raised in this appeal
The hearing of the representation of the appellant by the Advisory Board was fixed for 25th November 1986
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 Board as appears from the counter affidavit filed in this Court turned down the request
The counter affidavit states The Advisory Board has given its finding in rejecting the detenu s request for assistance of a friend namely Mr Sundararajan in paragraphs 2 and 3 of its report sent to the Government
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
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 same paragraph the Advisory Board has also stated that it was admitted by Mr Sunderarajan before the Advisory Board that he is not a friend of the detenu and because of his professional experience he liked to help the detenu
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 not being a friend of the detenu the Advisory Board did not consider it proper to allow him to represent the case of the detenu
 H 790 It is thus clear from the allegations in the special leave petition and the counter 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 counter affidavit the request was turned down
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
In the counter affidavit filed before this Court there has been no denial of this fact
Learned counsel appearing for the respondent did not 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
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
On the recommendation of the Advisory Board the detention order was confirmed
The appellant is a clearing and forwarding agent at Madras and is said to be a young man aged around 26 or 27 years
The case before the Board involved certain facets which require acquaintance with the legal provisions and the procedure and practice adopted by the customs authorities
It is the case of the appellant that he was not very much acquainted with them and that is why he had sought the assistance of Sundararajan and even brought him before the Board that day
In the facts of the case we are not in a position to reject the contention that if Sundararajan had been permitted to assist the appellant his case would have been better placed before the Advisory Board
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 A two Judge Bench of this Court in Nand Lal Bajaj vs State of Punjab   was considering the question of legal assistance for the detenu before the Advisory Board
It referred to the decision of this Court in the case of Smt
Kavita vs State of Maharashtra  where Chinnappa Reddy J made the following observation 791 It is true that while section 8 e disentitles a detenu from claiming as of right to be represented by a lawyer it does not disentitle him from making a request for the services of a lawyer The learned Judge further stated As often than not adequate legal assistance may be essential for the protection of the Fundamental Right to life and personal liberty guaranteed by Article 21 of the Constitution and the right to be heard given to a detenu by section 8e COFEPOSA Act
 It was further observed by Reddy J  Therefore where a detenu makes a request for legal assistance his request would have to be considered on its own merit in each individual case
In the present case the Government merely informed the detenu that he had no statutory right to be represented by a lawyer before the Advisory Board
Since it was for the Advisory Board and not for the Government to afford legal assistance to the detenu the latter when he was produced before the Advisory Board could have if he was so minded made a request to the Advisory Board for permission to be represented by a lawyer
 Sen J in Nand Lal s case supra observed  while the detenu was not afforded legal assistance the detaining authority was allowed to be represented by counsel
It is quite clear upon the terms of sub section 4 of section 11 of the Act that the detenu had no right to legal assistance in the proceedings before the Advisory Board but it did not preclude the Board to allow such assistance to detenu when it allowed the State to be represented by an array of lawyers
 A Constitution Bench of this Court in AK Roy etc
vs Union of India  Anr  dealt with this aspect
Chandrachud CJ speaking for the Court stated We must therefore held regretfully though that 792 the detenu has no right to appear through a legal practitioner in the proceedings before the Advisory Board
It is however necessary to add an important caveat
The reason behind the provisions contained in Article 224b of the Constitution clearly is that a legal practitioner should not be permitted to appear before the Advisory Board for any party
The Constitution does not contemplate that the detaining authority or the Government should have the facility of appearing before the Advisory Board with the aid of a legal practitioner but that the said facility should be denied to the detenu
In any case that is not what the Constitution says and it would be wholly inappropriate to read and such meaning into the provisions of Article 22
Permitting the detaining authority or the Government to appear before the Advisory Board with the aid of a legal practitioner or a legal adviser would be in breach of Article 14 if a similar facility is denied to the detenu
We must therefore make it clear that if the detaining authority or the Government takes the aid of a legal practitioner or a legal adviser before the Advisory Board the detenu must be allowed the facility of appearing before the Board through a legal practitioner
We are informed that officers of the Government in the concerned departments often appear before the Board and assist it with a view to justifying the detention orders
If that be so we must clarify that the Boards should not permit the authorities to do indirectly what they cannot do directly and no one should be enabled to take shelter behind the excuse that such officers are not legal practitioners or legal advisers
Regard must be had to the substance and not to the form since especially in matters like the proceedings of Advisory Boards whosoever assist or advises on facts of law must be deemed to be in the position of a legal adviser
We do hope that Advisory Boards will take care to ensure that the provisions of Article 14 are not violated in any manner in the proceedings before them  
Learned counsel for the respondent does not dispute that what has been stated above is the law applicable to the facts of this case
We have already found that the detaining authority had the assistance of the Deputy Collector of Central Excise and a Superintendent of Central Excise
In the words of Chandrachud CJ they play the role of legal advisers
The Board had no justification to refuse assistance of 793 Sundararajan to the appellant in such circumstances
The rule in A K Roy s case supra made it clear that the detenu was entitled to the assistance of a friend 
The word friend  used there was obviously not intended to carry the meaning of the term in common parlance
One of the meanings of the word friend  according to the Collins English Dictionary is an ally in a fight or cause supporter
The term friend  used in the judgments of this Court was more in this sense than meaning a person known well to another and regarded with liking affection and loyalty  A person not being a friend in the normal sense could be picked up for rendering assistance within the frame of the law as settled by this Court
The Advisory Board has of course to be careful in permitting assistance of a friend in order to ensure due observance of the policy of law that a detenu is not entitled to representation through a lawyer
As has been indicated by this Court what cannot be permitted directly should not be allowed to be done in an indirect way
Sundararajan in this view of the matter was perhaps a friend prepared to assist the detenu before the Advisory Board and the refusal of such assistance to the appellant was not justified
It is not for this Court to examine and assess what prejudice has been caused to the appellant on account of such denial
This Court has reiterated the position that matters relating to preventive detention are strict proceedings and warrant full compliance with the requirements of law
In view of the position of law and the facts of the case we must hold that the refusal by the Advisory Board to permit the appellant to be assisted by Sundararajan as a friend was bad and continued detention of the appellant became vitiated
Accordingly this appeal is allowed and the order of detention is quashed
The appellant is directed to be set at liberty forthwith
PSS Appeal allowed


Summary:
A  a partner in a firm running a sugar factory insti tuted a suit for its dissolution in 1948 and a Receiver was appointed by the Court
The arrangement arrived at for the factory was that it would be leased out for a term of five years to the highest bidder from amongst the six partners
In July 1948 A  transferred his 16th share to the appel lant for Rs450000
The appellant had taken a loan against shares of that value held by him in another sugar mill for purchase of the share
In May 1950 another partner B  leased out his 16th share to the appellant on an annual payment of Rs50000
In July 1950 yet another partner C  leased out his 16th share to the appellant for a similar sum
In 1951 C  sued for cancellation of the lease
In April 1954 the dispute was compromised and the lease termi nated C  undertook to pay the appellant at the rate of Rs 16000 for the first three years and at the rate of Rs I0000 for the subsequent two years B s 16th share was also returned on mutual arrangement and he agreed to pay the appellant a sum of Rs39000 and odd annually
During the assessment proceedings for the year 1953 54 the nature of these receipts came to be considered
The assessee appellant maintained that these were in the nature of capital receipts in lieu of the lease hold interest
The assessee also claimed depreciation on the 16th share in the sugar mill that he had acquired from A 
Similar questions also arose for the assessment years 1954 55 and 1955 56
The assessee had suffered a loss in the sugar business in the assessment year 1953 54 a part of which remained unab sorbed and claimed set off of that unabsorbed loss against the share of the rent received by him from the Receiver in the assessment year 1954 55
Since the sugar mill was being assessed as an association of persons for the assessment year 1960 61 102 the Receiver claimed that for the purpose of computing depreciation allowance the written down value of the busi ness assets be enhanced so as to reflect the sum of Rs450000 in place of 16th share representing the share of A 
The Revenue negatived the assessee s contentions which view was upheld by the High Court
Dismissing the appeals by certificate the Court HELD 1
The amounts the assessee received under the compromise or by amicable arrangement from other partners were in the nature of profits to be received by the assessee for the interest held in the business and therefore con stituted taxable income
106B 2
The benefit of section 102vi of the Income tax Act 1922 would be admissible only where the assessee is the owner of the property
It too is not admissible in respect of a fractional claim
106A In the instant case all that is claimed for the asses see is 16th share in the machinery
Such a fractional share does not suffice for granting an allowance for depreciation under section 102vi of the Act
105F 3
Two conditions had to be fulfilled under section 24 of the Incometax Act 1922 before the claim for set off of carried forward loss could be admitted firstly the income against which the loss has to be set off should be income from business and secondly the business should be same in which the loss was suffered
107C In the instant case the letting out of the sugar mill was not the business of the assessee
The Receiver was appointed for dissolution of the firm and the main reason for allowing the sugar factory to work was to dispose it of as a running mill so that proper price could be fetched
107DE 4
Under the scheme of 1922 Act it is the assessee who alone is entitled to maintain claim of depreciation
Within the framework of that scheme it is difficult to maintain separate value of a part of the asset to work out deprecia tion
The book value as shown must in the instant case therefore be applicable to the entire assets of the firm including the 16th share which A  had given to the appel lant
The claim of the Receiver for depreciation cannot therefore be sustained
108B 103