Petition for Special Leave to Appeal Crl No 17831988
PG NO 622 From the judgment and Order dated 1441988 of the Andhra Pradesh in WP No 4454 of 1988
G Ramaswamy Additional Solicitor General and TVSN Chari for the Petitioners
A Subba Rao for the Respondent
The Judgment of the Court was delivered by K JAGANNATHA SHETTY J
This appeal by special leave is directed against the judgment dated April 14 1988 of the High Court of Andhra Pradesh in writ petition No 4454 of 1988 whereby the order of detention passed against the respondent under the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act 1980 The Act was quashed
Briefly stated the facts are these The respondent was said to have smuggled paddy from Andhra Pradesh to Tamil Nadu
During the watch kept by the Inspector Vigilance Cell Civil Supplies Department Nellore on the night of November 4 1987 a lorry bearing No MDN 8505 carrying 125 bags of paddy was spotted when it was trying to go to Tamil Nadu avoiding check post
The lorry was chased by the Inspector of Police and his staff
The driver suddenly stopped the lorry but the persons in the vehicle took the heals jumping out there from and disappeared in the bushes
The respondent was identified by the Inspector of Police and his staff in the head lights of the jeep in which they were chasing
The driver of the vehicle was apprehended after a hot chase but not the respondent
From the interrogation of the driver it was established that on November 4 1987 the respondent along with two others were in the cabin of the lorry and they were responsible for transporting paddy to Tamil Nadu
The paddy and the lorry were seized by the Inspector
A criminal case was registered against the driver under the Essential Commodities Act and the Andhra Pradesh Rice Procurement Levy Order 1984
When the investigation of that case was proceeding Additional Superintendent of Police Nellore sent proposals to the District Magistrate for detaining the respondent under the Act
The District Magistrate passed an order dated December 24 1987 directing the detention of the respondent
On January 4 1988 the State Government approved the detention
On January 11 1988 the State Government acting under sec
10 of the Act refered the matter to the Advisory Board
PG NO 623 On January 27 1988 the detenu submitted a representation through the Superintendent Central Prison where he was detained to the Chairman of the Advisory Board and to the Chief Secretary Government of Andhra Pradesh and also to the detaining authority
The Government forwarded the representation to the Advisory Board
On January 29 1988 the Advisory Board met and heard the detenu and the officers on behalf of the Government
There were high ranking police officials representing the Government
The Advisory Board after hearing those officers and the detenu made an order We have heard the detenu who has been produced before us and considered his written representation
We have also heard Sri V Appa Rao IGP Spl Vigilance Sri CR Naidu Addl
SP Vigilance Hyderabad Sri N Chandramouli DSP Vigilance Nellore and Sri Nageswara Rao Incharge Joint Collector Nellore District
We have perused the grounds of detention and other connected papers
OPINlON We are of the opinion that there is sufficient cause for the detention of Balajangam Subaramaiah Subaramaiah Subbarami Reddy SO Changaiah
Chairman Member Member The Government agreed with the opinion and confirmed the detention for a period of six months
The detenu challenged the validity of the order of detention before the High Court
The High Court allowed the writ petition and quashed the order of detention
The High Court found that there was unequal treatment by the Advisory Board in considering the representation of the detenu
The Advisory Board having decided to hear the top ranking police officers like the Inspector General of Police Vigilance Additional Superintendent of Police Vigilance Deputy Superintendent of Police Vigilance and Joint Collector of Nellore District ought to have given an equal chance of representation to the detenu by permitting him to be represented by a lawyer or at least by an official friend of an equal rank
The High Court tersely observed PG NO 624 In such circumstances the Advisory Board ought to have provided the prisoner an opportunity for representation though not by a lawyer at least by some one equally competent like those who appeared for the State
The Government cannot deny the fact that the might of the official representation before the Advisory Board out weighed by several times the value of the detenu s representation 
The High Court also found that the detenu did write to the Government on January 27 1988 asking for representation by a lawyer and that request ought to have been acceded to by the Advisory Board when the matter came up before it
The High Court then said We are of the opinion that the dormant right of the detenu for equal representation had become active upon the mode of conducting the proceedings by the Advisory Board
The prisoner in this case could not have envisaged that the High State officials would appear against his case and for the detaining authority
For these reasons
we cannot agree with the contention that the prisoner himself was to blame for not asking the Advisory Board for a lawyer s representation or for equal level of representation before the Advisory Board
As we are of the opinion that Article 22 5 requires the Advisory Board to afford the prisoner an equal opportunity for representing his case compared with the quality and quantity of official representation allowed for the detaining authority and as we are also of the opinion that the official representation in this case far outweighed in importance the detenu s representation we hold that article 225 is violated in this case
These are the findings of the High Court
The question is whether the view taken by the High Court in the premises is justified
In view of the fact that top ranking officials representing the Government were personally heard by the Advisory Board whether the detenu was prejudiced Whether there was any breach of equality in denying him representation by a lawyer or friend The Act by sec 10 provides for constitution of an Advisory Board Sub sec 2 thereof provides that every such Board shall consist of three persons who are or have been or are qualified to be appointed as Judges of a High Court and such persons shall be appointed by the appropriate PG NO 625 Government
Sub sec
3 provides that the Government shall appoint one of the members of the Advisory Board who is or has been a Judge of a High Court to be its Chairman etc
Section I0 provides for reference to Advisory Board
In every case where a detention order has been made under the Act the Government shall within three weeks from the date of detention of a person place before the Advisory Board constituted by it the grounds on which the order has been made the representation if any made by the person affected by the order
Section 1I provides procedure to be followed by Advisory Board
It reads 1 The Advisory Board shall after considering the materials placed before it and after calling for such further information as it may deem necessary from the appropriate Government or from any person called for the purpose through the appropriate Government or from the person concerned and if in any particular case it considers it essential so to do or if the person concerned desires to be heard after hearing him in person submit its report to the appropriate Government within seven weeks from the date of detention of the person concerned
2 The report of the Advisory Board shall specify in a separate thereof the opinion of the Advisory Board as to whether or not there is sufficient cause for the detention of the person concerned
3 When there is a difference of opinion among the members forming the Advisory Board the opinion of the majority of such members shall be deemed to be the opinion of the Board
4 Nothing in this section shall entitle any person against whom a detention order has been made to appear by any legal practitioner in any matter connected with the reference to the Advisory Board and the proceedings of the Advisory Board and its report excepting that part of the report in which the opinion of the Advisory Board is specified shall be confidential  Section 12 provides that where the Advisory Board has reported that there is in its opinion sufficient cause for the detention of a person the Government may confirm the detention order and continue the detention of the person PG NO 626 concerned for such period as it thinks fit
But in case where the Advisory Board has reported that there is in its opinion no sufficient cause for the detention of the person concerned the Government shall revoke the detention order and cause the person to be released forthwith
The Act thus by sec
114 expressly denies representation through a legal practitioner
The Board may hear any person if necessary
If the detenu desires to be heard the Board may hear him also
But no person has a right to be represented by a lawyer much less the detenu
This provision is in conformity with article 223b of the Constitution the scope of which has been explained by a Constitution Bench of this Court
In A K Roy vs Union of India    this Court speaking through Chandrachud CJ had this to say at 339 On a combined reading of clauses 1 and 3b of Article 22 it is clear that the right to consult and to be defended by a legal practitioner of one s choice which is conferred by clause 1 is denied by clause 3b to a person who is detained under any law providing for preventive detention
Thus according to the express intendment of the Constitution itself no person who is detained under any law which provides for preventive detention can claim the right to consult a legal practitioner of his choice or to be defended by him
In view of this it seems to us difficult to hold by the application of abstract general principle or on a priori considerations that the detenu has the right of being represented by a legal practitioner in the proceedings before the Advisory Board
Since the Constitution as originally enacted itself contemplates that such a right should not be made available to a detenu it cannot be said less to be satisfied
It is therefore necessary that the procedure prescribed by law for the proceedings before the Advisory Boards must be fair just and reasonable
 Learned Chief Justice continued PG NO 627 But then the Constitution itself has provided a yardstick for the application of that standard through the medium of the provisions contained in Article 223b
However much we would have liked to hold otherwise we experience serious difficulty in taking the view that the procedure of the Advisory Boards in which the detenu is denied the right of legal representation is unfair unjust and unreasonable
If Article 22 were silent on the question of the right of legal representation it would have been possible indeed right and proper to hold that the detenu cannot be denied the right of legal representation in the proceedings before the Advisory Boards
It is unfortunate that courts have been deprived of that choice by the express language of Article 223b read with Article 221 And also said We must therefore hold regretfully though that 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 any 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 a 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 of justifying the detention orders
If that be so we must clarify that the PG NO 628 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 the form since especially in matters like the proceedings of Advisory Boards whosoever assist or advises on facts or 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 Chief Justice also examined the right of a detenu to be represented by a friend if not by a lawyer and in that context observed Another aspect of this matter which needs to be mentioned is that the embargo on the appearance of legal practitioners should not be extended so as to prevent the detenu from being aided or assisted by a friend who
in truth and substance is not a legal practitioner
Every person whose interests are adversely affected as a result of the proceedings which have a serious import is entitled to be heard in those proceedings and be assisted by a friend
A detenu taken straight from his cell to the Board s room may lack the ease and composure to present his point of view
He may be tongue tied nervous confused or wanting in intelligence and if justice to he done
he must at least have the help of a friend who can assist him to give coherence to his stray and wandering ideas
Incarceration makes a man and his thoughts disnevelled
Just as a person who is dumb is entitled as he must to he represented by a person who has speech even so a person who finds himself unable to present his own case is entitled to take the aid and advice of a person who is better situated to appreciate the facts of the case and the language of the law
It may be that denial of legal representation is not denial o1 natural justice per se and therefore if a statute excludes that facility expressly it would not be open to the tribunal to allow it
Fairness as said by Lord Denning MR in Maynard vs Osmond 1977 I QB 240 253 can he obtained without legal representation
But it is not fair and the statute does not exclude that right that the detenu should not even be allowed to take the aid of a friend
Whenever demanded the Advisory Boards must grant that facility
 PG NO 629 There are two decisions of this Court earlier to AK Roy supra
In Kavita wo Sunder Shankardas Devidasani etc
vs State of Maharashtra 11982 I SCR 138 Chinnappa Reddy J speaking for a three Judge Bench observed at 147 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
He preferred not to do so
In the special circumstances of the present case we are not prepared to hold that the detenu was wrongfully denied the assistance of counsel so as to lead to the conclusion that procedural fairness a part of the Fundamental Right guaranteed by Article 21 of the Constitution was denied to him 
In that case this Court found that there was no denial of procedural fairness which is a part of the Fundamental Rights guaranteed under Article 21 of the Constitution
It was also found that the detenu made no request for representation by a legal practitioner before the Advisory Board
In Nand Lal vs State of Punjab   AP Sen J said at 723 It is the arbitrariness of the procedure adopted by the Advisory Board that vitiates the impugned order of detention
There is no denying the fact that while the Advisory Board disallowed the detenu s request for legal assistance it allowed the detaining authority to be represented by counsel
It appears that the Advisory Board blindly applied the provisions of sub s 4 of section 11 of the Act to the case of the detenu failing to appreciate that it could not allow legal assistance to the detaining authority PG NO 630 and deny the same to the detenu
The Advisory Board is expected to act in a manner which is just and fair to both the parties
 More recently in Johney D Couto vs State of Tamil Nadu  Ranganath Misra J speaking for a Bench of this Court said at 112 The rule in AK 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 loyality
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
 The history of civilised man is the history of incessant conflict between liberty and authority
The concentration of power in one hand and liberty in the other cannot go side by side
Temptation to use the power to curtail or destroy the liberty will be always there
It is found in the history of every country
The power to detain a person without trial is a serious inroad into the liberty of individuals
It is a drastic power capable of being misused or arbitrarily exercised
The Framers of our Constitution were not unaware of it
Some of them perhaps were the worst sufferers being the victims in the exercise of that arbitrary power
They had therefore specifically incorporated in the Constitution enough safeguards against the abuse of such power
The power to legislate in regard to preventive detention is located in Entry 9 of List I as well as in Entry 3 of List III in the VII Schedule of the PG NO 631 Constitution
The safeguards in regard to preventive detention are incoporated under Article 22 of the Constitution
Article 224 provides No law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless a an Advisory Board consisting of persons who are or have been or are qualified to be appointed as Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention Provided that nothing in this sub clause shall authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament under sub clause b of clause 7 or xxx xxx xxx xx xx xx xx xx xx Article 225 provides When any person is detained in pursuance of an order made under any law providing for preventive detention the authority making the order shall as soon as may be communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order
 These are the two important constitutional safeguards
The Advisory Board is a constitutional imperative
It has an important function to perform
It has to form an opinion whether there is sufficient cause for the detention of the person concerned
There is no particular procedure prescribed for the Advisory Board since there is no lis to be adjudicated
Section 11 of the Act provides only the broad guidelines for observance
The Advisory Board however may adopt any procedure depending upon varying circumstances
But any procedure that it adapts must satisfy the procedural fairness
We need not deal with this aspect in detail since the Advisory Board consists of person who are or have been or are qualified to be appointed as Judges of a High Court
They are men of wisdom and learning
Their report as envisaged under sec
112 of the Act should provide specifically in a separate part whereof as to PG NO 632 whether or not there is sufficient cause for the detention of the person concerned
 That opinion as to sufficient cause is required to be reached with equal opportunity to the State as well as the person concerned no matter what the procedure
It is important for laws and authorities not only to be just but also appear to be just
Therefore the action that gives the appearance of unequal treatment or unreasonableness whether or not any substance in it should be avoided by the Advisory Board
We consider that it must be stated and stated clearly and unequivocally that it is the duty of the Advisory Board to see that the case of detenu is not adversely affected by the procedure it adopts
It must be ensured that the detenu is not handicapped by the unequal representation or refusal of access to a friend to represent his case
In the instant case since the Advisory Board has heard the high ranking officers of the Police Department and others on behalf of the Government and detaining authority it ought to have permitted the detenu to have the assistance of a friend who could have made an equally effective representation on his behalf
Since that has been denied to the detenu the High Court in our opinion was justified in quashing the detention order
It was however sought to be made out for the State that the police officers were present before the Board only to produce the record and they did not do anything further
But the record shows otherwise
The officers were not there only to produce the records
They were in fact heard by the Advisory Board obviously on the merits of the matter and that makes all the difference in the instant case
In the result we agree with the conclusion of the High Court and dismiss this appeal
RSS Appeal dismissed


Summary:
The petitioner signed two contracts one on the 12th January
1980 and the other on 18th August 1980 for the supply of Indian HPS Groundnut Kernels Javas to a Swiss Company
On 20th December 1980 the petitioner informed the respondent not to nominate any vessels to load goods as it were unable to get necessary clearance from the Government and by a telex message on 27th January
1981 informed the respondent that the goods could not be exported on account of executivelegislative ban
The respondent invoked the arbitration proceedings with the Federation of Oil Seeds and Fats Association who informed the petitioner on 6th March 1981 by a letter of the appointment of an arbitrator
The petitioner challenged the arbitration proceedings in the Delhi High Court
On March 23rd
1981 a stay order was passed restraining the arbitration proceedings and on 11th December
1981 the High Court held that no arbitration agreement existed with regard to the second contract and as such nobody was entitled to seek reference to arbitration
The petitioner filed a special leave petition to this Court
This Court passed an interim order granting special permission to the respondent to file a money suit in any court since the claims were getting barred by time
Pursuant to this order the r respondent filed a regular money suit in a foreign court and two identical suits in the Bombay High Court for recovering damages for which the written statements were filed
PG NO 548 PG NO 549 The petitioner moved an application in one of the suits in the High Court stating that in the interests of justice pending disposal of the three suits an injunction should be granted restraining the parties from proceeding with the arbitration and that the arbitration be stayed under the principles of section 35 of the 
The High Court granted interim injunction restraining the parties from proceeding with arbitration
On 8th March 1985 the High Court dismissed the notice of motion and held that this Court s order dated 2nd December 1983 was clear there was no abandonment of the pending arbitration proceedings by the respondent and therefore stay could not be granted
This order was confirmed by the Division Bench in appeal
In the SLP to this Court the question was whether the High Court was right in declining to grant stay of the arbitration proceedings
Dismissing the application HELD 1
The High Court rightly held that Section 35 does not apply
556A Sujant Singh vs Seth Mohinder Paul AIR1964 Punj 395 ref
to 2
In particular facts and circumstances if a party filed a suit to save limitation the same would not vitiate the award or make the award bad under section 35 of the Arbitration Act555F 3
Foreign awards automatically are not lifeless award  They can be enforced in this Court in accordance with law556G Oil  Natural Gas Common
Western Co of N America AIR 1987 SC 574 ref to 4
Whether in a particular case it would be just and equitable to the parties to direct them to proceed with the arbitration must depend upon the facts and circumstances of a particular case having regard to the legal provisions applicable to a particular Situation556A D In the instant case there is a valid arbitration agreement between the parties
In view of the direction of this Court
the continuation of the arbitration proceedings in respect of the filing of the suit would not be bad
In these circumstances if the court declined to exercise its jurisdiction under section 151 of the Code of Civil Procedure to grant stay of the proceedings of arbitration in PG NO 550 London the court has not acted in excess of jurisdiction or has not exercised its jurisdiction improperly
In such a situation the Appellate Court should not normally interfere
In the premises it would have been improper to exercise any jurisdiction to interfere
557B C VC Tractoroexport Moscow vs Ms Tarapore  Co  Anr   Serajuddin  Co vs Michael Goldetz  Ors AIR 1960 Cal
47 In re All India Groundnut Syndicate Ltd and Ramji Dayawala  Sons P Ltd vs Invest Import  referred to