ition No 1702 of 1986
Under Article 32 of the Constitution of India KMM Khan Amicus Curiae for the Petitioner
OP Sharma Mrs Subhadra and P Parmeshwaran for the Respondents
The Judgment of the Court was delivered by BC RAY J
The petitioner who was a Havaldar in the Army No 4 142276 has moved this writ petition praying for an order directing the respondent Nos 1 to 3 to give pensionary benefit to the petitioner as he has served about 19 years in the army as a Havaldar
The petitioner has stated that in the first spell he has served in Kumaon Regiment from November 1939 to August 1947 during the second world war
He was released from the army service in August 1947 in the rank of Havaldar No 16235
The petitioner was again recalled during Kashmir operations in the Kumaon Regiment and he served in the Army Supply Corps MT from July 1948 to July 1953 in the rank of Havaldar DUR No 6556074
The petitioner further stated that he was recalled from Army Supply Corps MT by Kumaon Regiment and transferred to impart training in the Lok Sahayak Sena of KRC Platoon No 28 where he served from July 1953 to July 1956 in the rank of Havaldar
As his job was to impart military training to Lok Sahayak Sena which is like NCC he retained a regular army No 4142276
The petitioner stated that in an alleged incident of storing illicit arms in his house there was a police raid and all his papers 771 were taken away by the police and as such he had no papers left with him to prove his service in the regular army except a statement of accounts QE 1156 a copy of which has been annexed as annexure P 2
It has been stated that the petitioner was intimated by a letter dated 2791983 issued by the District Sanik Welfare and Resettlement office Almora in reply to his representation for pension that he has not been in the army service for a period of 15 years as required to be entitled to get pension according to Army Pension Rules
His claim for army pension was therefore rejected This letter has been annexed as annexure P 5 to the writ petition
The petitioner has stated in the writ petition that his service rendered in the LSS third spell should be treated as service in the army and he having served for more than 15 years in the army is entitled to pension
An affidavit in opposition has been filed on behalf of the respondents sworn by Capt
PE Joseph
In para 1 of the said affidavit it has been stated that the petitioner was originally enrolled with the Kumaon Regiment on 24th November 1940 and discharged from service with effect from 26th October 1946
He was subsequently re enrolled in ASC MT with Army No 6556074 on 8th March 1948 and discharged from there on 20th May 1952
It has been further stated that in the third spell of service he was re enrolled with the Kumaon Regiment on 2nd March 1955 for Lok Sahayak Sena and allotted Army No 4142276
He was discharged from there on 2nd September 1957
It has been further stated in para 3 of the said affidavit that the claim of the petitioner that he was in army service for over 19 years was not based on facts
It has been further stated that his service in the first two spells is 10 years and 54 days only and even if his service with 29 LSS is counted towards qualifying service his total service would be less than 15 years
So he will not be entitled to pension as per the extent army rules
The petitioner on the other hand was unable to produce relevant documents in support of his statement regarding the period of his service in the army rendered both in the first and second spell of service
It appears from a letter dated 21st October 1982 issued by the Lieutenant Sahayak Abhilekh Adhikari Asstt
Record officer for OIC Records that the service rendered by the petitioner in LSS cannot be counted towards pension as the members of that unit are not treated as army personnel
This letter has been annexed as annexure D  to the counter affidavit
It has been further stated in the affidavit that since the individual has not served in the army as an incumbent for more than 15 years he is not entitled to any pension as contemplated under the army rules
772 A supplementary counter affidavit on behalf of the respondents verified by 2nd Lieutenant Jagdish Singh Records Kumaon Regiment Ranikhet has been filed wherein it has been stated in para 9 that the petitioner having not completed the required 15 years of service was not entitled to pension as per prevalent rules
It also appears from the letter dated 3rd February 1987 issued under the signature of Major Senior Record officer for officer in Charge addressed to the organisation Directorate Adjutant General s Branch Army Headquarters that since the petitioner had not completed 15 years pensionable service in both the spells he was not entitled to service pension as per the existing orders
It has been further stated therein that the petitioner s service in 28 National Volunteer Force LSS training team was not countable towards pension for which necessary clarification had already been given by the CDAP Allahabad vide letter dated 21st October 1982
The respondents at the time of hearing produced the relevant records wherefrom it appears that the petitioner has not completed 15 years of army service as his service in the LSS can not be treated as army service
It is also evident that the statements of the petitioner regarding the periods of service rendered by him in the first and the second spell are inconsistent with his record of service as mentioned in the letter dated February 3 1987 annexed as annexure B  to the supplementary counter affidavit filed on behalf of the respondents as well as from the letter issued under the signatures of Sahayak Abhilekh Adhikari Asstt
Record officer for OIC Records dated October 16 1981 annexed as annexure P 4 to the writ petition The army regulation Nos 126 and 132 were also placed before us in this connection
We are constrained to hold that the petitioner has not rendered 15 years of army service to be able to get the benefit of army pension as required under the army rules
Writ Petition is therefore dismissed
There will however
be no order as to costs
PS S
Petition dismissed


Summary:
 The detenu a clearing and forwarding agent aged around 26 or 27 years was detained under section 31i of the COFEPOSA Act
On the day the representation was heard by the Advisory Board the detaining authority was being assisted by a Deputy Collector and a Superintendent of Central Excise
A specific request of the detenu to permit a retired Assistant Collector of Central Excise to assist him as a friend was turned down on the ground that he was not a friend of the detenu though the person was inclined to assist the detenu because of his professional experience
The detention order was confirmed on the recommendation of the Advisory Board
In the writ petition under article 226 of the Constitution challenging the order of detention it was contended for the detenu that he had sought the assistance of the retired officer because the case before the Board involved certain facets which required acquaintance with the legal provisions and the procedure and practice adopted by the Customs authorities with which he was not well versed
The writ petition having been dismissed the father of the detenu filed special leave to appeal to this Court
Allowing the appeal  HELD 11 The detenu was entitled to the assistance of a friend
The refusal of the Advisory Board to permit him to be assisted by the retired officer was bad and his continued detention became vitiated
793E F 12 The detenu was not very much acquainted with the legal provisions and the procedure and practice adopted by the customs authorities
If the retired officer had been permitted to assist him 788 his case would have been better placed before the Advisory Board
A Moreover when the detaining authority had the assistance of the Deputy Collector and a Superintendent of Central Excise who play the role of legal advisers the Board had no justification to refuse the assistance sought for by the detenu
There was therefore denial of a fair hearing before the Advisory Board
792G H Nand Lal Bajaj vs State of Punjab   Smt
Kavita vs State of Maharashtra   and AK Roy etc
vs Union of India  Anr
   applied
21 The term friend  used in the judgments of this Court was more in the sense of an ally in a fight or cause or a supporter  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 by a detenu for rendering assistance before the Advisory Board within the frame of the law as settled by this Court1793B C 22 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
What cannot be permitted directly should not be allowed to be done in an indirect way
793C D 3
Matters relating to preventive detention are strict proceedings and warrant full compliance with the requirements of law
It is not for this Court to examine and assess what prejudice has been caused to the detenu on account of denial of assistance1793D E 4
The order of detention is quashed
The detenu be set at liberty forthwith