Written intimation of hearing just before commencement of video conference hearing by Advisory Board leads to SC quashing detention of man in a gold smuggling case

Supreme Court: In the case where the State Advisory Board had heard a detenu on video conference, without any sufficient prior intimation to the detenu for preparation or arrangement for such hearing, the 3-judge bench of RF Nariman, BR Gavai and Hrishikesh Roy, JJ  has set aside the Detention Order is and has directed the immediate release of the detenu-petitioner. The Court said,

“… it is obvious that no effective hearing was given to the petitioner by the Advisory Board.”

Advocate Saurabh Kirpal, appearing for the petitioner had submitted before the Court that while in the matters of other detenus, the State Advisory Board had suo motu given advance permission to take assistance of a friend to represent their case, in the instant case the written communication of intimation dated 02.02.2021 of the hearing by the State Advisory Board sent by Fax to Jail Authorities was served in jail on or about 03.02.2021, just before commencement of video conference hearing by the State Advisory Board on the same date i.e. 03.02.2021 at 08:40 Hrs (scheduled at 08:30 Hrs).

It was argued that this was against the standard practice followed by the Central Advisory Board to give every detenu a fairly advance written intimation of the date of hearing before them, that too, with an option to keep an Advocate present for effectively representing his case.

Even the denial of specific request for furnishing translated copies and other material and information was also communicated only on or about 03.02.2021 along with the said intimation dated 02.02.2021 of hearing issued by State Advisory Board. Further, despite specific written request made in the representation, even brief reasons for rejecting every request made, were not communicated to the detenu. Nor was the detenu orally informed of the reasons.

“Such empty formality of hearing on video conference, without any sufficient prior intimation to the detenu for preparation or arrangement for such hearing, without permitting any time to seek assistance by any friend or advocate, that too when the detenu has no documents/materials/judgments in his hand, cannot be justified for preventive detention.”

As per the Advisory Board, the proceedings in the present case were conducted in accordance with the provisions of the COFEPOSA Act, 1974 and a memorandum dated 02/02/2021 regarding the hearing to be held on 03/02/2021 through Video Conferencing was communicated to the Superintendent Central Jail with a request to serve a copy to the detenu in accordance with which the  detenu participated in the hearing through Video conference and made his submission before the State Advisory Board.

In Hamida Sarfaraz Qureishi v. M.S. Kasbekar, (1980) 4 SCC 478, no reasonable notice about the date of meeting of the Advisory Board was given to the detenu. It was only about one or two hours before the scheduled time of the meeting of the Advisory Board that a police officer went to the hospital in which the detenu was confined, to inform about the meeting of the Board. Even that information was given only to the wife of the detenu for further transmission to the detenu who was then precariously ill and disabled from doing anything.

In the said case, under Section 11(1) of the PREBLACT, the authority concerned was peremptorily required to afford to the detenu a proper opportunity to be heard in person by the Advisory Board.

In such facts and circumstances, the Court had held,

“The so called opportunity of being heard in person by the Advisory Board, was a farce, and amounted to a negation of the right conferred on him under Section 11(1) of the Act.”

Following this judgment, the Supreme Court in the present case directed the immediate release of the detenu owing to the absence of effective hearing by the Advisory Board.

As per a report published by the Times of India, Bhargav Kanubhai Tanti was detained under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA) for his alleged involvement in smuggling of 1300 kgs of Gold[1].

The Central Government after considering the opinion of the State Advisory Board that there is sufficient cause for the detention confirmed the detention order vide Order dated 25.02.2021 for a period of one year from date of detention i.e. from 16/12/2020.

[Sanjay Kanubhai Tanti v. The Superintendent, 2021 SCC OnLine SC 229, decided on 15.03.2021]

Appearance before the Court by:

For petitioner: Advocate Saurabh Kirpal


[1] Absconder in 1.3 tonne gold smuggling case arrested, https://timesofindia.indiatimes.com/city/ahmedabad/absconder-in-1-3-tonne-gold-smuggling-case-arrested/articleshow/79766651.cms

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