The petitioner files a writ petition of Habeas Corpus for the release of his son, who was detained under Section-3 of Prevention of Black-marketing Act and Maintenance of Supplies of Essential Commodities Act,1980. On 1St June 1981 and order was passed by District Magistrate for detaining the petitioner so to prevent him from doing a certain act. A request for an assisting counsel was made by detenu before starting to proceedings to State Government and he was shocked to know that he has to present his case in front of advisory board without the help of an attorney as Section-11(4) of Prevention of Black-marketing and Maintenance of Supplies of Essential Commodities Act. Report of Advisory Board was presented and not their records as they are confidential. Article-22(3) of Constitution was denied. Lawyers have no right to interfere in proceedings, as per Section-9 it is an independent body. There was no procedural denial and no deprivation of personal life and liberty guaranteed under Article-21.
|In the Supreme Court of India|
|Name of the Case||Nand Lal Bajaj v The State of Punjab and Anr|
|Citation||1981 AIR 2041 ,1982 SCR (1) 718|
|Year of the Case||1981|
|Appellant||Nand Lal Bajaj|
|Respondent||State of Punjab and Anr|
|Bench/Judges||SEN, A.P. (J), ISLAM, BAHARUL(J)|
|Acts Involved||Constitution of India Prevention of Black-Marketing and Maintenance of Supplies of Essential Commodities Act,1980|
|Important Sections||Article-14,21, 22(3)(b), 22(7)(c), 22(1), 32 of Constitution Section-11(4), 12 of Supply of Essential Commodities Act,1980 Section3(2), 11, 11(4), 12 of Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act. Section-8(e), 9, 11 of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act,1974|
Billa, detenu is been detained since the District Magistrates order of 1st June,1981 under Section-3(2) of Prevention of Black-marketing Act and Maintenance of Supplies of Essential Commodities Act,1980. The request in writing for taking assistance from a counsel before the starting of proceedings in front of The Advisory Board, which was denied as per Section-11 of the act. When the hearing took place the State Government was assisted by a Public Prosecutor, two attorneys, District Legal Advisor and, a Legal Assistant. The subject of the case is that the person was involved in a certain kind of Black-marketing for which he was detained and did not get any assistance from an attorney as per Section-11 of the act. Says that if any person who is accused in the case of black-marketing then he will not be allowed to take any assistance from attorney. The main object of the case was to punish the accused was involved in the business of Black-Marketing.
Background of the Case:
Before the judgement for the present case was passed it was believed that the person who was detained under the Section-11 of the act cannot get any kind of legal assistance from an attorney. After this case was decided, it was held that if either of the parties takes the help from a legal practitioner then by applying the principle of natural justice, the detenue should also get the legal assistance so as to have a fair and just proceedings. It is believed that during the proceedings of the Advisory Board no attorney should be present there or can give assistance to either of the parties and if either of them takes such assistance then both the parties should take it so as to ensure fair and just proceedings.
- On 1st June,1981, Billa was detained by District Magistrates Order under Section-3(2) of Prevention of Black-marketing Act and Maintenance of Supplies of Essential Commodities Act,1980.
- On 11th June,1981, the accused was arrested by serving him the order of detention with the grounds of detention.
- A request was made by the detenue to have an attorney to assist him in the proceedings of the Advisory Board which got rejected as per Section-11(4) of the act.
- Detaining authority was represented by the State Counsel along with two attorneys and one Legal Representative.
- Detenue again requested from the Advisory Board to have legal assistance which again got rejected.
- The court asked for the file of the proceedings of Advisory Board but they provided them the Advisory Board and the reason reported that their proceedings are confidential and they cannot disclose them.
- As per Article-22(3) (b) of Constitution of India every detenue has a right to right to be consulted and defended by a legal practitioner but as per Section-11(3) of the act such accused cannot consult a legal practitioner.
- No lawyers involved in the proceedings of Advisory Board but in the proceeding’s lawyers were present.
- Advisory Board is an independent body established under section-9 of the act with Chairman as a Judge and two members.
- It was expected by the Advisory Board to act in just and fair manner but they blindly applied the provisions of Section-11(4).
- As per the report, detenue called upon certain witnesses for cross-examination and in total there were 11 witnesses.
- Hearing before the Advisory board lasted for 4 to 5 days.
- Both the parties should be given equal opportunities to present their cases.
- Whether the accused has a right to be consulted and defended by a lawyer of not
- Whether the detenue can be seek for legal assistant if detained under section-11 of Prevention of Black-marketing Act and Maintenance of Supplies of Essential Commodities Act,1980?
- Whether the detention was legal or not?
Section-11(4) of Prevention of Black-marketing Act and Maintenance of Supplies of Essential Commodities Act,1980:
This Section talks about the legal assistance should not be provided to people who are detained due to the acts specified in the act.
Article-14 of Constitution:
The said Article states that every citizen is equal before the law and should get equal protection of law.
Article-21 of Constitution:
The said article stats that no person will be deprived of his personal life and liberty until it is not made by law.
Section-3(2) of Prevention of Black-marketing Act and Maintenance of Supplies of Essential Commodities Act,1980:
Under this Section, a person can be detained if he was found under any act of black-marketing.
Article-22(3) (b) of Constitution of India:
The article says that every person has a right to consult and defend own self via legal practitioner.
Section-9 Prevention of Black-marketing Act and Maintenance of Supplies of Essential Commodities Act,1980:
Under this section, An Advisory Board is setup as an independent body.
Section-12 of Prevention of Black-marketing Act and Maintenance of Supplies of Essential Commodities Act,1980:
Advisory Board has the power to detain a person if they have a sufficient cause to believe the same.
Article-32 of Constitution of India:
It talks about the right to move to the Supreme Court for the enforcement of the rights specified under Part-III of Constitution of India.
Section-8 of Prevention of Black-marketing Act and Maintenance of Supplies of Essential Commodities Act,1980:
This section removes the right of entitlement of a detenue to claim the right to be protected and defended by a lawyer.
Smt. Kavita v The State of Maharashtra & Ors
In this case it was held that, under -Section-11(4) of Prevention of Black-marketing Act and Maintenance of Supplies of Essential Commodities Act,1980, is an independent body and under Section-8(e) of the act, legal assistance must be provided to the detenue when so made by them and their function of only of consulting.
E.P. Royappa v State of Tamil Nadu, Maneka Gandhi v Union of India Francis Coralie Mullin V the Administration, Union Territory of Delhi & Ors:
In these cases, it was held that for considering the case of detention under Section-12 of the act they have the power not only to have the reports of the advisory board but also to apply their own thinking skills and if not done so then the detention of the person will be regarded as illegal.
Supreme Court in this case, held that the right to get protected and to be defended by an attorney depends upon case to case. In this case there was no procedural denial guaranteed by Article-21 and no request was made by the detenue in front of the advisory board and in the case of Kavita, when the detention is made under section-8 of the act then the detenue has no right to get legal assistance. It is clear that in such case a detenu cannot get any legal assistance but it will also be unfair if the State will get assisted by an attorney. In the case there is a serious infirmity and continuation of detention will be regarded as illegal.
In this case, basically there are two concepts which are been highlighted and they are as follows:
- Every person has a right to get legal assistance but not to those who has done an act specified under the Section-11(4) of the act.
- The principle of natural justice must be applied while delivering the judgement, i.e., that equality must prevail and both the parties should get the equal treatment.
 (1982) 1 SCR p. 138
 (1971) 2 SCR 621
 (1978) 2 SCR 621
 (1981) 2 SCR516 at 531