Ranganath Misra, J. - (1.) The petitioner, the wife of a detenu under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 ('Act' for short), in this application under Article 32 of the Constitution assails the order of detention as also the subsequent declaration under Section 9 of the Act. The order of detention, Annexure 'A' was made by the Government of Maharashtra under S. 3(1) of the Act on November 20, 1984. The order directed his detention in the Bombay Central Prison at Bombay for one week from the date of detention and in Nasik Road Central Prison thereafter. On the same day the grounds of detention were also served on the detenu. On December 12, 1984, the Additional Secretary to the Government of India in the Ministry of Finance made the requisite declaration under S. 9(1) of the Act, Annexure 'B'.
(2.) Petitioner, at the instance of the detenu, made a representation to the Chief Minister on November 24, 1984, against the detention and the said representation was received in the office of the Chief Minister on November 28, 1984. This representation was rejected on January 28, 1985, two months after its receipt as alleged by the petitioner. Detenu appeared before the Advisory Board on April 17, 1985. When he appeared before the Board he asked for the assistance of a lawyer or alternatively of a non-lawyer friend. The request was not acceded to and the Board made an adverse report to the State Government. The petitioner had challenged the detention of her husband by filing a writ petition before the Bombay High Court being Criminal Writ Petition No. 50 of 1985. By judgment dated April 29, 1985, the High Court dismissed the said petition. This writ application has thereafter been filed in July 1985 for the reliefs indicated already.
(3.) Two affidavits in opposition have been filed one by the Special Secretary to the Government of Maharashtra and the other by the Desk Officer of the Home Department of Maharashtra Government. The Special Secretary in his affidavit explained the basis of his satisfaction regarding the necessity to detain the detenu and the reasons for which the declaration under S. 9(1) was later made. He also explained in answer to specific allegations contained in the writ petition that there was no separate intelligence report which had been placed before him and/or taken into consideration in making of the order of detention. In the other counter affidavit, apart from indicating the justification for detention, reference was made to the petitioner's representation against the detention made to the Chief Minister. It has been pointed out that the order was dated January 23, 1985, and the reasoning adopted by the Bombay High Court in regard to the delay in disposal of the representation has been adverted to. Reference has also been made in regard to the detenu's request for representation by a lawyer or alternatively a non-lawyer friend. Dealing with that aspect, the affidavit indicates: "I say that in his representation, which was handed over to the Advisory Board, the detenu asked to be represented by a lawyer or otherwise by his next friend. I say that the Advisory Board, after considering the detailed representation made and after talking to the detenu, came to the conclusion that since the detenu was in good health and also that he has studied up to 8th standard in Khambala Hill Municipal School and thereafter in Social High School and since he was the owner/part owner, manager of number of business enterprises and he has been active in politics, there was no necessity for permitting the detenu to have his case represented through the lawyer. These facts were mentioned by the Advisory Board to the detenu. I say that whenever a request is made by the detenu to have his case represented through his friend, such a request has invariably been granted and he is always allowed to represent his case by his next friend who is not a lawyer. I say that the Advisory Board had informed this to the detenu and asked the detenu whether he had brought any friend with him since the Board always permits the detenu to be assisted by his next friend. I say that the detenu replied that he had not brought any friend to represent his case. I say that the fact that the detenu had not brought any friend despite the request made in the representation is noted in the Minutes which are regularly kept by the Chairman, Advisory Board.";