Ranganath Misra, J. - (1.) This appeal is by special leave. Appellant challenged his order of detention under S.3(1)(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA for short) by filing a writ petition before the High Court and that application has been dismissed. As many as six contentions had been advanced before the High Court. Though raised in the writ petition, the point relating to denial of a fair hearing before the Advisory Board has not been noticed by the High Court as a contention on behalf of the appellant, but counsel for the appellant has raised the same point before this Court and since the facts on which the ground is raised are not in dispute we find no objection to entertaining this contention now specifically raised in this appeal.
(2.) The hearing of the representation of the appellant by the Advisory Board was fixed for 25 th Nov. 1986. On that day the appellant had specifically requested the Advisory Board to permit one Mr. Sundararajan, a retired Assistant Collector of Central Excise to assist him as a friend. The Board, as appears from the counter affidavit filed in this Court, turned down the request. The counter affidavit states:- "The Advisory Board has given its finding in rejecting the detenu's request for assistance of a friend, namely, Mr. Sundararajan in paras 2 and 3 of its report sent to the Government. The Advisory Board has stated in para 2 that the detenu filed a petition requesting the assistance of Mr. Sundararajan, a retired Assistant Collector of Customs. The Advisory Board has stated in para 3 that Mr. Sundararajan has appeared before it and had stated that he was formerly employed in the customs department and he would like to assist the detenu. In the same para the Advisory Board has also stated that it was admitted by Mr. Sundararajan before the Advisory Board that he is not a friend of the detenu and because of his professional experience he liked to help the detenu. In the same para the Advisory Board has given its findings and reasons for rejecting the request of the detenu on the ground that Mr. Sundararajan not being a friend of the detenu, the Advisory Board did not consider it proper to allow him to represent the case of the detenu." It is thus clear from the allegations in the special leave petition and the counter affidavit that the appellant had requested the Board to allow him the assistance of a friend at the hearing and for the reasons and in the manner indicated in the counter affidavit the request was turned down.
(3.) In para 9 of the special leave petition the appellant had alleged that on 25th Nov. 1986, the detaining authority was represented by customs officers of the rank of Deputy Collector of Customs and Superintendent. In the counter affidavit filed before this Court there has been no denial of this fact. Learned counsel appearing for the respondent did not dispute the allegation on the basis of the record as also the papers available with him that the department was represented at the hearing before the Advisory Board by a Deputy Collector of Customs. The position, therefore, is that on 25th Nov. 1986 while the detaining authority was assisted by a Deputy Collector and a Superintendent of Central Excise the detenu was denied the assistance of a retired Assistant Collector of Central Excise. On the recommendation of the Advisory Board, the detention order was confirmed.;