No Right to Lawyer Before Advisory Board in Preventive Detention — Unless Government Appears Through Legal Practitioner: Supreme Court

"A detenu cannot seek legal assistance as a matter of right — it is only when the Detaining Authority participates through a legal practitioner that the same facility must be extended to the detenu", In a significant ruling on the constitutional contours of preventive detention law, the Supreme Court has upheld the detention of two gold smuggling accused under the COFEPOSA Act, settling important questions on the right to legal assistance before the Advisory Board, substantial compliance in supply of electronic evidence, and the validity of ministerial communication of rejection of representations. The Court also clarified the limited circumstances in which showing CCTV footage on a laptop inside prison — rather than supplying the physical pen drive — constitutes adequate compliance with the obligation to furnish relied upon documents.

A bench of Justice M.M. Sundresh and Justice Nongmeikapam Kotiswar Singh delivered the judgment on April 16, 2026, dismissing both Special Leave Petitions.

Specific intelligence received by the Department of Revenue Intelligence, Bengaluru Zonal Unit led to the interception of Smt. Harshavardhini Ranya on 03.03.2025 near the Green Channel of the International Customs Arrival Hall at Kempegowda International Airport, Bengaluru, where 17 foreign-marked gold bars weighing approximately 14.2 kilograms were recovered from her. Statements recorded under Section 108 of the Customs Act led to the arrest of Shri Sahil Sarkariya Jain on 07.04.2025. The respondents alleged that Sarkariya Jain had facilitated the disposal of foreign-marked gold bar consignments on four different occasions between 14.11.2024 and 14.02.2025, transferring hawala money totalling over ₹39 crores.

Detention orders were passed on 22.04.2025 under Section 3(1) of the COFEPOSA Act by the Joint Secretary, Government of India, Ministry of Finance, CEIB, COFEPOSA Wing. The grounds of detention ran into several pages with substantial particulars. The contents of a pen drive containing CCTV footage of the airport interception were displayed to both detenus on a laptop brought inside the prison by officials. The Karnataka High Court upheld the detention orders. The petitioner-relatives of the detenus then approached the Supreme Court.

Five distinct questions arose: whether the rejection of the request for legal assistance before the Advisory Board vitiated the proceedings; whether displaying the pen drive contents on a laptop inside prison amounted to proper supply of relied upon documents; whether communication of representation rejections by the same officer rendered the disposal incompetent; whether the subjective satisfaction of the Detaining Authority was vitiated when the detenu's bail application had already been rejected; and whether a live and proximate link between the last transaction and the detention was established.

No Right to Lawyer Before Advisory Board — The Constitutional Position

The Court addressed the constitutional position on legal assistance in Advisory Board proceedings with precision. Article 22(3)(b) of the Constitution expressly excludes persons detained under preventive detention law from the protection clauses of Article 22(1) and (2) — which include the right to be defended by a legal practitioner. Section 8(e) of the COFEPOSA Act gives statutory expression to this constitutional position, explicitly providing that a detenu "shall not be entitled to appear by any legal practitioner in any matter connected with the reference to the Advisory Board."

The Court relied upon the Constitution Bench decision in A.K. Roy v. Union of India (1982), which had held that a detenu has no right to be represented by counsel in Advisory Board proceedings — but with a crucial caveat: if the Detaining Authority or Government itself takes the aid of a legal practitioner or legal adviser before the Advisory Board, then the detenu must be allowed the same facility, failing which Article 14 would be violated.

"A detenu cannot seek legal assistance as a matter of right. The hearing under Section 8(c) of the COFEPOSA Act is meant for the detenu alone — it is only when the Detaining Authority makes a representation before the Advisory Board through a legal practitioner that the said facility has to be extended to the detenu as well."

The Court found on facts that the officials who appeared before the Advisory Board on behalf of the Detaining Authority merely produced the records and assisted the Board in perusing them when required — they did not participate in any hearing as legal advisers or legal practitioners. Accordingly, the rejection of the detenu's request for legal assistance was held to be perfectly valid. The Court distinguished Choith Nanikram Harchandani v. State of Maharashtra (2015) — where officials of the Sponsoring Authority and Detaining Authority had actually been heard before the Advisory Board — as inapplicable on facts.

Pen Drive Shown on Laptop Inside Prison: Substantial Compliance Upheld

On the contentious question of the pen drive containing CCTV footage, the Court found substantial compliance on the part of the authorities. The contents of the pen drive were displayed to the detenus on a laptop brought inside the prison by the concerned officials, before the detenus made their representations. Attempts were made to supply the pen drive to the representatives of the detenus. When the counsel of Harshavardhini Ranya failed to receive it, the pen drive was furnished to her mother. An email was sent to the family of Sahil Sarkariya Jain intimating that the pen drive could be collected.

Critically, the Court noted that prison rules do not permit electronic gadgets to be supplied to detenus inside prison. Moreover, after the display on the laptop, the detenus had not renewed any request for further viewing of the 90-minute footage. The Court held that the contention of non-supply of the pen drive amounting to non-furnishing of relied upon documents was "nothing but an afterthought."

The Court distinguished the Delhi High Court's decision in Smitha Gireesh v. Union of India (2016) — heavily relied upon by the petitioners — on the ground that in that case the CCTV footage had been shown to the detenu only at the stage of recording of his Section 108 statement (before the detention order) and was denied to him thereafter, whereas in the present case the display was made after passing of the detention order and before making the representation. Moreover, in Smitha Gireesh, the display had been made to a co-accused but denied to the detenu concerned — which was not the situation here.

Communication of Rejection by Same Officer: A Mere Ministerial Act

The Court rejected the contention that representations had been disposed of by an incompetent authority. The representations of Harshavardhini Ranya dated 05.05.2025 and 08.05.2025 had been duly considered by the Joint Secretary, COFEPOSA, and the Director General, CEIB respectively — both being competent authorities. The communications of rejection had been signed by the Director, COFEPOSA, who was neither of these authorities.

"What was done by the signatory was a mere ministerial act — it was not his decision which was communicated to the detenu, but rather that of the concerned competent authority."

The Court held that the Director, COFEPOSA, merely conveyed the decisions of the competent authorities — the signing and communication was a ministerial function and not a substantive decision. This did not render the disposal incompetent or illegal.

Subjective Satisfaction and Live Proximate Link Established

On the question of subjective satisfaction while the detenu was in custody, the Court found that the grounds of detention clearly recorded the imminent possibility of the detenus being released on bail — a factor that is the accepted legal foundation for passing a preventive detention order against a person already in custody. The prior occurrences of disposal of foreign-marked gold bars were captured with adequate particulars in the grounds of detention. The live and proximate link between Sahil Sarkariya Jain's last transaction on 14.02.2025 and the incident of interception on 03.03.2025 was held to be duly established.

On the question of whether fresh grounds could be raised before the Supreme Court, the Court accepted — following Icchu Devi Choraria v. Union of India (1980) — that strict rules of pleadings do not apply in habeas corpus petitions and that fresh grounds can be raised. However, it found that even the fresh grounds raised did not advance the petitioners' case in light of the substantial procedural compliance established by the authorities.

Dismissing both SLPs, the Supreme Court found adequate compliance with the constitutional and statutory framework governing preventive detention under the COFEPOSA Act. The rulings on legal assistance, electronic evidence, ministerial communication, and subjective satisfaction provide important guidance for COFEPOSA proceedings going forward.

Date of Decision: April 16, 2026