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PETITIONER: PHILLIPPA ANNE DUKE

       Vs.

RESPONDENT: THE STATE OF TAMIL NADU & ORS.

DATE OF JUDGMENT21/05/1982

BENCH: REDDY, O. CHINNAPPA (J) BENCH: REDDY, O. CHINNAPPA (J)

CITATION:  1982 AIR 1178            1982 SCR  (3) 769  1982 SCC  (2) 389        1982 SCALE  (1)496  CITATOR INFO :  R          1984 SC1095  (6,13)  RF         1991 SC1983  (9)

ACT:      Conservation of  Foreign  Exchange  and  Prevention  of Smuggling Activities Act 1974, Ss. 8 and II and Constitution of India, 1950, Article 22 (5).      Advisory  Board-Legal   representation  or   ’friendly’ representation to detenu-Grant of facility-When arises.      Detention order-Representation  of the  detenu  to  the Central  Government-What   is-Bout  De   Papiere  to   Prime Minister-Petitions memorial  to  Minister-Whether  statutory representation.

HEADNOTE:      The two  petitioners who  were  British  nationals  and friends and  collaborators  in  smuggling  enterprises  were detained under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974 for smuggling electronic equipment and goods worth several lakhs of rupees  in secret  compartments and  hidden cavities of a Mercedez Benz van.      The High  Court dismissed  their petitions  for release from detention.      In  their  writ  petitions  under  Article  32  it  was contended that:  (1) the  representation made by them to the Central Government to revoke the orders of detention as long back as March 1982 remained undisposed of and on this ground alone they  were entitled  to be  released; (2)  the Bout De Papier presented  to the  Prime Minister of India during her visit to  England pointing  out that  the order of detention passed against  the petitioners  might  be  lifted  and  the detenus be  either released  or charged and brought to trial without delay,  had not  been disposed of; and (3) that they had been  denied the  right to  be  represented  before  the Advisory Board  by an Advocate or at least by a ’friend’ and thus they  were denied an opportunity to make an appropriate and effective representation to the Advisory Board.      Dismissing the petitions, ^      HELD:  (1)   Representations   from   whatever   source addressed to  whomsoever officer  of one or other department of the  Government cannot  be treated  as representations to

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the Government under the COFEPOSA. [772 D]      (2) The  Bout De Papier presented to the Prime Minister during her  visit to  Britain and  the  subsequent  reminder addressed to the External Affairs Ministry by 770 the British  High Commission  are not representations to the Central   Government.    They   were    merely    diplomatic communications between  the Governments of the two countries which  will   be  answered  through  appropriate  diplomatic channels in  proper  time.  Such  diplomatic  communications between  one  country  and  another  cannot  be  treated  as representations to  the  statutory  authorities  functioning under the COFEPOSA. [771 G-H; 772 A-E]      3(i) The  Advisory Board  consisting of three Judges of the High  Court considered it unnecessary and inadvisable to allow legal representation to the detenus. That was a matter for decision  of the Advisory Board and this Court would not be justified  to substitute  its judgment  in place  of  the Boards judgment. [774 C]      (ii)  A   ’friendly’  representation  would  have  been provided by  the Board  had it been demanded. But it was not for the Advisory Board to offer ’friendly’ representation to the detenus without being asked for. [774 D-E]      In the  instant case  the order  of detention  made  on January 7,  1982 was  considered by  the Advisory  Board  on February 8,  1982 and  its report  showed that the detention was justified. [775 C-D]

JUDGMENT:      ORIGINAL JURISDICTION:  Writ Petition  (Criminal)  Nos. 271-272 of 1982.           (Under Article 32 of the Constitution of India)      Ram  Jethmalani   and  Miss  Rani  Jethmalani  for  the Petitioner.      R.K. Garg and A.V. Rangam, for the Respondents.      The Judgment of the Court was delivered by      CHINNAPPA REDDY,  J.  Richard  Beale  and  Paul  Duncan Zawadzki, two  British nationals,  said to  be  friends  and collaborators  in   smuggling  enterprises   are  now  under detention  under  the  provisions  of  the  Conservation  of Foreign Exchange and Prevention of Smuggling Activities Act. Richard Beale  arrived at  Madras from Singapore on December 11, 1981.  He brought  with him  a  Mercedez  Benz  van.  On examination by the customs authorities, the van was found to have secret  compartments and  hidden cavities. It was laced and lined,  as  it  were,  with  all  manner  of  electronic equipment and  goods worth  several lakhs of rupees. Richard Beale was interrogated and made a statement. He was arrested and produced  before the  learned Metropolitan Magistrate of Madras. His  friend and  collaborator Paul  Duncan Zawadzki, who had  separately arrived  in India  and who  attempted to contact Richard Beale, was also interrogated, later arrested and produced  before the  Metropolitan Magistrate. Orders of detention under the COFEPOSA 771 were made  against both  of them  on  January  7,  1982  and grounds of  detention were  duly served on them. The detenus moved the  High Court  of Tamil  Nadu for their release from detention, but  their applications were dismissed. They have now come  to this Court seeking Writs of Habeas Corpus under Art. 32  of the  Constitution. The two petitions were argued together by  Shri Jethmalani  and they  may be  conveniently disposed of by a single order.

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    The first  submission of  the learned  Counsel was that the representation  made  by  the  detenus  to  the  Central Government to revoke the orders of detention so long back as March, 1982 remained undisposed of till this day and on that ground alone, the detenus were entitled to be released. Shri Jethmalani drew  my attention to S. 11 of the COFEPOSA which enables the  Central Government to revoke or modify an order of detention  made by  the State  Government or its officers and to the decisions of this Court laying down that delay by the Central  Government in  dealing with  representations of the detenu  would also  entail  the  detention  invalidating itself.  Apart  from  the  fact  that  there  is  no  proper foundation for the submission, I am not satisfied that there is any  merit in  the submission.  The Writ  Petitions  were filed on  March 12,  1982 and there was then no hint of this submission. The  counter-affidavit on behalf of the State of Tamil Nadu was filed on April 5, 1982. Thereafter, the clerk of the  learned Counsel  for the Petitioners has sworn to an affidavit mentioning  the facts  giving rise  to the present submission. It  appears from  the affidavit  that  when  the Prime Minister  of India  was recently in England, a Bout De Papier was  presented to  the delegation  accompanying  her, expressing concern  about the  detention  without  trial  of Richard Beale  and Paul  Duncan Zawadzki and suggesting that the detention order might be ’lifted’ and the detenus either released or  charged and  brought to trial without delay. It further appears  that the  British High  Commission in India also addressed  the Ministry of External Affairs, Government of India,  and reminded  them  about  the  Bout  De  Papiere presented to  the Prime  Minister’s  delegation  in  Britain during  her   visit  to  that  country.  According  to  Shri Jethmalani, the  Bout De  Papiere  presented  to  the  Prime Minister’s delegation in Britain and the subsequent reminder by the  British High  Commission constitute a representation to  the   Central  Government   demanding  their   immediate consideration in  terms of the provisions of the COFEPOSA. I have no  doubt that  the Bout  De Papier  and the  reminder, diplomatic 772 communications that  they are between the Governments of the two countries,  will be  attended to  and  answered  through appropriate diplomatic  channels in  proper  time  and  with necessary expedition.  But I find it difficult to treat such diplomatic communications between one country and another as representations to  the  statutory  authorities  functioning under  the   COFEPOSA,  as   representations  which  require immediate consideration  by the  statutory  authorities  and which if  not  considered  immediately,  would  entitle  the detenus to  be set  at liberty.  Nor is it possible to treat the countless petitions, memorials and representations which are everywhere  presented to  the Prime  Minister and  other Ministers as  statutory appeals  or  petitions,  statutorily obliging them  to consider  and dispose  of such appeals and petitions in  the manner  provided by  statute. No doubt the Prime Minister  and other  Ministers, as leaders in whom the people have  reposed faith  and confidence,  will deal  with such appeals  and petitions  with due and deserved despatch. But quite  obviously that  will  not  be  because  they  are discharging statutory  obligations. It  is not also possible to treat  representations from  whatever source addressed to whomsoever  officer  of  one  or  other  department  of  the Government as  a representation  to the Government requiring the appropriate authority under the COFEPOSA to consider the matter. I do not consider that the Bout de Papiere presented to the  Prime Minister  during her  visit to Britain and the

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subsequent  reminder   addressed  to  the  External  Affairs Ministry by  the British High Commission are representations to the  Central Government  which are  required to  be dealt with in the manner provided by the COFEPOSA.      It was  next submitted  by the learned Counsel that the Chief Minister,  who according  to the  Rules of Business of the Government  of Tamil  Nadu, was  required to  deal  with matters relating to preventive detention neither applied his mind  to   the  making  of  the  orders  of  detention,  nor considered the  representation of  the detenus  himself. The relevant files have been produced by the learned Counsel for the State  of Tamil  Nadu and  on perusing  them, I  find no substance in the submission of the learned Counsel.      The submission  which was most strenuously urged by the learned counsel  was that  the detenus  had been  denied the right to 773 be represented  before the  Advisory Board by an Advocate or at least  by a  friend and  that they  were thus  denied the right to  make a  proper and effective representation to the Advisory  Board.  This  was  sufficient,  said  the  learned Counsel, to vitiate the detention. The learned Counsel urged that the  detenus were foreign nationals and they were under a handicap being ignorant of the laws and procedures of this country.  To  deny  legal  representation  to  them  was  an unreasonable  exercise  of  the  discretion  vested  in  the Advisory  Board   to  permit   or  not   to   permit   legal representation. According to the learned Counsel, this was a clear case  where  legal  representation  should  have  been permitted. In  any case,  it was urged, the detenus ought to have been offered at least ’friendly’ representation, if not legal representation. Reliance was placed upon the following observations of  the Constitution Bench in A.K. Roy v. Union of India :           "Another aspect  of this  matter which needs to be      mentioned is  that the  embargo on  the  appearance  of      legal practitioners  should not  be extended  so as  to      prevent the  detenu from  being aided  or assisted by a      friend who,  in truth  and substance,  is not  a  legal      practitioner.  Every   person   whose   interests   are      adversely affected as a result of the proceedings which      have a serious import, is entitled to be heard in those      proceedings and  be assisted  by a  friend.  A  detenu,      taken straight  from his  cell to the Board’s room, may      lack the  ease and  composure to  present his  point of      view. He  may be  "tongue-tied,  nervous,  confused  or      wanting in  intelligence" (see Pett v. Greyhound Racing      Association Ltd., 1969, 1 QB 125), and if justice is to      be done, he must at least have the help of a friend who      can assist  him to  give coherence  to  his  stray  and      wandering ideas.  Incarceration makes  a  man  and  his      thoughts dishevelled.  Just as  a person who is dumb is      entitled, as he must, to be represented by a person who      has speech,  even so, a person who finds himself unable      to present his own case is entitled to take the aid and      advice of a person who is better situated to appreciate      the facts  of the  case and the language of the law. It      may be  that denial  of  legal  representation  is  not      denial of natural justice 774      per se,  and, therefore,  if a  statute  excludes  that      facility  expressly,  it  would  not  be  open  to  the      Tribunal to allow it. Fairness, as said by Lord Denning      M.R., in Maynard v. Osmond [1977] 1 QB 240, 253, can be      obtained without  legal representation.  But, it is not

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    fair, and the statute does not exclude that right, that      the detenu  should not  even be allowed to take the aid      of a  friend. Whenever  demanded, the  Advisory  Boards      must grant that facility."      In the  present case,  the Advisory Board consisting of three Judges  of the  High Court of Tamil Nadu considered it unnecessary and inadvisable to allow legal representation to the detenus.  It was  a  matter  for  the  decision  of  the Advisory Board  and I  do not  think I  will be justified in substituting my judgment in the place of their judgment. The detenus were  heard personally  by the Advisory Board. After seeing and  hearing them  personally also, the Board did not feel it  necessary to  provide legal  representation to them which they  would certainly  have done  if they  had thought that the  detenus appeared  to require  such representation. Regarding representation  by a  friend, there  was never any such demand  by the  detenus.  A  ’friendly’  representation would certainly  have  been  provided  if  it  had  been  so demanded. It  was  not  for  the  Advisory  Board  to  offer ’friendly’ representation  to the detenus even if the latter did not  ask for it. Relying upon a sentence in the counter- Affidavit of  Shri Thiru  Bhaskaran that  representation not only by  a lawyer,  but by  a friend was also considered not necessary by  the Advisory  Board, it  was argued  that  the Advisory Board  had, without  warrant, refused even friendly representation. Shri  Thiru Bhaskaran  was speaking  for the State of  Tamil Nadu  and not for the Advisory Board. I have perused the  file of  the Advisory  Board which was produced before  me  and  I  have  also  perused  the  communications addressed by  the Advisory  Board to the Government of Tamil Nadu and to the detenus. I do not find the slightest hint of a  demand   for  ’friendly’  representation  or  its  denial anywhere. The  Advisory Board  was neither asked nor did the Board deny any ’friendly’ representation.      A charge was made against the Advisory Board that there was inequality  of treatment.  It was  said that  while  the detaining authority  was allowed  to be  represented by  its officers  and   advisers,  the   detenus  were   allowed  no representation. There is no substance 775 in this  charge. From  the affidavit  of the Chairman of the Advisory Board,  I find that all that happened was that some customs officers  were allowed to be present in the corridor so as  to enable them to produce the relevant files whenever required for  perusal by the Board. The charge of inequality of treatment is, therefore, baseless.      Yet another  submission of the learned Counsel was that the Advisory  Board failed  to consider the question whether the detention  continued to  be justified on the date of the report of  the Advisory  Board, even  if it was justified on the date  of the making of the order of detention. The order of detention was made on 7.1.82 and the consideration by the Advisory Board was on 8.2.82. The passage of time was not so long nor  had any  circumstances intervened  to justify  any compartment-wise consideration  of the justification for the detention on  the  date  of  the  making  of  the  order  of detention and  on the  date of  the report  of the  Advisory Board. In  the circumstances  of the  case, I think that the report of the Advisory Board that there was sufficient cause for the  detention of Richard Beale and Paul Duncan Zawadzki necessarily implied  that the  detention was  found  by  the Board to  be justified  on the date of its report as also on the date of the making of the order of detention.      A complaint  was also  made  that  the  Advisory  Board carried on  its correspondence  with the detenus through the

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Government. This,  it was  stated, gave  rise to a suspicion that everything  was done  by the  Board at the behest or in consultation with  the Government.  This complaint is wholly unjustified. As  already mentioned by me, the Advisory Board consisted of  three Judges  of the  High Court of Tamil Nadu and as  explained by  the Chairman  in  his  Affidavit,  the correspondence etc.  is carried  on through  the  Government because the  Board has  no separate administrative office of its own.  All the points urged on behalf of the detenus fail and the petitions are, therefore, dismissed. N.V.K.                                  Petitions dismissed. 776