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
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.
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
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
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
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
