Phillippa Anne Duke v. The State of Tamil Nadu

_CHINNAPPA Reppy, J. Richard Beale and Paul Duncan Zawadzki, two British nationals, said to be friends and collabora-tors 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 hin 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 Jined, as it were, with all manner of electronic equipment and goods worth several Jak hs Ms rupees. Richard Beale was interro-gated and made a statemen ement. ile was arrested and produced before eed meals Magistrate of Madras. His friend and arrived in lodia Pgs sag Zawadzki, who had separately was also intero बाद, | कम दि to contact Richard siifaa Hlexi 83 66, later arrested and produced before the Metro-Beals. Pp Sgistrate. Orders of detention under the

COFEPOSA

PHILLIPPA ANNE ४, TAMIL NADU (Chinnoppa Reddy, 2) 79) 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 ms this Court seeking Writs of Habeas Corpus under Art. 32 of the Constitution, The two petitions were argued {together by Shri Jeth-oem, malant and they may be convenienty disposed of by & single order.” : ark,

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, 1932 remain-ed undisposed of till this day and on that ground alone, the OQ detenus were entitled to be~ released. Shri Jethmalani drew my ' attention 099. 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 im 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, Lam not

that there is any merit in the submission. The Writ satisfied

were filed on March 12, 1982 and there was then no hint Petitions counter-affidavit on behalf of the State of of this submission. The filed on April 5, 1982, Thereafter, the clerk Tamil Nadu was for the Petitioners has sworn to an ellidavit of the learned Counsel mentioning the facts giving rise to the present Ppl wheo the Prime oes ° owe appears from the affidavit that was recently in Baglaad, 3 pee cents Pear en a delegation accompanying er, © ड़ Duncaa Zawadzki tion without trial of Richard the oo Te ता डा com tel os cant and suggesting that detenus either released oF charged aoe © High Commission in bat the British Hi delay. It further appears f al Affairs, Sore a

dd India also 8601 De Papiere preseated to India, aad nae pene ia Britain during her visit to that Jethmalapi, the Bout De st gel ci the pee iene to Shri delegation in Britaio and the subsequen op "Minister"s constitute a see सात High Commission eee _ eevee Government demanding their rian reminder by t

terms of the provisions of the राह सो न nag tation to the and the reminder, diplomatic that a Bout De Papier Saar no dou :

communications that they are between the Governments of the ‘two countries, will be attended to and answered through appro-priate diplomatic channels in proper time and with necessary. expedition. _ But | find it difficult to treat such diplomatic communi-cations 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 aot 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 Minis-ters 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 hey are discharging statutory obligations. It is not also possible to treat representations from whatever source addressed to whomso-ever 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: addsesed 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 Taniil Nadu, was required to deal with matters telating to preventive detention neither applied his mind to the making of the orders of detention, nor ,considered the representa-tion of the detenus himself. The relevait 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. — Hi The submission which was most strenuously Urged by the learned counsel was that the detenus had been denied the right to 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 urgkd that the detenus were foreigh nationals and they-were under a handicap being ignorant of the laws and procedurés 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 representa-tion 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 Constituyjon Bench ia A.K. Roy vy, 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 4 friend who, in truth and substance, is not a legal practitioner. Every person whose interests are adversely affected asa result of the proceedings which have 8 serious import, is entitled to be heard in those proceedings and be assisted bya 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 he ' 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 dishe-

velled. Just as a pergsgn who is dumb ig entitled, as he must, to be represented by a person who has speech, even 80, 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. Yt may be that denial of legal representation is not denial of natural. justice

(1) ALR. 1982 S.C. 710.

per se, and, therefore, if a statute excludes that faci-lity expressly, it would not be open to the Tribunal to allow it. Fairness, as said-by Lord Denning M.R., in Maynard v. Osmond [197] 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 Taniil-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 nécessary-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 mé and I have also perused the communications addressed by the Advisory Board to the Government of Tami Nadu and to the detenus. I do not find the slightest hint of a demand 07 ‘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 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, ay x है Yet another submission of the. learned Counsel was that the Advisory Board failed to consider the question whether the deten-tion continued 10 0६. justified on :the date of the report of the Advi-sory 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 réport of the Advisory Board. In the ciscumstances of the case,I think that the report of the Advisory Board that. there was sufficient cause for ‘the detention of Richard Beale. and Paui 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. ह _NLV.K, . Petitions dismissed.

ORIGINAL JURISDICTION; Writ Petition (Criminal) Nos. 27!-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.