tition Criminal Nos
271 272 of 1982
Under Article 32 of the Constitution of India Ram Jethmalani and Miss Rani Jethmalani for the Petitioner
RK Garg and AV 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 
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 article 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 section 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 AK Roy vs 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 vs Greyhound Racing Association Ltd  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 MR in Maynard vs Osmond  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 7182 and the consideration by the Advisory Board was on 8282
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
NVK Petitions dismissed


Summary:
The two petitioners who were British nationals and friends and collaborators in smuggling enterprises were detained under the provisions of the 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 3i 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