Case: Phillippa Anne Duke Vs. The State Of Tamil Nadu &amp; Ors

Richard Beale & 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 contract Richard Beale, was also interrogated, later arrested and produced before the Metro pollution Magistrate. Orders of detention under the COFEPOSA Act were made against both of them on January 7, 1982 and grounds of detention were duly served on them. The detenu 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.

Reasoning: 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 was next submitted by the learned counsel that the Chief Minister, who according to the Rule 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 counsel4. 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 the 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 national and they were under a handicap being ignornat 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.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 Kiru Bhakaran 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 Kiru Bhakaran 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 not Board deny any friendlyorder 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 compartmentwise 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 three was sufficient cause for the detention of Richard Beale and Paul Duncan Zawadzki necessarily implied that the detention was four by the Board to be justified on the date of its report as also on the date of the making of the order of detention8. 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