Case ID: 4536

Judgment:
tition (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 . 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 A.K. 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 M.R.	 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 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.

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] 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]