Phillippa Anne v. Tamil Nadu

``` ae et elem है i, » Conservation OS. 8 and 77 and of ff Forel; Constitution Foreign Exchange of |: india, and Prevention 1950, Article of 22 Smuggling (5). ट Activities ## `Pe` « ``` ``` Advisory Board—Legal répratehiaiton or ‘ ‘fr ## `detenu—Grant of. . Sacility—When arises, ? oe न` v riend} i i : | ``` ``` at is—Bout De Papiere to Prime Mintster—Petitions memorial to Minister— wi Detention order—Representation of the detenu to the Central Government— Whether statutory representation. है ``` ``` न + है * D ``` ``` The two petitioners who were British nationals and friends and collabora ``` ``` tors in smuggling enterprises were detained under the provisions of the Conserva- ``` ``` “on of Foreign Exchange and Prevention of Smuggling Activities Act 1974 for ``` ``` smuggling electronic equipment and goods worth several lakhs of tupees 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 Centra] Government to revoke the orders of detention as 1008 back as March 1982 remained undisposed of and oa this ground alone bey 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 FR of detention passed against the petitioners might be lifted and the deteaus be cither released or charged and brought to trial without delay, had not been dis Advisory Bourd by ao Advocate or at least by Mae tio denied a ceanies [to ] [make ] [ao ] [appropriate ] [and ] [effective ] [representation ] [to ] [the ] Advisory Board. : G Dismissing the petitions, bosed of; : and (3) that they bad been denied the right Te to be represented कपिल मत before नल सन the ``` ``` HELD है (1) Representations from whatever source aie we ``` ``` €ver officer of one or other department of the eon, tao ``` ``` A. H fepresentations €ver officer of to the Government under the CO 4 ``` ``` (2) The Bout De Papier eT ted es to the d he to Prime the External Affairs Minist ry by Britain and the subsequent reminder q Minister during her visit to ``` ``` ~ 770 SUPREME COURT REPORTS [1982] 3 s.c.p. ? (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] 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. The Judgment of the Court was delivered by 3(i) to ment, [774 C] The Advisory Board consisting of three Judges of the High Court considered it unnecessary and allow legal representation to the detenus. That was a matter for decision of the Advisory Board and this Court — its judgment in inadvisable would not be justified to substitute place of the Boards judg Such diplomatic communications between one country and another 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. cannot be treated as representations to the statutory authorities functioning under Richard Beale Paul Duncan Zawadzki, two _CHINNAPPA Reppy, J. and British nationals, said to be friends and collaborathe COFEPOSA. [771 G-H; 772 A-E] _ * ``` ``` from tors in smuggling enterprises are under the’ Provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, Richard Beale arrived at Madras Singapore on December 11, 1981, He brought with hin a Mercedez Benz van. On examination by the customs authorities. found to have secret compartments and hidden cavities: It was now under detention the van was ``` ``` and goods worth several Jak gated and made a statemen ‘laced and Jined, as it were, ``` ``` with all manner of electronic equipment ``` ``` hs Ms rupees. Richard Beale was interro friend and ement. ile was arrested and produced before ## `eed meals Magistrate of Madras. His` gated and made a statemen ``` ``` Pgs sag Zawadzki, ## `कम दि` of detention under the COFEPOSA had separately arrived was siifaa also intero 83 बाद, 66, | later arrested and produced contact before Richard the Metro- Beals. Pp Sgistrate. Orders in lodia who Hlexi to ``` ``` . PHILLIPPA ANNE ४, TAMIL NADU (Chinnoppa Reddy, 2) 79) ``` ``` duly on them. but their applications were dismissed. Writs were made against both of them on January 7, 1982 and grounds were High Court of Tamil Nadu for their release from detention, They have now come ms this seeking of Habeas Corpus under Art. 32 of the Constitution, malant and they may be convenienty disposed of by & single of detention served The detenus moved the Court The two petitions were argued {together by Shri Jeth ``` ``` order.” ``` ``` : ``` ``` representation made by the detenus to the Central Government to _ revoke the orders of detention so long back as March, 1932 remained undisposed of till this day and on that ground alone, the 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 The first submission of the learned Counsel was that 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 ] 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 ] [ellidavit ] ``` #### `mentioning the facts [giving ] rise to the present Ppl` ``` appears [from ] the affidavit [that ] [wheo ] [the ] [Prime ] [oes ] [° ] [owe ] ### `was recently in Baglaad, 3 pee cents Pear [en ] a` delegation accompanying er, © ड़ Duncaa Zawadzki tion without trial of Richard [Be ] i at 1 [गहरे! ] [and ] [We ] #### `and suggesting that the oo Te ता डा com tel os cant` detenus either released oF charged bat the aoe British © High Hi Commission [in ] delay. It further dd [appears ] f Britain during her visit to that # `op "Minister"s delegation in Britaio constitute and the a subsequen see` reminder diplomatic al Affairs, Sore a India also 8601 De Papiere preseated to ##### `India, aad nae pene ia` the pee iene to Shri Jethmalapi, the Bout De st gel ci eee by _ t eevee सात Government High Commission demanding their rian tation to the terms of the provisions of the राह सो न nag Saar no dou that a Bout : De Papier and the reminder, ``` ``` i & पर 172 - 7 # SUPREME COURT REPORTS [1982] 8.¢ ९. 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 | 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 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 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 hey 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: 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. — The submission most strenuously learned counsel was that the detenus had been denied the right to which was Urged by the ``` ``` ¢ ``` ``` Hi : ``` ``` PHILLIPPA ANNE vy. TAMIL NADU (Chinnappa Reddy, J.) 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 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. ``` #### `. ११4 SUPREME COURT REPORTS. [1988] 3 8.०.४. |` ``` 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 ~ ``` ``` PHILLIPPA ANNE y. TAMIL NADU (Chinnappa Reddy, J.) 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, ay x` 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. ``` ``` है ```