Supreme Court of India
PHILLIPPA ANNE DUKEversusTHE STATE OF TAMIL NADU
- Citation
- 1982 INSC 55
- Decided
- 21 May 1982
- Disposal
- Dismissed
- Bench
- O CHINNAPPA REDDY
Holding
The detention was lawful; diplomatic communications are not statutory representations under COFEPOSA, and the Advisory Board’s discretion to deny legal or friendly representation was not violative of natural justice.
Summary
Two British nationals were detained under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 for allegedly smuggling electronic equipment in a Mercedes van. They filed writ petitions under Article 32 seeking release, arguing that their representations to the Central Government and to the Prime Minister had been ignored, and that they were denied legal or even "friendly" representation before the Advisory Board. The Supreme Court held that diplomatic communications such as the Bout de Papier to the Prime Minister are not statutory representations under COFEPOSA and therefore do not compel the Central Government to act. The Court also held that the Advisory Board, composed of High Court judges, was within its discretion to refuse legal or friendly representation when it deemed it unnecessary, and that no demand for such representation was made by the detenus. Consequently, the Board’s finding that the detention was justified stood, and the petitions were dismissed.
Issues considered
- The nature and effect of representations made to the Central Government and the Prime Minister under COFEPOSA.
- Whether the detainees were entitled to legal or "friendly" representation before the Advisory Board.
- Whether the Advisory Board’s decision to deny representation violated principles of natural justice.
- Whether the detention order remained justified at the time of the Advisory Board’s report.
Legislation cited
- Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974s. 11(1)
- Constitution of Indias. Article 22(5), s. Article 32
Subjects
COFEPOSApreventive detentionlegal representationadvisory boarddiplomatic communicationArticle 32habeas corpusforeign nationalssmuggling
Judgment
ae है
et elem i,
PHILLIPPA ANNE D
UKE 7
: .
4
प्र .
| THE STATE OF TAMIL
NADU& ORS’ |
क्र, 71982...
i
B
| [O. Cumnappa REpp
y, J]
PeConservation offf Forel;Foreign Excha |:
ट ing Activit
nge and Prevention of Smuggl
ies
» OS. 8 and 77 and Constitution of
india, 1950, Article 22 (5). «
Advisory Board—Legal répratehiait
on or ‘frriend} i i
detenu—Grant of. Sacility—When arises, : न
- ? oe
. | ‘
v
wi Detention order—Representation of the
detenu to the Central Government—
at is—Bout De Papiere to Prime Mintster—Pet
itions memorial to Minister—
Whether statutory representation.
न + है
* D
The two petitioners who were British nationals and friends and
collabora-
tors in smuggling enterprises were detained under the provis
ions of the Conserva- -
“on of Foreign Exchange and Prevention of Smuggling forActivities Act 1974
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-
bosed of; : and (3) that they bad been denied the rightTe कपिल मत before
to be represented the
नल सन
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,
whatever source aie we
HELD है (1) Representations from
other department of the eon, tao
€ver officer of one or 4 H
A.
fepresentations to the Government under the CO
he Prime Minister during her visit to
(2) The Bout De Papier eT tedes
to the
d to the External Affairs Minist ry by
Britain and the subsequent reminder q
~
770 SUPREME COURT REPORTS [1982] 3 s.c.p.
?
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
[771 G-H; 772 A-E] _ *
the COFEPOSA.
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 judg-
ment, [774 C]
0००
ee
(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’
i
representation to the detenus without being asked for. [774 D-E]
gt
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
_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
gated and made a statemen hs Ms rupees. Richard Beale was interro-
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, |
siifaa Hlexi 83 6 , laterकमarrested
दि to contact Richard Beals.
and produced before the Metro-
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
satisfied that there is any merit in the submission. The Writ
no hint
Petitions were filed on March 12, 1982 and there was then
of this submission. The counter-affidavit on behalf of the State of
Tamil Nadu was filed on April 5, 1982, Thereafter, the clerk
has sworn to an ellidavit
of the learned Counsel for the Petitioners
mentioning the facts giving rise to the present Ppl
the Prime oes ° owe
appears from the affidavit that wheo
was recently in Baglaad, 3 pee cents Pear en a
delegation accompanying er, © ड़ Duncaa Zawadzki
without trial of Richard Be i at 1 गहरे! and We
tion os cant
that the oo Te ता डा com tel
and suggesting
detenus either released oF charged aoe © High Commission in
bat the British Hi
delay. It further
dd appears f al Affairs, Sore a
India also 8601 De Papiere preseated to
India, aad nae pene ia Britain during her visit to that
ci
the pee iene to Shri Jethmalapi, the Bout De st gel
in Britaio and the asubseq uen
op "Minister"s delegation sion constitute see
_ सात High Commis
reminder by t eevee Government demanding their rian
eee
tation to the terms of the provisions of the राह सो न nagic
the reminder, diplomat
Saar that a Bout: De Papier and
no dou
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 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
PHILLIPPA ANNE vy. TAMIL NADU (Chinnappa Reddy, J.) 773
be represented before the Advisory Board by an Advocateor 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
कि
~
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 है
Yet another submission of the. learned Counsel was that the
Advisory Board failedto consider the question whether the deten-
tion continued 10 0६. justified on :the date of the reportof the Advi-
sory Board, even if it was justified on the dateof 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 riseto 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.
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