# [1982] 3 S.C.R. 769

- **Citation:** [1982] 3 S.C.R. 769
- **Court:** Supreme Court of India
- **Decided:** 1982-01-07
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1982-3-s-c-r-769-8559
- **Pages:** 7

## Headnote

ae
है
et
elem i,
PHILLIPPA ANNE DUKE
7
4
:
.
प्र
.
| THE STATE OF TAMIL NADU
& ORS'
|
क्र, 71982...
B
i
| [O. Cumnappa REppy, J]
Conservation of Forel;
|:
ट
Pe
ff
Foreign Exchange and Prevention of Smuggling Activities
»
OS.
8 and 77 and Constitution of india, 1950, Article 22 (5).
«
Advisory Board-Legal répratehiaiton
or
'fr
i
:
न
riend}
i
detenu-Grant of. Sacility-When arises,
-
?
oe
'
.
|
v
wi
Detention order-Representation of the detenu to the Central Government-
at is-Bout De Papiere to Prime Mintster-Petitions memorial to Minister-
Whether statutory representation.
है
न
+
*
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-
:
been denied the right to be represented before the
bosed of; and (3) that they bad
Te
कपिल मत
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,
HELD है (1)
Representations from whatever source aie we
€ver officer of one or other department of
the eon, tao
fepresentations to the Government under the CO
A.
4
H
Minister during her visit to
he
Prime
ted to the
ry by
(2) The Bout De Papier eT es d to the External Affairs Minist
Britain and the subsequent reminder q
gt
i
ee
0००
'laced and Jined, as
it were,
~
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
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 judg-
ment, [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]
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.

## Text

ae
है
et
elem i,
PHILLIPPA ANNE DUKE
7
4
:
.
प्र
.
| THE STATE OF TAMIL NADU
& ORS'
|
क्र, 71982...
B
i
| [O. Cumnappa REppy, J]
Conservation of Forel;
|:
ट
Pe
ff
Foreign Exchange and Prevention of Smuggling Activities
»
OS.
8 and 77 and Constitution of india, 1950, Article 22 (5).
«
Advisory Board-Legal répratehiaiton
or
'fr
i
:
न
riend}
i
detenu-Grant of. Sacility-When arises,
-
?
oe
'
.
|
v
wi
Detention order-Representation of the detenu to the Central Government-
at is-Bout De Papiere to Prime Mintster-Petitions memorial to Minister-
Whether statutory representation.
है
न
+
*
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-
:
been denied the right to be represented before the
bosed of; and (3) that they bad
Te
कपिल मत
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,
HELD है (1)
Representations from whatever source aie we
€ver officer of one or other department of
the eon, tao
fepresentations to the Government under the CO
A.
4
H
Minister during her visit to
he
Prime
ted to the
ry by
(2) The Bout De Papier eT es d to the External Affairs Minist
Britain and the subsequent reminder q
gt
i
ee
0००
'laced and Jined, as
it were,
~
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
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 judg-
ment, [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]
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
with all manner of electronic equipment
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,
|
कम दि
to
contact
Richard Beals.
siifaa
Hlexi
83
66,
later arrested and produced before the Metro-
Pp
Sgistrate.
Orders
of detention under the COFEPOSA
and goods worth several Jak
gated and made a statemen
ark,
oem,
.
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-
malant
and
they may
be
convenienty
disposed
of
by & 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, 1932 remain-
ed
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
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
aoe ©
High Commission in
bat
the British
Hi
delay.
It further appears
f
dd
al Affairs, Sore a
India also 8601
De Papiere preseated
to
India, aad nae pene ia
Britain during her visit to that
the pee iene
to Shri Jethmalapi, the Bout De st gel ci
op "Minister"s delegation in Britaio and the subsequen
eee _
सात High Commission
constitute
a see
reminder
by
t eevee Government
demanding
their rian
tation
to the
terms of the provisions of the राह सो न nag
Saar that a Bout De Papier and
the reminder,
diplomatic
no
dou
:
OQ
¢
©
Hi
:
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. -
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 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.
~
कि
.
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
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
~
latter did not ask for it.
Relying upon a sentence
in the
counter-
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