1982 (5) TMI 179 - SC - FEMA

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? Held that - 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. Petitions dismissed

Summary

Issues:
1. Delay in disposal of representation by Central Government for revoking detention orders.
2. Denial of legal representation before the Advisory Board.
3. Allegations of inequality of treatment and failure to consider the justification of detention by the Advisory Board.
4. Correspondence between the Advisory Board and detenus through the Government.

Analysis:
1. The first issue raised was regarding the delay in disposing of the representation made by the detenus to the Central Government for revoking the detention orders. The counsel argued that the detenus should be released due to the undisposed representation. However, the court found no merit in this submission as diplomatic communications between countries, like the Bout De Papier presented to the Prime Minister and the reminder by the British High Commission, do not constitute representations requiring immediate consideration under the COFEPOSA. The court emphasized that such representations are not statutory appeals obliging immediate action by the authorities.

2. The next issue focused on the denial of legal representation before the Advisory Board, as advocated by the detenus' counsel. Referring to the A.K. Roy case, the counsel argued that the detenus, being foreign nationals, were entitled to legal or at least friendly representation. The Advisory Board, comprising three High Court Judges, decided against legal representation after hearing the detenus personally. The court upheld the Board's decision, stating that the detenus were given an opportunity to be heard, and the Board's judgment should not be substituted unless arbitrary.

3. Allegations of inequality of treatment and failure to consider the justification of detention were also raised. The detenus claimed that while the detaining authority was represented, they were denied representation. The court dismissed this charge, clarifying that customs officers were present only to produce relevant files and that there was no inequality of treatment. Additionally, the Advisory Board's report implied that the detention was justified on both the date of the order and the date of the report.

4. Lastly, concerns were raised about the correspondence between the Advisory Board and detenus being conducted through the Government, leading to suspicions of influence. The court dismissed this complaint, explaining that the Board communicated through the Government due to administrative reasons and that the Board's decisions were independent of government influence. Ultimately, all points raised on behalf of the detenus were deemed to lack merit, leading to the dismissal of the petitions.