FRANCES CORALIE MULLIN versus W. C. KHAMBRA & ORS.

FRANCES CORALIE MULLIN

W. C. KHAMBRA & ORS.

February 27, 1980

[R. S. SARKARIA AND 0. CHINNAPPA REDDY, JJ.J

Con.~titution of India 1950, Art 22(5) & Conserration of Foreign Exchange and Prevenfi911 of S1nuggli11g Activities Act 1974, Section 3-Detenu's represen-tation against order of dete11tio11-Disposal of such representation by detaining nuthority-Necessity for slightest departure froni ti111e ilnperative-Detaining authority-To explain.

Pleadings-Affidavits in cases involving personal freedoni-Precision, perspe-cuity and clarity-Necessiry for.

The petitioner was s'erved on November 23, 1979 with an order of detention under the Conserva.tion of Foreign Exchange and Prevention of Smuggling Acti-vities Act 1974, and the grounds of detention \Vere also served on th'e detcnu on the same day. On December 1st, 1979, the advocate of the detcnu I';!questcd for copies of the state1nents and documents upon which reliance was placed in th'e grounds of detention and at the instance of the detaining authority (Adminisw 1rator, Union Territory of Delhi), the Directorate of Revenue Intelligence turw nished the copies sought on December 7, 1979, On Det'ember 22, 1979, the .d'etenu made representation to the detaining authority which was actually received by the latter on December 26, 1979. copy of the representation was forwarded to the Customs authorities for their remarks which were received en J~1mary 4, 1980. The representation was th'ereafter considered and rejected by :the detnining authority on January 15, 1980. The· rejection of the representation was communicated to the detenu on January 17, 1980.

Jn the m'eanwhile, the Advisory Board to whom the detention had been referred met on January 4, 1980, and considered the matter. The detenu was produced before the Advisory Board and the conc'emed departmental · offict:ils were also present. On January 10, 1980, the Advisory Board recorded its opinion .and forwarded the same to the detaining authority, which recomm'endation \\'-as placed before the Administrator on January 19, 1980, when the detaining autho-rity confirmed the order of detention.

Jn the writ petition under Article 32 it was contended on behalf of the peti-tioner ( 1) that the representation of the detenu made on December 22, 1979, was not communicated to the Advisory Board as it ought to have been when the board met on January 4, 1980, (2) that the detaining authority should have disposed of the representation before forwarding it to the Advisory Board ar..d .even ff the detaining authority did forward it to the Advisory Board, the detain~ ing authority should not have awaited the h'earing before the Advisory Board and should not have allowed itself to be influenced by such hearing, and (3) thal there \Vas inexcusable delay in enabling the det'enu to n1ake representation and in disposing of such representation.

Disn1issing the writ petition,

HELD : I. The representation of the detenu was forwarded to the Ad·1i,o;y lloard and it was also considered by the latter. [1098HJ

2. On ~1n examination of the records it is found that though the Ad1ninis-trator considered the representation of the detenu aft'er the hearing by the Board, the Administrator \Vas entirely uninfluenced by the hearing before the Board. [l 104B]

3. If there appear'ed to be any delay in disposing of the representation ol the detcnu it -..vas not due to any w·ant of care but bec2.i.1se the representation required thorough examination in consultntion with investigators of facts a'.ld advisers on Jaw. [1104A]

Jn the instant case, the petitioner's request for copies of statements and docu~ rnents was received by thl.! detaining authority on December 3, 1979 and at the instance of the detaining authority, the Director of Revenue Intelligence furnish-ed the copies sought 011 December 7, 1979. The ·detenu's repr·.:sentation was received by the detaining authority on December 26, 1979. Without any losS of tim'e, copy of the representation \Vas sent to the Customs authorities for their remarks. This was necessary bec•:iuse the information leOOing to the order of detention was laid by the Custo1ns authorities and the facts \\'ere complex si1:ce th'e allegations against the detenu revealed an involvement with an international gall£ of dope smugglers. The comments of the Customs authorities were received on January 4, 1980. The Advisory Board was meeting on the same day and there could be no question of the detaining authority considl"ring the representa-tion of the detenu before the Board met. After obtaining conlffie-nts of the Custo111s authorities it \Vas found necessary to take legal advice as the r~pr~sen· taticn posed many legal and constitutional questions. The same \Yas obtained and the representation was finally rejected by the J\d1ninistrator on January 15. 1980. [llOlD-H] 4. The role of the COlHi in c:nses of preventiYe detention has to be one ot t:!crnal vigilance. No freedom is higher than personal freedom and no duty high•.:r than to maintain it unimpaired. The Court"s \Vrit is the ultim::i.te in5;!Jr-anccs ag<iinst illegal detention. The Constitution enjoins conformance with the provisions of Arti..:le 22 and the Court exacts compliance. Article 22.(5) vests in the dctenu the right to be provided with an opportunity to n1ake r~pr~.~en­tation. [l !OOF]

5. The La\v· Reports tell sfLlfY and t'cach lesson that the principai cnen1y of the detcnu and his right to n1nke represcntntion is neither high-handcdne.>s nor mean-n1indedne-~s but the casual indifference. the mindless in-sensibility the routine and the red-tape of the bureaucratic_ machine. · [l 100G1

6. The four principles to be followed in regard to representation of detenu enunciated by the Court in Jaya11a1~yan Suk11l v. State of West Benr;a!, [1970] 3 S.C.,R. 225 <1"l well as other principles ·enunci·::ited in other cases. an analysis \\'ill sho\.v, are aimed at shielding personal freedom against indiffer~nce, insensi-bility. routine Elnd red~tape and thus to secure to th'e detenu the right lo make · an effective representation. [l lOOH}

l\[1]11rtndra I'11rshota111 ll111rao etc. v. B. B. Gujra! & Ors., [1979] 2 S.C.R. 315; Ran1cfuuufra A. Karna! v. Unio11 of India & Ors. [1980] 2 . S.C.R. 1072 Nagendra Nath J..1011({(;/ v. 7'/1c St{lfe of We.'it Bengal, [19721 1 S.C.C. 498 @ 504; Prahlrcd.ar Shankar D!i11ri v. S. S. Pradhan, [1971) 1 S.C.C. 896; Kantilaf Bo5c v. State of W.':'sf Be111.?af, AIR 1972 S.C. 1623, referred tl}.

FRANCES CORALIE v. w. c. KHAMBRA (Chinnappa Reddy, J.) I 097

7. The time-in1perative can never be absolute or obsessive. There has to be lee-v.[1]ay, depending on the necessities of the case.

8. Several situation<; may arise compelling the departure fro1n the time-imperative. But no allov.[1]ance can be made for lethargic indifference. No allowance can be made for needless procrastiQ2.tion. But, allo\vance n1ust sur...:ly be made for necessary consultation "''here legal intricasies and factual ramifica-tions are involved. The burd'en of explaining the necessity for the slightest departurr fron1 the time imper8•tive is on the detaining authority.

9. There should be greater precision and persp'.ecuity in affidavits filed into Court. Care and clearity are particularly important \Vhen the court is• concerned with questions of persona·l freedom.

ORIGINAL JURISDICTION: Writ Petition No. 1524 of 1979.

(Under Article 32 of the Constitution).

Ram Jethmalani, Harjinder Singh, Sunil Mehta and Mu/"tl M11d-gal for the Petitioner.

M. M. Abdul Khader and M. N. Shroff for th·e Respondents.

The Judgment of the Court was delivered by

CHINNAPPA REDDY, J. Mrs. Frances Coralie Mullin. British National was serevd on November 23, 1979, with an order of deten-tion under the Cons-"vatio·n of Foreign Exchange and Prevention of Smuggling Activities Act. The grounds of detention were also served on her on the same day. On December 1, 1979, her Advocate sent telegram to the detaining authority, namely, the Administrator, Union Territory of Delhi, asking for copies of statements a"nd docu· ments upon which reliance was placed in the grounds of detention. The telegram was received by the detaining authority on December 3, 1979. The Director of Rewnue Intelligence who was directed by the Administra:or, Unioh Territory of Delhi, to supply copies of statements and documents to the detenu, so supplied them on Decem·· ber 7, 1979. Sevcnt•een documents were mentioned in the accom-panying letter. Alleging that one of the documen:s (item No. 14) was not sc'nt, the Advocat•c wrote letter by Registered post on December 17, 1979, asking for copy of that document also. reply was sent on January 1, 1980, to ~he effect that document No. 14 had also been supplied earlier but nonetheless another copy of the same document was being s•ent again. On December 22, 1979. the detenu made representation to the detai'ning authority and it was actually received by the latter on Deceml:Y.er 26, 1979. The Home Department of the Delhi Administrafain forwarded copy of

[1980] 2 s.c.~.

the representation to the Customs authorities for their f'~marks. The remarks were received on January 4, 1980. Thereafter the represen-tation was consid·~red and rejec:ed by the Administrator on January 15, 1980. The rejection of the represe·ntation was communicated to the detcnu on January 17, 1980. In the meanwhile the Advisory Board to whom the detention of the petitioner had beel} referred met on January 4, 1980 and considered the matter. The detcnu was produced before the Advisory Board and various concerned Depart-• mental officials >Wre also present. On January 10, 1980, the Advi-... i sory Board recorded its opinion and forwarded the same to the detain-~. ing authority. It was received by the Home Department of the . · \....._ Delhi Administration on January 11, 1980 but was actually placed before the Administrator on Jannary 19, 1980 when th·~ detaining authority confirmed the order of detention.

Department of the . · \....._

In this aplication for the issue of writ of Habeas Corpus three submissions were made by Shri Ram J ethmalani, learned counsel for the petitioner :

1. The representation of the detenu, made on December 22, 1979, was not communicated to the Advisory Board as it ought to have been, when the Board met on January 4, 1980.

2. The dctai'ning authority shou~d have disposed of the represen-E talion before forwarding it to the Advisory Board. Even if the detaining au!hority did forward it to the Advisory Board, the detain-ing authority should not have awaited the hearing before the Advi-sory Board and should not have allowed itself to be influenced by such hearing.

3. There was inexcusable. delay in enabling the detenu to make representation and ind.isposing of the representation.

Notwithstanding the clear assertion in the additional grounds raised by the petitioner, which she was allowed to do by an order of the Court, that her representation dated December 22, 1979, was not placed before the Advisory Board when the Board met on January 4, 1980, there was no specific denial of the assertion in the counter filed by the Delhi Administration to the aditional grounds. How-ever, we were informed by Shri Abdul Khader, learned Counsel for the Delhi Administration, 1hat the representation was in fact forward-ed to the Advisory Board and also considered by the latter. He pro-H duced the relevant files before us which we also permitted Shri Je1h-malahi to inspect. We are satisfied that the representation was for-warded to the Advisory Board and it was also considered by the

,.....,

FRANCES CORALIE v. w. c. KHAMBRA (Chinnappa Reddy, J.) 1099

latter. There is, therefore, no force in the first submission made on behalf of the petitioner. We wish to repeat here, what we have said on earlier occasions, that there should be grea~or p1t:cision and pers· pecuity in affidavits filed into Court. Care and clarity are particularly important when the Court is concerned with questions of personal free-dom.

In support of the second a'nd third submissions, reliano;, was plaood .by the learned counsel for the petitioner on the four principles laid down by this Court in Jayanarayan Sukul v. State of West Bengal,(') and on the observations of the Court in Narcndra Purslwtam Umrao etc. v. B. B. Gujaral & Ors.(') and Ramchandra A. Kamat v. Union of India & Ors.("). In the first case Constitution bench of the Court laid down four broad principles to be followed in regard to representation of detenus :

"First, the appropriate authority is bound to give an opportunity to the detenu to make representation and to consider the representation of the detenu as early as possible. Secondly, the consideration of the representation of the detenu by the appropriate authority is entirely independent of any action by the Advisory Board i'ncluding the consi-deration of the representation of the detenu by the Advi-sory Board. Thirdly, there should not be any delay in the matt·~r of consideration. It is true that no hard and fast i ule can be laid down as to the measure of time taken by the appropriate authority for consideration but it has to be rem~mbered that the Government has to be vigilant in the governance of the citizens. citizen's right raises corre-lative duty of the State. Fourthly, the appropriate Govern-ment is to exercise its opinion and judgment on the repre-sentation before sending tire case along with the detenu's re presentation to the Advisory Board. If the appropriate Gov-ernment will release the detenu the Government will not ~·end the matter to the Advisory Board. If, however, the Government will not release the detenu the Government will s·wd the case alongwith the detenu·s representation to the Advisory Board. If thereafter the Advisory Board v.ill express an opinion in favour of release of the detenu the Government will release the det•cnu. If the Advisory

(I) 119701 3 S.C.R. 225 @ 232. (2) [1979] 2 S.C.R. 315.

(J) r19so1 2 s.c.R. 1012.

Boord will express any opinion against the release of the detenu the Govemment may still exercise the power to release the detcnu."

In the second case, to the facts of which we will refer later, th·c observations upon which re!ia·nce was plac•cd were : .. It is urged that the Government was under constitutional obligation to co1Eidcr • the representations before the hearing before the Advisory Beard. There is no quarrel with the principle but the difficulty is about the application of the principle o nthe facts an circums!'Jnces of !ti~ present case. In fact, the Government has to reach its decision .,uninfluenced by the opinion of the Advisory Board." In the third case, offer of inspection of documents twdve days after request for · copies was considered fatal to the detention and it was observed : "If there is undue delay in furnishing the statements and documents referred to in the grounds of detention the right to make effective representation is denied. The detention can-not be said to be according to the procedure prescribed by I> law. When the Act con~cmplates the furnishing of grounds of detention ordinarily within fo>c days of the order of • detention the intention is clear that the statements and docu-ments which arc referred to i·n the grounds of det•cntion and which are required by the detenu and are expected to be in possession of the detaining authority should be furnished with reasonable expedition."

We have no doubt in our minds about the role of the Court in. cases of preventive detention : it has to be one of eternal vigilance. No freedom is higher than personal freedom and no duty higher than tp maintain it unimpaired. The Court's writ is the ultimate insurance against illegal detention. The Constitution enjoins conformance with the provisions of Article 22 and the Court exacts compliance. Art. 22(5) vests in the detenu the right to \J.c provided with an opport-unity to make representation. Here the Law Reports tell story and teach lesson. It is that the principal enemy of the detenu and his right to make representation is neither high-handedness nor mean-mindedness but !hoe casual indifference, the mindless j·n-sensibility, the routine and the red-tape of the bureaucratic machine. The four principles enunciated by the Court in Jayanarayan Sukul v. State of West Bengal (supra) as well as other principles enunciat-ed in other cases, an analysis wiit show, are aimed at shielding per-H sonal freedom against indifference, insensibility, routine and red-tape and thus to secure to ·the detenu the right to make an effective repre-sentation. We agree: (I) the ddaining authority must provide the

detenu very early opportllllity to make representation, (2) the detaining authority ·must consider the representation as soon as possi-ble, and this, preferably, must be before the representation is for-warded to the Advisory Board, (3) the representation must be for-warded to the Advisory Board before :he Board malccs its report, and ( 4) the consideration by the d~taining authority of the rcprc-s_!!ntation must be entirely independent of the hearing by the Board or its rcpcrt, expedition being essential at every stage. We, however, hasten to add that th•c time-imperative can never be absolute or obsessive. The Court\ observations are not to be so understood. Th•cre has to be Ice-way, depending on the necessities (we refrain from using the word 'circumstances') of the case. Ohc may well imagine, case wher" detenu docs not make Pcpresentation before the Board makes its Pcport making it impossible for the detaining authority either to consider it or to forward it to the Board in time or case where detcnu makes representation to the detaining autho-rity w shortly before tho" Advisory Board takes up the reference that the dctainihg authority cannot consider the representation before then but may merely forward it to the Boord w:thout himself considering it. Several such situations may arise compelling departure from the time-imperative. But no allowance can be made for lethargic indi!Ic-rence. No allowance can be made for needless procrastination. But, allowance must surely be made for necessary consultation where legal intricacies ahd factual ramifications are involved. The burden of explaining the necessity for the slightest departure from the time-- jmpcrative is on the detaining authority.

We notice that in Narendra Purshotam Umarao etc. v. B. B. Guj-ral & Ors., (supra) the detenu made his representation on 4th and 6th of March 1978, the Advisory Bonni gave hearing on 13th March and the detaining authority rejected the representation on 18th March. The Court perused the records of the GoV'crnment and the Advisory Board and concluded that there was no infraction of the Constitutional safeguard in Art. 22(5). It was held, with refe-rence to the records, that the Government had taken decision unih-fluenced by what transpired at the hearing before the Board. The matter was found to have been dealt with by the government at all levels and the detaining authority had come to an independeht con-clusion of his own by applying his mind to the facts and circumstances of the case.

We have already expressed our agreement with the four principles', enunciated in !ayanarayan Sukul v. State of West Bengal (supra). ·

We would make one observation. Wh•"n it was said there that the Government should come to its decision on the representation before the Government forwarded the representation to the Advisory Board, the emphasis was not on the point of time but on the requirement that the Government should consider the representation indepen-dently of the Board. This was explained in Nagendra Nath Monda! 8 v. the State of West Bengal('). In Sukul's case (supra) the Court also made certain P'crtinent observations (at pages 231-232) : "No definite time can be laid down within which re-presentation of detenu should be dealt with save and except that it is constitutional right of detenu to have his repres~ntation considered as expeditiously as possible. It will depend upon the facts and circumstances of each case whether the appropriate Government has disposed of the case as expeditiously as possible ......... "In Prabhakar Shankar Dhuri v. S. S. Pradhan(') and Kantilal Bose v. _State of West Bengal(') deJoay of 16 days and 28 days respectively in disposing of the representation of the dctenu was con-sidered sufficient to vitiate the detention. On the other hand, in Nagendra Nath Monda/ v. The State of West Bengal,(') delay of 34 days was held not to affect the validity of the detention as part of the delay was explained by the circumstance that the records of the case had been sent to the Advisory Board and part of the delay w"s explained by the enquiries which the Government had to make. The Court observed :

'That fact is not disputed before us and so also the fact that those records showed that on June 7, 1971, Govern-F ment had sent the files in connection with the . petitioner's case and his representation to the Advisory Board. As soon as the representation was returned to it, Government considered it and rejected it but that was before the Board made its report and sent it tp Government. But counsel urged that this fact may explain the lapse of time from the date that the records w.ere sent and the date when they were returned, but not the delay between May 27, 1971 and June 7, 1971, during which Government could have arrived at its decision. That argument has not much force, because in given case Government may not be able to

0) [19711 t S.C.C.498at 504. (2) [19711 3 s.c.c. 896. (3) AIR 1972 S.C. 1623.

reach proper conclusion within short time especially, in case where another authority, in this case the District Magistrate, has passed the questioned order. It might have to make inquiries as to the situation in the locality, the nature of and the circumstances in which detention was found necessary, the previous history of the person detained etc. Therefore, it is difficult to agree with ~counsel that Govermnent should have reached its conclusion during the said period ............ There can be no hard and fast rule with regard to the time which Government can or should take, and that each case must be decid•cd on its own facts." We may now consider whether the facts here disclose disregard to the petitioner's cohstitutional right as claimed by his counsel in his second and third submissions. The petitioner's request for copies of statements and documents was received by the detaining authority on December 3, 1979, and at the instance of the detaining autho-rity, the Diiector of Revenue Intelligence furnished the copies sought on December 7, 1979. The authorities who laid the information before the detaining authority and who were primarily concerned in the matter were the Customs authorities via the Director of Revenue Intelligence'. So the detaining authority directed the Director of Revenue Intellige\10~ to furnish copies of the documents and it was so done. There was no delay in furnishing of documents and no legiti-mate complaint could be made on that score. The detenu's repre-sentation was received by the detaining authority on December 26, 1979. Without any loos of time copy of the representation was sent to tlie Customs authorities for their remarks. That was obviously necessary because the information leading to the order of detention was laid by the Customs authorities. The facts were undoubtedly com-plex since th·o allegations against th;o detenu revealed an involvement with an international gang of dope smugglers. The comments of the Customs authorities were received on January 4, 1980. The Advi-sory Board was meeting on January 4, 1980 and so there could be no qnestion of the detaining authority considering the representation of the detenu before the Board met, unless it was done in great and undue haste. After obtaining the comments of the Customs autho· · ritics, it was found necessary to take legal advice as the representa-tion posed many legal and constitutional questions. So, after consul· talion with the Secretary (Law and Judicial) Delhi Admihistration, the representation was finally rejected by the Administrator on J anu-ary 15, 1980. These facts are stated in the counter affidavit filed 16-138 SCl/80

[1980] 2 s.c.R.

Petition dismissed.