PETITIONER:
FRANCES CORALIE MULLIN
Vs.
RESPONDENT:
W. C. KHAMBRA & ORS.
DATE OF JUDGMENT27/02/1980
BENCH:
REDDY, O. CHINNAPPA (J)
BENCH:
REDDY, O. CHINNAPPA (J)
SARKARIA, RANJIT SINGH
CITATION:
1980 AIR 849 1980 SCR (2)1095
1980 SCC (2) 275
CITATOR INFO :
R 1981 SC 510 (10,11)
RF 1981 SC 746 (1)
R 1981 SC1077 (1)
R 1981 SC1191 (7)
R 1981 SC2166 (15)
R 1984 SC 802 (10)
R 1985 SC1082 (10)
R 1989 SC1861 (18)
RF 1990 SC 231 (16)
R 1990 SC1455 (14)
F 1991 SC 574 (12,16)
RF 1991 SC2261 (7)
ACT:
Constitution of India 1950, Art 22(5) & Conservation of
Foreign Exchange and Prevention of Smuggling Activities Act
1974, section 3-Detenu's representation against order of
detention-Disposal of such representation by detaining
authority-Necessity for slightest departure from time
imperative-Detaining authority-To explain.
Pleadings-Affidavits in cases involving personal
freedom-Precision, perspicuity and clarity-Necessity for.
HEADNOTE:
The petitioner was served on November 23, 1979 with an
order of detention under the Conservation of Foreign
Exchange and Prevention of Smuggling Activities Act 1974,
and the grounds of detention were also served on the detenu
on the same day. On December 1st, 1979, the advocate of the
detenu requested for copies of the statements and documents
upon which reliance was placed in the grounds of detention
and at the instance of the detaining authority
(Administrator, Union Territory of Delhi), the Directorate
of Revenue Intelligence furnished the copies sought on
December 7, 1979. On December 22, 1979, the detenu made a
representation to the detaining authority which was actually
received by the latter on December 26, 1979. A copy of the
representation was forwarded to the Customs authorities for
their remarks which were received on January 4, 1980. The
representation was thereafter considered and rejected by the
detaining authority on January 15, 1980. The rejection of
the representation was communicated to the detenu on January
17, 1980.
In the meanwhile, 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 concerned departmental officials were
also present. On January 10, 1980, the Advisory Board
recorded its opinion and forwarded the same to the detaining
authority, which recommendation was placed before the
Administrator on January 19, 1980, when the detaining
authority confirmed the order of detention.
In the writ petition under Article 32 it was contended
on behalf of the petitioner (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 and even if the
detaining authority did forward it to the Advisory Board,
the detaining authority should not have awaited the hearing
before the Advisory Board and should not have allowed itself
to be influenced by such hearing, and (3) that there was
inexcusable delay in enabling the detenu to make a
representation and in disposing of such representation.
Dismissing the writ petition,
^
HELD : 1. The representation of the detenu was
forwarded to the Advisory Board and it was also considered
by the latter. [1098H]
1096
2. On an examination of the records it is found that
though the Administrator considered the representation of
the detenu after the hearing by the Board, the Administrator
was entirely uninfluenced by the hearing before the Board.
[1104B]
3. If there appeared to be any delay in disposing of
the representation of the detenu it was not due to any want
of care but because the representation required thorough
examination in consultation with investigators of facts and
advisers on law. [1104A]
In the instant case, 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 authority, the Director of Revenue
Intelligence furnished the copies sought on December 7,
1979. The detenu's representation was received by the
detaining authority on December 26, 1979. Without any loss
of time, copy of the representation was sent to the Customs
authorities for their remarks. This was necessary because
the information leading to the order of detention was laid
by the Customs authorities and the facts were complex since
the allegations against the detenu revealed an involvement
with an international gang 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 considering
the representation of the detenu before the Board met. After
obtaining comments of the Customs authorities it was found
necessary to take legal advice as the representation posed
many legal and constitutional questions. The same was
obtained and the representation was finally rejected by the
Administrator on January 15, 1980. [1103D-H]
4. The role of the court in cases of preventive
detention has to be one of eternal vigilance. No freedom is
higher than personal freedom and no duty higher than to
maintain it unimpaired. The Court's writ is the ultimate
insurances against illegal detention. The Constitution
enjoins conformance with the provisions of Article 22 and
the Court exacts compliance. Article 22(5) vests in the
detenu the right to be provided with an opportunity to make
a representation. [1100F]
5. The Law Reports tell a story and teach a lesson that
the principal enemy of the detenu and his right to make a
representation is neither high-handedness nor mean-
mindedness but the casual indifference, the mindless in-
sensibility the routine and the red-tape of the bureaucratic
machine. [1100G]
6. The four principles to be followed in regard to
representation of detenu enunciated by the Court in
Jayanarayan Sukul v. State of West Bengal [1970] 3 S.C.R.
225 as well as other principles enunciated in other cases,
an analysis will show, are aimed at shielding personal
freedom against indifference, insensibility, routine and
red-tape and thus to secure to the detenu the right to make
an effective representation. [1100H]
Narendra Purshotam Umrao etc. v. B. B. Gujral & Ors.,
[1979] 2 S.C.R. 315; Ramachandra A. Kamat v. Union of India
JUDGMENT:
State of West Bengal, [1972] 1 S.C.C. 498 @ 504; Prabhakar
Shankar Dhuri v. S. S. Pradhan, [1971] 3 S.C.C. 896;
Kantilal Bose v. State of West Bengal, AIR 1972 S.C. 1623,
referred to.
1097
7. The time-imperative can never be absolute or
obsessive. There has to be lee-way, depending on the
necessities of the case.
8. Several situations may arise compelling the
departure from the time-imperative. But no allowance can be
made for lethargic indifference. No allowance can be made
for needless procrastination. But, allowance must surely be
made for necessary consultation where legal intricacies and
factual ramifications are involved. The burden of explaining
the necessity for the slightest departure from the time
imperative is on the detaining authority.
9. There should be greater precision and perspicuity in
affidavits filed into Court. Care and clearity are
particularly important when the court is concerned with
questions of personal freedom.
&
ORIGINAL JURISDICTION : Writ Petition No. 1524 of 1979.
(Under Article 32 of the Constitution).
Ram Jethmalani, Harjinder Singh, Sunil Mehta and Mukul
Mudgal for the Petitioner.
M. M. Abdul Khader and M. N. Shroff for the
Respondents.
The Judgment of the Court was delivered by
CHINNAPPA REDDY, J. Mrs. Frances Coralie Mullin, a
British National was served on November 23, 1979, with an
order of detention under the Conservation 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 a telegram to
the detaining authority, namely, the Administrator, Union
Territory of Delhi, asking for copies of statements and
documents 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 Revenue
Intelligence who was directed by the Administrator, Union
Territory of Delhi, to supply copies of statements and
documents to the detenu, so supplied them on December 7,
1979. Seventeen documents were mentioned in the accompanying
letter. Alleging that one of the documents (item No. 14) was
not sent, the Advocate wrote a letter by Registered post on
December 17, 1979, asking for a copy of that document also.
A reply was sent on January 1, 1980, to the effect that
document No. 14 had also been supplied earlier but
nonetheless another copy of the same document was being sent
again. On December 22, 1979, the detenu made a
representation to the detaining authority and it was
actually received by the latter on December 26, 1979. The
Home Department of the Delhi Administration forwarded a copy
of
1098
the representation to the Customs authorities for their
remarks. The remarks were received on January 4, 1980.
Thereafter the representation was considered and rejected by
the Administrator on January 15, 1980. The rejection of the
representation was communicated to the detenu on January 17,
1980. In the meanwhile the Advisory Board to whom the
detention of the petitioner had been referred met on January
4, 1980 and considered the matter. The detenu was produced
before the Advisory Board and various concerned Departmental
officials were also present. On January 10, 1980, the
Advisory Board recorded its opinion and forwarded the same
to the detaining authority. It was received by the Home
Department of the Delhi Administration on January 11, 1980
but was actually placed before the Administrator on January
19, 1980 when the detaining authority confirmed the order of
detention.
In this application for the issue of a writ of Habeas
Corpus three submissions were made by Shri Ram Jethmalani,
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 detaining authority should have disposed of the
representation before forwarding it to the Advisory Board.
Even if the detaining authority did forward it to the
Advisory Board, the detaining authority should not have
awaited the hearing before the Advisory Board and should not
have allowed itself to be influenced by such hearing.
3. There was inexcusable delay in enabling the detenu
to make a representation and indisposing 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 additional grounds. However, we were
informed by Shri Abdul Khader, learned Counsel for the Delhi
Administration, that the representation was in fact
forwarded to the Advisory Board and also considered by the
latter. He produced the relevant files before us which we
also permitted Shri Jethmalani to inspect. We are satisfied
that the representation was forwarded to the Advisory Board
and it was also considered by the
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 greater precision and perspicuity in
affidavits filed into Court. Care and clarity are
particularly important when the Court is concerned with
questions of personal freedom.
In support of the second and third submissions,
reliance was placed by the learned counsel for the
petitioner on the four principles laid down by this Court in
Jayanarayan Sukul v. State of West Bengal,(1) and on the
observations of the Court in Nareendra Purshotam Umrao etc.
v. B. B. Gujaral & Ors.(2) and Ramchandra A. Kamat v. Union
of India & Ors.(3). In the first case a 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 a 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 including the consideration of the
representation of the detenu by the Advisory Board.
Thirdly, there should not be any delay in the matter of
consideration. It is true that no hard and fast rule
can be laid down as to the measure of time taken by the
appropriate authority for consideration but it has to
be remembered that the Government has to be vigilant in
the governance of the citizens. A citizen’s right
raises a correlative duty of the State. Fourthly, the
appropriate Government is to exercise its opinion and
judgment on the representation before sending the case
along with the detenu’s representation to the Advisory
Board. If the appropriate Government will release the
detenu the Government will not send the matter to the
Advisory Board. If, however, the Government will not
release the detenu the Government will send the case
alongwith the detenu’s representation to the Advisory
Board. If thereafter the Advisory Board will express an
opinion in favour of release of the detenu the
Government will release the detenu. If the Advisory
1100
Board will express any opinion against the release of
the detenu the Government may still exercise the power
to release the detenu.”
In the second case, to the facts of which we will refer
later, the observations upon which reliance was placed were
: “It is urged that the Government was under a
constitutional obligation to consider the representations
before the hearing before the Advisory Board. There is no
quarrel with the principle but the difficulty is about the
application of the principle on the facts an circumstances
of the 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
twelve 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 cannot be said to be according to
the procedure prescribed by law. When the Act
contemplates the furnishing of grounds of detention
ordinarily within five days of the order of detention
the intention is clear that the statements and
documents which are referred to in the grounds of
detention 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 to 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 be provided with
an opportunity to make a represntation. Here the Law Reports
tell a story and teach a lesson. It is that the principal
enemy of the detenu and his right to make a representation
is neither high-handedness nor mean-mindedness but the
casual indifference, the mindless in-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
enunciated in other cases, an analysis will show, are aimed
at shielding personal freedom against indifference,
insensibility, routine and red-tape and thus to secure to
the detenu the right to make an effective representation. We
agree : (1) the detaining authority must provide the
1101
detenu a very early opportunity to make a representation,
(2) the detaining authority must consider the representation
as soon as possible, and this, preferably, must be before
the representation is forwarded to the Advisory Board, (3)
the representation must be forwarded to the Advisory Board
before the Board makes its report, and (4) the consideration
by the detaining authority of the representation must be
entirely independent of the hearing by the Board or its
report, expedition being essential at every stage. We,
however, hasten to add that the time-imperative can never be
absolute or obsessive. The Court’s observations are not to
be so understood. There has to be lee-way, depending on the
necessities (we refrain from using the word `circumstances’)
of the case. One may well imagine, a case where a detenu
does not make a representation before the Board makes its
report making it impossible for the detaining authority
either to consider it or to forward it to the Board in time
or a case where a detenu makes a representation to the
detaining authority so shortly before the Advisory Board
takes up the reference that the detaining authority cannot
consider the representation before then but may merely
forward it to the Board without himself considering it.
Several such situations may arise compelling departure from
the time-imperative. But no allowance can be made for
lethargic indifference. No allowance can be made for
needless procrastination. But, allowance must surely be made
for necessary consultation where legal intricacies and
factual ramifications are involved. The burden of explaining
the necessity for the slightest departure from the time-
imperative is on the detaining authority.
We notice that in Narendra Purshotam Umarao etc. v. B.
B. Gujral & Ors. (supra) the detenu made his representation
on 4th and 6th of March 1978, the Advisory Board gave a
hearing on 13th March and the detaining authority rejected
the representation on 18th March. The Court perused the
records of the Government and the Advisory Board and
concluded that there was no infraction of the Constitutional
safeguard in Art. 22(5). It was held, with reference to the
records, that the Government had taken a decision
uninfluenced 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 independent conclusion 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 Jayanarayan Sukul v. State of West
Bengal (supra).
1102
We would make one observation. When 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 independently
of the Board. This was explained in Nagendra Nath Mondal v.
the State of West Bengal(1). In Sukul’s case (supra) the
Court also made certain pertinent observations (at pages
231-232) :
“No definite time can be laid down within which a
representation of a detenu should be dealt with save
and except that it is a constitutional right of a
detenu to have his representation 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(2) and
Kantilal Bose v. State of West Bengal(3) delay of 16 days
and 28 days respectively in disposing of the representation
of the detenu was considered sufficient to vitiate the
detention. On the other hand, in Nagendra Nath Mondal v. The
State of West Bengal,(1) a 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 was 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, Government 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 to Government. But counsel urged that this fact
may explain the lapse of time from the date that the
records were 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
a given case Government may not be able to
1103
reach a proper conclusion within a short time
especially, in a 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
Government 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 decided on its
own facts.”
We may now consider whether the facts here disclose a
disregard to the petitioner’s constitutional 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
authority, the Director 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
Intelligence to furnish copies of the documents and it was
so done. There was no delay in furnishing of documents and
no legitimate complaint could be made on that score. The
detenu’s representation was received by the detaining
authority on December 26, 1979. Without any loss of time
copy of the representation was sent to the 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 complex since the allegations against the detenu
revealed an involvement with an international gang of dope
smugglers. The comments of the Customs authorities were
received on January 4, 1980. The Advisory Board was meeting
on January 4, 1980 and so there could be no question 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
authorities, it was found necessary to take legal advice as
the representation posed many legal and constitutional
questions. So, after consultation with the Secretary (Law
and Judicial) Delhi Administration, the representation was
finally rejected by the Administrator on January 15, 1980.
These facts are stated in the counter affidavit filed
1104
on behalf of the Delhi Administration and are substantiated
by the records produced before us. If there appeared to be
any delay, it was not due to any want of care but because
the representation required a thorough examination in
consultation with investigators of fact and advisers on law.
We have ourselves examined the records and we find that
though the Administrator considered the representation of
the detenu after the hearing by the Board, the Administrator
was entirely uninfluenced by the hearing before the Board.
The application for the issue of a Writ of Habeas Corpus is
therefore dismissed.
N.V.K. Petition dismissed.
1105