Frances Coralie Mullin v. W. C. Khambra & Ors.

Judgment

ORIGINAL JURISDICTION: Writ Petition No. 1524 of 1979. (Under Article 32 of the Constitution). Ram Jethmalani, Harjinder Singh, Sunil Mehta and Mu/"tl M11dgal 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. a British National was serevd on November 23, 1979, with an order of detention 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 a 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 accompanying letter. Alleging that one of the documen:s (item No. 14) was not sc'nt, the Advocat•c wrote a letter by Registered post on December 17, 1979, asking for a 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 a 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 a 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 representation 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 Departmental officials >Wre also present. On January 10, 1980, the Advi-... i sory 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 Jannary 19, 1980 when th·~ detaining authority confirmed the order of detention. In this aplication for the issue of a writ of Habeas Corpus three submissions were made by Shri Ram J ethmalani, learned counsel for the petitioner :

1The 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.

2The dctai'ning authority shou~d have disposed of the represenr talion before forwarding it to the Advisory Board. Even if the detaining au!hority 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.

3There was inexcusable. delay in enabling the detenu to make a 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. However, we were informed by Shri Abdul Khader, learned Counsel for the Delhi Administration, 1hat 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 Je1hmalahi to inspect. We are satisfied that the representation was forwarded 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 freedom. 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 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 i'ncluding the consideration of the representation of the detenu by the Advisory 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. 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 tire case along with the detenu's re presentation to the Advisory Board.

If the appropriate Government 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 a 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 cannot be said to be according to the procedure prescribed by 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 documents 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 opportunity to make a representation. 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 !hoe casual indifference, the mindless j·nsensibility, 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 wiit 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: (I) the ddaining authority must provide the I FRANCES CORALIE v. w. c. KHAMBRA (Chinnappa Reddy, !.)

110 I detenu a very early opportllllity 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 :he Board malccs its report, and ( 4) the consideration by the d~taining authority of the rcprcs_!!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, a case wher" a detenu docs not make a 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 a case where a detcnu makes a representation to the detaining authority 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!Icrence. 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. Gujral & Ors., (supra) the detenu made his representation on 4th and 6th of March 1978, the Advisory Bonni gave a 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 reference to the records, that the Government had taken a decision unihfluenced 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 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 !ayanarayan Sukul v. State of West Bengal (supra). · 8 SUPREME COURT REPORT~ [1980] 2 S.C.tL 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 independently of the Board. This was explained in Nagendra Nath Monda! 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 a representation of a detenu should be dealt with save and except that it is a constitutional right of a 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 considered sufficient to vitiate the detention.

On the other hand, in Nagendra Nath Monda/ v. The State of West Bengal,(') 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 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, 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 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 a 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. FRANCllS CORALIE v. w. c. KHAMBRA (Chinnappa Reddy, !.) I I 03 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 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 a 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 authority, 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 legitimate complaint could be made on that score.

The detenu's representation 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 complex 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 Advisory 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 representation 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 anuary 15, 1980. These facts are stated in the counter affidavit filed 16-138 SCl/80 ff on behalf of the Delhi Administration and are substantiated by the records prodnced 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 dete'.nu after the hearing by the Board, the Administrator was entirely uninfiuenced 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.