Holding

The Court held that the detaining authority duly forwarded the detenu’s representation to the Advisory Board, considered it independently, and any delay was justified, so there was no violation of Article 22(5) and the writ was dismissed.

Summary

Mrs. Frances Coralie Mullin, a British national, was detained on 23 November 1979 under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. She filed a writ petition under Article 32 alleging that her right to make a representation under Article 22(5) was violated because the representation was not communicated to the Advisory Board, was not disposed of before being forwarded, and there was an inexcusable delay. The Court examined the timeline: copies of documents were supplied on 7 December 1979, the representation was received on 26 December 1979, forwarded to the Customs authorities, and the Advisory Board heard the matter on 4 January 1980. The representation was considered by the Administrator on 15 January 1980, after the Board’s hearing, but the Court found the consideration independent and any delay justified by the need for legal and factual consultation. Consequently, the Court held there was no breach of the constitutional safeguard and dismissed the writ.

Issues considered

The representation of the detenu was not communicated to the Advisory Board before its hearing.
The detaining authority should have disposed of the representation before forwarding it to the Advisory Board, and whether any delay violated Article 22(5).
Whether there was an inexcusable delay in allowing the detenu to make and have his representation considered.

Legislation cited

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974s. 3
Constitution of Indias. Article 22(5)

Subjects

preventive detentionArticle 22(5)representationAdvisory BoardConservation of Foreign Exchange and Prevention of Smuggling Activities Actconstitutional lawwrit of habeas corpusdelaydue process

Judgment

1095

FRANCES CORALIE MULLIN A
v.
W. C. KHAMBRA & ORS.
February 27, 1980
• [R. S. SARKARIA AND 0. CHINNAPPA REDDY, JJ.J
B
Con.~titutionof India 1950, Art 22(5) & Conserration of Foreign Exchange
\ '
and Prevenfi911 of S1nuggli11g Activities Act 1974, Section 3-Detenu's represen-

1
tation against order of dete11tio11-Disposal of such representation by detaining
nuthority-Necessity for slightest departure froni ti111e ilnperative-Detaining
authority-To explain.
I Pleadings-Affidavits in cases involving personal freedoni-Precision, perspe-
cuity and clarity-Necessiry for. c
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 D
• 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 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 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 B
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 F
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 G
.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 a representation and
in disposing of such representation.
Disn1issing the writ petition, Il
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
1096 SUPREME COURT REPORTS [!980] 2 S.C.R. t

A 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
c 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
D 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
E 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 a r~pr~.~en
tation. [l !OOF]
F 5. The La\v· Reports tell a sfLlfY and t'cach a lesson that the principai cnen1y
of the detcnu and his right to n1nke a 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]
G 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\111rtndra 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
H 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 A
lee-v. ay, depending on the necessities of the case.
1

8. Several situation<; may arise compelling the departure fro1n the time-
imperative. But no allov. ance can be made for lethargic indifference. No
1

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 B,
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. c
(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. D

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 deten-
tion under the Cons-"vatio·n of Foreign Exchange and Prevention of E
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 F
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)
G
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. A
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 B
was actually received by the latter on Deceml:Y.er 26, 1979. The
Home Department of the Delhi Administrafain forwarded a copy of
1098 SUPREME COURT REPORTS [1980] 2 s.c.~.

A 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
B
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 . · \....._
c 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 r
submissions were made by Shri Ram J ethmalani, learned counsel for
D 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. . ·.<'
F 3. There 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
G 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.
• B
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 c
/
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. D
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 E
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 corre-
lative duty of the State. Fourthly, the appropriate Govern- F
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 G
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. B
(2) [1979] 2 S.C.R. 315.
(J) r19so1 2 s.c.R. 1012.
)
1100 SUPREME COURT REPORTS [1980) 2 S.C.R.

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
c 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
F 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 a representation. Here the Law Reports tell a story
and teach a lesson. It is that the principal enemy of the detenu
G and his right to make a 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
I
FRANCES CORALIE v. w. c. KHAMBRA (Chinnappa Reddy, !.) 110 I

detenu a very early opportllllity to make a representation, (2) the
• 1 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
B
or its rcpcrt, expedition being essential at every stage. We, however,
hasten to add that th•c time-imperative can never be absolute or
'
1
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 c
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 autho-
rity w shortly before tho" Advisory Board takes up the reference that
the dctainihg authority cannot consider the representation before then D
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
F
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 refe-
rence to the records, that the Government had taken a decision unih- G
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.
H
We have already expressed our agreement with the four principles',
enunciated in !ayanarayan Sukul v. State of West Bengal (supra). ·

'
1102 SUPREME COURT REPORT~ [1980] 2 S.C.tL

A 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 a re-
presentation of a detenu should be dealt with save and
except that it is a constitutional right of a detenu to have
c 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
D 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,(') 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
E 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
G 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
H 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
> \ 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 B
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." c
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 autho- D
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 E
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 F
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 G
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, ff
the representation was finally rejected by the Administrator on Janu-
ary 15, 1980. These facts are stated in the counter affidavit filed
' 16-138 SCl/80
SUPREME COURT REPORTS [1980] 2 s.c.R.

A 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 requir-
ed 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 applica-
tion for the issue of a Writ of Habeas Corpus is therefore dismiss-
ed.

N.V.K. Petition dismissed.

-

f