Case: Frances Coralie Mullin Vs. W. C. Khambra &amp; Ors

Mrs. Frances Corolie 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 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 II, 1980 but was actually placed before the Administrator on January 19, 1980 when the detaining authority confirmed the order of detention.

Reasoning: 5. 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 Courts writ is the ultimate insurance against illegal detention. The Constitution enjoins conformance with the provisions of Art. 22 and the Court exacts compliance. Art. 22(5) vests in the detenu the right to be 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 highhandedness nor mean-mindedness but the casual indifference, the mindless insensibility, 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 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 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 Courts 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 authorityThe petitioners request for the 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 detenus 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 on behalf of the Delhi Administration and are sub-stantiated 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 facts 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 BoardHowever, we were informed by Shri Abdul Khader, learned 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 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 in the Court. Care and clarity are particularly important when the Court is concerned with questions of personal freedom.