1980 (2) TMI 255 - SC - Indian Laws

Whether the facts here disclose a disregard to the petitioner s constitutional right as claimed by his counsel in his second and third submissions? Held that - 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 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. 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.

Issues Involved:
1. Non-communication of the detenu's representation to the Advisory Board.
2. Detaining authority's duty to dispose of the representation before forwarding it to the Advisory Board.
3. Delay in enabling the detenu to make a representation and in disposing of the representation.

Detailed Analysis:

Issue 1: Non-communication of the detenu's representation to the Advisory Board
The petitioner argued that the representation made on December 22, 1979, was not communicated to the Advisory Board when it met on January 4, 1980. However, the Delhi Administration, through their counsel, produced relevant files showing that the representation was indeed forwarded to and considered by the Advisory Board. The court, after allowing the petitioner's counsel to inspect the files, was satisfied that the representation was considered by the Advisory Board. The court emphasized the need for greater precision and clarity in affidavits, especially in matters concerning personal freedom. Consequently, the first submission by the petitioner was found to be without merit.

Issue 2: Detaining authority's duty to dispose of the representation before forwarding it to the Advisory Board
The petitioner relied on the principles laid down in Jayanarayan Sukul v. State of West Bengal, which state that the appropriate authority must consider the detenu's representation as early as possible, independently of the Advisory Board's actions. The court reiterated these principles, emphasizing that the detaining authority must provide the detenu an early opportunity to make a representation, consider it expeditiously, and do so independently of the Advisory Board's hearing or report. The court acknowledged that while there must be prompt action, some leeway is permissible depending on the case's necessities. However, no allowance is made for lethargic indifference or needless procrastination.

In the present case, the court found that the representation was received on December 26, 1979, and was promptly forwarded to the Customs authorities for remarks, which were received by January 4, 1980. The complexity of the case and the need for legal advice justified the time taken to consider the representation. The court concluded that the detaining authority's consideration of the representation was uninfluenced by the Advisory Board's hearing, thus dismissing the second submission.

Issue 3: Delay in enabling the detenu to make a representation and in disposing of the representation
The petitioner argued that there was an inexcusable delay in enabling the detenu to make a representation and in disposing of it. The court examined the timeline: the request for documents was received on December 3, 1979, and the documents were supplied by December 7, 1979. The representation was received on December 26, 1979, and forwarded for remarks, which were received by January 4, 1980. The representation was finally rejected on January 15, 1980, after necessary consultations.

The court noted that while there appeared to be some delay, it was not due to any lack of care but rather the complexity of the case and the need for thorough examination and legal consultation. The court emphasized that each case must be decided on its own facts, and in this case, the delay was justified. The court found no violation of the detenu's constitutional rights and dismissed the third submission.

Conclusion:
The court dismissed the application for the issue of a Writ of Habeas Corpus, finding no merit in the petitioner's submissions regarding the non-communication of the representation to the Advisory Board, the detaining authority's duty to dispose of the representation before forwarding it to the Advisory Board, and the alleged delay in enabling the detenu to make a representation and in disposing of it. The petition was dismissed.

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