‘Failure in furnishing documents & delay in deciding detenu’s representation violates Art. 22(5)’: SC quashes detention order under COFEPOSA

An order and judgement in a writ petition (criminal), passed by the Division Bench of the High Court of Kerala, on 4^th March 2024 and an order of the Joint Secretary (COFEPOSA)  on 31^st August 2023, was  quashed  and set aside by the Supreme Court bench of Justice B. R. Gavai, Justice Prashant Kumar Mishra and Justice K. V. Viswanathan.  

To summarise the case, a detention order was issued on 31st August, 2023,  by the Detaining Authority  of  Government of India, under Section 3(1) of the COFEPOSA Act to prevent the  detenu from engaging in activities prejudicial to the augmentation of foreign exchange. The detenu was taken into custody on 2nd September 2023 and detained at Central Prisons, Poojapura, Trivandrum, Kerala. The grounds for detention and the supporting documents were served on 6th September 2023, detailing 12 grounds for the detention based on materials such as statements of the detenu recorded on 20th June, 11th July, and 17th July, 2023, under Section 37 of the Foreign Exchange Management Act (FEMA) , a statement  dated 7^th July, 2023, by Suresh Babu , an accomplice who admitted to engaging in illegal foreign currency dealings  with the detenue., WhatsApp chats, voice calls, images, paper slips recovered from the detenu’s mobile phone, and statements of one Preetha Pradeep recorded on 5th and 6th July 2023. 

The   detenue was informed of his right to make representations to the Detaining Authority, the Chairman of the COFEPOSA Advisory Board, the High Court of Kerala, and the Central Government. The detenu submitted representations to the respective authorities. It appears that the jail authorities sent the said representations to the concerned authorities through ordinary post but neither the Detaining Authority nor the Central Government received the said representations. In as far as the detenue’s representation to the Advisory Board was concerned, they stated that they found sufficient grounds for his detention. The Central Government confirmed the detention on 28th November 2023, ordering the detenu's detention for one year commencing, 2nd September 2023. Aggrieved by the detention, the appellant (detenu’s wife) filed a habeas corpus writ petition before the Kerala High Court, which was dismissed on 4th March 2024. The appellant then appealed to the Supreme Court by way of special leave.

The issues before the court to consider were:

(a) As to whether the non-supply of the statements of Preetha Pradeep has affected the right of the detenu to make an effective representation under Article 22(5) of the Constitution of India.

Taking reference from a precedent case of M. Ahamedkutty vs. Union of India and another, the court held that the constitutional requirements under Article 22(5) of the Constitution of India are twofold: 

1. the Detaining Authority must, as soon as practicable, after the detention communicate to the detenu the grounds on which the order of detention has been made. 
2. The Detaining Authority is required to provide the detenu with the earliest opportunity to make a representation against the detention order. This right must be effective, and if certain documents are referenced or relied upon in the grounds for detention, copies of those documents must be provided for the grounds to be considered complete. It has been clearly established that the detenu has the right to receive both the grounds of detention and the supporting documents. Any failure or delay in providing these documents is considered a denial of the right to make an effective representation, regardless of whether the detenu was already aware of their contents.

It was the court’s observation that,

“There can be no doubt that it is not necessary to furnish copies of each and every document to which a casual or passing reference may be made in the narration of facts and which are not relied upon by the Detaining Authority in making the order of detention. However, failure to furnish copies of such document/documents as is/are relied on by the Detaining Authority which would deprive the detenu to make an effective representation would certainly amount to violation of the fundamental right guaranteed under Article 22(5) of the Constitution of India.”

After examining the detention order dated 31st August 2023 and the statements of Preetha Pradeep, the court opined that the statement given by Preetha Pradeep is a vital link for transactions between Suresh Babu and the detenu. Therefore, the court noted that the statements of Preetha Pradeep cannot be said to be  just a casual or a passing reference. Based on this , the bench was of the opinion that 

“the documents relied upon by the Detaining Authority, which formed the basis of the material facts leading to the detention, could not be separated. The High Court was incorrect in concluding that the detention order could still be upheld, even if some of the material considered by the Detaining Authority was disregarded. It was wrong to assume that the Detaining Authority would have reached the same conclusion without certain evidence. Consequently, the non-provision of Preetha Pradeep’s statements hindered the detenu's ability to make an effective representation under Article 22(5) of the Constitution, thereby invalidating the detention.”

(b) As to whether non-receipt of the representation and the delay in deciding the representation by the Detaining Authority and the Central Government would also affect the right of the detenu under Article 22(5) of the Constitution.

The detenu submitted his representations on September 27, 2023, to the Jail Authorities for onwards transmission to the Detaining Authority, the Central Government, and the Advisory Board. However, the Jail Authorities sent these representations through ordinary post, and neither the Detaining Authority nor the Central Government received them. The representations could not be tracked since it was sent by  ordinary post. It was only after this issue came to light following a court notice that the authorities retrieved the representations via email from the Jail Authorities. These were subsequently rejected by the Detaining Authority and the Central Government on 11th and 12th June 2024, respectively, nearly nine months after the representations were initially submitted.

Taking a reference from the observation of Supreme Court in the case of Tara Chand vs. State of Rajasthan, (1980) 2 SCC 321, the court held that:

“the delay of one month and five days in communicating the representation of the detenu from the jail to the detaining authority demonstrates the gross negligence and extreme callousness with which the representation made by the detenu was dealt with by the respondents or their agents. It has been further held that Article 22(5) of the Constitution enjoins that the obligation of the appropriate Government or of the detaining authority to afford the detenu the earliest opportunity to make a representation and to consider that representation speedily is distinct from the Government's obligation to constitute a Board and to communicate the representation, amongst other materials, to the Board to enable it to form its opinion and to obtain such opinion.”

The court also stated that:

“maybe the detenu was a smuggler whose tribe (and how their numbers increase) deserved no sympathy since its activities had paralysed the Indian economy, but the laws of preventive detention afforded only a modicum of safeguards to persons detained under them. It has been observed that it was essential that at least those safeguards are not denied to the detenus. This Court observed that the failure in that case either on the part of the Jail Superintendent or the State Government to forward the detenu's representation to the Central Government had deprived the detenu of the valuable right to have his detention revoked by that Government. Relying on the earlier judgments, this Court held that since the representation was left unattended for four months, the continued detention of the detenu was illegal.”

While giving its judgement, the Supreme Court referenced the judgement of Vijay Kumar v. State of Jammu & Kashmir and others and stated that:

“the State Government must gear up its own machinery to ensure that the representation is transmitted quickly; it reaches the Central Government as quickly as possible and is decided expeditiously. In the present case, the law laid down by this Court has been given a go-bye. The Jail Authorities ought to have ensured that the representation of the detenu reaches the concerned Authorities at the earliest. In the present era of technological advancement, the Jail Authorities could have very well sent the copies of the representation to the Detaining/Appropriate Authority either by email or at least a physical copy could have been sent by Speed Post (acknowledgment due) so that there could have been some evidence of the said being sent to the competent authority and could have been tracked. We are of the considered view that merely because there has been a casual or callous and, in fact, negligent approach on the part of the Jail Authorities in ensuring that the representation of the detenu is communicated at the earliest, the valuable right available to the detenu to have his representation decided expeditiously cannot be denied.”

Hence the Supreme Court bench, while giving it's order, stated that:

“In the present matter, we find that on account of casual, callous and negligent approach of the Prison Authorities, the representation of the detenu could not reach to the Detaining Authority and the Central Government within a reasonable period. There has been about 9 months’ delay in deciding the representation. Even otherwise, accepting the stand of the respondents as made in the counter affidavit, there has been a delay of 27/20 days on the part of the Central Government and the Detaining Authority in deciding the representation when it was called from the Prison Authorities after notice was issued in the present matter. We further find that the detention order is liable to be quashed and set aside on this ground also.”

The appeal was allowed and the judgement and order of the High Court  of Kerala dated 4th March 2024, the  order passed by the Joint Secretary (COFEPOSA) on 31^st August, 2023,  to the Government of India directing the detention of the detenu and the order dated 28th November 2023 passed by the Under Secretary, Government of India confirming the detention order of the detenu, Appisseril Kochu Mohammed Shaji (Shaji A.K.), were quashed and set aside. The detenu was directed to be released forthwith, if not required in any other case.

• Advocate for the Petitioner: Advocates Shinoj K. Narayanan, Vishnu Pazhanganat, Abid Ali Beeran, Niveditha R Menon, Pranav Krishna, Aditya Verma, Tarun Kumar, and AOR K. Rajeev.
• Advocate for the Respondent: Sr. Adv. Nachiketa Joshi, AOR Gurmeet Singh Makker, Advocates Siddharth Sinha, Santosh Kumar, Aditya Shankar Dixit and AOR Mukesh Kumar Maroria.

Case Details: Jaseela Shaji v. The Union of India & Ors., Cri. Appeal/3083/2024