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SUPREME COURT OF INDIA
B.R. GAVAI, PRASHANT KUMAR MISHRA, K.V. VISWANATHAN, JJ.
Jaseela Shaji – Appellant
Versus
The Union of India and Others – Respondents
Criminal Appeal No. 3083 of 2024
Decided On : 12-09-2024
(A) Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 – Section 3 – Constitution of India – Article 22(5) – Preventive detention – Rejection of Habeas Corpus Petition by High Court – Detaining Authority must afford detenu earliest opportunity of making representation against order of detention – Detenu has right to be furnished with grounds of detention along with documents so referred to or relied on – Failure or even delay in furnishing those documents would amount to denial of right to make an effective representation – It is not necessary to furnish copies of each and every document to which a casual or passing reference may be made in narration of facts and which are not relied upon by Detaining Authority in making order of detention – However, failure to furnish copies of such document/documents as is/are relied on by Detaining Authority which would deprive detenu to make an effective representation would amount to violation of fundamental right guaranteed under Article 22(5) of Constitution of India. (Paras 19, 20, 25, 27 and 33)
(B) Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 – Section 3 – Constitution of India – Article 22(5) – Preventive detention – Rejection of Habeas Corpus Petition by High Court – Documents relied on by Detaining Authority which form basis of material facts which have been taken into consideration to form a chain of events could not be severed and High Court was not justified in coming to a finding that despite eschewing of certain material taken into consideration by Detaining Authority, detention order can be sustained – Non-supply of statements of co-accused has affected right of detenu to make effective representation under Article 22(5) of Constitution of India and as such, detention is vitiated on said ground – Merely because Advisory Board opined that order of detention was sustainable, it does not absolve agents of Detaining Authority/Central Government to immediately forward representation to Competent Authority and Detaining Authority or Central Government to consider and decide such a representation speedily – Merely because there has been a casual or callous and negligent approach on part of Jail Authorities in ensuring that representation of detenu is communicated at the earliest, valuable right available to detenu to have his representation decided expeditiously cannot be denied – There has been delay of almost about 9 months in deciding representations made by detenu – Order of detention quashed and set aside. (Paras 42, 44, 51, 58, 68, 69 and 72)
Facts of the case:
(a) As to whether non-supply of statements of Ms. Preetha Pradeep has affected right of detenu to make an effective representation under Article 22(5) of Constitution of India.
(b) As to whether non-receipt of 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.
Findings of Court:
Prison Authorities should ensure that representations are sent to Competent Authorities immediately after receipt thereof. In present era of technological development, said representation can be sent through email within a day. Competent Authority should decide such representation with utmost expedition so that valuable right guaranteed to the detenu under Article 22(5) of Constitution is not denied. In matters pertaining to personal liberty of citizens, Authorities are enjoined with a constitutional obligation to decide representation with utmost expedition. Each day’s delay matters in such a case.
Result : Appeal allowed.
JUDGMENT :
B.R. GAVAI, J.
1. The appellant, who is the wife of one Appisseril Kochu Mohammed Shaji (Shaji A.K.)1 [Hereinafter referred to as “detenu”] has approached this Court being aggrieved by the judgment and order dated 4th March 2024 passed by the Division Bench of the High Court of Kerala at Ernakulam in Writ Petition (Criminal) No. 1271 of 20232 [“habeas corpus petition”] vide which it has dismissed the said habeas corpus petition filed by the appellant for production of the detenu, who was detained pursuant to the order of detention dated 31st August 20233 [Hereinafter referred to as “detention order”] passed under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974.4 [Hereinafter referred to as “COFEPOSA”]
2. By order dated 31st of July 2024, this Court allowed the present appeal; quashed and set aside the impugned judgment and order of the High Court dated 4th March 2024 in Writ Petition (Criminal) No. 1271 of 2023 so also the order dated 31st August 2023 passed by the Joint Secretary (COFEPOSA), COFEPOSA Unit, Central Economic Intelligence Bureau, Department of Revenue, Ministry of Revenue, Government of India5 [Hereinafter referred to as “Detaining Authority”] to the Government of India directing the detention of the detenu and the order dated 28th November 2023 passed by the Under Secretary, COFEPOSA Wing, Central Economic Intelligence Bureau, Department of Revenue, Ministry of Finance, Government of India6 [Hereinafter referred to as “Central Government”] confirming the detention order of the detenu. We have directed that the detenu be released forthwith, if not required in any other case. The reasons for the same are as under.
3. Shorn of details, the facts giving rise to the present appeal are as under:
3.2 The detenu was taken into custody on 2nd September 2023 and put in detention in Central Prisons, Poojapura, Trivandrum, Kerala.
3.3 The grounds of detention and the relied upon documents were served on the detenu on 6th September 2023.
3.4 A perusal of the grounds of detention served on the detenu would reveal that there are 12 grounds on the basis of which the detention order dated 31st August 2023 came to be passed. The Detaining Authority has relied on the following material for arriving at its subjective satisfaction:
(a) Statements of the detenu recorded on 20th June 2023, 11th July 2023 and 17th July 2023 under Section 37 of FEMA.
(b) Statement of Shri Suresh Babu recorded on 7th July 2023.
(c) WhatsApp chats, voice calls, images recovered from the mobile phone as also ‘paper slips’ allegedly recovered from the detenu;
(d) Statements of Ms. Preetha Pradeep recorded on 5th July 2023 and 6th July 2023.
3.5 In the grounds of detention, the detenu was further informed about his right to make representation to the Detaining Authority as well as the Chairman, COFEPOSA, Advisory Board, High Court of Kerala7 [Hereinafter referred to as “Advisory Board”] and the Central Government through Jail Authorities.
3.6 Accordingly, the detenu had made representations to the concerned Authorities i.e. the Detaining Authority, the Central Government and the Advisory Board. It appears that the Jail Authorities sent the said representations to the concerned Authorities through the ordinary post. However, neither the Detaining Authority nor the Central Government received the said representations. Insofar as the representation made by the detenu to the Advisory Board is concerned, the Advisory Board opined that there was sufficient cause for detention of the detenu. Hence the Central Government vide order dated 28th November 2023 confirmed the detention order and further directed that the detenu be detained for a
Preventive detention – Detenu has right to be furnished with grounds of detention along with documents so referred to or relied on – Failure or even delay in furnishing those documents would amount t....
Point of Law : Right of Parliament and executive to place restrictions upon a man's freedom - There should not be “supine indifference/slackness or callous attitude” in considering representation - T....
Action under Section 7 of COFEPOSA Act is not mandatory, failure to take action under section gives scope for doubt regarding assertion that detenu had absconded or concealed himself to avoid arrest.
Quash of Detention order - Delay in passing detention order - There is nothing in Section 3 of COFEPOSA or in scheme of Act, which suggests that the especially empowered officer must act only on rece....
Quash of Detention order - Delay in passing detention order - There is nothing in Section 3 of COFEPOSA or in scheme of Act, which suggests that the especially empowered officer must act only on rece....
Preventive detention orders must strictly comply with procedural safeguards, including timely communication of grounds and consideration of representations; non-compliance renders detention invalid.
Point of Law : Nature and extent of right to representation under Article 22(5) of Constitution of India has been a subject for serious deliberation for long.
The Detaining Authority must act independently and with an open mind, and should not prejudge the issue even before considering the materials produced before him by the sponsoring authority. There sh....
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