1. Preventive detention under COFEPOSA — Challenge to detention order via habeas corpus petition — Alleged violation of Article 22(5) regarding supply of documents and disposal of representations. (Para 1 , 3 )
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2024 Supreme(SC) 774
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
Advocates appeared:
For the Appellant(s) : Mr. Shinoj K. Narayanan, Adv. Mr. Vishnu Pazhanganat, Adv. Mr. Abid Ali Beeran, Adv. Mr. K. Rajeev, AOR Ms. Niveditha R Menon, Adv. Mr. Pranav Krishna, Adv. Mr. Aditya Verma, Adv. Mr. Tarun Kumar, Adv.
For the Respondent(s): Mr. Nachiketa Joshi, Sr. Adv. Mr. Gurmeet Singh Makker, AOR Mr. Siddharth Sinha, Adv. Mr. Santosh Kumar, Adv. Mr. Aditya Shankar Dixit, Adv. Mr. Mukesh Kumar Maroria, AOR
For the Appellant(s) : Mr. Shinoj K. Narayanan, Adv. Mr. Vishnu Pazhanganat, Adv. Mr. Abid Ali Beeran, Adv. Mr. K. Rajeev, AOR Ms. Niveditha R Menon, Adv. Mr. Pranav Krishna, Adv. Mr. Aditya Verma, Adv. Mr. Tarun Kumar, Adv.
For the Respondent(s): Mr. Nachiketa Joshi, Sr. Adv. Mr. Gurmeet Singh Makker, AOR Mr. Siddharth Sinha, Adv. Mr. Santosh Kumar, Adv. Mr. Aditya Shankar Dixit, Adv. Mr. Mukesh Kumar Maroria, AOR
IMPORTANT POINT
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 to denial of right to make an effective representation.
Headnote:
(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.
Legal Category Hierarchy
- constitutional law
- administrative law
-
crime and sentencing
-
economic offences
- foreign exchange violations (Para 35)
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economic offences
Table of Contents
2. Non-supply of relied-upon material and inordinate delay in deciding representations violate the right to make an effective representation under Article 22(5) of the Constitution. (Para 5 , 6 , 7 , 8 , 9 , 10 , 11 , 12 , 13 , 14 , 15 , 16 )
3. Non-supply of material relied upon for subjective satisfaction and callous delay in transmitting and deciding representations prejudice the detenu's constitutional right to an effective representation. (Para 17 , 18 , 19 , 20 , 21 , 22 , 23 , 24 , 25 , 26 , 27 , 28 , 29 , 30 , 31 , 32 , 33 , 34 , 35 , 36 , 37 , 38 , 39 , 40 , 41 , 42 , 43 , 44 , 45 , 46 , 47 , 48 , 49 , 50 , 51 , 52 , 53 , 54 , 55 , 56 , 57 , 58 , 59 , 60 , 61 , 62 , 63 , 64 , 65 , 66 , 67 , 68 , 69 , 70 , 71 )
4. Failure to supply relied-upon documents or ensure speedy disposal of representations violates Article 22(5) of the Constitution, rendering the preventive detention order unsustainable. (Para 19 , 33 , 44 , 71 )
5. Appeal allowed — High Court judgment and detention orders quashed — Detenu directed to be released forthwith. (Para 72 )
6. What are the constitutional imperatives under Article 22(5) regarding the right to representation in preventive detention?
The detaining authority must communicate the grounds of detention as soon as practicable and afford the detenu the earliest opportunity to make an effective representation, which includes furnishing all documents referred to or relied upon in the grounds of detention. (Para 18 , 19 , 20 )
7. Does the non-supply of every document mentioned in a detention order necessarily vitiate the order?
No. Only documents actually relied upon by the detaining authority to reach subjective satisfaction must be supplied. Documents mentioned only for the purpose of narration of facts or casual reference do not need to be furnished to the detenu. (Para 24 , 25 , 26 , 27 , 28 , 29 , 30 , 33 )
8. How does delay in transmitting or deciding a detenu's representation affect the legality of the detention?
The obligation to consider representations speedily is a constitutional imperative. Callousness, negligence, or unexplained inordinate delay by transmitting authorities or the government in disposing of representations violates Article 22(5) and renders the continued detention illegal. (Para 49 , 50 , 52 , 53 , 54 , 56 , 57 , 58 , 64 , 68 , 71 )
9. Can a detention order be sustained if some relied-upon materials are not supplied but others are?
If the detention is based on a single composite ground relying on various materials to form a chain of events, those materials cannot be severed. Non-supply of material that forms a vital link in that chain vitiates the order. (Para 40 , 42 , 43 )
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:
3.1 The detention order dated 31st August 2023 was passed by the Detaining Authority under Section 3(1) of the COFEPOSA, thereby directing detention of the detenu with a view to prevent him from acting in any manner prejudicial to the augmentation of foreign exchange in future.
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
