IMPORTANT POINT
The central legal point established in the judgment is that the detenu is entitled to constitutional protection, and any lapse in considering the representation cannot infringe a constitutionally protected right of a detenu.

This writ of Habeas Corpus was filed by the wife of detenu challenging the detention order under the COFEPOSA Act, 1974. Though several grounds have been raised in this matter. We need not considered the challenge on those grounds. We find that challenge based on non consideration of the representation within three months is sufficient to release the detenu. The following date of events are relevant :

2. The date is reckoned for the date of forwarding the representation, admittedly 99 days lapsed. However, the stand of respondents 1 to 3 was that representation was received only on 07.02.2024. Whether this is correct or not is the issue in this matter.

3. It is appropriate to refer the statement filed by the respondents 1 to 3 in this matter. Paragraph 17 of the statement reads as follows :-

“17. As regards the allegation that the representation of the detenue addressed to the Joint Secretary (COFEPOSA), it is respectfully submitted that the records were checked and observed that the detaining authority did not receive any representation of the detenue. However, while preparing the present counter affidavit-in-reply, the Central Jail, Poojappura, Thiruvananthapuram was contacted telephonically on 07.02.2024 to ascertain as to whether the detenue has made any representation to the detaining authority. The Central Jail, Poojappura after checking their records informed by return call that they had forwarded a representation of the detenue addressed to the detaining authority on the email id of the ex-Joint Secretary (COFEPOSA) on 31.10.2023. Thereafter, email accounts of all the concerned officers were searched to check as to whether the said representation was received from the ex-Joint Secretary (COFEPOSA) and found that no email, in this regard, was received from him. However, the said mail was finally found in the junk/spam box of Deputy Secretary (COFEPOSA). In this regard, it is pertinent to mention that the Jail Authorities had not forwarded any hard copy of the said representation addressed to the Joint Secretary (COFEPOSA).”

4. The statement itself would show that Superintendent was forwarded representation on 31.10.2023. It was received in the spam mail of the Deputy Secretary. The case of respondents 1 to 3 is that they never received the representation. It was only verified on 07.02.2024, when they contacted the Jail Superintendent, they found the representation in the spam mail. Therefore, they would submit that they received representation only on 07.02.2024. This according to us is unacceptable. It is true that there are no guidelines in this matter how a representation should be forwarded from the Jail Superintendent to Joint Secretary, who is the Detention Authority as well as to the Central Government. This has resulted in lapses in this matter. However, when we are looking into this matter in terms of Constitutionally protected right of a detenu, whatever the excuse one may have that cannot infringe a constitutionally protected right of a detenu.

Therefore, we are of the view that detenu is entitled to the constitutional protection as it was not considered within three months. In such circumstances, we are of the view that the continuation of detention will have to be interfered and the detenu has to be released as he has not been accorded with the constitutional protection as envisaged under Article 22(5). Accordingly, we order release of the detenu forthwith. In the meanwhile issue guidelines in regard to forwarding representations, we direct hereafter, the representation shall be forwarded by all Jail Superintendent in following manner :-

(i) They shall forward e-mail copies both in the e-mail address of the Detention Authority as well as Central Gove