The right to effective representation under Article 22(5) of the Constitution is violated if the detaining authority fails to supply relied-upon documents, and undue delay in processing representations renders detention unconstitutional.

J U D G M E N T

B.R. GAVAI, J.

1. The appellant, who is the wife of one Appisseril Kochu Mohammed Shaji (Shaji A.K.)1, 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, vide which it has dismissed the said habeas corpus petition filed by

1 Hereinafter referred to as “detenu”.

2 “habeas corpus petition”

the appellant for production of the detenu, who was detained pursuant to the order of detention dated 31st August 20233 passed under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act , 19744.

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 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 confirming the detention order of the detenu. We have directed that the detenu be released forthwith,

3 Hereinafter referred to as “detention order”

4 Hereinafter referred to as “COFEPOSA”

5 Hereinafter referred to as “Detaining Authority” 6 Hereinafter referred to as “Central Government”

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 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

7 Hereinafter referred to as “Advisory Board”

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 per