Can't Infringe Detainees' Constitutional Rights: Kerala HC Releases Man Whose E-Mail Representation Went To Authority's Spam Folder, Frames Guidelines

The Kerala High Court has issued guidelines relating to the forwarding of representations of detainees. A division bench consisting of Justice A Muhamed Mustaque and Justice MA Abdul Hakhim clarified that the representations shall be forwarded by all jail superintendents in the following manner:

i) Jail superintendents shall forward e-mail copies both in the e-mail address of the detention authority as well as central government. The sponsoring authority immediate on detention order shall forward the relevant e-mail IDs of the concerned to the jail superintendent. Immediately on forwarding the e-mail copies physical copies also shall be forwarded all the authorities concerned.
ii) The court directed that necessary instructions shall be issued by the DGP of the prison to all jail superintendent in the Jail. DGP shall direct that if any laches on the part of the jail superintendent in following the guidelines in the directions as above will entail in disciplinary actions against such officers.

The court was hearing a habeas corpus plea filed by the wife of the detenu challenging his detention under the Conservation of Foreign Exchange and Prevention of Smuggling Activities (COFEPOSA) Act, 1974.

Regarding the representation of the detenu addressed to the joint secretary (COFEPOSA), respondents 1 to 3 had submitted that the records were checked to verify that no representation had been received by them.

However, the respondents clarified that while preparing the counter affidavit in reply, the Central Jail, Poojappura was contacted on 7th February 2024 to ascertain whether the detenu had made any representation to the detaining authority and the email was retrieved from the spam folder of the ex-Joint Secretary (COFEPOSA) on the 7th of February 2024. As such, they submitted that they received the representation only on the 7th of February, 2024.

The court noted the non-consideration of the representation within the statutorily prescribed three months and pointed out that the period had been exceeded by 99 days. In doing so, the court remarked on the lack of guidelines regarding how representation should be forwarded from the jail superintendent to the joint secretary, who is the detention authority as well as to the central government. Emphasising on the detenu's constitutional rights, the Court stated:

“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, the detenu was released. 

Case Citation: 2024 LiveLaw (Ker) 231

Case Title: Maffiya MK v. Union of India and ors.

Case Number: WP (Crl.) No. 95 of 2024

Click here to read/download the order