Detenu Aggrieved By Non-Supply Of Document Having Only 'Casual Connection' With Preventive Detention Must Explain Its Relevance: Kerala High Court

The Kerala High Court recently held that a detention order can be invalidated on the ground that documents were not supplied to the detenu only if he can prove that prejudice was caused to him due to the non-supply of such documents. It is the obligation of the detenu to explain why such documents are relevant for issuing a detention order, the court observed. A division bench of Justice Anil K Narendran and Justice P G Ajithkumar was considering a plea seeking a writ of habeas corpus alleging illegal detention of the petitioner. Contraband gold weighing 14763.300 grams valued at Rs.7,16,16,768/- concealed in the compressors of refrigerators of the detenu was found and seized. Following which a detention order was issued against the petitioner by the detaining authority under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA Act). This detention order was also challenged by the petitioner in the writ petition. The court held that under Section 3(3) of the COFEPOSA Act, it is the right of the detenu to get documents relied on by the detaining authority in issuance of the detaining order, if such documents were necessary to reach subjective satisfaction. However, if the documents/materials demanded by the detenu only have a casual connection with the cause for the detention, it is for the detenu to explain the relevance of the documents and what prejudice will be caused to him due to non-supply of the material. The counsels for the petitioner Advocates M Ajay and V P Prasad argued that the withholding from the detenu, documents that have a serious impact on the detention order violated Article 22(5) of the Constitution of India which consequently would result in infringement of other fundamental rights of the detenu under Articles 14 and 21 as well. On the other hand, the Government Pleader appearing for the detaining authority submitted that the detention was valid as the detaining authority had recorded its satisfaction that the detenu would indulge in activities of smuggling of goods again, abetting the smuggling of goods and engaging in transporting or concealing or keeping of the smuggled goods. The court observed that individual liberty is a cherished fundamental right and preventive detention is a serious encroachment on the right to personal liberty. These safeguards are therefore required to be "zealously watched and enforced by the court". To safeguard this right, Clauses (4) and (5) of Article 22, has been incorporated in the Constitution. However, with regard to non-supply of documents, the court referred to the decision of the Supreme Court in Powanammal v. State of Tamil Nadu and another [(1999) 2 SCC 413] to note that it is not necessary that every document/ material that finds a passing reference in the narration of facts of the detention order be supplied to the detenu. Only such documents, the non-supply of which would prejudice the detenu in making an effective representation are required by law to be supplied to him. The reason for this is that non-supply of such documents would amount to denial of the right of being communicated the grounds of detention and being afforded the opportunity of making effective representation against the detention order which would be violative of Article 22(5) of the Constitution. “The detenu can resort to the plea of invalidity of the detention order for non-supply of those documents only if he substantiates that the non-supply caused prejudice to him. It is also his obligation to explain in what way those documents are relevant for his making representation.” It was also averred by the counsel for the petitioner that there was inordinate delay in executing the detention order and this would discredit the finding of the detaining authority that there is potential for the detenu further indulging in smuggling activities. The respondent refuted this on the ground that the detenu was in Dubai at the time of issuance of the order. Despite summons being issued, he refused to appear citing covid restrictions. Later while the detenu was back in India, the order of detention was published in the official gazette for his appearance before the police for executing the detention order. The court refused to accept this contention of the petitioner and held that a person residing in India cannot claim that he was not aware of the gazette notification. It also observed that the petitioner cannot claim to be unaware of the detention order as his brother and father-in-law were already detained in relation to the same incident. The court concluded that the detenu did not state in what way the documents requested by him were relevant for him to make his representation and how the denial of such material affected his right to make meaningful and effective representation. In the absence of such explanation his demand for those documents appeared fallacious, the court observed. Under such...

Detenu Aggrieved By Non-Supply Of Document Having Only 'Casual Connection' With Preventive Detention Must Explain Its Relevance: Kerala High Court

Sheryl Sebastian

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