Non-Supply Of Documents Relied Upon In Detention Order Affects Detenus' Right Under Art.22(5): Kerala High Court

The Kerala High Court has recently ruled that failure to supply the documents which were relied upon by the detaining authority for arriving at the subjective satisfaction to pass the detention order affects the rights of the detenus under Article 22(5) of the Constitution of India, particularly when they were specifically requested for by them. 

A Division Bench of Justice A.K Jayasankaran Nambiar and Justice Mohammed Nias C.P, therefore, quashed the detention order observing that the non-supply of the documents had vitally affected the right of the detenus under Article 22(5).

"Inspite of a specific request, as seen from Ext. P12 in the above cases, we find copies were not given. In as much as the contents of the above being relied upon and they have not been given despite asking for them, we feel there has been an infraction of the right of the detenus to make an effective representation seeking release."

The Court was adjudicating upon a plea seeking to quash the detention orders passed by the Joint Secretary of COFEPOSA against the petitioners herein in a gold smuggling case. They were granted bail by the Sessions Court before the detention order was issued. 

Advocates M. Ajay and V.P Prasad appearing for the petitioners submitted that the detaining authority failed to consider that the sponsoring authority had not opposed the bail applications filed by them before the Sessions Court, which shows that there was no necessity to detain them. They also argued that certain documents were needed for making an effective representation but were denied to them, adding that the non-supply of those documents was fatal.

ASG Manu S appearing for DRI, Central Government Counsel Jaishankar V. Nair and Government Pleader K.A Anas appearing for the other respondents urged that the detenu has no right and the authorities have no corresponding obligation to supply anything more than the relied upon documents. They contended that there was no obligation on the detaining authority to supply materials other than the relied upon documents and that the documents which are merely referred need not be supplied. 

The Court noted that the detenu had filed a request for the supply of certain documents, all of which were relied upon by the detaining authority. One of them was a screenshot taken from his phone which had several voice messages, the content of which could not be understood unless provided in electronic form. Similarly, they had sought production of the documents pertaining to the transactions of the smuggled gold recorded from the mobile phone of another accused since it was alleged that a "Syndicate" was formed. 

The Court noticed that reliance was made in the detention order regarding the documents mentioned above which might have forced the detaining authority to believe that the detention order was necessary. Therefore, the petitioner was found to be right in contending that the detaining authority ought to have furnished the said materials.

"In as much as the documents sought has been relied upon in the detention orders, the same ought to have been furnished to the detenus when they requested for the same."

Further, regarding the contentions that at no stage of bail the sponsoring authority had a contention that the detenus would further indulge in an act of smuggling or that they had to be detained, the Court clarified that the role of the sponsoring authority and the detaining authority are distinct and different.

"After the proposal for detention is placed before the detaining authority, the Central Screening Committee consisting of senior officers from the different organisations will screen the entire proposal and make the recommendation and only after this stage the proposal goes to the detaining authority. Thus distinct, different and independent authorities are to examine the materials and it is thereafter that the detaining authority has to independently arrive at the subjective satisfaction to decide whether to detain or not. The detaining authority has also to satisfy itself about the propensity of the proposed detenus to indulge in prejudicial activities in future."

Therefore, it was observed that the contention that at the stage of bail, the sponsoring authority did not contend anywhere that the accused would indulge in prejudicial activities in future cannot be accepted at all.

The Bench also found that the power of preventive detention is qualitatively different from punitive detention.

"The power of preventive detention is a precautionary power exercised in reasonable anticipation. It may or may not relate to an offence. It is not a parallel proceeding. It does not overlap with prosecution even if it relies on certain facts for which prosecution may be launched or to be launched. An order of preventive detention, may be made before or during prosecution. An order of preventive detention may be made with or without prosecution and in anticipation or after discharge or even acquittal. The pendency of prosecution is no bar to an order of preventive detention. An order of preventive detention is also not a bar to prosecution."

Therefore, the Bench was convinced that the non-supply has vitally affected the right of the detenus under Article 22(5) of the Constitution of India and it was held that this non-furnishing renders the detention order bad.

Case Title: Nushath Koyamu v. Union of India & Ors.

Citation: 2022 LiveLaw (Ker) 259

Click Here To Read/Download The Order