Each Day's Delay Matters In Cases Of Personal Liberty;Representation Against Preventive Detention Must Be Decided Soon : Supreme Court

Today, the Supreme Court quashed the preventive detention of a person on account of a delay of 9 months by the jail authorities in communicating the representation of the detenu and also the non-supply of relevant materials. The Court has ordered his release from detention.In this case, the jail authorities had sent the representation of the detenu through ordinary post, which was neither received by the detaining authority nor by the Central Government, which resulted in the extension of detention. Observing the representation would have been sent through an email, termed the approach of jail authorities as “casual,” “callous” and in fact, “negligent” in dealing with the right of detenu to have representation against the detention order protected under Article 22(5) of the Indian Constitution.The detenu, one Appisseril Kochu Mohammed Shaji, was detained on August 31, 2023 under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 by the Detaining Authority to prevent him from acting in a prejudicial manner by allegedly indulging in hawala dealings, illegal purchase, sale and carriage of foreign currencies.In the grounds of arrest given to him, he was informed of his right to representation to the Detaining Authority, Chairman of COFEPOSA, State Advisory Board of High Court of Kerala and the Central Government via jail authorities. Accordingly, he made representations to all authorities on September 27, 2023. However, the jail authorities sent representation through ordinary posts, which could not be traced. As for the Advisory Board, it upheld the detention, which was confirmed by the Central Government on November 28, 2023.The wife of detenu had to file a habeas corpus petition appealing against the detention orders. On March 4, 2024, the Kerala High Court dismissed the petition. The wife filed a criminal appeal before the Supreme Court, which issued notices and sought jail records. Pursuant to this, jail authorities transmitted representation via email, which came to be rejected by the Central Government and Detaining Authority on June 11, and June 12, 2024, respectively.The Court found that even in the subsequent representations, there is a delay of 27 days and 20 days respectively on the part of the Central Government and the Detaining Authority in deciding the representation.On both accounts that there is a delay of 9 months and 27/27 days for subsequent representations, a bench of Justices B.R. Gavai, Prashant Kumar Mishra and K.V. Viswanathan quashed all detention orders and set aside the judgment of the Kerala High Court.It held: “We may only reiterate what has been laid down in the earlier judgments of this Court that the Prison Authorities should ensure that the representations are sent to the Competent Authorities immediately after the receipt thereof. In the present era of technological development, the said representation can be sent through email within a day. It is further needless to reiterate that the Competent Authority should decide such representation with utmost expedition so that the valuable right guaranteed to the detenu under Article 22(5) of the Constitution is not denied. In the matters pertaining to personal liberty of the citizens, the Authorities are enjoined with a constitutional obligation to decide the representation with utmost expedition. Each day's delay matters in such a case.”The Court while deprecating the practice of the prison authorities in dealing with Article 22(5) in a casual manner, held that despite the negligent approach adopted by the jail authorities in communicating the representation, the right to representation cannot be denied. It held: “We are of the considered view that merely because there has been a casual or callous and, in fact, negligent approach on the part of the Jail Authorities in ensuring that the representation of the detenu is communicated at the earliest, the valuable right available to the detenu to have his representation decided expeditiously cannot be denied.”Individual liberty can be curtailed but not arbitrarily Non-supply of materials The counsel for detenu, Senior Advocate Gaurav Aggarwal submitted that a perusal of the grounds of detention would show that the statements of Ms. Pretha Pradeep were relied upon by the Detaining Authority for arriving at its subjective satisfaction. However, the same was admittedly not provided to the detenu. Therefore, non-supply of the material on which the subjective satisfaction was arrived at would affect the right of the detenu guaranteed under Article 22(5) for effective consideration.Contrary to this, Senior Advocate, Nachiketa Joshi, for the respondents, submitted that even if the statements of Pradeep are eschewed, the Detaining Authority could arrive at the same conclusion. Joshi further argued that furnishing each and every document to which passing reference has been made for narration of facts does not need to be given.Lastly, Joshi submitted that even...

Each Day's Delay Matters In Cases Of Personal Liberty;Representation Against Preventive Detention Must Be Decided Soon : Supreme Court

Gursimran Kaur Bakshi

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