Preventive Detention Law A Colonial Legacy, Confers Arbitrary Power; Every Procedural Lapse Must Benefit Detenue's Case : Supreme Court

While setting aside a preventive detention order, the Supreme Court observed that such laws in India are a colonial legacy and have great potential for abuse and misuse. The Court emphasized that laws conferring arbitrary powers to the state must be critically examined and used only in the rarest of rare cases.

A Bench of Justice Krishna Murari and Justice V. Ramasubramanian said that, “Every procedural rigidity, must be followed in entirety by the Government in cases of preventive detention, and every lapse in procedure must give rise to a benefit to the case of the detenue. The Courts, in circumstances of preventive detention, are conferred with the duty that has been given the utmost importance by the Constitution, which is the protection of individual and civil liberties.”

Brief Facts

In November 2021, the appellant and other syndicate members were arrested on an intelligence report about a syndicate of Chinese, Taiwanese, South Korean, and Indian nationals smuggling gold into India by officers from the Directorate Of Revenue in Delhi.

In January 2022, the DRI sent a proposal to the Joint Secretary (COFEPOSA) to issue an order of detention under the COFEPOSA Act against the appellant, and subsequently, the detaining authority passed the detention order in February, 2022 and appellant was then arrested by the DRI.

The appellant sent a representation letter to the Central Government, and later made another representation to the Advisory Board. After a hearing, the Advisory Board advised the Central Government to reject the representation, which was done after a 60-day delay. The appellant then filed a writ in the High Court seeking to quash the detention order, but it was dismissed on November 3, 2022.

However, in January 2023, the Court released the appellant from custody as interim relief due to the demise of his father. Later, due to the expiry of the detention order, he was released from detention.

The appellant has filed an appeal before the Supreme Court against the Delhi High Court's judgment dated November 3, 2022. The High Court had denied the appellant's plea to quash the detention order on grounds of delay in considering his representation.

Arguments

The Counsel for the appellant contended that as per Article 22(5) of the Constitution of India, a representation made by the detenue in cases of preventive detention must be considered at the earliest, and an inordinate delay in considering the representation is grounds enough for the detention order to be set aside.

Counsel for the appellant contended that the decisions of Apex Court in the case of K.M. Abdulla Kunhi & B.L. Abdul Khader v. Union of India & Ors. and Ankit Ashok Jalan v. Union of India & Ors. Judgment, both of which are Constitution Bench judgments, which state that the Central Government must wait for the decision of the Advisory Board, are in direct contravention with Constitution Bench judgments of this Court in Pankaj Kumar Chakraborty And Ors. v. State of West Bengal and the Jayanarayan Sukul v. State of West Bengal, and due to the apparent conflict, the issue needs to be referred to a Larger Bench.

It was also contended that the documents supplied to the appellant herein as grounds for his preventive detention were illegible and in Chinese language, and hence on this ground also the impugned detention order as against the appellant must be quashed.

The respondents contended that there was no discrepancy between the Pankaj case and the Ashok Jalan case as argued by the appellant. They argued that the decisions relied upon by the appellant were under the context of the Preventive Detention Act, whereas the Ashok Jalan case and Abdullah Kuni case were under the context of the COFEPOSA Act.

Analysis By The Court

The Apex Court said that preventive detention laws in India are a colonial legacy, and have a great potential to be abused and misused. Laws that have the ability to confer arbitrary powers to the state, must in all circumstances, be very critically examined, and must be used only in the rarest of rare cases.

The Court also clarified that in cases of preventive detention, where a person is held in custody not for a crime committed but for a perceived risk of committing a crime, the Courts should always err on the side of caution and give the benefit of doubt to the detainee. Even minor lapses in procedural compliance should be resolved in the detainee's favor.

The Court also stated that in cases of preventive detention under the COFEPOSA Act, the detainee has the right to submit representations to the detaining authority, the Government, and the Advisory Board. According to Article 22(5) of the Indian Constitution, these representations must be decided as soon as possible. If the representation is accepted by the Government or the detaining officer, the detainee is released. However, if the representation is rejected, the detention period continues.

In this case, the Court found that while the detaining authority considered the appellant's representation in a timely manner, the Government took 60 days to consider it. The appellant argued that this delay was fatal to the prosecution's case and constituted sufficient grounds for quashing the detention order.

In the Pankaj Kumar Case it was held that the central Government must act independently of the Advisory Board, and can decide the representation made by the detenue without hearing from the Advisory Board, said the Court.

The Court also referred to the case of Abdulla Kunhi, where the preventive detention of the petitioner under the COFEPOSA Act was challenged on similar grounds. A Constitution Bench of this Court had considered both the issues of submitting a representation before and after the matter is referred to the Advisory Board, and had held that the Government must wait for the decision of the Advisory Board before making its own decision on the representation.

The Court observed that although there may seem to be a conflict between the two sets of judgments at first glance, a closer examination would reveal otherwise.

The Court further explained that under the COFEPOSA Act, 1974 and the Preventive Detention Act, 1950, a detention order can be issued either by the Government or by a specially empowered officer. However, under Section 3 of the Preventive Detention Act, the empowered officer must seek approval from the Government for continued detention within 12 days of the detention. Only if the Government approves can the detention be continued. This approval process essentially transfers power from the empowered officer to the Government, making the Government the detaining authority after the initial 12-day period. In contrast, the COFEPOSA Act does not require such approval from the Government, so the detaining authority and the Government remain separate and independent, said the Court.

The Court clarified that the mandate to not wait for the Advisory Board would apply only to the detaining authority. However, as per the Abdullah Kunhi Case, the Government must wait for the decision of the Advisory Board. Since these two judgments apply to two separate authorities within the COFEPOSA Act, there is no friction between them. Therefore, there is no necessity for this point of law to be referred to a Larger Bench, as it is already settled.

Supply of illegible documents cause prejudice

The Court stated that illegible documents given to the detenue in preventive detention can cause prejudice in submitting a representation. This violates the principles under Article 22(5) of the Constitution of India, where the detaining authority must explain the grounds of detention in a language understood by the detenue. It was held that the relief under Article 22(5) and the statutory provisions are vitiated in such cases, as the detenue cannot defend himself against an unknown threat.

The Court observed that the co-detainee's detention order had been quashed by the High Court on the same grounds of illegible Chinese documents. It was noted that the circumstances of the present appellant were identical to that of the co-detainee.

Further the Court noted that the principle of parity applies in the present case since a co-detainee with identical circumstances had already been granted relief of quashing the detention order against him. In the case of Gian Chand v. Union of India & Anr., the court held that the principle of parity must apply in such cases. Therefore, the court set aside the detention order.

The Court concluded that, “This act of protecting civil liberties, is not just the saving of rights of individuals in person and the society at large, but is also an act of preserving our Constitutional ethos, which is a product of a series of struggles against the arbitrary power of the British state.”

The Court held that although the appellant has already been released due to the expiration of the detention period, the detention order must be set aside for the sake of clarity on the point of law. Therefore, the Court allowed the appeal.

Case Title- Pramod Singla v. UOI & Ors.

Citation : 2023 LiveLaw (SC)

Preventive Detention - preventive detention laws in India are a colonial legacy, and as such, are extremely powerful laws that have the ability to confer arbitrary power to the state. In such a circumstance, where there is a possibility of an unfettered discretion of power by the Government, this Court must analyze cases arising from such laws with extreme caution and excruciating detail, to ensure that there are checks and balances on the power of the Government - Para 44

Preventive Detention - Every procedural rigidity, must be followed in entirety by the Government in cases of preventive detention, and every lapse in procedure must give rise to a benefit to the case of the detenue. The Courts, in circumstances of preventive detention, are conferred with the duty that has been given the utmost importance by the Constitution, which is the protection of individual and civil liberties- Para 44

Constitution of India - Article 22(5)- llegible documents given to the detenue in preventive detention can cause prejudice in submitting a representation. This violates the principles under Article 22(5) of the Constitution of India, where the detaining authority must explain the grounds of detention in a language understood by the detenue - Para 39

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