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

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 if the detention order is vitiated on one of the grounds, it can be sustained on other grounds.

The Court partially agreed with Joshi that it is not necessary to furnish copies of each and every document to which a casual or passing reference is made in the narration of facts and which are not relied upon in the detention order, stated: “However, failure to furnish copies of such document/documents as is/are relied on by the Detaining Authority which would deprive the detenu to make an effective representation would certainly amount to violation of the fundamental right guaranteed under Article 22(5) of the Constitution of India.”

The Court found that Pradeep's statements were the basis by the Detaining Authority for arriving at the subjective satisfaction and therefore, it cannot said that her statements were made in a casual or a passing reference.

Documents used merely for narration of facts cannot said to cause prejudice 

The Court further added that those documents which were casually referred for the narration of facts cannot be said to cause prejudice to the detenu.

It held: “It has been further held that the documents which are merely referred to for the purpose of narration of facts in that sense cannot be termed to be documents without the supply of which the detenu is prejudiced.”

Referring to Joy Adamson's memorable classic Born Free, the Court stated: “Though the concept of personal liberty and individual freedom can be curtailed by preventive detention laws, the Courts have to ensure that the right to personal liberty and individual freedom is not arbitrarily taken away even temporarily without following the procedure prescribed by law.

It has been held that when a detention order is passed all the material relied upon by the detaining authority in making such an order must be supplied to the detenu to enable him to make an effective representation. This Court held that this is required in order to comply with the mandate of Article 22 (5) of the Constitution, irrespective of whether the detenu had knowledge of such material or not.”

If Detention order is passed on 'one ground' relying on various materials, the materials cannot be severed

Rejecting the argument of Joshi that the detention would be sustained on other grounds, the Court stated that a distinction would have to be drawn between the detention order passed on various grounds and the detention order passed on one ground relying on various materials.

In this case, it stated that the detention order is passed on 'one ground' taking into consideration '8 factual aspects'.

Therefore, although grounds of detention could be severed in 8 factual aspects, whether the materials to arrive at those 8 factual aspects would be severed?

The Court answered that it cannot be severed. Explaining, the Court said: “In our view, the documents relied on by the Detaining Authority which form the basis of the material facts which have been taken into consideration to form a chain of events could not be severed and the High Court was not justified in coming to a finding that despite eschewing of certain material taken into consideration by the Detaining Authority, the detention order can be sustained by holding that the Detaining Authority would have arrived at such a subjective satisfaction even without such material.”

Therefore, the Court concluded: “In that view of the matter, we have come to a considered conclusion that non-supply of the statements of Preetha Pradeep has affected the right of the detenu to make an effective representation under Article 22(5) of the Constitution of India and as such, the detention is vitiated on the said ground.”

Constitutional obligation on authorities to expeditiously decide representation

Aggarwal argued that the September 27, 2023 representative were admittedly not received by the Detaining Authority and the Central Government, but after the notice was issued in the present matter, records were called for from the Jail Authorities and it was sent through email. The representations were rejected on June 11, 2024 and June 12, 2024 respectively.

He submitted that the delay in transmitting the representations as well as the delay caused in deciding the representations would also adversely affect the right of the detenu for effective and speedy disposal of the representations. Therefore, the detention orders are liable to be set aside.

Joshi rejecting that there is a delay on the part of the Detaining Authority or the Central Government, submitted that the September 27, 2023 representation was never received. But when notices were issued by this Court and records from Jail Authorities were sought, the representation was accordingly decided on June 11, and June 12, 2024 respectively.

Agreeing with Aggarwal, the Court called out the jail authorities for casually dealing with the fundamental right protected under Article 22(5). It said: “The Jail Authorities ought to have ensured that the representation of the detenu reaches the concerned Authorities at the earliest. In the present era of technological advancement, the Jail Authorities could have very well sent the copies of the representation to the Detaining/Appropriate Authority either by email or at least a physical copy could have been sent by Speed Post (acknowledgment due) so that there could have been some evidence of the said being sent to the competent authority and could have been tracked.”

Case details: Jaseela Shaji v. The Union of India & Ors, Criminal Appeal No. 3083 of 2024

Citation : 2024 LiveLaw (SC) 690

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