View Of Coordinate Bench Of Same HC Can't Be Ignored: Supreme Court Quashes Preventive Detention Over Non-Supply Of WhatsApp Chats

The Supreme Court today (August 20) quashed a detention order upheld by a division bench of the Kerala High Court, noting that once the coordinate bench of the High Court had set aside the detention based on same grounds and material relied, the division bench could not have ignored the same.

In this case, the division bench of High Court of Kerala had passed an order upholding the detention of one Abdul Raoof under Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. It was alleged that the detenue would sent contraband gold concealed in compressors of refrigerators along with unaccompanied baggage.

The second division bench did not rely on the order passed by coordinate bench in Nushath Koyamu v. Union of India & Ors, which had heard the plea of the three co-accused challenging their detention on non-supply of WhatsApp chats in the same case.

The first division bench while quashing the detention of three accused persons, had said that "unless the chats in electronic form is provided, an effective representation cannot be made."

It had added: "Thus, the whatsapp chat in electronic form which was to be given on a pen drive or such other media to facilitate them to hear them and understand the content and offer the explanation has been deprived offending the right under Article 22(5) of the Constitution of India."

The petitioner relying upon this order challenged his detention order. However, the second division bench held that detaining authority had arrived at a subjective satisfaction on the basis of various documents and the non-supply of WhatsApp chats would not vitiate the detention order. 

A bench of Justices B.R. Gavai, Prashant Kumar Mishra and K.V. Vishwanathan observed that the coordinate bench was wrong in ignoring the order passed by the other bench of the High Court. It added that the reasoning given by the second division bench was not enough because even before the first division bench, the detention orders were issued relying on other documents apart from WhatsApp chats and still the non-supply of WhatsApp chats was enough to violate Article 22(5).

The Supreme Court relied upon Official Liquidator v. Dayanand and Others (2008), wherein the Supreme Court held: "We are distressed to note that despite several pronouncements on the subject, there is substantial increase in the number of cases involving violation of the basics of judicial discipline. The learned Single Judges and Benches of the High Courts refuse to follow and accept the verdict and law laid down by coordinate and even larger Benches by citing minor difference in the facts as the ground for doing so." 

The Court in Official Liquidator further added: "It must be remembered that predictability and certainty is an important hallmark of judicial jurisprudence developed in this country in the last six decades and increase in the frequency of conflicting judgments of the superior judiciary will do incalculable harm to the system inasmuch as the courts at the grass roots will not be able to decide as to which of the judgments lay down the correct law and which one should be followed."

The bench of Justice Gavai concluded by stating that if the second division bench was of the view that the decision taken by coordinate bench was not correct in law, the only option was reference to a larger bench.

Case Details: Shabna Abdulla v. The Union of India & Ors, Criminal Appeal No. 3282 of 2024 

Citation : 2024 LiveLaw (SC) 588

Appearances:

Advocate For The Appellant: Senior Advocate Raghenth Basant 

Advocate For The Respondent: Senior Advocate Nachiketa Joshi

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