Each day’s delay matters in preventive detention cases, says SC

Noting that each day’s delay matters in preventive detention cases, the Supreme Court has ruled that failure to furnish copies of documents relied on by the Detaining Authority depriving the detenu from making an effective representation would certainly amount to violation of the fundamental right guaranteed under Article 22(5) of the Constitution.

“It is thus a settled position that though it may not be necessary to furnish copies of each and every document to which a casual or passing reference has been made, it is imperative that every such document which has been relied on by the Detaining Authority and which affects the right of the detenu to make an effective representation under Article 22(5) of the Constitution has to be supplied to the detenu,”a Bench led by Justice BR Gaavai said.

Maintaining that Article 22(5) cast an obligation on the appropriate Government or the detaining authority to afford the detenu the earliest opportunity to make a representation, the top court said that to consider that representation speedily was distinct from the Government’s obligation to constitute a Board and to communicate the representation, amongst other materials, to the Board to enable it to form its opinion and to obtain such opinion.

The Bench – which also included Justice PK Mishra and Justice KV Viswanathan—quashed the preventive detention of one AK Mohammed Shaji on account of a nine-month delay by jail authorities in communicating the representation of the detenu coupled with non-supply of relevant materials to him.

“The detenu is directed to be released forthwith, if not required in any other case,” it said on Thursday, allowing his appeal.

Shaji – who hailed from Kerala—was detained on August 31, 2023 under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA), 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.

The detenu 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.

He made representations to all the authorities on September 27, 2023. But the jail authorities sent representation through ordinary posts, which could not be traced. The Advisory Board upheld the detention which was confirmed by the Central Government on November 28, 2023.

However, the top court quashed the detention order, saying, “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.”

Noting the representation would have been sent through an email, the top court termed the jail authorities’ approach as “casual,” “callous” and “negligent” in dealing with Shaji’s right to make a representation against the detention order provided for under Article 22(5).

Though the concept of personal liberty and individual freedom could be curtailed by preventive detention laws, courts have to ensure that the right to personal liberty and individual freedom was not arbitrarily taken away even temporarily without following the procedure prescribed by law, it noted.