Representation Made By COFEPOSA Detenue Found In Spam Box Of Jail Authorities; Kerala HC Issues Guidelines Regarding Forwarding Representations To Detention Authorities
The Kerala High Court issued guidelines with regard to forwarding representation made by a detenu in detention after it noted that a representation was found in the junk/spam box of the jail authorities.
The Court ordered the release of a detenu whose detention under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA) was challenged by his wife on the grounds of non-consideration of the detenu's representation within the mandated three-month period.
It was pointed out by the Court that there were no guidelines on how a representation should be forwarded from the Jail Superintendent to Joint Secretary (COFEPOSA), who is the Detention Authority as well as to the Central Government.
A Division Bench of Justice A. Muhamed Mustaque and Justice M.A. Abdul Hakhim observed, “The statement itself would show that Superintendent was forwarded representation on 31.10.2023. It was received in the spam mail of the Deputy Secretary. The case of respondents 1 to 3 is that they never received the representation. It was only verified on 07.02.2024, when they contacted the Jail Superintendent, they found the representation in the spam mail. Therefore, they would submit that they received representation only on 07.02.2024. This according to us is unacceptable.”
Advocate John Varghese represented the petitioner, while APP K.A. Anas appeared for the respondents.
The Court noted that 99 days had lapsed since the date of forwarding the representation to the authorities and observed that “detenu is entitled to the constitutional protection as it was not considered within three months. In such circumstances, we are of the view that the continuation of detention will have to be interfered and the detenu has to be released as he has not been accorded with the constitutional protection as envisaged under Article 22(5).”
In their statement, the authorities claimed that they had not received any representation, despite the wife arguing that it was forwarded to the jail superintendent.
The Court found that the jail authorities had later discovered that the representation made by the detenue over an email was found in the spam/junk folder of their email.
“This has resulted in lapses in this matter. However, when we are looking into this matter in terms of Constitutionally protected right of a detenu, whatever the excuse one may have that cannot infringe a constitutionally protected right of a detenu,” the Court remarked.
Therefore, the Court found that the challenge based on non-consideration of the representation made within three months was sufficient to release the detenu.
The Court issued the following guidelines in regard to forwarding representations:
- They shall forward e-mail copies both in the e-mail address of the Detention Authority as well as Central Government. The Sponsoring Authority immediate on detention order shall forward the relevant e-mail IDs of the concerned to the Jail Superintendent. Immediately on forwarding the e-mail copies physical copies also shall be forwarded all the authorities concerned.
- We direct necessary instructions shall be issued by the DGP of the Prison to all Jail Superintendent in the Jail. DGP shall direct that if any laches on the part of the Jail Superintendent in following the guidelines in the directions as above will entail in disciplinary actions against such officers.
- Registry of this Court shall forward a copy of this order today itself to the Jail Superintendent, Poojapura Central Prison for necessary action to release of the detenu today itself.
Accordingly, the High Court disposed of the petition.
Cause Title: Maffiya M.K v. Union Of India & Ors. (Neutral Citation: 2024:KER:25866)
Appearance:
Petitioner: Advocates John Varghese and Sonu Augustine
Respondents: APP K.A. Anas