Detenu’s Valuable Right To Have His Representation Decided Expeditiously Can’t Be Denied Merely Because There Has Been Casual Approach By Jail Authorities: SC
The Supreme Court held that the valuable right of the detenu to have his representation decided expeditiously cannot be denied merely because there has been a casual and negligent approach by the Jail Authorities.
The Court held thus in a criminal appeal filed by the wife of the detenu against the judgment of the Kerala High Court by which it dismissed her habeas corpus petition for production of detenu.
The three-Judge Bench comprising Justice B.R. Gavai, Justice Prashant Kumar Mishra, and Justice K.V. Viswanathan observed, “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.”
The Bench reiterated that the Prison Authorities should ensure that the representations are sent to the Competent Authorities immediately after the receipt thereof.
Senior Advocate Gaurav Aggarwal appeared on behalf of the appellant while Senior Advocate Nachiketa Joshi appeared on behalf of the respondents.
Facts of the Case -
The appellant’s husband i.e., detenu was detained in August 2023 pursuant to a detention order passed under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA). The detenu was taken into custody in September 2023 and put in detention in Central Prisons, Kerala. There were 12 grounds based on which the detention order was passed. The detenu was further informed about his right to make representation to the Detaining Authority as well as the Chairman, COFEPOSA, Advisory Board, Kerala High Court and the Central Government through Jail Authorities.
Thereafter, the detenu made representations to the concerned authorities and the Jail authorities sent the same to the concerned authorities via ordinary post. However, neither the Detaining Authority nor the Central Government received the said representations. Insofar as the representation made by the detenu to the Advisory Board is concerned, the Advisory Board opined that there was sufficient cause for detention of the detenu. Hence, the Central Government confirmed the detention order and directed that the detenu be detained for a period of one year. Being aggrieved, the appellant approached the High Court but it rejected her petition. Resultantly, she was before the Apex Court.
The Supreme Court in view of the facts and circumstances of the case noted, “There can be no doubt that it is not necessary to furnish copies of each and every document to which a casual or passing reference may be made in the narration of facts and which are not relied upon by the Detaining Authority in making the order of detention. 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 said that non-supply of the statements has affected the right of the detenu to make an effective representation under Article 22(5) of the Constitution.
“It is undisputed position that the detenu has submitted his representation on 27th September 2023 to the Jail Authorities for onward transmission of the same to the Detaining Authority and the Central Government”, it added.
Furthermore, the Court emphasised that merely because the Advisory Board opined that the order of detention was sustainable, it does not absolve the agents of the Detaining Authority/the Central Government to immediately forward the representation to the Competent Authority and the Detaining Authority or the Central Government to consider and decide such a representation speedily.
“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”, it enunciated.
The Court said that there has been a delay of almost about 9 months in deciding the representations made by the detenu.
“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”, it also reiterated.
The Court added that 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 and each day’s delay matters in such a case.
“In the present matter, we find that on account of casual, callous and negligent approach of the Prison Authorities, the representation of the detenu could not reach to the Detaining Authority and the Central Government within a reasonable period. There has been about 9 months’ delay in deciding the representation. Even otherwise, accepting the stand of the respondents as made in the counter affidavit, there has been a delay of 27/20 days on the part of the Central Government and the Detaining Authority in deciding the representation when it was called from the Prison Authorities after notice was issued in the present matter. We further find that the detention order is liable to be quashed and set aside on this ground also”, it concluded.
Accordingly, the Apex Court allowed the appeal, quashed the impugned judgment, and directed that the detenu be released forthwith.
Cause Title- Jaseela Shaji v. The Union of India & Ors. (Neutral Citation: 2024 INSC 683)
Appearance:
Appellant: Senior Advocate Gaurav Aggarwal, AOR K. Rajeev, Advocates Shinoj K. Narayanan, Abid Ali Beeran, Niveditha R Menon, Pranav Krishna, Aditya Verma, and Tarun Kumar.
Respondents: Senior Advocate Nachiketa Joshi, AORs Gurmeet Singh Makker, Mukesh Kumar Maroria, Advocates Siddharth Sinha, Santosh Kumar, and Aditya Shankar Dixit.
