While quashing the detention of Kerala resident Appisseril Kochu Mohammed Shaji who was detained under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 on account of delay of 9 months by the jail authorities in communicating the representation of the detenu and also the non-supply of relevant materials, the Supreme Court in a most learned, laudable, landmark, logical and latest judgment titled Jaseela Shaji vs The Union of India & Ors in Criminal Appeal No.: 3083 of 2024 and cited in Neutral Citation No.: 2024 INSC 683 in the exercise of its criminal appellate jurisdiction that was pronounced as recently as on September 12, 2024 has minced just no words absolutely to hold in no uncertain terms that:
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. It is the bounden duty of all the High Courts and so also all the District Courts and so also the police and the competent authorities to abide most unflinchingly by what the Apex Court has ruled so explicitly, elegantly and eloquently and effectively in this leading case! No denying it.

It must be mentioned that the detenu named Appisseril Kochu Mohammed Shaji who 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. It must be noted that the wife of detenu then had to file a habeas corpus petition appealing against the detention orders. On March 4, 2024, the Kerala High Court dismissed the petition.

As an ostensible fallout, the wife then filed a criminal appeal before the Supreme Court which issued notices and sought jail records. There was a delay of 9 months and 27/27 days for subsequent representations. We thus see that the Bench of Apex Court comprising of Hon’ble Mr Justice BR Gavai, Hon’ble Mr Justice Prashant Kumar Mishra and Hon’ble Mr Justice KV Viswanathan quashed all detention orders and set aside the judgment of the Kerala High Court. Very rightly so!

At the very outset, this brief, brilliant, bold and balanced judgment authored by Hon’ble Mr Justice BR Gavai for a Bench of the Apex Court comprising of himself, Hon’ble Mr Justice Prashant Kumar Mishra and Hon’ble Mr Justice KV Viswanathan sets the ball in motion by first and foremost putting forth in para 1 that:
The appellant, who is the wife of one Appisseril Kochu Mohammed Shaji (Shaji A.K.) (Hereinafter referred to as detenu) , has approached this Court being aggrieved by the judgment and order dated 4th March 2024 passed by the Division Bench of the High Court of Kerala at Ernakulam in Writ Petition (Criminal) No. 1271 of 2023 (habeas corpus petition), vide which it has dismissed the said habeas corpus petition filed by the appellant for production of the detenu, who was detained pursuant to the order of detention dated 31st August 2023 (Hereinafter referred to as detention order) passed under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (Hereinafter referred to as COFEPOSA).

As we see, the Bench discloses in para 2 stating that:
By order dated 31st of July 2024, this Court allowed the present appeal; quashed and set aside the impugned judgment and order of the High Court dated 4th March 2024 in Writ Petition (Criminal) No.1271 of 2023 so also the order dated 31st August 2023 passed by the Joint Secretary (COFEPOSA), COFEPOSA Unit, Central Economic Intelligence Bureau, Department of Revenue, Ministry of Revenue, Government of India (Hereinafter referred to as Detaining Authority) to the Government of India directing the detention of the detenu and the order dated 28th November 2023 passed by the Under Secretary, COFEPOSA Wing, Central Economic Intelligence Bureau, Department of Revenue, Ministry of Finance, Government of India (Hereinafter referred to as Central Government) confirming the detention order of the detenu. We have directed that the detenu be released forthwith, if not required in any other case.

To put things in perspective, the Bench envisages in para 3 observing that, Shorn of details, the facts giving rise to the present appeal are as under:

1. The detention order dated 31st August 2023 was passed by the Detaining Authority under Section 3(1) of the COFEPOSA, thereby directing detention of the detenu with a view to prevent him from acting in any manner prejudicial to the augmentation of foreign exchange in future.
2. The detenu was taken into custody on 2nd September 2023 and put in detention in Central Prisons, Poojapura, Trivandrum, Kerala.
3. The grounds of detention and the relied upon documents were served on the detenu on 6th September 2023.
4. A perusal of the grounds of detention served on the detenu would reveal that there are 12 grounds on the basis of which the detention order dated 31st August 2023 came to be passed. The Detaining Authority has relied on the following material for arriving at its subjective satisfaction:
   • Statements of the detenu recorded on 20th June 2023, 11th July 2023 and 17th July 2023 under Section 37 of FEMA;
   • Statement of Shri Suresh Babu recorded on 7th July 2023;
   • WhatsApp chats, voice calls, images recovered from the mobile phone as also ‘paper slips’ allegedly recovered from the detenu;
   • Statements of Ms. Preetha Pradeep recorded on 5th July 2023 and 6th July 2023.
5. In the grounds of detention, the detenu was further informed about his right to make representation to the Detaining Authority as well as the Chairman, COFEPOSA, Advisory Board, High Court of Kerala (Hereinafter referred to as Advisory Board) and the Central Government through Jail Authorities.
6. Accordingly, the detenu had made representations to the concerned Authorities i.e. the Detaining Authority, the Central Government and the Advisory Board. It appears that the Jail Authorities sent the said representations to the concerned Authorities through the 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 vide order dated 28th November 2023 confirmed the detention order and further directed that the detenu be detained for a period of one year from the date of his detention i.e. from 2nd September 2023.
7. Being aggrieved by the detention of the detenu, the appellant herein approached the Kerala High Court by way of habeas corpus petition being Writ Petition (Criminal) No. 1271 of 2023. By the impugned judgment and order dated 4th March 2024, the said writ petition came to be rejected.
8. Being aggrieved thereby, the appellant has approached this Court by way of present Appeal by special leave.

Quite significantly, the Bench propounds in para 19 holding that:
It can thus be seen that this Court, in unequivocal terms, has held that the constitutional requirements under Article 22(5) of the Constitution of India are twofold, viz., (1) the Detaining Authority must, as soon as practicable, after the detention communicate to the detenu the grounds on which the order of detention has been made, and (2) the Detaining Authority must afford the detenu the earliest opportunity of making the representation against the order of detention. It has further been held that the right is to make an effective representation and when some documents are referred to or relied on in the grounds of detention, without copies of such documents, the grounds of detention would not be complete. In unequivocal terms, it has been held that the detenu has the right to be furnished with the grounds of detention along with the documents so referred to or relied on. It has been held that failure or even delay in furnishing those documents would amount to denial of the right to make an effective representation.

Be it noted, the Bench notes in para 20 that:
This Court further went on to hold that it is immaterial whether the detenu already knew about their contents or not. This Court reiterated the position that it being a constitutional imperative for the detaining authority to give the documents relied on and referred to in the order of detention pari passu the grounds of detention. It has been held that there is no question of demanding the documents.

It is worth noting that the Bench notes in para 25 that:
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.

Do note, the Bench notes in para 60 that:
In the present case, it is an admitted position that though the detenu had made a representation on 27th September 2023 to the Jail Authorities for onward transmission of the same to the Detaining Authority and the Central Government, it is merely stated in the counter affidavit that the Jail Authorities informed that the representations dated 27th September 2023 were submitted by the detenu. The Jail Authorities had sent the said representations to the concerned authorities through ordinary post. It is stated that however, neither the Detaining Authority nor the Central Government received the said representations. It is further stated that the said representations were sent by the ordinary post and since the said representations were sent by ordinary post, they could not be tracked to know where the said ordinary posts have stuck. It is further averred that only after a notice was issued in the present matter, the said representations were sought from the Jail Authorities and the same came to be rejected on 11th June 2024 and 12th June 2024 respectively.

Further, the Bench discloses in para 61 that:
Memoranda dated 12th June 2024 further show that the Director General, CEIB being the Central Government received the representation of the detenu through Superintendent, Central Prison & Correctional Home, TVPM-12 vide his letter dated 11th May 2024 and the representation was received by the Detaining Authority through email on 22nd May 2024. However, there is no mention in the counter affidavit as to when the said representations were in fact received by the Central Government and the Detaining Authority. Presumably, if it is held that the representation would have been received by the Central Government within 2 or 3 days from the date of dispatch thereof that will bring the date of receipt on 14/15th May 2024.

Furthermore, the Bench lays bare in para 62 that:
Even if it is presumed that the said representations were received on 15th May 2024 and 22nd May 2024 respectively, even then there is a delay of about 27 days in deciding the said representation by the Central Government and 20 days by the Detaining Authority.

What’s more, the Bench points out in para 63 that:
No explanation as to what caused such a delay in deciding the said representations of the detenu is offered in the counter affidavit.

While taking potshots at the jail officials, the Bench minces just no words to lament in para 64 stating that:
Firstly, we find that the Superintendent of the Central Prison & Correctional Home has acted in a thoroughly callous and casual manner. In spite of there being catena of judgments by this Court that it is the duty of the transmitting authorities to transmit the representation of the detenu promptly and it is the corresponding duty of the concerned authorities to consider the said representation and to decide it swiftly, the same has been followed only in breach in the present matter.

Adding more to it, the Bench further laments in para 65 pointing out that:
In the present case, it has been casually stated that though the Jail Authorities had informed that the representations of the detenu were sent through ordinary post, the same were neither received by the Detaining Authority nor the Central Government. We deprecate the practice of the Prison Authorities in dealing with the valuable right of the detenu in such a casual manner.

Still more, the Bench further observes in para 66 lamenting that:
In spite of this Court clearly observing in the case of Vijay Kumar (supra) that the State Government must gear up its own machinery to ensure that the representation is transmitted quickly; it reaches the Central Government as quickly as possible and is decided expeditiously. In the present case, the law laid down by this Court has been given a go-bye.

Frankly speaking, the Bench rightly points out in para 67 that:
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.

Most forthrightly, the Bench mandates in para 68 postulating that:
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.

It would be worthwhile to note that the Bench notes in para 69 that:
As already discussed herein above, there has been a delay of almost about 9 months in deciding the representations made by the detenu. Even otherwise, from the Memoranda dated 12th June 2024, as already discussed herein above, there would be at least 27/20 days’ delay on the part of the Central Government and the Detaining Authority in deciding the representation of the detenu after it reached them subsequent to the filing of the present appeal.

Most significantly and most commendably, the Bench encapsulates in para 70 mandating that:
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.

It cannot be glossed over that the Bench concedes in para 71 that:
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.

Finally, the Bench then concludes by directing and holding in para 72 that:
In the result, we pass the following order:

1. The appeal is allowed;
2. The judgment and order of the High Court dated 4th March 2024 in Writ Petition (Criminal) No. 1271 of 2023 is quashed and set aside.
3. The order dated 31st August 2023 passed by the Joint Secretary (COFEPOSA) to the Government of India directing the detention of the detenu is quashed and set aside.
4. The order dated 28th November 2023 passed by the Under Secretary, Government of India confirming the detention order of the detenu – Appisseril Kochu Mohammed Shaji (Shaji A.K.) is quashed and set aside.
5. The detenu is directed to be released forthwith, if not required in any other case.

In a nutshell, we thus see that the Apex Court very rightly took potshots at the jail authorities for calling out the jail authorities for most casually dealing with the fundamental right that are protected under Article 22(5) of the Constitution. It was also made clear by the top court that representation against preventive detention must be decided soon. The Supreme Court was most categorical in asserting that each day’s delay matters in case of personal liberty. No denying!

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut - 250001, Uttar Pradesh.