Each day’s delay matters in cases of detention, says SC, orders forthwith release of detenu

New Delhi, Sep 12 (PTI) Authorities have a constitutional obligation to decide expeditiously representations in cases pertaining to the citizens’ “personal liberty” and even a day’s delay matters in such a case, the Supreme Court said on Thursday.

A bench headed by Justice B R Gavai quashed orders directing and confirming the detention of one Appisseril Kochu Mohammed Shaji.

The apex court had, in its July 31 order, directed the forthwith release of the detenu. It gave its reasons for the same in a detailed verdict delivered on Thursday.

Shaji was detained pursuant to an order issued on August 31 last year under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA), 1974.

The bench, also comprising Justices P K Mishra and K V Viswanathan, noted that there was a delay of around nine months in deciding a representation made by the detenu.

“In the matters pertaining to the personal liberty of the citizens, the authorities are enjoined with a constitutional obligation to decide the representations with utmost expedition. Each day’s delay matters in such a case,” the bench said in its 60-page verdict.

“In the present matter, we find that on account of a casual, callous and negligent approach of the prison authorities, the representation of the detenu could not reach the detaining authority and the central government within a reasonable period. There has been about nine months’ delay in deciding the representation,” it said.

The bench delivered its verdict on an appeal filed by the detenu’s wife, challenging a Kerala High Court order passed in March that dismissing her plea for the production of her husband.

The top court also dealt with a question as to whether the non-supply of the statements of a person, which were taken into consideration by the detaining authority for arriving at its subjective satisfaction, had affected the detenu’s right to make an effective representation under Article 22(5) of the Constitution.

Article 22(5) says when a person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall soon communicate to the detenu the grounds on which the order was made and afford him the earliest opportunity of making a representation against it.

The bench held that the non-supply of the statements had affected the right of the detenu to make an effective representation under Article 22(5) and, as such, the detention was vitiated on this ground.

It noted that the failure to furnish copies of such documents as relied on by the detaining authority, which would deprive a detenu to make an effective representation, certainly amounts to a violation of the fundamental right guaranteed under Article 22(5).

It further noted that the detenu submitted his representation on September 27 last year to the jail authorities for onward transmission to the detaining authority and the Centre.

The bench said the jail authorities had merely forwarded the representation through ordinary post and it neither reached the detaining authority nor the Centre.

It noted that after a notice was issued by the apex court in the matter, the ground with regard to the non-disposal of the representation came to the notice of the authorities concerned and the representation was sought from the jail authorities through e-mail.

“After receiving the same from the jail authorities, the same was placed before the concerned authorities, which were rejected on June 11, 2024 and June 12, 2024 respectively,” the bench said.

“Firstly, we find that the superintendent of the central prison and correctional home has acted in a thoroughly callous and casual manner,” the bench observed.

It added that in spite of several top court verdicts that say it is the duty of the transmitting authorities to transmit a detenu’s representation promptly and it is the corresponding duty of the authorities concerned to consider and decide it swiftly, the same has not been followed n this case.

“We deprecate the practice of the prison authorities in dealing with the valuable right of the detenu in such a casual manner,” the bench said, adding, “In the present case, the law laid down by this court has been given a go-bye.”

It said the jail authorities ought to have ensured that the detenu’s representation reached the authorities concerned 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 e-mail 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 said.

The bench said merely because there was a “casual or callous and, in fact, negligent approach” on the part of the jail authorities in ensuring that the detenu’s representation was communicated at the earliest, the valuable right available to him to have his representation decided expeditiously cannot be denied.

While allowing the appeal, it said the detention order was liable to be quashed and set aside on this ground as well.

Besides setting aside the high court’s verdict, the bench also quashed the August 31, 2023 order passed by the joint secretary (COFEPOSA), directing the detention of Shaji.

The court also quashed the November 28, 2023 order passed by the under secretary, Government of India, confirming the detention order.