1994 (11) TMI 199 - SC - Customs

Whether the delay on the part of the jailor in despatching the representation received by him on 4th May, 1994 to the Central Government has violated the constitutional right under Articles 22(5) or not? Held that - The constitutional right of the detenu under Article 22(5) has got violated on account of the non-sending of the copy of the representation by the jailor to the appropriate authority of the Central Government as expeditiously as possible after he received it on 4th May, 1994 and hence continued detention of the detenu has become illegal. The appeal is, therefore, allowed. The judgment and order passed by the High Court are set aside. The respondents are directed to set the detenu, M. Balakrishnan at liberty, if not otherwise required to be detained in any other case.

Summary

Issues:
Challenge to detention order under COFEPOSA Act based on violation of constitutional right under Article 22(5) due to delay in forwarding representation to Central Government.

Detailed Analysis:
The appellant, wife of a detained individual, challenged the detention order passed under COFEPOSA Act by the Joint Secretary of Tamil Nadu. The High Court dismissed the appellant's writ petition, leading to the current appeal. The main contention raised was the violation of the detenu's constitutional right under Article 22(5) due to delay in forwarding the representation to the Central Government. The High Court held that the delay did not affect the legality of detention, distinguishing a previous court decision. The appellant argued that the High Court's reasoning was flawed, while the State and Union of India contended that no violation occurred.

The detenu was informed of the right to make a representation to the State and Central Government against the detention order. The appellant sent the representation to the jail authorities on behalf of the detenu, requesting it to be forwarded to the appropriate authorities. However, the jailor failed to send the representation to the Central Government promptly, causing an 84-day delay. The Central Government eventually considered the representation and disposed of it without undue delay. The appellant argued that the delay by the jailor infringed the detenu's constitutional right under Article 22(5).

The court referred to a previous case where a similar delay by jail authorities rendered detention illegal. It emphasized that the jailor's failure to forward the representation promptly violated the detenu's right to make an effective representation. The court rejected attempts to distinguish the case based on the nature of detention under COFEPOSA Act, emphasizing the detenu's right to represent to the Central Government. The delay in forwarding the representation to the Central Government was deemed a violation of the detenu's constitutional right under Article 22(5), leading to the declaration of continued detention as illegal. The court allowed the appeal, set aside the High Court's judgment, and directed the release of the detenu.