2024 (9) TMI 707 - SC - FEMA

Validity of detention order of the detenu - Detenu was engaged in illegal transactions by way of purchase and sale of illegally collected foreign currencies from NRIs and other foreign exchange dealers - as argued the material against the detenu could not have led any reasonable person to come to the conclusion that there was a case made out against the detenu to detain him AND Detaining Authority has not applied his/her mind to the material in proper perspective resulting in an unsustainable order of preventive detention. Whether non-supply of the statements of Ms. Preetha Pradeep has affected the right of the detenu to make an effective representation under Article 22(5) of the Constitution of India? - HELD 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. 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. This Court reiterated that, primarily, the copies which form the ground for detention are to be supplied and non-supply thereof would prejudice the detenu. It has been further held that the documents which are merely referred to for the purpose of narration of facts in that sense cannot be termed to be documents without the supply of which the detenu is prejudiced. It is thus a settled position that though it may not be necessary to furnish copies of each and every document to which a casual or passing reference has been made, it is imperative that every such document which has been relied on by the Detaining Authority and which affects the right of the detenu to make an effective representation under Article 22(5) of the Constitution has to be supplied to the detenu. No doubt, as has been reiterated time and again by this Court, it may not be necessary to supply each and every document to which a passing or casual reference is made. However, all such material which has been relied on by the Detaining Authority while arriving at its subjective satisfaction will imperatively have to be supplied to the detenu. In our view, the documents relied on by the Detaining Authority which form the basis of the material facts which have been taken into consideration to form a chain of events could not be severed and the High Court was not justified in coming to a finding that despite eschewing of certain material taken into consideration by the Detaining Authority, the detention order can be sustained by holding that the Detaining Authority would have arrived at such a subjective satisfaction even without such material. In that view of the matter, we have come to a considered conclusion that non-supply of the statements of Preetha Pradeep has affected the right of the detenu to make an effective representation under Article 22(5) of the Constitution of India and as such, the detention is vitiated on the said ground. Whether non-receipt of the representation and the delay in deciding the representation by the Detaining Authority and the Central Government would also affect the right of the detenu under Article 22(5) of the Constitution? - 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. 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. 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. 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. 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. 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. 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. 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. Thus, order passed by the Joint Secretary (COFEPOSA) to the Government of India directing the detention of the detenu is quashed and set aside.

Summary

Issues Involved:
1. Non-supply of statements affecting the right to make an effective representation under Article 22(5) of the Constitution of India.
2. Non-receipt and delay in deciding the representation by the Detaining Authority and the Central Government affecting the right under Article 22(5) of the Constitution.

Issue-wise Detailed Analysis:

1. Non-supply of statements affecting the right to make an effective representation under Article 22(5) of the Constitution of India:
The appellant argued that the statements of Ms. Preetha Pradeep, relied upon by the Detaining Authority, were not provided to the detenu, thereby violating his right under Article 22(5) of the Constitution to make an effective representation. The Court observed that the constitutional imperatives under Article 22(5) are twofold: the Detaining Authority must communicate the grounds of detention as soon as practicable and afford the detenu the earliest opportunity to make a representation. The Court cited previous judgments emphasizing that failure or delay in furnishing documents referred to in the grounds of detention amounts to a denial of the right to make an effective representation.

The Court noted that the statements of Ms. Preetha Pradeep were a vital link in the transactions between Suresh Babu and the detenu and formed the basis for the Detaining Authority's subjective satisfaction. Therefore, non-supply of these statements affected the detenu's right to make an effective representation. The Court held that the detention order is vitiated on this ground.

2. Non-receipt and delay in deciding the representation by the Detaining Authority and the Central Government affecting the right under Article 22(5) of the Constitution:
The detenu submitted his representation on 27th September 2023, which was forwarded by the Jail Authorities through ordinary post but was not received by the Detaining Authority or the Central Government. The representations were only considered after the Supreme Court issued notice, leading to their rejection on 11th June 2024 and 12th June 2024, respectively, resulting in a delay of almost nine months.

The Court cited previous judgments stating that any delay in forwarding or deciding the representation violates the constitutional mandate of Article 22(5). The Court found that the Jail Authorities acted in a callous manner by sending the representation through ordinary post without ensuring its receipt. The Court emphasized that in matters of personal liberty, authorities must act with utmost expedition. The delay of nine months in deciding the representation, or even 27/20 days after the notice, was deemed unacceptable, leading to the conclusion that the detention order is also vitiated on this ground.

Conclusion:
The Supreme Court allowed the appeal, quashed the High Court's judgment dated 4th March 2024, the detention order dated 31st August 2023, and the confirmation order dated 28th November 2023. The detenu was directed to be released forthwith if not required in any other case.