Delay in Deciding COFEPOSA Representation: Supreme Court Quashes Detention in Jaseela Shaji
The Supreme Court held that a detenu's constitutional right to make an effective representation under Article 22(5) includes a corresponding duty on jail and detaining authorities to transmit and decide the representation with utmost expedition. A casual or negligent transmission process cannot defeat that right.
Supreme Court ruling
The appeal arose from the Kerala High Court's dismissal of Writ Petition (Criminal) No. 1271 of 2023, which had challenged the preventive detention of Appisseril Kochu Mohammed Shaji under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA).
The Supreme Court had already allowed the appeal on 31 July 2024, quashed the High Court judgment dated 4 March 2024, set aside the detention order dated 31 August 2023 and the confirmation order dated 28 November 2023, and directed the detenu's immediate release if he was not required in any other case. The reportable judgment dated 12 September 2024 supplied the detailed reasons.
Material facts and chronology
- 31 August 2023: The Detaining Authority passed an order under Section 3(1) of COFEPOSA.
- 2 September 2023: The detenu was taken into custody and lodged in Central Prison, Poojapura, Thiruvananthapuram, Kerala.
- 6 September 2023: Grounds of detention and relied-upon documents were served on him.
- 27 September 2023: The detenu submitted representations through the jail authorities for the Detaining Authority and the Central Government.
- The jail authorities sent the representations by ordinary post; they were not received by the Detaining Authority or the Central Government.
- 28 November 2023: The detention was confirmed for one year from 2 September 2023.
- 4 March 2024: The Kerala High Court dismissed the habeas corpus petition.
- After notice in the Supreme Court proceedings, records were obtained from the prison authorities and the representations were ultimately rejected in June 2024.
Why the detention was held unsustainable
1. Representation must be forwarded promptly
The Court emphasized that prison authorities must ensure that a preventive-detention representation reaches the competent authority at the earliest. In modern conditions, electronic transmission or another trackable and expeditious method should be used instead of an unreliable process that risks loss or delay.
2. Article 22(5) requires expeditious consideration
Article 22(5) protects the detenu's right to make a representation against preventive detention. That safeguard is meaningful only when the representation is actually transmitted and considered without avoidable delay.
3. Delay was substantial
The Supreme Court found an overall delay of about nine months in deciding the representations. Even on the respondents' own version, there was a further delay of about 27 days before the Central Government and about 20 days before the Detaining Authority after the representations were called for from the prison authorities.
Effect of the Supreme Court order
The Supreme Court allowed the appeal and set aside:
- the Kerala High Court judgment dated 4 March 2024 in W.P. (Crl.) No. 1271 of 2023;
- the COFEPOSA detention order dated 31 August 2023; and
- the confirmation order dated 28 November 2023.
The detenu was directed to be released forthwith if he was not required in any other case.
Legal provisions involved
Section 3(1), COFEPOSA Act, 1974: empowers the specified Central or State Government authorities, subject to statutory conditions, to make preventive-detention orders for the purposes stated in the Act.
Article 22(5), Constitution of India: requires communication of the grounds of detention and affords the earliest opportunity to the detained person to make a representation against the order.
Legal update: COFEPOSA remains in force. The 2024 Supreme Court judgment continues to be an important authority on the obligation to promptly transmit and decide a detenu's representation. The page has therefore been updated to distinguish the 31 July 2024 operative order from the 12 September 2024 detailed judgment.
Judgment PDF
Open Website Copy of Judgment Official Supreme Court Judgment