Judgment dated 12th September 2024
Cause title : JASEELA SHAJI Vs THE UNION OF INDIA & ORS
Case No: Criminal Appeal No. 3083/2024
A Bench of Supreme Court Judges Hon'ble Justices B.R. GAVAI, PRASHANT KUMAR MISHRA and K.V. VISWANATHAN allowed the Criminal Appeal filed by the detenu on the ground 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.
Facts of the case are:
The wife of one Appisseril Kochu Mohammed Shaji (Shaji A.K.), has
approached Supreme 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
20232, 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
passed under the provisions of the Conservation of Foreign Exchange
and Prevention of Smuggling Activities Act, 1974.
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 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 India6
confirming the detention order of the detenu. We have directed that
the detenu be released forthwith, if not required in any other case.
The reasons for the same are as under:
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.
The detenu was taken into custody on 2nd September 2023 and put
in detention in Central Prisons, Poojapura, Trivandrum, Kerala.
The grounds of detention and the relied upon documents were served
on the detenu on 6th September 2023.
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 and
the Central Government through Jail Authorities.
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.
Being aggrieved by the detention of the detenu, the appellant
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.
Being aggrieved thereby, the appellant has approached Supreme Court
by way of present Appeal by special leave.
Summary of the direction of the Hon'ble Supreme Court is:
69. 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.
70. 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.
71. 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.
72. In the result, we pass the following order:
(i) The appeal is allowed;
(ii) 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.
(iii) 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.
(iv) 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.
(v) The detenu is directed to be released forthwith, if not required
in any other case."
Download Judgment dated 12th September 2024 in JASEELA SHAJI Vs THE UNION OF INDIA & ORS, Criminal Appeal No. 3083/2024.