Case Note & Summary
The appellant, wife of detenu Appisseril Kochu Mohammed Shaji, challenged the detention order dated 31.08.2023 passed under Section 3(1) of COFEPOSA by the Joint Secretary (COFEPOSA). The detenu was taken into custody on 02.09.2023 and served with grounds of detention on 06.09.2023, which included 12 grounds based on statements of the detenu under FEMA, statement of Suresh Babu, WhatsApp chats, and statements of Ms. Preetha Pradeep. The detenu made representations to the Detaining Authority, Central Government, and Advisory Board on 27.09.2023, but the Jail Authorities sent them by ordinary post, and they were not received by the Detaining Authority or Central Government. The Advisory Board opined sufficient cause for detention, and the Central Government confirmed the detention for one year on 28.11.2023. The appellant filed a habeas corpus petition before the Kerala High Court, which was dismissed on 04.03.2024. The Supreme Court allowed the appeal, quashing the detention order and the High Court's judgment. The Court held that non-supply of the statements of Ms. Preetha Pradeep, which were relied upon by the Detaining Authority, violated the detenu's right under Article 22(5) to make an effective representation. Additionally, the inordinate delay in transmission and disposal of the representation—rejected only on 11.06.2024 and 12.06.2024—further vitiated the detention. The Court rejected the argument under Section 5A COFEPOSA that the order could be sustained on other grounds, as the defects were fundamental. The detenu was ordered to be released forthwith if not required in any other case.
Headnote
A) Preventive Detention - Right to Representation - Non-Supply of Documents - Article 22(5) of the Constitution of India, Section 3(1) of COFEPOSA - Non-supply of statements of Ms. Preetha Pradeep, which were relied upon by the Detaining Authority to arrive at subjective satisfaction, violated the detenu's right to make an effective representation under Article 22(5). Held that failure to furnish such material renders the detention order unsustainable (Paras 6, 9). B) Preventive Detention - Representation - Delay in Transmission and Disposal - Article 22(5) of the Constitution of India, COFEPOSA - The detenu's representation dated 27.09.2023 was sent by Jail Authorities via ordinary post and was not received by the Detaining Authority or Central Government; it was rejected only on 11.06.2024 and 12.06.2024 after notice in the appeal. Held that such inordinate delay in transmission and disposal of the representation vitiates the detention order (Paras 7, 16). C) Preventive Detention - Severability - Section 5A of COFEPOSA - Even if one ground is invalid, detention order may be sustained on other grounds. However, in this case, the non-supply of material and delay in representation were fundamental defects affecting the entire order, and Section 5A could not salvage it (Para 14).
Issue of Consideration
Whether the detention order under COFEPOSA is liable to be set aside on grounds of non-supply of material relied upon by the detaining authority and inordinate delay in deciding the detenu's representation.
Final Decision
Appeal allowed. Impugned judgment of High Court dated 04.03.2024 and detention order dated 31.08.2023 quashed and set aside. Detenu directed to be released forthwith if not required in any other case.
Law Points
- Preventive detention
- Right to make representation under Article 22(5)
- Non-supply of relied-upon documents vitiates detention
- Delay in transmission and disposal of representation
- Section 5A COFEPOSA severability
- Subjective satisfaction of detaining authority
