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Underlining that “each day’s delay matters” in cases of personal liberty, the Supreme Court on Thursday reiterated that in cases of preventive detention, the detaining authority must furnish to the detenu copies of all documents which are relied upon by it and failure to do so would vitiate the 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”, a three-judge bench presided by Justice B R Gavai said.
The bench, also comprising Justices Prashant Kumar Mishra and K V Viswanathan, said this while quashing the detention of Kerala resident Appisseril Kochu Mohammed Shaji who was detained under Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974.
Shaji had approached the SC after the Kerala HC upheld his detention. The SC found that statements of one Preetha Pradeep, which was relied upon by the authorities in arriving at their subjective satisfaction, was not supplied to Shaji. It said Preetha Pradeep “is a vital link for transactions”. “It, therefore, cannot be said that the statements of Preetha Pradeep are just a casual or a passing reference. On the contrary, the said statements, as has been seen from the preamble of the grounds of detention as well as the beginning of paragraph 2 of the detention order dated 31st August 2023, formed the basis for arriving at a subjective satisfaction by the Detaining Authority… The very recording of the factum of the statements of Preetha Pradeep makes them a relevant aspect taken into consideration by the Detaining Authority for arriving at its subjective satisfaction,” the court said.
It noted that “the constitutional imperatives in Article 22(5) are two-fold: (1) The detaining authority must, as soon as practicable, after the detention communicate to the detenu the grounds on which the order of detention has been made, and (2) the detaining authority must afford the detenu the earliest opportunity of making the representation against the order of detention.”
The court also noted that there was a delay in the prison authorities communicating the detenu’s representation to the authorities and also delay on the part of the authorities in deciding it.
It said, “…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.”
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