Supreme Court of India
Jaseela Shaji vs The Union Of India on 12 September, 2024
Author: B.R. Gavai
Bench: Prashant Kumar Mishra, B.R. Gavai
2024 INSC 683
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 3083 OF 2024
JASEELA SHAJI …APPELLANT(S)
VERSUS
THE UNION OF INDIA & ORS. …RESPONDENT(S)
JUDGMENT
B.R. GAVAI, J.
1. The appellant, who is the wife of one Appisseril Kochu
Mohammed Shaji (Shaji A.K.)1, has approached this 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
Signature Not Verified
Digitally signed by
Narendra Prasad
Date: 2024.09.12
13:10:48 IST
Reason: 1
Hereinafter referred to as “detenu”.
2 “habeas corpus petition”
1
the appellant for production of the detenu, who was detained
pursuant to the order of detention dated 31st August 20233
passed under the provisions of the Conservation of Foreign
Exchange and Prevention of Smuggling Activities Act, 19744.
2. 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 31 st August
2023 passed by the Joint Secretary (COFEPOSA), COFEPOSA
Unit, Central Economic Intelligence Bureau, Department of
Revenue, Ministry of Revenue, Government of India5 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,
3 Hereinafter referred to as “detention order”
4 Hereinafter referred to as “COFEPOSA”
5 Hereinafter referred to as “Detaining Authority”
6 Hereinafter referred to as “Central Government”
2
if not required in any other case. The reasons for the same are as
under:
3. Shorn of details, the facts giving rise to the present appeal
are as under:
3.1 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.
3.2 The detenu was taken into custody on 2nd September 2023
and put in detention in Central Prisons, Poojapura, Trivandrum,
Kerala.
3.3 The grounds of detention and the relied upon documents
were served on the detenu on 6th September 2023.
3.4 A perusal of the grounds of detention served on the detenu
would reveal that there are 12 grounds on the basis of which the
detention order dated 31st August 2023 came to be passed. The
Detaining Authority has relied on the following material for
arriving at its subjective satisfaction:
a) Statements of the detenu recorded on 20th June 2023,
3
11th July 2023 and 17th July 2023 under Section 37 ofFEMA;
b) Statement of Shri Suresh Babu recorded on 7th July
2023;
c) WhatsApp chats, voice calls, images recovered from the
mobile phone as also ‘paper slips’ allegedly recovered
from the detenu;
d) Statements of Ms. Preetha Pradeep recorded on 5th July
2023 and 6th July 2023.
3.5 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 Kerala7 and the Central Government through Jail
Authorities.
3.6 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
7 Hereinafter referred to as “Advisory Board”
4
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.
3.7 Being aggrieved by the detention of the detenu, the
appellant herein 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.
3.8 Being aggrieved thereby, the appellant has approached this
Court by way of present Appeal by special leave.
4. We have heard Shri Gaurav Aggarwal, learned Senior
Counsel appearing for the appellant and Shri Nachiketa Joshi,
learned Senior Counsel appearing for the respondent(s).
5. Shri Gaurav Aggarwal, learned Senior Counsel, submits
5
that in the present case, 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.
The Detaining Authority has not applied his/her mind to the
material in proper perspective resulting in an unsustainable
order of preventive detention. The learned Senior Counsel in this
respect relied on the judgment of this Court in the case of
Ameena Begum vs. State of Telangana and others.8
6. Shri Gaurav Aggarwal further submits that a perusal of the
grounds of detention dated 31st August 2023 would clearly show
that the statements of Ms. Preetha Pradeep were relied upon by
the Detaining Authority while arriving at its subjective
satisfaction. He submits that the said statements were
admittedly not provided to the detenu. It is, therefore, submitted
that non-supply of the material on which the subjective
satisfaction was arrived at would affect the right of the detenu
guaranteed under Article 22(5) of the Constitution of India to
make an effective representation. It is, therefore, submitted that
8 (2023) 9 SCC 587
6
the detention order is liable to be set aside on the said ground.
The learned Senior Counsel in this respect has relied on the
following judgments of this Court in the cases of:
(i) M. Ahamedkutty vs. Union of India and another9;
(ii) Radhakrishnan Prabhakaran vs. State of T.N. and
others10;
(iii) J. Abdul Hakeem vs. State of T.N. and others11
(iv) State of Tamil Nadu and another vs. Abdullah
Kadher Batcha and another12; and
(v) Union of India vs. Ranu Bhandari13.
7. Shri Gaurav Aggarwal further submits that the detenu had
submitted his representation on 27th September 2023 to the Jail
Authorities for onward transmission to the Detaining Authority
and the Central Government. He submits that a perusal of the
counter affidavit of the respondents would reveal that the Jail
Authorities sent the representations of the detenu by ordinary
post, which could not be traced. He submits that, in the counter
9 (1990) 2 SCC 1
10 (2000) 9 SCC 170
11 (2005) 7 SCC 70
12 (2009) 1 SCC 333
13 (2008) 17 SCC 348
7
affidavit it is admitted that the said representations dated 27th
September 2023 were not received by the Detaining Authority
and the Central Government, but after notice was issued in the
present matter, records were called for from the Jail Authorities
and the representations were rejected on 11th June 2024 and 12th
June 2024 respectively. He submits that the delay in
transmitting the representations as well as the delay caused in
deciding the representations would also adversely affect the right
of the detenu for effective and speedy disposal of the
representations and on this count also the detention order is
liable to be set aside. In support of his submission, the learned
Senior Counsel relied on the following judgments of this Court:
(i) Tara Chand vs. State of Rajasthan and others14;
(ii) Rattan Singh vs. State of Punjab and others15;
(iii) Vijay Kumar vs. State of Jammu & Kashmir and
others16;
(iv) Aslam Ahmed Zahire Ahmed Shaik vs. Union of
14 (1981) 1 SCC 416
15 (1981) 4 SCC 481
16 (1982) 2 SCC 43
8
India and others17;
(v) B. Alamelu vs. State of T.N. and others18;
8. Shri Gaurav Aggarwal further submits that a perusal of the
Memorandum passed by the Central Government rejecting the
representation of the detenu would show that there was no real
and proper consideration. He submits that no reasons are
recorded in the Memorandum and, therefore, it does not reflect
that there was a real or proper consideration by the Government.
He, therefore, submits that the impugned order is liable to be
quashed and set aside.
9. Shri Aggarwal further submits that the High Court has
erroneously held that the Detaining Authority could have arrived
at its subjective satisfaction even after the statement of said Ms.
Preetha Pradeep was eschewed. It is submitted that the
statement of Ms. Preetha Pradeep was a pertinent material
which, from the perusal of the detention order would reveal, was
duly taken into consideration by the Detaining Authority. He,
therefore, submits that the High Court has erred in holding that
17 (1989) 3 SCC 277
18 (1995) 1 SCC 306
9
non-supply of the statements of Ms. Preetha Pradeep to the
detenu did not vitiate the detention order. The learned Senior
Counsel, therefore, submits that the impugned judgment and
order is liable to be quashed and set aside.
10. Shri Nachiketa Joshi, learned Senior Counsel appearing for
the respondents, on the contrary, submits that the Detaining
Authority after taking into consideration the statement of Suresh
Babu and the exchange of WhatsApp messages between Suresh
Babu and the detenu has rightly come to a subjective satisfaction
that the detenu was engaged in illegal transactions by way of
purchase and sale of illegally collected foreign currencies from
NRIs and other foreign exchange dealers. He submits that the
perusal of the material on record would show that the detenu has
indulged himself in hawala dealings, illegal purchase, sale and
carriage of foreign currencies.
11. Shri Nachiketa Joshi further submits that as per the
provisions contained in Section 8(b) of the COFEPOSA, the case
of detention of the detenu was referred to the State Advisory
Board, Kerala High Court. The Advisory Board, after hearing the
detenu and considering the material, had opined that there were
10
sufficient grounds for the detention of the detenu.
12. The learned Senior Counsel submits that the High Court
has rightly held that even if the statements of Preethi Pradeep is
eschewed, the Detaining Authority could have arrived at the
subjective satisfaction that the detention of the detenu was
necessary.
13. The learned Senior Counsel relies on the judgment of this
Court in the case of Vakil Singh vs. The State of J & K and
another19 in support of his submission that the grounds must
contain the pith and substance of primary facts but not
subsidiary facts or evidential details.
14. The learned Senior Counsel further submits that in view of
Section 5A of the COFEPOSA, even if the detention order was not
sustainable on one ground, if it can be sustained on other
grounds, the detention order would not be vitiated. In this
respect, he relies on the judgment of this Court in the case of A.
Sowkath Ali vs. Union of India and others20.
15. Shri Nachiketa Joshi further submits that it is not
19 (1975) 3 SCC 545
20 (2000) 7 SCC 148
11
necessary to furnish copy of each and every documents to which
casual or passing reference may be made in the course of
narration of facts and which are not relied upon by the Detaining
Authority in making the order of detention. In this respect, he
relies on the judgment of this Court in the case of L.M.S. Ummu
Saleema vs. B.B. Gujaral21.
16. Insofar as the delay in deciding the representation by the
Detaining Authority and the Central Government is concerned,
Shri Nachiketa Joshi, learned Senior Counsel submits that
representations made by the detenu on 27th September 2023
were never received by the Detaining Authority and the Central
Government. However, after the notice was issued by this Court
in the present matter, the record was called from the Jail
Authorities and they decided the representations on 11th June
2024 and 12th June 2024 respectively. He, therefore, submits
that there is no delay in deciding the representations by the
Detaining Authority or the Central Government.
CONSIDERATION
21 (1981) 3 SCC 317
12
17. Though the detention order is assailed on several grounds,
we propose to consider only two grounds, viz.,
(a) As to whether the 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.
(b) As to 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.
(a) As to whether the non-supply of the statement 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
18. In the case of M. Ahamedkutty vs. Union of India and
another (supra), this Court was considering the issue as to
whether non-supply of the copies of the bail application and the
bail order vitiated the right of the detenu under Article 22(5) of
the Constitution of India. After taking the survey of the earlier
judgments, this Court observed thus:
13
“19. The next submission is that of non-supply
of the bail application and the bail order. This
Court, as was observed in Mangalbhai Motiram
Patel v. State of Maharashtra [(1980) 4 SCC
470: 1981 SCC (Cri) 49: (1981) 1 SCR 852] has
‘forged’ certain procedural safeguards for
citizens under preventive detention. The
constitutional imperatives in Article 22(5)
are twofold: (1) The detaining authority
must, as soon as may be, i.e. 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 right is to make an
effective representation and when some
documents are referred to or relied on in the
grounds of detention, without copies of such
documents, the grounds of detention would
not be complete. The detenu has, therefore,
the right to be furnished with the grounds
of detention along with the documents so
referred to or relied on. If there is failure or
even delay in furnishing those documents it
would amount to denial of the right to make
an effective representation. This has been
settled by a long line of decisions: Ramachandra
A. Kamat v. Union of India [(1980) 2 SCC 270:
1980 SCC (Cri) 414: (1980) 2 SCR
1072] , Frances Coralie Mullin v. W.C.
Khambra [(1980) 2 SCC 275: 1980 SCC (Cri)
419: (1980) 2 SCR 1095] , Ichhu Devi
Choraria v. Union of India [(1980) 4 SCC 531:
1981 SCC (Cri) 25: (1981) 1 SCR 640] , Pritam
Nath Hoon v. Union of India [(1980) 4 SCC 525:
1981 SCC (Cri) 19: (1981) 1 SCR 682] , Tushar
Thakker v. Union of India [(1980) 4 SCC 499:
14
1981 SCC (Cri) 13] , Lallubhai Jogibhai
Patel v. Union of India [(1981) 2 SCC 427: 1981
SCC (Cri) 463] , Kirit Kumar Chaman Lal
Kundaliya v. Union of India [(1981) 2 SCC 436:
1981 SCC (Cri) 471] and Ana Carolina
D’Souza v. Union of India [1981 Supp SCC 53
(1) : 1982 SCC (Cri) 131 (1)] .
20. It is immaterial whether the detenu already
knew about their contents or not.
In Mehrunissa v. State of Maharashtra [(1981) 2
SCC 709: 1981 SCC (Cri) 592] it was held that
the fact that the detenu was aware of the
contents of the documents not furnished was
immaterial and non-furnishing of the copy of
the seizure list was held to be fatal. To
appreciate this point one has to bear in mind
that the detenu is in jail and has no access to
his own documents. In Mohd. Zakir v. Delhi
Administration [(1982) 3 SCC 216: 1982 SCC
(Cri) 695] it was reiterated that it being a
constitutional imperative for the detaining
authority to give the documents relied on and
referred to in the order of detention pari passu
the grounds of detention, those should be
furnished at the earliest so that the detenu
could make an effective representation
immediately instead of waiting for the
documents to be supplied with. The question of
demanding the documents was wholly
irrelevant and the infirmity in that regard was
violative of constitutional safeguards enshrined
in Article 22(5).”
[emphasis supplied]
19. It can thus be seen that this Court, in unequivocal terms,
has held that the constitutional requirements under Article 22(5)
15
of the Constitution of India are twofold, viz., (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. It has further been
held that the right is to make an effective representation and
when some documents are referred to or relied on in the grounds
of detention, without copies of such documents, the grounds of
detention would not be complete. In unequivocal terms, it has
been held that the detenu has the right to be furnished with the
grounds of detention along with the documents so referred to or
relied on. It has been held that failure or even delay in furnishing
those documents would amount to denial of the right to make an
effective representation.
20. This Court further went on to hold that it is immaterial
whether the detenu already knew about their contents or not.
This Court reiterated the position that it being a constitutional
imperative for the detaining authority to give the documents
relied on and referred to in the order of detention pari passu the
16
grounds of detention. It has been held that there is no question
of demanding the documents.
21. The High Court in the impugned judgment and order has
relied on the judgments of this Court in the cases of Vakil Singh
vs. State of J. & K. and another (supra) and L.M.S. Ummu
Saleema vs. B.B. Gujaral (supra).
22. Insofar as the judgment of this Court in the case of Vakil
Singh (supra) is concerned, the detention order was challenged
on the following grounds:
(i) The impugned order was passed without application
of mind;
(ii) Neither the grounds of detention nor the confirmation
thereof were communicated and explained to the
detenu;
(iii) The grounds are vague; and
(iv) The order of detention, assuming it was served, was a
colourable act as the petitioner was already in jail.
23. It could thus be seen that the said case was not concerned
with the issue with regard to non-supply of the material which
was relied on by the Detaining Authority in the grounds of
17
detention. As such the said judgment would not be of any
assistance to the case of the respondents.
24. Insofar as the reliance on the judgment of this Court in the
case of L.M.S. Ummu Saleema (supra) is concerned, the High
Court relied on the following observations of this Court:
“5. ….It is only failure to furnish copies of such
documents as were relied upon by the detaining
authority, making it difficult for the detenu to
make an effective representation, that amounts
to a violation of the fundamental rights
guaranteed by Article 22(5). In our view it is
unnecessary to furnish copies of documents to
which casual or passing reference may be made
in the course of narration of facts and which are
not relied upon by the detaining authority in
making the order of detention.”
25. 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. However, 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
18
Constitution of India.
26. We may also gainfully refer to the following observations of
this Court in the case of Radhakrishnan Prabhakaran (supra):
“8. We may make it clear that there is no legal
requirement that a copy of every document
mentioned in the order shall invariably be
supplied to the detenu. What is important is
that copies of only such of those documents as
have been relied on by the detaining authority
for reaching the satisfaction that preventive
detention of the detenu is necessary shall be
supplied to him…”
27. It could thus be seen that though this Court held that a
copy of every document mentioned in the order is not required to
be supplied to the detenu, copies of only such of those
documents as have been relied on by the detaining authority for
reaching the satisfaction that preventive detention of the detenu
is necessary are required to be supplied to him.
28. In the case of J. Abdul Hakeem (supra), the position was
reiterated by this Court by observing thus:
“8. …From the aforesaid authorities it is clear
that the detenu has a right to be supplied with
the material documents on which reliance is
placed by the detaining authority for passing
the detention order but the detention order will
not be vitiated, if the document although
referred to in the order is not supplied which is19
not relied upon by the detaining authority for
forming of its opinion or was made the basis for
passing the order of detention. The crux of the
matter lies in whether the detenu’s right to
make a representation against the order of
detention is hampered by non-supply of the
particular document.”
29. In the case of Abdullah Kadher Batcha and another
(supra), again the position was reiterated by this Court thus:
“7. The court has a duty to see whether the
non-supply of any document is in any way
prejudicial to the case of the detenu. The High
Court has not examined as to how the non-
supply of the documents called for had any
effect on the detenu and/or whether the non-
supply was prejudicial to the detenu. Merely
because copies of some documents have
(sic not) been supplied, they cannot by any
stretch of imagination be called as relied upon
documents. While examining whether non-
supply of a document would prejudice a
detenu, the court has to examine whether the
detenu would be deprived of making an
effective representation in the absence of a
document. Primarily, the copies which form the
ground for detention are to be supplied and
non-supply thereof would prejudice the detenu.
But 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.”
30. This Court reiterated that, primarily, the copies which form
the ground for detention are to be supplied and non-supply
20
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.
31. In the case of Ranu Bhandari (supra), this Court observed
thus:
“25. Keeping in mind the fact that of all human
rights the right to personal liberty and
individual freedom is probably the most
cherished, we can now proceed to examine the
contention advanced on behalf of the parties in
the facts and circumstances of this case. But
before we proceed to do so, it would be apposite
to reproduce hereinbelow a verse from a song
which was introduced in the cinematographic
version of Joy Adamson’s memorable
classic Born Free which in a few simple words
encapsulates the essence of personal liberty and
individual freedom and runs as follows:
“Born free, as free as the wind blows,
As free as the grass grows,
Born free to follow your heart.
Born free and beauty surrounds you,
The world still astounds you,
Each time you look at a star.
Stay free, with no walls to hide you,
You’re as free as the roving tide,
So there’s no need to hide.
Born free and life is worth living,
It’s only worth living, if you’re born free.”The aforesaid words aptly describe the
21
concept of personal liberty and individual
freedom which may, however, be curtailed
by preventive detention laws, which could
be used to consign an individual to the
confines of jail without any trial, on the
basis of the satisfaction arrived at by the
detaining authority on the basis of material
placed before him. The courts which are
empowered to issue prerogative writs have,
therefore, to be extremely cautious in examining
the manner in which a detention order is passed
in respect of an individual so that his right to
personal liberty and individual freedom is
not arbitrarily taken away from him even
temporarily without following the
procedure prescribed by law.
26. We have indicated hereinbefore that the
consistent view expressed by this Court in
matters relating to preventive detention is that
while issuing an order of detention, the
detaining authority must be provided with all
the materials available against the individual
concerned, both against him and in his favour,
to enable it to reach a just conclusion that the
detention of such individual is necessary in the
interest of the State and the general public.
27. It has also been the consistent view that
when a detention order is passed all the
material relied upon by the detaining
authority in making such an order, must be
supplied to the detenu to enable him to
make an effective representation against
the detention order in compliance with
Article 22(5) of the Constitution, irrespective
of whether he had knowledge of the same or
not. These have been recognised by this Court
as the minimum safeguards to ensure that22
preventive detention laws, which are an evil
necessity, do not become instruments of
oppression in the hands of the authorities
concerned or to avoid criminal proceedings
which would entail a proper investigation.”
[emphasis supplied]
32. A perusal of the aforesaid judgment would reveal that for
emphasizing the importance of personal liberty and individual
freedom, this Court has reproduced Joy Adamson’s memorable
classic Born Free. This Court observed that though the concept
of personal liberty and individual freedom can be curtailed by
preventive detention laws, the Courts have to ensure that the
right to personal liberty and individual freedom is not arbitrarily
taken away even temporarily without following the procedure
prescribed by law. It has been held that when a detention order
is passed all the material relied upon by the detaining authority
in making such an order must be supplied to the detenu to
enable him to make an effective representation. This Court held
that this is required in order to comply with the mandate of
Article 22 (5) of the Constitution, irrespective of whether the
detenu had knowledge of such material or not.
33. It is thus a settled position that though it may not be
23
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.
34. In the light of this legal position, let us examine the
impugned order.
35. The grounds on which the detention order dated 31st August
2023 has been made read thus:
“The following facts have been brought to
my attention by the Sponsoring Authority of
this COFEPOSA proposal i.e. the Directorate
of Enforcement, Kochi Zonal Unit and I have
gone through the facts presented by the
Sponsoring Authority as mentioned below:-
i. A search was conducted on 19-06-2023 at
the residence of Shri Appisseril Kochu
Muhammed Shaji @ Payasam Shaji i.e
you, Appisseril House, Nadakkal PO,
Erattupetta, Kottayam 686121 from where
Shri Appisseril Kochu Muhammed Shaji i
e. you are operating your foreign currency
exchange business. You stated that you
were doing trading of fruits to nearby
areas. During the course of search,
unaccounted Indian currency amounting
to Rs 6,70,100/-, unaccounted Gold in the24
form of coins and biscuits weighing 110 35
Grams valued at Rs.6,08,028.5/-,
unaccounted Silver weighing 1781 Grams
in the form of balls and pieces valued to Rs
136246.5/- totally valuing to the tune of
Rs 14,14,375/- (Fourteen Lakh Fourteen
Thousand Three Hundred Seventy Five
Only) were found and seized under the
FFMA, 1999.
ii. During the course of search, statement of
you i.e. Shri Shaji A K was recorded on
20.06.2023 under Section 37 of Foreign
Exchange Management Act, 1999, wherein
Mr. Shaji A.K. i.e. you have admitted that
the cash in Indian currencies which was
seized from your house are unaccounted
and the paper slips were taken from your
residence in which you noted the details of
forex transactions of your work as a carrier
of foreign currencies; that you were
working as a commission agent for various
Foreign Exchange Racketeers and handed
over the illegally collected foreign
currencies as well as Indian currencies to
various persons inside and outside Kerala
mainly at Chennai; that you were
collecting foreign currencies from your
customers and clients without obtaining
KYC details, licenses and no invoices were
generated against receipts of foreign
currency; that you are doing these illegal
activities on behalf of various Foreign
Exchange Racketeers; that you were only
concerned about the commissions which
you received from such illegal activities;
that the most part of your income was
generated out of these illegal transactions
by way of purchase and sale of illegally
25
collected foreign currencies from NRIs and
other forex dealers mainly from Suresh
Babu at Kottayam, who was also operating
the unaccounted foreign currency
business.
iii. Further, Shri Suresh Babu in his
statement recorded on 07.07.2023 also
admitted having illegal foreign currency
dealings with Shri Shaji A.K. i.e. you.
Furthermore, corroborative evidences in
respect of illegal foreign exchange
transactions between Shri Suresh Babu
and Shri Shaji A.K. i.e. you have been
recovered by way of analysis of WhatsApp
chat, voice calls and images recovered
from Shri Shaji A.K.’s i.e. your mobile
which was seized during search. Shri
Suresh Babu in his statement recorded on
07.07.2023 has inter alia stated that after
fixing the rates through phone call, Shaji
i.e. you or the person appointed by you will
come to the office and collect FC with Shri
Suresh Babu and also give the equivalent
INR for the currency; that you also
purchase FC kept by him; usually you
purchase in month interval and having
transaction worth of 30 lakhs for the past
2 years; that within these 2 years you had
transactions worth of 2 Crores.
iv. During the Statement of Smt. Preetha
Pradeep recorded on 05.07.2023, on being
asked about Shaji or Payasam Shaji, a
native of Eratupetta, she replied that
Shaji’s person will come to the shop and
that they will pay him the required
currency which will be collected from
Suresh sir’s house through Binu; that
26
mostly the same person will come; that’s
why she can recognize him; that without
any doubt, they will pay the cash; that
Suresh sir will arrange everything; that
mostly she or Binu will receive the amount
brought by Shaji; that they collect that
and later it will be counted; that if any
shortages are found in the bundle that will
be informed to Suresh sir, that not only the
person who goes there with the money but
many others, who came to return the
money to their office through Shaji; that it
is about 20 lakh rupees sent to Shaji and
Rs 30 lakhs is the maximum amount Shaji
brought to their office.
v. Statement of Preetha Pradeep was
recorded on 06.07.2023, wherein she
replied that M/s Suresh Forex Services Pvt
Ltd receives INRs minimum 2 times in a
month from Mr. Shaji; that each
transactions contains approximately Rs
20 Lakhs to 30 Lakhs; that in return to
that Suresh will give one packet and direct
her to hand over the same to the
representative of Mr. Shaji.
vi. Statement of Shri Shaji A.K. i.e. you were
recorded on 11.0.7.2023 wherein you,
inter-alia, stated that you buy foreign
currencies from foreign currency dealers
and buy from people who are NRI’s in
Kerala when they come home; that these
are done without any documents; that you
mainly purchase foreign currency from
traders like Suresh of Suresh Forex at
Kottayam, Native of Parur Shambu, Simon
from Kottayam, etc.; that you have also
given currencies to people going abroad
27
from Kerala; that mainly you sell currency
to Khader from Chennai; that the currency
collected from Kerala will be sent to
Chennai via Madhurai by bus; that this
will be given to Khader’s shop or you will
inform Khader that you reached Chennai
and he will come to the lodge where you
are staying, or Khader’s people will come
and collect the foreign currency from you
and give you the equivalent INR; that these
are also done without any documents; that
other than Khader, you used to sell to
Anas; that Khader’s firm is at Chennai
Paris and Burma Bazar, that to date, you
purchased around Rs 25 crores worth of
foreign currency from Kerala and sold that
to Khader, that usually you used to go to
Chennai; that other than you, your son
Hyder Shaji, Anas Erattupetta, Siraj
Erattupetta, etc. are the carries of foreign
currency to Chennai by bus; that this will
be given to Khader, that all these are done
without keeping any accounts and
documents; that the calculations prepared
for your knowledge will be destroyed after
the transaction is completed; that was the
foreign currency transaction you made
and its calculations; that the first page
indicates the value of Indian currency
equivalent to the rate of foreign currency;
that the second page indicates the details
of the persons who carry foreign currency
to Chennai and the quantity of currency
sent; that those were written on white
paper and took its images; that 1416
means your niece Faris, next photo is Anas
from Erattupetta, both of them will carry
currency for you to Chennai; that the third
page indicates the images of Rs 500 notes,
28
those are damaged notes, that the next one
marked us 16-6 means the transaction of
Rs 9,12,167/- dated 16.06.2023; that the
next page indicates the transaction done
by you on 17.6.2023 and the value of INR
equivalent to the foreign currency trading,
that the thing written as Faris indicates
the amount of Rs 24,25,750/- that Faris
exchanged from Chennai and its value in
INR, that SR mean the amount of Rs. 15
lakhs, you paid as per the instructions of
Suresh Babu of Suresh Forex at Kottayam
to SANGVI STEEL at Chennai, that this
amounts you received from the staff
Preetha at Suresh Forex as per the
instructions of Suresh Babu; that Hyder
34 indicates the amount of Rs 34 lakhs
worth of foreign currency he exchanged
from Chennai; that this foreign currency
was given by you; that Siraj 24 means the
value of the foreign currency exchanged by
Siraj from Chennai.
vii. Another statement of you i.e. Shaji A.K.
was recorded on 17.07.2023, wherein you,
inter-alia, stated as under:
Answer 1: I heard the voice calls in above
said Hash value marked as CD-36. The
voice in this call which belongs to Suresh
Babu and myself. The first number in call
details which was the mobile number of
Suresh Babu and this number belongs to
me.
Answer 2 : I heard the voice calls in above
said Hash value marked as CD-37. The
voice in this call which belongs to Suresh
Babu and myself. The first number in call29
details which was the mobile number of
Suresh Babu and this number belongs to
me.
Answer 3: I heard the voice calls in above
said Hash value marked as CD-38. The
voice in this call which belongs to Suresh
Babu and myself. The first number in call
details which was the mobile number of
Suresh Babu and this number belongs to
me.
Answer 4 : I heard the voice calls in above
said Hash value marked as CD-32. The
voice in this call which belongs to Suresh
Babu and myself. The first number in call
details which was the mobile number of
Suresh Babu and this number belongs to
me.
Question 5 : To whom you are selling the
illegal foreign currency received from
Kerala other than Khader from Chennai
you mentioned in your previous
statement?
Answer 5 : I sell the collected illegal foreign
currency from Kerala to a person named
Manikannan from Thrishnapalli in Tamil
Nadu other the Khader in Chennai.
Question 6 : Do you have any authorized
license or permit or acknowledgement to
carry foreign currency exchange business?
Answer 6 : I don’t have any authorized
license, permit, acknowledgement to carry
foreign currency exchange business.
30
viii. Further Shri Shaji A.K. @ Payasam Shaji
i.e. you have disclosed the names of other
carriers i.e. (i) Hyder Shaji (your son) (ii)
Shri Anas from Erattupetta, (iii) Shri Siraj
from Erattupetta. You further disclosed
that they used to go Chennai on your
directions with unaccounted foreign
currencies where they handed over the
currency to the Chennai based racketeers
and in exchange of foreign currency, they
receive Indian currency. All these
transactions are unaccounted as per your
admission and the records were disposed
of once the transactions were completed.
The entire illegal transactions to the tune
of Rs 25 Crores were carried out by Shri
Shaji A.K. @ Payasam Shaji i.e. you with
the help of your close relatives and friends.
ix. Thus, Shri Appisseril Kochu Muhammed
Shaji @ Payasam Shaji i.e. you have
indulged yourself in hawala dealings,
illegal purchase, sale and carriage of
foreign currencies.
x. Chapter II of Foreign Exchange
Management Act, 1999 provides for
“Regulation and Management of Foreign
Exchange”. Section 3 of Foreign Exchange
Management Act, 1999, specifically
prohibits dealing in foreign exchange
without the general or special permission
of the Reserve Bank of India. It reads thus:
“3 Dealing in foreign exchange, etc. Save
as otherwise provided in this Act, rules or
regulations made there under, or with the
general or special permission of the
Reserve Bank, no person shall-(a) deal in31
or transfer any foreign exchange or foreign
security to any person not being an
authorized person;
(b) make any payment to or for the credit
of any person resident outside India in any
manner;
(c) receive otherwise through an
authorized person, any payment by order
or on behalf of any person resident outside
India in any manner.
Explanation- For the purpose of this
clause, where any person in, or resident
in, India receives any payment by order or
on behalf of any person resident outside
India through any other person (including
an authorized person) without a
corresponding inward remittance from any
place outside India, then, such person
shall be deemed to have received such
payment otherwise than through an
authorized person;
(d) enter into any financial transaction in
India as consideration for or in association
with acquisition or creation or transfer of
a right to acquire, any asset outside India
by any person
Explanation- For the purpose of this
clause “financial transaction” means
making any payment to, or for the credit of
any person, or receiving any payment for,
by order or on behalf of any person, or
drawing, issuing or negotiating any bill of
exchange or promissory note, or
transferring any security or acknowledging
32
any debt. 4 Holding of foreign exchange,
etc. -Save as otherwise provided in this
Act, no person resident in India shall
acquire, hold, own, possess or transfer any
foreign exchange, foreign security or any
immovable property situated outside
India.”
xi. Further, Section 4 of Foreign Exchange
Management Act, 1999, specifically
provides that no person resident in India
shall acquire, hold, own or possess or
transfer any foreign exchange, foreign
security or any immovable property
situated outside India, except as otherwise
provided under the Act. For the
contravention of the Act, rules and
regulations, penalty is provided under
Section 13 of the Act. This would mean
that dealing in foreign exchange de hors
the statutory provisions, rules and
regulations would be illegal. For violation
of foreign exchange regulations, penalty
can believe (sic) and such activity is
certainly an illegal activity, which is
prejudicial to conservation or
augmentation of foreign exchange.
xii. Shri Appisseril Kochu Muhammed Shaji @
Payasam Shaji i.e. you have indulged
yourself in hawala dealings, purchase and
sale of foreign currencies from retail
customers without raising any invoice and
has generated unaccounted income in
Indian rupees and foreign currencies to
the tune of Rs 25 crores. Thus, you have
contravened the Section 3 and Section 4 of
Foreign Exchange Management Act, 1999
and indulged in the act prejudicial to the
33
conservation or augmentation of foreign
exchange.
2. In view of the foregoing, I have no
hesitation in arriving at the conclusion that
you have been engaging yourself in
activities, which have adversely affected
the augmentation of foreign exchange
resources of the country. Considering the
nature and gravity of the activities, your role
therein and the well-laid out manner in which
you have been indulging in such prejudicial
activities, all of which reflect your high
potentiality and propensity of engaging yourself
in such prejudicial activities in future, I am
satisfied that unless detained, you are likely to
continue to engage in the aforesaid prejudicial
activities in future also. Therefore, it is
necessary to detain you under the Conservation
of Foreign Exchange and Prevention of
Smuggling Activities Act, 1974 with a view to
prevent you in future from acting in any manner
which is prejudicial to the augmentation of
foreign exchange.”
[emphasis supplied]
36. It could thus be seen that 8 factual aspects have been taken
into consideration by the Detaining Authority while arriving at
its subjective satisfaction that the detenu has been engaging
himself in activities which have adversely affected the
augmentation of foreign exchange resources of the country.
37. A perusal of the narration at clauses (iv) and (v) would reveal
34
that the said clauses refer to the statements of Preetha Pradeep
recorded on 5th July 2023 and 6th July 2023. In the said
statements, she has stated that Shaji’s person will come to the
shop and that they will pay him the required currency which will
be collected from Suresh sir’s house through Binu. She has
further stated that mostly the same person will come; that’s why
she can recognize him. She has further stated that, without any
doubt, they will pay the cash and that Suresh sir will arrange
everything. She has stated that mostly she or Binu will receive
the amount brought by Shaji. She has further stated that M/s
Suresh Forex Services Pvt. Ltd. receives INRs minimum 2 times
in a month from Mr. Shaji and that each transaction contains
approximately Rs.20 Lakhs to Rs. 30 Lakhs. She further stated
that in return to that Suresh will give one packet and direct her
to handover the same to the representative of Mr. Shaji.
38. It could thus be seen that apart from the above two
statements of Preetha Pradeep dated 5th July 2023 and 6th July
2023, the Detaining Authority has taken into consideration one
statement of Suresh Babu recorded on 7th July 2023; three
statements of the detenu recorded on 20th June 2023, 11th July
35
2023 and 17th July 2023; and two other factual aspects
respectively.
39. It could thus also be seen that the said Preetha Pradeep is
a vital link for transactions between the said Suresh Babu and
the detenu. 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 31 st August 2023,
formed the basis for arriving at a subjective satisfaction by the
Detaining Authority. It is difficult to determine as to whether in
the absence of the said statements of Preetha Pradeep the
subjective satisfaction arrived at by the Detaining Authority
could have been arrived at or not. However, the very recording
of the factum of the statements of Preetha Pradeep make them a
relevant aspect taken into consideration by the Detaining
Authority for arriving at its subjective satisfaction.
40. Insofar as the reliance placed by the learned Senior Counsel
appearing for the respondents on the provisions of section 5A of
the COFEPOSA is concerned, no doubt that if the detention order
36
is made on several grounds and if the said order is vitiated on
one of the grounds and it can be sustained on the other grounds,
the detention would not be vitiated. However, a distinction will
have to be drawn between the detention order passed on various
grounds and the detention order passed on one ground relying
on various materials. If the detention order is passed on one
ground taking into consideration 8 factual aspects, the question
would be as to whether non-supply of the material containing the
factual aspects relied on by the Detaining Authority would vitiate
the detention order or not. The question, therefore, for our
consideration is as to whether though the grounds of detention
could be severed, whether the materials which have been relied
on by the Detaining Authority for arriving at its subjective
satisfaction could also be severed.
41. 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.
37
42. 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.
43. In this respect, we may gainfully refer to the following
observation of this Court in the case of A. Sowkath Ali (supra):
“27. …Section 5-A applies where the detention
is based on more than one ground, not where it
is based on a single ground. Same is also the
decision of this Court in the unreported decision
of Prem Prakash v. Union of India [ Crl. A. No.
170 of 1996 dated 7-10-1996 (see below at p.
163)] decided on 7-10-1996 relying on K.
Satyanarayan Subudhi v. Union of India [1991
Supp (2) SCC 153 : 1991 SCC (Cri) 1013].
Coming back to the present case we find really
it is a case of one composite ground. The
different numbers of the ground of detention
are only paragraphs narrating the facts
with the details of the document which is
being relied on but factually, the detention
order is based on one ground, which is
revealed by Ground (1)(xvi) of the grounds of
38
detention which we have already quoted
hereinbefore. Thus on the facts of this case
Section 5-A has no application in the
present case”.
[emphasis supplied]
44. 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.
(b) As to 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.
45. It is undisputed position that the detenu has submitted his
representation on 27th September 2023 to the Jail Authorities for
onward transmission of the same to the Detaining Authority and
the Central Government.
46. It will be relevant to refer to certain averments made in the
counter affidavit filed on behalf of respondents Nos. 1 and 2,
which would show that how the representation of the detenu was
dealt with.
“The contents of the ground C taken in the
39
instant petition are incorrect and denied. It is
submitted that the office of Director General
(DG), CEIB never received any representation
from or on behalf of the detenu/the husband of
the petitioner. However, after receipt of this
petition, the office of the jail authorities was
contacted. The jail authorities informed that
three representations dated 27.09.2023
addressed to the Joint Secretary (COFEPOSA),
Director General, CEIB and the Chairman,
COFEPOSA Advisory Board were submitted by
the detenu/the husband of the petitioner. The
jail authorities sent the said representations to
the concerned authorities through Ordinary
Post. However, neither the Joint Secretary
(COFEPOSA) nor the Director General, CEIB
received the said representations. Since the
said representations were sent by the ordinary
post, they cannot be tracked to know where the
said ordinary posts have stuck. Hence the
question of non-disposal of the representations
by the concerned authorities do not arise.”
47. It is thus clear that the detenu had made representations
on 27th September 2023, addressed to the Detaining Authority,
Central Government and the Advisory Board. The Jail
Authorities had merely forwarded the said representations
through ordinary post. The said representations neither reached
the Detaining Authority nor the Central Government. The
perusal of the statements made in the counter affidavit would
clearly show that since the said representations were sent by
40
ordinary post, they also could not be tracked. It is further stated
in the counter affidavit that after the notice was issued by this
Court in the present matter, the ground with regard to non-
disposal of the representations of the detenu came to the notice
of the concerned Authorities. As such, the representations were
sought from the Jail Authorities through email. After receiving
the same from the Jail Authorities, the same were placed before
the concerned authorities, which were rejected on 11th June
2024 and 12th June 2024 respectively. It is further averred in
the counter affidavit that the Memoranda dated 12th June 2024
to that effect were sent to the detenu/the husband of the
appellant.
48. It is thus clear that the representations dated 27th
September 2023 of the detenu was rejected by the Detaining
Authority and the Central Government on 11th June 2024 and
12th June 2024 respectively i.e. after a period of almost 9 months
from the date of making the same.
49. In this respect, it will be apposite to refer to the observation
of this Court in the case of Tara Chand vs. State of Rajasthan
41
and others22 wherein this Court was considering the delay of
one month and five days in communicating the representation of
the detenu from the jail to the detaining authority. This Court
observed that:
“9. In spite of these evasive answers contained
in para 21, it is clear that the representation
dated February 23, 1980 of the detenu made by
him through the jail authorities reached the
detaining authority only on March 27, 1980. It
was substantially in the same terms as the
representation addressed to the Central
Government for revocation of the detention
under Section 11. This delay of one month
and five days in communicating the
representation of the detenu from the jail to
the detaining authority demonstrates the
gross negligence and extreme callousness
with which the representation made by the
detenu was dealt with by the respondents or
their agents. Even after this huge delay, the
representation was sent to the Collector for
comments, and no intimation has been sent to
the detenu about the fate of his representation
dated February 23, 1980, addressed to the
detaining authority. In fact, as it appears from
the counter, the detaining authority refused to
consider the same merely because the detenu
had requested that this representation be
forwarded to the Advisory Board, also. The
mere fact that the meeting of the Advisory
Board had been held earlier was not a valid
excuse for the detaining authority in not22 (1981) 1 SCC 416
42
considering the representation of the
detenu at all.
10. It is well settled that in case of
preventive detention of a citizen, Article
22(5) of the Constitution enjoins that the
obligation of the appropriate Government or
of the detaining authority to afford the
detenu the earliest opportunity to make a
representation and to consider that
representation speedily is distinct from the
Government’s obligation to constitute a
Board and to communicate the
representation, amongst other materials, to
the Board to enable it to form its opinion and
to obtain such opinion. In the instant case,
there has been a breach of these
constitutional imperatives.”
[emphasis supplied]
50. This Court in unequivocal terms held that the delay of one
month and five days in communicating the representation of the
detenu from the jail to the detaining authority demonstrates the
gross negligence and extreme callousness with which the
representation made by the detenu was dealt with by the
respondents or their agents. It has been further held that Article
22(5) of the Constitution enjoins that the obligation of the
appropriate Government or of the detaining authority to afford
the detenu the earliest opportunity to make a representation and
to consider that representation speedily is distinct from the
43
Government’s obligation to constitute a Board and to
communicate the representation, amongst other materials, to the
Board to enable it to form its opinion and to obtain such opinion.
51. It is thus clear that merely because the Advisory Board
opined that the order of detention was sustainable, it does not
absolve the agents of the Detaining Authority/the Central
Government to immediately forward the representation to the
Competent Authority and the Detaining Authority or the Central
Government to consider and decide such a representation
speedily.
52. In the case of Rattan Singh vs. State of Punjab and
others (supra), this Court found that the representation of the
detenu made to the State Government was decided expeditiously.
However, insofar as the said representation made to the Central
Government is concerned, either it was not forwarded or
someone tripped somewhere. The inevitable result was that the
detenu was deprived of a valuable right to defend and assert his
fundamental right to personal liberty. Chief Justice Y.V.
Chandrachud, speaking for the Bench, observed thus:
“4. There is no difficulty insofar as the
44
representation to the Government of Punjab is
concerned. But the unfortunate lapse on the
part of the authorities is that they overlooked
totally the representation made by the detenu to
the Central Government. The representations to
the State Government and the Central
Government were made by the detenu
simultaneously through the Jail
Superintendent. The Superintendent should
either have forwarded the representations
separately to the Governments concerned or
else he should have forwarded them to the State
Government with a request for the onward
transmission of the other representation to the
Central Government. Someone tripped
somewhere and the representation addressed to
the Central Government was apparently never
forwarded to it, with the inevitable result that
the detenu has been unaccountably deprived of
a valuable right to defend and assert his
fundamental right to personal liberty. Maybe
that the detenu is a smuggler whose tribe (and
how their numbers increase) deserves no
sympathy since its activities have paralysed the
Indian economy. But the laws of preventive
detention afford only a modicum of safeguards
to persons detained under them and if freedom
and liberty are to have any meaning in our
democratic set-up, it is essential that at least
those safeguards are not denied to the detenus.
Section 11(1) of COFEPOSA confers upon the
Central Government the power to revoke an
order of detention even if it is made by the State
Government or its officer. That power, in order
to be real and effective, must imply the right in
a detenu to make a representation to the
Central Government against the order of
detention. The failure in this case on the part
either of the Jail Superintendent or the State45
Government to forward the detenu’s
representation to the Central Government has
deprived the detenu of the valuable right to have
his detention revoked by that Government. The
continued detention of the detenu must
therefore be held illegal and the detenu set free.
5. In Tara Chand v. State of Rajasthan [(1980) 2
SCC 321 : 1980 SCC (Cri) 441] it was held by
this Court that even an inordinate delay on the
part of the Central Government in consideration
of the representation of a detenu would be in
violation of Article 22(5) of the Constitution,
thereby rendering the detention
unconstitutional. In Shyam Ambalal
Siroya v. Union of India [(1980) 2 SCC 346 :
1980 SCC (Cri) 447] this Court held that when
a properly addressed representation is made by
the detenu to the Central Government for
revocation of the order of detention, a statutory
duty is cast upon the Central Government
under Section 11, COFEPOSA to apply its mind
and either revoke the order of detention or
dismiss the petition and that a petition for
revocation of an order of detention should be
disposed of with reasonable expedition. Since
the representation was left unattended for four
months, the continued detention of the detenu
was held illegal. In our case, the representation
to the Central Government was not forwarded to
it at all.”
53. This Court observed that, maybe the detenu was a smuggler
whose tribe (and how their numbers increase) deserved no
sympathy since its activities had paralysed the Indian economy,
but the laws of preventive detention afforded only a modicum of
46
safeguards to persons detained under them. It has been
observed that it was essential that at least those safeguards are
not denied to the detenus. This Court observed that the failure
in that case either on the part of the Jail Superintendent or the
State Government to forward the detenu’s representation to the
Central Government had deprived the detenu of the valuable
right to have his detention revoked by that Government.
54. Relying on the earlier judgments, this Court held that since
the representation was left unattended for four months, the
continued detention of the detenu was illegal.
55. In the case of Vijay Kumar vs. State of Jammu &
Kashmir and others (supra), this Court observed thus:
“13. ….There are two time-lags which may be
noticed. Representation admittedly handed in to
the Superintendent of Jail on July 29, 1981, at
Jammu reached Srinagar, the summer capital
of the State on August 12, 1981, which shows a
time-lag of 14 days. The second time-lag is, from
our point of view, more glaring. Even though the
concerned office was made aware of the fact by
the wireless message of the Superintendent of
Jail, Jammu, dated July 29, 1981, that a
representation of the detenu has been sent by
post, the first query about its non-receipt came
as per the wireless message dated August 6,
1981. That can be overlooked, but it has one
important message. The concerned office was47
aware of the fact that a representation has
already been made and a duplicate was sent for.
With the background of this knowledge trace
the movement of the representation from the
date of its admitted receipt being August 12,
1981. If the representation was received on
August 12, 1981, and the same office disposed
it of on August 31, 1981, there has been a time-
lag of 19 days and the explanation in that behalf
in the affidavit of Shri Salathia is far from
convincing. In our opinion, in the facts of this
case this delay, apart from being inordinate, is
not explained on any convincing grounds.”
56. This Court found that the delay of 14 days in transmitting
the representation from Jammu to Srinagar and 19 days in
deciding the same vitiated the detention order.
57. In the case of Aslam Ahmed Zahire Ahmed Shaik vs.
Union of India and others (supra), this Court was again
considering a similar factual scenario. The detenu had handed
over the representation to the Superintendent of Central Prison
on 16th June 1988, who callously ignored it and left the same
unattended for a period of seven days and forwarded the same to
the Government on 22nd June 1988. This Court surveyed the
earlier decisions and observed thus:
“5. This Court in Sk. Abdul Karim v. State of
W.B. [(1969) 1 SCC 433] held: (SCC p. 439, para
8)
48
“The right of representation under
Article 22(5) is a valuable
constitutional right and is not a mere
formality.”
6. This view was reiterated in Rashid
Sk. v. State of W.B. [(1973) 3 SCC 476 : 1973
SCC (Cri) 376] while dealing with the
constitutional requirement of expeditious
consideration of the petitioner’s representation
by the Government as spelt out from Article
22(5) of the Constitution observing thus: (SCC
p. 478, para 4)“The ultimate objective of this
provision can only be the most
speedy consideration of his
representation by the authorities
concerned, for, without its
expeditious consideration with a
sense of urgency the basic purpose of
affording earliest opportunity of
making the representation is likely to
be defeated. This right to represent
and to have the representation
considered at the earliest flows from
the constitutional guarantee of the
right to personal liberty — the right
which is highly cherished in our
Republic and its protection against
arbitrary and unlawful invasion.”
7. It is neither possible nor advisable to lay
down any rigid period of time uniformly
applicable to all cases within which period the
representation of detenu has to be disposed of
with reasonable expedition but it must
necessarily depend on the facts and49
circumstances of each case. The expression
“reasonable expedition” is explained in Sabir
Ahmed v. Union of India [(1980) 3 SCC 295 :
1980 SCC (Cri) 675] as follows: (SCC p. 299,
para 12)
“What is ‘reasonable expedition’ is a
question depending on the
circumstances of the particular case.
No hard and fast rule as to the
measure of reasonable time can be
laid down. But it certainly does not
cover the delay due to negligence,
callous inaction, avoidable red-
tapism and unduly protracted
procrastination.”
8. See also Vijay Kumar v. State of J&K [(1982)
2 SCC 43 : 1982 SCC (Cri) 348]
and Raisuddin v. State of U.P. [(1983) 4 SCC
537 : 1984 SCC (Cri) 16] .
9. Thus when it is emphasised and re-
emphasised by a series of decisions of this Court
that a representation should be considered with
reasonable expedition, it is imperative on the
part of every authority, whether in merely
transmitting or dealing with it, to discharge that
obligation with all reasonable promptness and
diligence without giving room for any complaint
of remissness, indifference or avoidable delay
because the delay, caused by slackness on the
part of any authority, will ultimately result in
the delay of the disposal of the representation
which in turn may invalidate the order of
detention as having infringed the mandate of
Article 22(5) of the Constitution.
10. A contention similar to one pressed before
us was examined by this Court in Vijay Kumar
50
case [(1982) 2 SCC 43 : 1982 SCC (Cri) 348]
wherein the facts were that the representation
of the detenu therein dated 29-7-1981 was
forwarded to Government by the
Superintendent of Jail on the same day by post
followed by a wireless message, but according to
the Government, the representation was not
received by them. Thereafter, a duplicate copy
was sent by the Jail Superintendent on being
requested and the same was received by the
Government on 12-8-1981. Considering the
time lag of 14 days in the given circumstances
of that case, this Court though overlooked the
same and allowed the writ petition on the
subsequent time lag, made the following
observation: (SCC pp. 49-50, para 12)
“The jail authority is merely a
communicating channel because the
representation has to reach the
Government which enjoys the power
of revoking the detention order. The
intermediary authorities who are
communicating authorities have also
to move with an amount of
promptitude so that the statutory
guarantee of affording earliest
opportunity of making the
representation and the same
reaching the Government is
translated into action. The
corresponding obligation of the State
to consider the representation cannot
be whittled down by merely saying
that much time was lost in the
transit. If the Government enacts a
law like the present Act empowering
certain authorities to make the
detention order and also
simultaneously makes a statutory
51
provision of affording the earliest
opportunity to the detenu to make his
representation against his detention,
to the Government and not the
detaining authority, of necessity the
State Government must gear up its
own machinery to see that in these
cases the representation reaches the
Government as quickly as possible
and it is considered by the authorities
with equal promptitude. Any
slackness in this behalf not properly
explained would be denial of the
protection conferred by the statute
and would result in invalidation of
the order.”
11. Reverting to the instant case, we hold that
the above observation in Vijay Kumar
case [(1982) 2 SCC 43 : 1982 SCC (Cri) 348] will
squarely be applicable to the facts herein.
Indisputably the Superintendent of Central
Prison of Bombay to whom the representation
was handed over by the detenu on 16-6-1988
for mere onward transmission to the Central
Government has callously ignored and kept it in
cold storage unattended for a period of seven
days, and as a result of that, the representation
reached the Government eleven days after it was
handed over to the Jail Superintendent. Why
the representation was retained by the Jail
Superintendent has not at all been explained in
spite of the fact that this Court has permitted
the respondent to explain the delay in this
appeal, if not before the High Court.
12. In our view, the supine indifference,
slackness and callous attitude on the part of the
Jail Superintendent who had unreasonably
52
delayed in transmitting the representation as an
intermediary, had ultimately caused undue
delay in the disposal of the appellant’s
representation by the Government which
received the representation eleven days after it
was handed over to the Jail Superintendent by
the detenu. This avoidable and unexplained
delay has resulted in rendering the continued
detention of the appellant illegal and
constitutionally impermissible.”
58. It could thus be seen that this Court in unequivocal terms
held that the intermediary authorities who are communicating
authorities are also required to move with an amount of
promptitude so that the statutory guarantee of affording earliest
opportunity of making the representation and the same reaching
the Government is translated into action. This Court expressed
the need of the State Government to gear up its own machinery
to see that in these cases the representation reaches the
Government as quickly as possible and it is considered by the
authorities with equal promptitude. It has been held that any
slackness in this behalf not properly explained would be denial
of the protection conferred by the statute and would result in
invalidation of the order.
59. The position of law as laid down in the case of Aslam
53
Ahmed Zahire Ahmed Shaik (supra) was reiterated by a bench
of 3 learned Judges of this Court in the case of B. Alamelu vs.
State of T.N. and others (supra).
60. In the present case, it is an admitted position that though
the detenu had made a representation on 27th September 2023
to the Jail Authorities for onward transmission of the same to the
Detaining Authority and the Central Government, it is merely
stated in the counter affidavit that the Jail Authorities informed
that the representations dated 27th September 2023 were
submitted by the detenu. The Jail Authorities had sent the said
representations to the concerned authorities through ordinary
post. It is stated that however, neither the Detaining Authority
nor the Central Government received the said representations. It
is further stated that the said representations were sent by the
ordinary post and since the said representations were sent by
ordinary post, they could not be tracked to know where the said
ordinary posts have stuck. It is further averred that only after a
notice was issued in the present matter, the said representations
were sought from the Jail Authorities and the same came to be
rejected on 11th June 2024 and 12th June 2024 respectively.
54
61. Memoranda dated 12th June 2024 further show that the
Director General, CEIB being the Central Government received
the representation of the detenu through Superintendent,
Central Prison & Correctional Home, TVPM-12 vide his letter
dated 11th May 2024 and the representation was received by the
Detaining Authority through email on 22nd May 2024. However,
there is no mention in the counter affidavit as to when the said
representations were in fact received by the Central Government
and the Detaining Authority. Presumably, if it is held that the
representation would have been received by the Central
Government within 2 or 3 days from the date of dispatch thereof
that will bring the date of receipt on 14/15th May 2024.
62. Even if it is presumed that the said representations were
received on 15th May 2024 and 22nd May 2024 respectively, even
then there is a delay of about 27 days in deciding the said
representation by the Central Government and 20 days by the
Detaining Authority.
63. No explanation as to what caused such a delay in deciding
the said representations of the detenu is offered in the counter
affidavit.
55
64. Firstly, 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.
65. 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.
66. 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.
56
67. The 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.
68. We are of the considered view that 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.
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
57
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
58
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
59
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.
…………………………J
(B.R. GAVAI)
…………………………………….J
(PRASHANT KUMAR MISHRA)
…………………………………….J
(K.V. VISWANATHAN)
NEW DELHI;
SEPTEMBER 12, 2024.
60