# Jaseela Shaji v. The Union of India & Ors

- **Citation:** 2024 INSC 683
- **Court:** Supreme Court of India
- **Decided:** 2024-09-12
- **Case number:** Criminal Appeal No. 3083 of 2024
- **Bench:** B.R. Gavai, Prashant Kumar Mishra, K.V. Viswanathan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/jaseela-shaji-v-the-union-of-india-ors-37962
- **Pages:** 41

## Headnote

Issue arose as to whether the non-supply of the statement of the
person stating about the detenu's dealing in foreign exchange
to the detenu, has affected the right of the detenu to make an
effective representation u/Art. 22(5); and whether non-receipt of
the representation and the delay in deciding the representation by
the Detaining Authority and the Central Government would affect
the right of detenu u/Art.22(5) of the Constitution.
Headnotes†
Constitution of India - Art. 22(5) - Protection against arrest
and detention - Right of the detenu to make an effective
representation - Detention order u/s. 3(1) of the COFEPOSA
directing detention of the detenu to prevent him from acting
in any manner prejudicial to the augmentation of foreign
exchange in future - Non-supply of the statement of the
person stating about the detenu's dealing in foreign exchange,
to the detenu - Also, non-receipt of the representation and
the delay in deciding the representation by the Detaining
Authority and the Central Government - Effect of, on right
of the detenu u/Art. 22(5):
Held: Though it may not be necessary to furnish copies of each
and every document to which a casual or passing reference has
been made by the Detaining Authority in making the order of
detention, 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 u/Art.
22(5) has to be supplied to the detenu - Failure to furnish copies
* Author
314
[2024] 9 S.C.R.
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of such documents as relied on by the Detaining Authority would
amount to violation of the fundamental right guaranteed u/Art.
22(5) - Eight factual aspects were taken into consideration by
the Detaining Authority while arriving at its subjective satisfaction
that the detenu has been engaging himself in activities which
adversely affected the augmentation of foreign exchange
resources of the country - Statement of the said person is a vital
link for transactions involving the detenu - It cannot be said that
the statements of the said person are just a casual or a passing
reference, on the contrary, they formed the basis for arriving at
a subjective satisfaction by the Detaining Authority - 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 - Non-supply of the
statements of the said person affected the right of the detenu to
make an effective representation u/Art. 22(5) and as such, the
detention is vitiated on the said ground - As regards, non-receipt
of the representation and delay in deciding the representation
by the Detaining Authority and the Central Government, 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 was about nine months' delay in
deciding the representation - Even otherwise, 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 -
No explanation as to what caused such a delay in deciding the
said representations - On mere casual or callous and, negligent
approach on the part of the Jail Authorities in communicating
the representation of the detenu, the valuable right available to
detenu to have his representation decided expeditiously cannot
be denied - Prison Authorities to ensure that the representations
are sent to Com

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[2024] 9 S.C.R. 313 : 2024 INSC 683
Jaseela Shaji
v.
The Union of India & Ors.
(Criminal Appeal No. 3083 of 2024)
12 September 2024
[B.R. Gavai,* Prashant Kumar Mishra and
K.V. Viswanathan, JJ.]
Issue for Consideration
Issue arose as to whether the non-supply of the statement of the
person stating about the detenu's dealing in foreign exchange
to the detenu, has affected the right of the detenu to make an
effective representation u/Art. 22(5); and whether non-receipt of
the representation and the delay in deciding the representation by
the Detaining Authority and the Central Government would affect
the right of detenu u/Art.22(5) of the Constitution.
Headnotes†
Constitution of India - Art. 22(5) - Protection against arrest
and detention - Right of the detenu to make an effective
representation - Detention order u/s. 3(1) of the COFEPOSA
directing detention of the detenu to prevent him from acting
in any manner prejudicial to the augmentation of foreign
exchange in future - Non-supply of the statement of the
person stating about the detenu's dealing in foreign exchange,
to the detenu - Also, non-receipt of the representation and
the delay in deciding the representation by the Detaining
Authority and the Central Government - Effect of, on right
of the detenu u/Art. 22(5):
Held: Though it may not be necessary to furnish copies of each
and every document to which a casual or passing reference has
been made by the Detaining Authority in making the order of
detention, 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 u/Art.
22(5) has to be supplied to the detenu - Failure to furnish copies
* Author
314
[2024] 9 S.C.R.
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of such documents as relied on by the Detaining Authority would
amount to violation of the fundamental right guaranteed u/Art.
22(5) - Eight factual aspects were taken into consideration by
the Detaining Authority while arriving at its subjective satisfaction
that the detenu has been engaging himself in activities which
adversely affected the augmentation of foreign exchange
resources of the country - Statement of the said person is a vital
link for transactions involving the detenu - It cannot be said that
the statements of the said person are just a casual or a passing
reference, on the contrary, they formed the basis for arriving at
a subjective satisfaction by the Detaining Authority - 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 - Non-supply of the
statements of the said person affected the right of the detenu to
make an effective representation u/Art. 22(5) and as such, the
detention is vitiated on the said ground - As regards, non-receipt
of the representation and delay in deciding the representation
by the Detaining Authority and the Central Government, 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 was about nine months' delay in
deciding the representation - Even otherwise, 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 -
No explanation as to what caused such a delay in deciding the
said representations - On mere casual or callous and, negligent
approach on the part of the Jail Authorities in communicating
the representation of the detenu, the valuable right available to
detenu to have his representation decided expeditiously cannot
be denied - Prison Authorities to ensure that the representations
are sent to Competent Authorities immediately after the receipt
thereof - In the present era of technological development,
the representation can be sent through email within a day -
[2024] 9 S.C.R.
315
Jaseela Shaji v. The Union of India & Ors.
Competent Authority to decide the representation with utmost
expedition so that the valuable right guaranteed to detenu u/
Art. 22(5) is not denied - Thus, detention order liable to be
quashed and set aside - Judgment and order of the High Court
quashed and set aside - Conservation of Foreign Exchange
and Prevention of Smuggling Activities Act, 1974 - S.3(1).
[Paras 25, 33, 36, 39, 40, 42, 44, 58, 63, 68-72].
Constitution of India - Art. 22(5) - Protection against arrest
and detention - Importance of personal liberty and individual
freedom:
Held: 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 - 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 - 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 is required in order to comply with the mandate of Art. 22
(5), irrespective of whether the detenu had knowledge of such
material or not. [Para 32]
Judicial deprecation - Detention order - Prompt transmission
of the representation of the detenu to the Authorities
concerned - Breach of:
Held: Practice of the Prison authorities in dealing with the valuable
right of the detenu in such a casual manner is deprecated -
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 - On facts, the law laid down by this Court has been
given a go-bye - Though the Jail Authorities 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 - Jail Authorities ought to have ensured that
the representation of the detenu reaches the concerned Authorities
at the earliest. [Paras 65-67]
316
[2024] 9 S.C.R.
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Case Law Cited
Ameena Begum v. State of Telangana and others [2023] 11 SCR
958 : (2023) 9 SCC 587; M. Ahamedkutty v. Union of India and
another [1990] 1 SCR 209 : (1990) 2 SCC 1; Radhakrishnan
Prabhakaran v. State of T.N. and others (2000) 9 SCC 170; J. Abdul
Hakeem v. State of T.N. and others (2005) 7 SCC 70; State of
Tamil Nadu and another v. Abdullah Kadher Batcha and another
[2008] 15 SCR 1099 : (2009) 1 SCC 333; Union of India v. Ranu
Bhandari [2008] 13 SCR 582 : (2008) 17 SCC 348; Tara Chand
v. State of Rajasthan and others (1981) 1 SCC 416; Rattan Singh
v. State of Punjab and others [1982] 1 SCR 1010 : (1981) 4 SCC
481; Vijay Kumar v. State of Jammu & Kashmir and others [1982] 3
SCR 522 : (1982) 2 SCC 43; Aslam Ahmed Zahire Ahmed Shaik v.
Union of India and others [1989] 2 SCR 415 : (1989) 3 SCC 277;
B. Alamelu v. State of T.N. and others (1995) 1 SCC 306; Vakil
Singh v. The State of J & K and another (1975) 3 SCC 545; A.
Sowkath Ali v. Union of India and others [2000] Supp. 2 SCR 48 :
(2000) 7 SCC 148; L.M.S. Ummu Saleema v. B.B. Gujaral [1981]
3 SCR 647 : (1981) 3 SCC 317- referred to.
List of Acts
Constitution of India; Conservation of Foreign Exchange and
Prevention of Smuggling Activities Act, 1974.
List of Keywords
Right of the detenu to make an effective representation u/Art.
22(5); Non-receipt of the representation; Delay in deciding the
representation by Detaining Authority and Central Government;
Detention order; Augmentation of foreign exchange; Violation of the
fundamental right; Subjective satisfaction by Detaining Authority;
Casual, callous and negligent approach of Prison Authorities;
Technological development; Importance of personal liberty and
individual freedom; Judicial deprecation; Valuable right of detenu.
Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 3083
of 2024
From the Judgment and Order dated 04.03.2024 of the High Court
of Kerala at Ernakulam in WPCRL No. 1271 of 2023
[2024] 9 S.C.R.
317
Jaseela Shaji v. The Union of India & Ors.
Appearances for Parties
Shinoj K. Narayanan, Vishnu Pazhanganat, Abid Ali Beeran,
K. Rajeev, Ms. Niveditha R Menon, Pranav Krishna, Aditya Verma,
Tarun Kumar, Advs. for the Appellant.
Nachiketa Joshi, Sr. Adv., Gurmeet Singh Makker, Siddharth Sinha,
Santosh Kumar, Aditya Shankar Dixit, Mukesh Kumar Maroria, Advs.
for the Respondents.
Judgment / Order of the Supreme Court
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 2023,2 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 20233 passed under the provisions of the Conservation of
Foreign Exchange and Prevention of Smuggling Activities Act, 1974.4
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 31st 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
1
Hereinafter referred to as "detenu".
2
"habeas corpus petition"
3
Hereinafter referred to as "detention order"
4
Hereinafter referred to as "COFEPOSA"
5
Hereinafter referred to as "Detaining Authority"
318
[2024] 9 S.C.R.
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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:
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, 11th
July 2023 and 17th July 2023 under Section 37 of FEMA;
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.
6
Hereinafter referred to as "Central Government"
7
Hereinafter referred to as "Advisory Board"
[2024] 9 S.C.R.
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Jaseela Shaji v. The Union of India & Ors.
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
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 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
8
[2023] 11 SCR 958 : (2023) 9 SCC 587
320
[2024] 9 S.C.R.
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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
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 another;9
(ii) Radhakrishnan Prabhakaran vs. State of T.N. and others;10
(iii) J. Abdul Hakeem vs. State of T.N. and others11
(iv) State of Tamil Nadu and another vs. Abdullah Kadher Batcha
and another;12 and
(v) Union of India vs. Ranu Bhandari.13
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 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
9
[1990] 1 SCR 209 : (1990) 2 SCC 1
10
(2000) 9 SCC 170
11
(2005) 7 SCC 70
12
[2008] 15 SCR 1099 : (2009) 1 SCC 333
13
[2008] 13 SCR 582 : (2008) 17 SCC 348
[2024] 9 S.C.R.
321
Jaseela Shaji v. The Union of India & Ors.
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 others;14
(ii) Rattan Singh vs. State of Punjab and others;15
(iii) Vijay Kumar vs. State of Jammu & Kashmir and others;16
(iv) Aslam Ahmed Zahire Ahmed Shaik vs. Union of India and
others;17
(v) B. Alamelu vs. State of T.N. and others;18
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 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
14
(1981) 1 SCC 416
15
[1982] 1 SCR 1010 : (1981) 4 SCC 481
16
[1982] 3 SCR 522 : (1982) 2 SCC 43
17
[1989] 2 SCR 415 : (1989) 3 SCC 277
18
(1995) 1 SCC 306
322
[2024] 9 S.C.R.
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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 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
others.20
15. Shri Nachiketa Joshi further submits that it is not 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. Gujaral.21
19
(1975) 3 SCC 545
20
[2000] Supp. 2 SCR 48 : (2000) 7 SCC 148
21
[1981] 3 SCR 647 : (1981) 3 SCC 317
[2024] 9 S.C.R.
323
Jaseela Shaji v. The Union of India & Ors.
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
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:
"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
324
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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 : 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
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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) 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 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).
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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 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 Constitution of India.
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Jaseela Shaji v. The Union of India & Ors.
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 is 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
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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 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,
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Jaseela Shaji v. The Union of India & Ors.
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 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 that 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]
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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 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
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Jaseela Shaji v. The Union of India & Ors.
search, unaccounted Indian currency amounting
to Rs 6,70,100/-, unaccounted Gold in the 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.