SC: Must consider swiftly plea against preventive detention

NEW DELHI: Supreme Court on Thursday quashed the preventive detention of an alleged illegal forex dealer for a 27-day delay by central authorities in deciding his representation against incarceration and severely criticised Kerala prison authorities for callously sending his representation through ordinary post to the Centre.

A bench of Justices B R Gavai, P K Mishra and K V Viswanathan said delay in deciding the representation against preventive detention violated the detenue's fundamental right under Article 22(5) of the Constitution that mandated the detaining authority to expeditiously inform him about the grounds of arrest and "afford him the earliest opportunity of making a representation against the detention order".

Writing the judgment, Justice Gavai castigated the jail authorities for their negligent and callous attitude in sending the representation by snail mail, which was lost in transit, when in the era of lightning-fast communication, it could have been transmitted through email.

He also found that when a subsequent representation was placed before the central authorities concerned, it took them 27 days to reject the plea without explaining the reasons for the delay. "There is a delay of 27 days in deciding the detenu's representation by the central govt and 20 days by the detaining authority," SC said and quashed the detention order on this ground.

The man, A K Mohd Shaji, was put under preventive detention for a year from Sept 2, 2023, under Conservation of Foreign Exchange and Prevention of Smuggling Activities (Cofeposa) Act, 1974. Though the grounds of his arrest were communicated to him on Sept 6, 2023, his representation against detention was sent by prison authorities by post which never reached the central govt.

Analysing the rights of detenues, the bench deprecated the conduct of Thiruvananthapuram jail administration and said, "We find that the superintendent of the central prison and correctional home has acted in a thoroughly callous and casual manner. It is the duty of the transmitting authorities to send the representation of the detenue promptly. Though it is the corresponding duty of the detaining authority to consider the said representation and decide it swiftly, the same has been followed only in breach in the present matter."

Charging the jail authorities with failing in their duties, SC said, "In the present era of technological advancement, 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 (acknowledgement due) so there could have been some evidence of the said being sent to the competent authority and could have been tracked."


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