In a significant ruling, the Supreme Court of India quashed a detention order under COFEPOSA due to the non-supply of vital witness statements and inordinate delays in addressing the detenu's representation, underscoring the paramount importance of procedural safeguards in preventive detention cases.

In the case of Jaseela Shaji vs Union of India, the petitioner, in a habeas corpus petition to the Supreme Court of India, challenged the detention of her husband, Appisseril Kochu Mohammed Shaji (the detenu). The detention order was passed by the Joint Secretary (COFEPOSA), COFEPOSA Unit, Central Economic Intelligence Bureau, Department of Revenue, Ministry of Revenue, Government of India (Detaining Authority) under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA). The detention order alleged that the detenu was involved in activities prejudicial to the augmentation of foreign exchange.

Background: The detenu was accused of engaging in hawala dealings, illegal purchase, sale, and carriage of foreign currencies in violation of the Foreign Exchange Management Act, 1999 (FEMA). The Detaining Authority relied on several pieces of evidence, including statements from the detenu, Suresh Babu (an alleged associate), Preetha Pradeep (an employee of Suresh Babu), WhatsApp chats, voice calls, images recovered from the detenu’s mobile phone, and ‘paper slips’ allegedly recovered from the detenu. Based on this evidence, the Detaining Authority issued a detention order on 31st August 2023, leading to the detenu’s arrest and detention.

Observations made:
The Supreme Court observed that while it is not mandatory to provide copies of every document mentioned in a detention order, it is imperative to furnish copies of all documents relied upon by the Detaining Authority in reaching its subjective satisfaction, particularly if such documents are crucial for the detenu to mount an effective defense. In this specific case, the Court determined that the statements made by Ms. Preetha Pradeep, detailing financial transactions potentially involving the detenu, were not merely casual references but constituted vital evidence considered by the Detaining Authority. The non-supply of these statements to the detenu, therefore, hampered his ability to effectively represent himself. Additionally, the Court expressed strong disapproval of the casual approach exhibited by the Prison Authorities in handling the detenu’s representations, highlighting that such laxity could potentially infringe upon the valuable right to a speedy trial.

Now the question arises, whether the non-supply of Ms. Preetha Pradeep's statements to the detenu violated his right to make an effective representation under Article 22(5) of the Constitution of India? The Court found this to be a violation.
Whether the delay in deciding the representation by the Detaining Authority and the Central Government violated the detenu's right under Article 22(5) of the Constitution? The Court also found this to be a violation.

The Court held that the Detaining Authority's failure to provide the detenu with Preetha Pradeep's statements violated the detenu's right to an effective representation under Article 22(5) of the Constitution of India. The Court deemed the statements to be material evidence that the Detaining Authority relied upon to reach its subjective satisfaction, and their non-supply hampered the detenu's ability to present his case.

The Court also found that the delay in addressing the detenu's representations violated his rights under Article 22(5) of the Constitution. The Court found the delay, caused by a lack of promptness and diligence on the part of the Jail Authorities and the Central Government, to be unacceptable. The Court emphasized that the "valuable right" of detainees to have their representations decided expeditiously cannot be casually disregarded.

In summary, the Supreme Court found that the detention was flawed due to the Detaining Authority's failure to adhere to procedural safeguards, specifically regarding the provision of crucial evidence and the timely processing of representations. The Court's decision highlights the paramount importance of these safeguards in ensuring fairness and due process in preventive detention cases.

Croam:Justices B.R. GAVAI, Justice PRASHANT KUMAR MISHRA, and Justice K.V. VISWANATHAN.
Between:Jaseela Shaji vs Union of India Date of Judgment: 12-09-2024