Supreme Court Held That Non-Supply of Documents Vitiated the Right of The Detenus to Make an Effective Representation

In deciding the appeal assailing against the order of the High Court of Kerala whereby, the division bench has affirmed the detention order dated 24th August 2021 issued against the detenue (one Abdul Raoof) U/s 3 of The Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, 1974 (“COFEPOSA”)., The Supreme Court has set aside the detention order against the Appellant noting that the Division Bench has faulted in its decision while not heeding the pronouncement held by a Coordinate Bench of the same High Court in the connected matter, Nushath Koyamu vs. Union of India and others., whereby, the bench has held the detention of the co-accused stating it to be bad in law as necessary documents were not provided to the detenus thereby, vitiated his right to make an effective representation.

Background:
On 20 April 2021, contraband gold worth Rs. 7,16,16,768 was seized from a refrigerator compressor. Co-accused confessed that the detenue (Appellant herein), based in Dubai, was involved in smuggling gold hidden in such cargo. On 24 August 2021, detention orders under COFEPOSA were issued for the detenue’s associates, who later challenged their detention in the Kerala High Court.

It is the case of the detenue that he had repeatedly requested information about his detention order but was served the grounds of detention on 7 March 2022 post his arrest on 5th March 2022. He then sought additional documents, including audio recordings of WhatsApp messages, but his request was rejected by the Joint Secretary and his order of detention was confirmed by the authorities.

The Supreme Court placing reliance on Aatma Ram Vaidya v. State of Bombay, AIR 1951 SC 157., observed and quoted para12 "..In our opinion, it is therefore clear that while there is a connection between the obligation on the part of the detaining authority to furnish grounds and the right given to the detained person to have an earliest opportunity to make the representation, the test to be applied in respect of the contents of the grounds for the two purposes is quite different. As already pointed out, for the first, the test is whether it is sufficient to satisfy the authority. For the second, the test is, whether it is sufficient to enable the detained person to make the representation at the earliest opportunity"
and court continued quoting para13 "...On an infringement of either of these two rights the detained person has a right to approach the court and complain that there has been an infringement of his fundamental right and even if the infringement of the second part of the right under Article 22 (5) is established he is bound to be released by the court"..

The Apex Court has observed that the Coordinate Bench of the same High Court holding in the connected matter Nushath (supra) that the detention of the co-detenus was vitiated on account of non-supply of WhatsApp chats following which the detention order came to be quashed on the said ground. The Supreme Court placing reliance on the observation of the Coordinate bench in Nushath (supra) observed that the detenue requested WhatsApp chat records however, the same was not served in due course, but the High Court has upheld the detaining authority's decision, backed by the reasoning that the decision of the authorities was based on other documents, is valid despite not providing these chats.

The Apex court has noted that the Division Bench has erred in its decision stating that if the Division Bench of the High Court believed that the earlier decision by a Coordinate Bench was legally incorrect then it should have referred the matter to a larger Bench for review. Thus, holding a view that “When the Coordinate Bench of the same High Court based on same grounds of detention and on the basis of the same material, which was relied on by the detaining authority, had come to a considered conclusion that non-supply of certain documents had vitiated the right to make an effective representation of the detenus, another Coordinate Bench could not have ignored the same.”

Coram: Justice B.R. Gavai, Justice Prashant Kumar Mishra, Justice K.V. Viswanathan.
Case: Shabna Abdulla V. The Union of India & Ors.
Criminal Appeal No. 3082 Of 2024.
DOJ: 20.08.2024.