Summary
By majority, the Supreme Court quashed COFEPOSA detention orders because the specially empowered detaining officer deferred consideration of the detenues’ representations until the Advisory Board reported. The officer’s duty to consider representations independently and promptly differed from the appropriate Government’s role. Unexplained inaction from 27 November 2019 to 14 January 2020 violated the detenues’ constitutional rights. Hemant Gupta J dissented.
Issues
- Whether a specially empowered detaining officer could await the Advisory Board’s report before deciding a representation.
- Whether the delay in these cases violated Article 22(5).
Provisions considered
- Section 8, Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974The Board reports to the appropriate Government; confidentiality and the officer’s lack of a statutory role at that stage distinguish their functions. (¶¶ Lalit J: 21, Lalit J: 22, Lalit J: 23)
Held
- The specially empowered officer who makes a COFEPOSA detention order must independently consider a representation addressed to that officer. This safeguard is additional to consideration by the competent Government. (¶¶ Lalit J: 12, Lalit J: 25, Lalit J: 26)
- The rule in K.M. Abdulla Kunhi permitting the appropriate Government to await the Board’s report in specified situations does not govern a specially empowered detaining officer. The officer has no statutory function in considering the Board’s confidential report and must decide the representation with expedition. (¶¶ Lalit J: 18, Lalit J: 21, Lalit J: 22, Lalit J: 23, Lalit J: 24, Lalit J: 25, Lalit J: 27)
- Comments on the representations had already been received. Once custody resumed and was reported on 27 November 2019, awaiting the Board’s report supplied no valid explanation for the officer’s inaction until 14 January 2020. That inaction prejudiced the detenues and violated their constitutional rights. (¶¶ Lalit J: 26, Lalit J: 28)
- Hemant Gupta J dissented, considering the distinction between Government and specially empowered officers immaterial to the timing issue and deferral pending the Board’s consideration prudent and permissible in these circumstances. (¶¶ Gupta J: 15, Gupta J: 22, Gupta J: 23, Gupta J: 24)
Result
Writ petition allowed by majority; detention orders quashed and detenues directed to be released forthwith unless custody was required in other proceedings or crime.