Summary
The Supreme Court quashed a COFEPOSA detention order and its confirmation on two grounds: statements of a witness that the detaining authority relied on were not supplied to the detenu, denying him an effective representation under Article 22(5); and his representations, sent by the jail by ordinary post and lost, were decided only about nine months later, with unexplained delay even after they reached the authorities.
Issues
- Whether non-supply of a witness's statements relied on in the grounds of detention violated the detenu's right to make an effective representation under Article 22(5) of the Constitution.
- Whether Section 5A of COFEPOSA saved the detention on the footing that it could be sustained on the remaining material once the unsupplied statements were excluded.
- Whether non-receipt of the representations sent by the jail by ordinary post, and the delay in deciding them, vitiated the detention.
Provisions considered
- Article 22(5), Constitution of IndiaRequires communication of grounds as soon as practicable and the earliest opportunity to make a representation, which includes supply of documents relied on and speedy consideration of the representation; both limbs were breached. (¶¶ 17, 19, 20, 25, 33, 44, 49, 50, 70, 71)
- Section 3(1), Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974The power under which the detention order was made to prevent the detenu from acting prejudicially to the augmentation of foreign exchange. (¶¶ 3.1, 35)
- Section 5A, Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974Severability applies where detention rests on several grounds, not where it rests on one composite ground drawn from several pieces of material; the material forming a chain of events could not be severed. (¶¶ 14, 40, 42, 43)
- Section 8(b), Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974Noted as the provision under which the case was referred to the Advisory Board, whose favourable opinion did not dispense with the separate duty to transmit and decide the representation promptly. (¶¶ 11, 51)
- Sections 3, 4 and 37, Foreign Exchange Management Act, 1999Referred to in the grounds of detention as the provisions allegedly contravened by unlicensed dealing in foreign currency and under which the detenu's statements were recorded; the Court did not decide any question on them. (¶¶ 3.4, 35)
Held
- Copies need not be supplied of every document mentioned in passing in the narration of facts, but every document relied on by the detaining authority in reaching its subjective satisfaction must be supplied to the detenu; failure or delay in supplying it denies the right to make an effective representation, whether or not the detenu knew its contents. (¶¶ 19, 20, 25, 27, 30, 32, 33, 41)
- Vakil Singh v. State of J&K, relied on by the High Court, did not concern non-supply of relied-upon material and did not help the respondents. (¶¶ 22, 23)
- The statements of the employee of the forex dealer, recorded on two dates and set out in the grounds, were a vital link between the dealer and the detenu and formed part of the basis of the subjective satisfaction, not a casual reference; their non-supply vitiated the detention. (¶¶ 37, 38, 39, 44)
- A detention order passed on several grounds differs from one passed on a single ground drawing on several pieces of material. Section 5A of COFEPOSA does not apply to a single composite ground, and documents forming a chain of events cannot be severed; the High Court erred in holding that the authority would have reached the same satisfaction without the excluded statements. (¶¶ 40, 42, 43)
- The duty to afford the earliest opportunity of representation and to consider it speedily is distinct from the duty to refer the case to the Advisory Board; a favourable opinion of the Board does not excuse delay in forwarding or deciding the representation. (¶¶ 50, 51)
- Jail authorities transmitting a representation must act with promptitude, and unexplained slackness by any intermediary invalidates the detention. Sending representations by untraceable ordinary post was deprecated; they should be sent by email or at least by speed post with acknowledgment, immediately after receipt, and decided with utmost expedition. (¶¶ 58, 64, 65, 67, 68, 70)
- The representations were decided about nine months after they were made, and even on the respondents' own account there was an unexplained delay of about 27 days by the Central Government and 20 days by the detaining authority after they were received, which independently vitiated the detention. (¶¶ 48, 61, 62, 63, 69, 71)
Result
Appeal allowed (by order dated 31.07.2024, with these reasons); the High Court judgment, the detention order dated 31.08.2023 and the confirmation order dated 28.11.2023 quashed; detenu directed to be released forthwith if not required in any other case.