The Supreme Court, in a landmark ruling, overturned a detention order passed by the Delhi High Court. The Court reflected that preventive detention legislation is a remnant of colonialism and grants excessive authority to the government. These laws must be examined carefully as they have the potential to be misused by the authority. Any failure to adhere to procedural requirements would accrue in favour of the detenue.
Brief Facts:
The respondent received information about a syndicate smuggling gold into India through air cargo, resulting in the seizure of over 80 kg of gold and the arrest of several foreign nationals (Chinese, Taiwanese, and South Korean) and Indian citizens. The appellant was also arrested and granted bail but later detained under the COFEPOSA Act after an additional condition was added to his bail order. Despite filing representations to various authorities, his detention order was not quashed until its expiration. The appellant filed a writ in the High Court, which was dismissed, but he was later released due to the expiry of his detention order and the demise of his father.
Procedural History:
The appellant, along with other members of the syndicate, was arrested on 20.11.2021 and subsequently remanded to judicial custody after being produced before the Patiala House Courts, New Delhi. The appellant sought bail and was granted bail along with the four foreign nationals accused in the crime and the co-accused Neeraj Varshney of Indian Origin.
DRI filed an application in the High Court after the appellant's release on bail, seeking to incorporate an additional condition in the bail order for the appellant to appear in the office of DRI every Monday at 11:00 am, which was granted. Later, DRI proposed to issue an order of detention under the COFEPOSA Act against the appellant, and subsequently, respondent No.2 detaining authority passed the impugned detention order. The appellant was subsequently arrested by DRI.
A reference was made to the Central Advisory Board, Delhi High Court, and the appellant sent a representation to Respondent No.2 detaining authority, which was rejected. The appellant sent a representation letter to the Central Government and another representation to the Advisory Board. The hearing before the Advisory board concluded and the Central Government rejected the representation after a delay of 60 days, based on advice from the advisory board.
The appellant filed a writ in the High Court seeking to quash the detention order, which was dismissed vide impugned order. The appellant was released from custody as interim relief by this Court due to the demise of his father, and later, due to the expiry of the impugned detention order against the appellant, he was released from detention.
Contentions of the Appellant:
The appellant contended that there was an unreasonable delay in considering the detenue's representation, which is sufficient ground to set aside the detention order under Article 22(5) of the Constitution of India. The Central Government must act independently and without delay in deciding the representation, despite the Advisory Board's recommendation. The Counsel argued that there was a conflict in previous judgments, K.M. Abdulla Kunhi & B.L. Abdul Khader v. Union Of India & Ors. (1991 1 SCC 476) & Pankaj Kumar Chakraborty And Ors. v. State of West Bengal (1969 3 SCC 400) on this issue, and it needs to be referred to a Larger Bench for resolution. Furthermore, the documents provided to the detenue to justify his detention were in Chinese language but were illegible, which deprived the detenue from understanding the reasons for his detention.
Contentions of the Respondent:
The respondent argued that there is no conflict between the Pankaj case (supra) and the Abdullah Kuni case (supra)as claimed by the appellant. The former relates to the Preventive Detention Act, while the latter relates to the COFEPOSA Act. If the Pankaj case (supra) is interpreted in the context of the COFEPOSA Act, which distinguishes between the detaining authority and the central government, there is no conflict between the two Constitutional Bench judgments. The respondent also contends that, as per the Abdullah Kuni case (supra), the detaining authority and the central government are independent of each other under the COFEPOSA Act, and the central government has the right to wait for the decision of the Advisory Board. Therefore, a delay of 60 days is not sufficient grounds to quash the detention order.
Issues:
The Apex Court has recognized three issues for consideration:
- Whether there exists an incongruity between the Pankaj Kumar case (supra) and the Abdullah Kunhi Case (supra), and if such friction exists should the point of law be referred to a Larger Bench?
- If there exists no friction between the two Constitutional judgments of this Court, can the impugned detention order be quashed on the grounds of the 60-day delay in consideration of the representation made by the appellant?
- Whether the illegible documents written in Chinese submitted to the appellant herein are grounds enough for quashing the impugned detention order?
Observations of the Court:
Before examining the matters at hand, the Court underscored the significance of protecting the rights of an individual who is detained preventively. Such detention is not for a crime that has already been committed but to avert a possible crime that may occur in the future. Therefore, when there is any uncertainty or discrepancy in the procedures followed, the Court should always resolve such issues in favour of the detained person. Even the slightest mistakes in complying with procedural requirements must be interpreted in favour of the person who is detained, given the nature of preventive detention laws.
Issue 1
The Supreme Court while analysing the Pankaj case (supra) remarked that the COFEPOSA Act grants the right to a person detained to submit a representation to the detaining authority, the Government, and the Advisory Board. These representations must be decided promptly, and if accepted, the detenue is released, but if rejected, the detention continues. The government is not required to wait for the decision of the Advisory Board and must act independently. The appropriate government has a dual obligation to consider the representation made by the detenue and to place it before the Advisory Board. This conclusion is supported by other provisions of the Preventive Detention Act, such as Sections 7, 8, and 9, which emphasize the obligation of the detaining authority to provide grounds for detention and afford an opportunity to make a representation to the appropriate government and the obligation of the government to constitute an Advisory Board and provide it with relevant materials, including the detenue's representation.
The Supreme Court further cited the case of Haradhan Saha v State of West Bengal (1974 AIR 2154), where it was emphasized that if a representation is made by a detainee before the matter is referred to the Advisory Board, the detaining authority must consider it. However, if the representation is made after the matter is referred to the Advisory Board, the detaining authority should first consider it before sending it to the Advisory Board.
Additionally, the Supreme Court cited the case of Francis Coralie Mullin v. W.C. Khambra & Ors. (1980 2 SCC 275), stating that the timing of the government's decision on the representation before forwarding it to the advisory board was not as important as the government's responsibility to independently decide on the representation.
The court has examined the differences between the Preventive Detention Act and the COFEPOSA Act concerning the process of seeking approval for continued detention. Under the Preventive Detention Act, a specially empowered officer must seek approval from the Government within 12 days of detention, while under the COFEPOSA Act, no such approval is required. This makes the detaining authority and the Government separate entities under the COFEPOSA Act. The Court has clarified that the Pankaj Kumar judgment is applicable only to the detaining authority or the specially empowered officer under the COFEPOSA Act, while the Abdullah Kunhi judgment is applicable only to the Government. The Court has concluded that there is no conflict between these two judgments. Using the rule of harmonious construction, the Court concluded that both the Acts work in harmony with one another and thus, there is no need to refer this issue to a larger bench.
Issue 2
The Court stated that both the detaining authority and the government have followed the legal procedure. The detaining authority decided on the representation without waiting for the Advisory board's recommendations, which was in line with the Pankaj Kumar case (supra). However, the government awaited the advisory board's recommendations and complied with the Abdullah Kunhi case (supra). As a result, the detention order cannot be quashed.
Issue 3
The Court emphasized that providing illegible documents causes serious prejudice to the detainee, who must understand the grounds for detention under Article 22(5) of the constitution. The Court cited the Harikisan v State of Maharashtra (1962 Supp. SCR 918) to support this principle. In cases of preventive detention, any procedural irregularity should be interpreted in favour of the detainee per Articles 21 and 22(5) of the Constitution. Additionally, if a co-detainee has been granted relief by quashing a detention order due to similarly placed circumstances, the same relief should be granted to similarly situated detainees to maintain the principles of parity.
The Court while summarizing the case, held that the impugned detention order must be set aside.
Case Title: Pramod Singla v Union of India & Ors.
Case No.: Crl. A. 1051/2023
Citation: 2023 Latest Caselaw 298 SC
Coram: Justice Krishna Murari & Justice V. Ramasubramanian
Advocate for Petitioner: Nikhil Jain
Advocate for Respondent: KM Nataraj (Additional Solicitor General)
Read Judgement @LatestLaws.com
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