Kerala High Court
Maffiya M.K vs Union Of India on 4 April, 2024
Author: A.Muhamed Mustaque
Bench: A.Muhamed Mustaque
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
THURSDAY, THE 4TH DAY OF APRIL 2024 / 15TH CHAITHRA, 1946
WP(CRL.) NO. 95 OF 2024
PETITIONER/S:
MAFFIYA M.K
AGED 41 YEARS
W/O. SAJAD SAHIR, MURINGAKANDY HOUSE, ARAKKINAR P.O,
KOZHIKODE, KERALA STATE, PIN - 673028
BY ADVS.
JOHN VARGHESE
SONU AUGUSTINE
RESPONDENT/S:
1 UNION OF INDIA
REPRESENTED BY THE SECRETARY, GOVERNMENT OF INDIA,
MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, 6TH FLOOR,
B-WING, JANPAT BHAVAN, JANPAT, NEW DELHI, PIN - 110001
2 THE DIRECTOR GENERAL
CENTRAL ECONOMIC INTELLIGENCE BUREAU, DEPARTMENT OF
REVENUE, MINISTRY OF FINANCE, 6TH FLOOR, B-WING, JANPAT
BHAVAN, JANPAT, NEW DELHI, PIN - 110001
3 JOINT SECRETARY TO GOVERNMENT OF INDIA
MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, CENTRAL
ECONOMIC INTELLIGENCE BUREAU, 6TH FLOOR, B-WING, JANPAT
BHAVAN, JANPAT, NEW DELHI, PIN - 110001
4 THE DEPUTY DIRECTOR
DIRECTORATE OF REVENUE INTELLIGENCE, KANNUR REGIONAL
UNIT, KC XXIII/788, VASANT NIVAS, NEAR MAIDAN,
PATHIRIPARAMBA ROAD, CHOVVA P.O, KANNUR, PIN - 670006
5 THE SUPERINTENDENT
POOJAPPURA CENTRAL PRISON, THIRUVANANTHAPURAM, PIN -
695012
BY ADVS.
SUVIN R MENON, CGC
ADVOCATE GENERAL OFFICE KERALA
ADDL.DIRECTOR GENERAL OF PROSECUTION(AG-11)
WP(CRL.) NO. 95 OF 2024
2
ADDL. STATE PUBLIC PROSECUTOR(AG-28)
K.A.ANAS, PP
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR
ADMISSION ON 04.04.2024, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
WP(CRL.) NO. 95 OF 2024
3
JUDGMENT
A.MUHAMED MUSTAQUE, J
This writ of Habeas Corpus was filed by the wife of detenu
challenging the detention order under the COFEPOSA Act, 1974. Though
several grounds have been raised in this matter. We need not considered
the challenge on those grounds. We find that challenge based on non
consideration of the representation within three months is sufficient to
release the detenu. The following date of events are relevant :-
Date of detention order - 20.05.2019
Date of execution - 17.10.2023
Representation submitted before the jail
Superintendent by the detenu - 30.10.2023
Jail Superintendent forwarded in the e-mail
address of the Deputy Secretary - 31.10.2023
Consideration of representation - 07.02.2024
WP(CRL.) NO. 95 OF 2024
2. The date is reckoned for the date of forwarding the
representation, admittedly 99 days lapsed. However, the stand of
respondents 1 to 3 was that representation was received only on
07.02.2024. Whether this is correct or not is the issue in this matter.
3. It is appropriate to refer the statement filed by the respondents
1 to 3 in this matter. Paragraph 17 of the statement reads as follows :-
"17. As regards the allegation that the representation of the detenue
addressed to the Joint Secretary (COFEPOSA), it is respectfully
submitted that the records were checked and observed that the
detaining authority did not receive any representation of the detenue.
However, while preparing the present counter affidavit-in-reply, the
Central Jail, Poojappura, Thiruvananthapuram was contacted
telephonically on 07.02.2024 to ascertain as to whether the detenue
has made any representation to the detaining authority. The Central
Jail, Poojappura after checking their records informed by return call
that they had forwarded a representation of the detenue addressed to
the detaining authority on the email id of the ex- Joint Secretary
(COFEPOSA) on 31.10.2023. Thereafter, email accounts of all the
concerned officers were searched to check as to whether the said
representation was received from the ex-Joint Secretary
(COFEPOSA) and found that no email, in this regard, was received
from him. However, the said mail was finally found in the junk/spam
WP(CRL.) NO. 95 OF 2024
box of Deputy Secretary (COFEPOSA). In this regard, it is pertinent
to mention that the Jail Authorities had not forwarded any hard copy
of the said representation addressed to the Joint Secretary
(COFEPOSA)."
4. The statement itself would show that Superintendent was
forwarded representation on 31.10.2023. It was received in the spam mail
of the Deputy Secretary. The case of respondents 1 to 3 is that they never
received the representation. It was only verified on 07.02.2024, when
they contacted the Jail Superintendent, they found the representation in
the spam mail. Therefore, they would submit that they received
representation only on 07.02.2024. This according to us is unacceptable.
It is true that there are no guidelines in this matter how a representation
should be forwarded from the Jail Superintendent to Joint Secretary, who
is the Detention Authority as well as to the Central Government. This has
resulted in lapses in this matter. However, when we are looking into this
matter in terms of Constitutionally protected right of a detenu, whatever
the excuse one may have that cannot infringe a constitutionally protected
right of a detenu.
WP(CRL.) NO. 95 OF 2024
Therefore, we are of the view that detenu is entitled to the
constitutional protection as it was not considered within three months. In
such circumstances, we are of the view that the continuation of detention
will have to be interfered and the detenu has to be released as he has not
been accorded with the constitutional protection as envisaged under
Article 22(5). Accordingly, we order release of the detenu forthwith. In
the meanwhile issue guidelines in regard to forwarding representations,
we direct hereafter, the representation shall be forwarded by all Jail
Superintendent in following manner :-
(i) They shall forward e-mail copies both in the e-mail address of
the Detention Authority as well as Central Government. The
Sponsoring Authority immediate on detention order shall forward
the relevant e-mail IDs of the concerned to the Jail Superintendent.
Immediately on forwarding the e-mail copies physical copies also
shall be forwarded all the authorities concerned.
(ii) We direct necessary instructions shall be issued by the DGP of
the Prison to all Jail Superintendent in the Jail. DGP shall direct
that if any laches on the part of the Jail Superintendent in following
the guidelines in the directions as above will entail in disciplinary
actions against such officers.
(iii) Registry of this Court shall forward a copy of this order today
WP(CRL.) NO. 95 OF 2024
itself to the Jail Superintendent, Poojapura Central Prison for
necessary action to release of the detenu today itself.
This writ petition is disposed of .
Sd/-
A.MUHAMED MUSTAQUE
JUDGE
Sd/-
M.A.ABDUL HAKHIM
JUDGE
SMA
WP(CRL.) NO. 95 OF 2024
APPENDIX OF WP(CRL.) 95/2024
PETITIONER EXHIBITS :-
Exhibit P-1 TRUE COPY OF THE DEATH CERTIFICATE OF THE
MOTHER OF THE DETENUE DATED 14-11-2020
Exhibit P-2 TRUE COPY OF THE ORDER F. NO. PD-
12001/13/2019-COFEPOSA DATED 20-05-2019,
ISSUED BY THE 3RD RESPONDENT
Exhibit P-3 TRUE COPY OF THE GROUNDS OF DETENTION
DATED 20-05-2019
Exhibit P-4 TRUE COPY OF THE REPRESENTATION DATED 30-
10-2023 SUBMITTED TO THE 3RD RESPONDENT
THROUGH THE 5TH RESPONDENT
Exhibit P-5 TRUE COPY OF THE LETTER DATED 09-11-2023
ISSUED BY THE DEPUTY SECRETARY TO THE 1ST
RESPONDENT
Exhibit P-6 TRUE COPY OF THE LETTER DATED 14-11-2023
ISSUED BY THE DEPUTY SECRETARY TO THE 1ST
RESPONDENT TO THE HON'BLE JUDGES OF THE
ADVISORY BOARD
Exhibit P-7 TRUE COPY OF THE REQUEST DATED 07-12-2023
MADE BEFORE THE ADVISORY BOARD ON BEHALF
OF THE DETENUE BY HIS COUNSEL
Exhibit P-8 TRUE COPY OF THE MEDICAL REPORT OF THE
DETENUE DATED 15-12-2023
Exhibit P-9 TRUE COPY OF THE COMMUNICATION ISSUED BY
THE UNDER SECRETARY TO THE 1ST RESPONDENT
DATED 11-12-2023
Exhibit P-10 TRUE COPY OF THE ORDER DATED 02-01-2024
ISSUED BY THE UNDER SECRETARY TO THE 1ST
RESPONDENT
WP(CRL.) NO. 95 OF 2024
Exhibit P-11 True copy of the memorandum dated 07-02-
2024 issued to the detenue by the Deputy
Secretary to the Government of India
RESPONDENT EXHIBITS :-
EXHIBIT R5 (a ) TRUE COPY OF DETENTION ORDER NO.F.No.PD-
12001/13/2019-COFEPOSA DATED 20.5.2019
EXHIBIT R5 (b) TRUE COPY OF NOTICE
No.C.P.11(3)151/COFEPOSA/D.1764/2022
DATED 18.10.2023
EXHIBIT R5(c) TRUE COPY OF THE LETTER No.C.P.11(3)-
4247/2023/CP Tvm dated 18.10.2023 SENT TO
THE JOINT SECRETARY MINISTRY OF FINANCE
EXHIBIT R5 (d) TRUE COPY OF THE LETTER No.C.P.11(3)-
4247/2023/CPTvm dated 18.10.2023 SENT TO
THE ACS HOME(SSA) DEPARTMENT
EXHIBIT R5 (e) TRUE COPY OF THE LETTER No.C.P.11(3)-
4247/2023/CPTvm dated 18.10.2023 SENT TO
THE ADDITIONAL DIRECTOR GENERAL , DRI ,
COCHIN ZONAL UNIT
EXHIBIT R5(f) TRUE COPY OF THE LETTER No.C.P.11(3)-
4247/2023/CPTvm dated 18.10.2023 SENT TO
THE DIRECTOR GENERAL OF PRISONS AND
CORRECTIONAL SERVICES,PRISONS HEAD
QUARTERS TVM
EXHIBIT R5 (g) TRUE COPY OF LETTER .O.R
No.DRI/CoZU/KRU/01/ENQ-1/01/2019 DATED
19.10.2023 FROM THE DIRECTORATE OF
REVENUE INTELLIGENCE , KANNUR REGIONAL
UNIT
EXHIBIT R5(h) TRUE COPY OF LETTER
O.R.No.DRI/CZU/KRU/01/ENQ-1/2019 DATED
19.10.2023 FROM THE DIRECTORATE OF
REVENUE INTELLIGENCE , KANNUR REGIONAL
WP(CRL.) NO. 95 OF 2024
UNIT
EXHIBIT R5 (i) TRUE COPY OF LETTER No.CP-11(3)-
D.1764/2023/CPTvm DATED 31.10.2023 SENT
TO THE JOINT SECRETARY (COFEPOSA)
MINISTRY OF FINANCE NEW DELHI
EXHIBIT R5(j) TRUE COPY OF LETTER No.CP-11(3)-
D.1764/2023/CPTvm DATED 31.10.2023 SENT
TO THE DIRECTOR GENERAL, CENTRAL ECONOMIC
INTELLIGENCE BUREAU MINISTRY OF FINANCE
NEW DELHI
EXHIBIT R5 (k) TRUE COPY OF LETTER No.CP-11(3)-
D.1764/2023/CPTvm DATED 31.10.2023 SENT
TO THE CHAIRMAN , COFEPOSA ADVISORY BOARD
HIGH COURT OF KERALA
EXHIBIT R5(l) TRUE COPY OF THE ACKNOWLEDGEMENT DATED
9.11.2023
EXHIBIT R5 (m) TRUE COPY OF THE LETTER No.PD-
13001/01/2023-COFEPOSA DATED 14.11.2023
EXHIBIT R5(n) TRUE COPY OF LETTER No.CP-11(3)-
4247/2023/CPTvm DATED 23.11.2023 FROM
SUPERINTENDENT, CENTRAL PRISON AND
CORRECTIONAL HOME TVM
EXHIBIT R5 (o) TRUE COPY OF LETTER No.CP-11(3)-
4247/2023/CPTvm DATED 12.12.2023 AND
14.12.2023 FROM THE SUPERINTENDENT,
CENTRAL PRISON AND CORRECTIONAL HOME TVM
EXHIBIT R5 (p) TRUE COPY OF LETTER
No.F.No.DRI/CoZU/KRU/01/Enq-01/2019 DATED
12.12.2023 OF THE ASSISTANT DIRECTOR,
DIRECTORATE OF REVENUE INTELLIGENCE,
KANNUR REGIONAL UNIT
EXHIBIT R5(q) TRUE COPY OF THE MEDICAL CERTIFICATE
No.CP8(3)-5044/2023/CPTvm DATED
WP(CRL.) NO. 95 OF 2024
15.12.2023 ISSUED BY THE PRISON MEDICAL
OFFICER CENTRAL PRISON AND CORRECTIONAL
HOME TVM
EXHIBIT R5 (r) TRUE COPY OF LETTER No.CP-11(3)-
4247/2023/CPTvm DATED 3.1.2024 AND
5.1.2024 FROM CENTRAL PRISON AND
CORRECTIONAL HOME TVM
