Jaseela Shaji vs The Union of India & Ors.

Held: Though it may not be necessary to furnish copies of each and every document to which a casual or passing reference has been made by the Detaining Authority in making the order of detention, it is imperative that every such document which has been relied on by the Detaining Authority and which affects the right of the detenu to make an effective representation u/Art. 22(5) has to be supplied to the detenu – Failure to furnish copies of such documents as relied on by the Detaining Authority would amount to violation of the fundamental right guaranteed u/Art. 22(5) – Eight factual aspects were taken into consideration by the Detaining Authority while arriving at its subjective satisfaction that the detenu has been engaging himself in activities which adversely affected the augmentation of foreign exchange resources of the country – Statement of the said person is a vital link for transactions involving the detenu – It cannot be said that the statements of the said person are just a casual or a passing reference, on the contrary, they formed the basis for arriving at a subjective satisfaction by the Detaining Authority – Documents relied on by the Detaining Authority which form the basis of the material facts which have been taken into consideration to form a chain of events could not be severed and the High Court was not justified in coming to a finding that despite eschewing of certain material taken into consideration by the Detaining Authority, the detention order can be sustained by holding that the Detaining Authority would have arrived at such a subjective satisfaction even without such material – Non-supply of the statements of the said person affected the right of the detenu to make an effective representation u/Art. 22(5) and as such, the detention is vitiated on the said ground – As regards, non-receipt of the representation and delay in deciding the representation by the Detaining Authority and the Central Government, on account of casual, callous and negligent approach of the Prison Authorities, the representation of the detenu could not reach to the Detaining Authority and the Central Government within a reasonable period – There was about nine months’ delay in deciding the representation – Even otherwise, there has been a delay of 27/20 days on the part of the Central Government and the Detaining Authority in deciding the representation when it was called from the Prison Authorities after notice was issued – No explanation as to what caused such a delay in deciding the said representations – On mere casual or callous and, negligent approach on the part of the Jail Authorities in communicating the representation of the detenu, the valuable right available to detenu to have his representation decided expeditiously cannot be denied – Prison Authorities to ensure that the representations are sent to Competent Authorities immediately after the receipt thereof – In the present era of technological development, the representation can be sent through email within a day – Competent Authority to decide the representation with utmost expedition so that the valuable right guaranteed to detenu u/Art. 22(5) is not denied – Thus, detention order liable to be quashed and set aside – Judgment and order of the High Court quashed and set aside – Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 – S.3(1). [Paras 25, 33, 36, 39, 40, 42, 44, 58, 63, 68-72]. Constitution of India – Art. 22(5) – Protection against arrest and detention – Importance of personal liberty and individual freedom:

Held: Though the concept of personal liberty and individual freedom can be curtailed by preventive detention laws, the Courts have to ensure that the right to personal liberty and individual freedom is not arbitrarily taken away even temporarily without following the procedure prescribed by law – In the matters pertaining to personal liberty of the citizens, the Authorities are enjoined with a constitutional obligation to decide the representation with utmost expedition – Each day’s delay matters in such a case – When a detention order is passed all the material relied upon by the detaining authority in making such an order must be supplied to the detenu to enable him to make an effective representation – This is required in order to comply with the mandate of Art. 22 (5), irrespective of whether the detenu had knowledge of such material or not. [Para 32]

Judicial deprecation – Detention order – Prompt transmission of the representation of the detenu to the Authorities concerned – Breach of:

Held: Practice of the Prison authorities in dealing with the valuable right of the detenu in such a casual manner is deprecated – State Government must gear up its own machinery to ensure that the representation is transmitted quickly; it reaches the Central Government as quickly as possible and is decided expeditiously – On facts, the law laid down by this Court has been given a go-bye – Though the Jail Authorities informed that the representations of the detenu were sent through ordinary post, the same were neither received by the Detaining Authority nor the Central Government – Jail Authorities ought to have ensured that the representation of the detenu reaches the concerned Authorities at the earliest. [Paras 65-67]