All material relied upon to order preventive detention must be supplied to detenue: Supreme Court

The Supreme Court on Thursday emphasised that all material relied upon by detaining authorities to order the preventive detention of a person must necessarily be supplied to the detained person (detenue)[Jaseela Shaji v. Union of India and Others]..A Bench of Justices BR Gavai, Prashant Mishra and KS Viswanathan said that although the detaining authority may not have to supply documents that it may have referred to in passing, it must supply all material that is relied on to order preventive detention. "...failure to furnish copies of such document/documents as is/are relied on by the Detaining Authority which would deprive the detenu to make an effective representation would certainly amount to violation of the fundamental right guaranteed under Article 22(5) of the Constitution of India," the Court observed.The Court explained this is necessary to comply with the procedural requirements under Article 22(5) (supply of grounds of detention to detenue) of the Constitution of India, which must be followed while depriving a person of liberty."No doubt, as has been reiterated time and again by this Court, it may not be necessary to supply each and every document to which a passing or casual reference is made. However, all such material which has been relied on by the Detaining Authority while arriving at its subjective satisfaction will imperatively have to be supplied to the detenu," the Court held..The Court also underscored that the right of a detenue to make a representation to challenge his detention order cannot be taken away merely because of callous approach by jail authorities, more so in the era of technology."Merely because there has been a casual or callous and, in fact, negligent approach on the part of the Jail Authorities in ensuring that the representation of the detenu is communicated at the earliest, the valuable right available to the detenu to have his representation decided expeditiously cannot be denied. 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," the Court said. .The Court passed the ruling on an appeal challenging the Kerala High Court's decision to reject a writ petition challenging the detention of a man under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA Act).The detenue was detained after a house raid that allegedly unearthed unaccounted foreign currency, gold biscuits and silver. The detaining authorities ordered his detention under the COFEPOSA on the ground that there was material, including WhatsApp chats and witness statements, to indicate that he was an unauthorised foreign currency dealer. The detenue's wife (petitioner) later challenged his detention before the High Court. Among other grounds, the petitioner submitted that the detaining authorities did not provide the detenue with one of the witness statements relied upon to justify the detention order. This affected the detenue's right to make a proper representation challenging the detention order, the petitioner said. The High Court, however, dismissed the plea on the ground that the other material already supplied to the detenue by itself justified his detention. The non-supply of one witness statement did not prejudice the detenue, the High Court said. The Supreme Court today disagreed with this view and held,"Non supply of documents has violated the right of the detenue under Article 22(5) of the Constitution."The Court also held that the detention order was liable to be quashed on the ground that the jail authorities were negligent in forwarding the detenue's representation against his detention to the concerned authorities."We find that 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 has been about 9 months’ delay in deciding the representation," the Supreme Court held. .Senior Advocate Gaurav Aggarwal appeared for the petitioner.Senior Advocate Nachiketa Joshi appeared for the Union..[Read Judgment].[Read Live Coverage]