Kerala High Court orders release of COFEPOSA accused whose email representation went to spam folder of Detention Authority

The Kerala High Court recently ordered the release of a man (detenue) detained under the under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA Act) after it found that an e-mail representation sent by him to to the detention authority, had gone to the spam folder of the authority..A bench of Justices A Muhamed Mustaque and MA Abdul Hakhim said that the representation submitted by the detenue was not considered within the statutory deadline of ninety days and therefore, he was entitled to be released. The Court was told that the representation was sent to the Jail Superintendent who then forwarded it to the Deputy Secretary under the COFEPOSA Act who is the detention authority under the Act.However, the same went to the spam folder of the detention authority.The Court said that what had happened in this case was unacceptable and even a lack of guidelines cannot excuse the violation of rights in this manner."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," the Court said.Therefore, the Court said that the detenu is entitled to be released since his representation was not considered within ninety days."In such circumstances, we are of the view that the continuation of detention will have to be interfered (with) 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," the Court said in its judgment..The judgment was rendered on a habeas corpus petition moved by the wife of the man who had been detained under the provisions of the COFEPOSA Act on October 17 2023.A representation was submitted by the man to the jail superintendent on October 30 and the superintendent forwarded it to the Deputy Secretary under COFEPOSA Act on October 31.However, it went to the spam folder.The Central government and the concerned authorities under the COFEPOSA Act opposed the petition moved by the wife seeking her husband's release saying that they never received the representation and that it was only verified on February 7 this year.The Court said that this still qualifies as non-consideration of the representation within three months as mandated and, therefore, ordered the man's release..To prevent such lapses in the future, the Court issued the following guidelines to be followed by jail superintendents while forwarding representations to the concerned detention authority: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.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..The petitioner was represented by advocates John Varghese and Sonu Augustine. Central Government Counsel Suvin R Menon appeared for the Centre. .[Read Judgment]