SC: For preventive detention, serving documents relied upon is mandatory

The Hon’ble Supreme Court of India on 18thJuly 2019, in the matter of Union of India and Joint Secretary (Cofeposa), Govt. Of India, Ministry Of Finance v. Dimple Happy Dhakad observed that in case of preventive detention, mere service of the grounds of detention is not in compliance of the mandatory provision of Article 22(5) of the Constitution of India unless the grounds are accompanied with the documents which are referred to are relied on the grounds of detention.

The Hon’ble Supreme Court observed that:

In case of preventive detention, mere service of the grounds of detention is not in compliance of the mandatory provision of Article 22(5) of the Constitution of India unless the grounds are accompanied with the documents which are referred to are relied on the grounds of detention. (This inference has been drawn on the basis of Para 18)

In view of the time stipulated in Section 3(3) of Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, 1974 and the language used in Article 22(5) of the Constitution of India, non- serving of copies of documents together with detention order cannot be a ground to quash the detention order. (Para 19)There is no statutory obligation on the part of the detaining authority to serve the grounds of detention and relied upon documents on the very same day; more so, when there is nothing to show that the detaining authority was guilty of inaction or negligence.  (Para 22)

The term pari passu has to be read with the statutory provision of Section 3(3) of the COFEPOSA Act which would mean that the grounds of detention and relied upon documents are served within five days and for reasons to be recorded within fifteen days with explanation. Only when such rule is vitiated, it can be said that they were not furnished together. (Para 24)

The“Hand Book on Compilation of Instructions on COFEPOSA matters” is only in the nature of guidelines for the officers of the department in dealing with COFEPOSA matters. The said guidelines direct that “care to be taken in communication/service of detention order” and the grounds of detention and relied upon documents should be served as quickly as possible but within the statutory time limit of five days from the date of detention order. (Para 26)

any executive instruction like the guidelines cannot curtail the provisions of any statute or whittled down any provision of law. (Para 26)

The order of detention can be validly passed against a person in custody and for that purpose, it is necessary that the grounds of detention must show that the detaining authority was aware of the fact that the detenu was already in custody. The detaining authority must be further satisfied that the detenu is likely to be released from custody and the nature of activities of the detenu indicate that if he is released, he is likely to indulge in such prejudicial activities and therefore, it is necessary to detain him in order to prevent him from engaging in such activities. (Para 30)

The satisfaction of the detaining authority that the detenu is already in custody and he is likely to be released on bail and on being released, he is likely to indulge in the same prejudicial activities is the subjective satisfaction of the detaining authority. (Para 36)

The satisfaction of the detaining authority that the detenu may be released on bail cannot be ipse dixit of the detaining authority. (Para 37)

The Constitution and the Supreme Court are very zealous of upholding the personal liberty of an individual. But the liberty of an individual has to be subordinated within reasonable bounds to the good of the people. (Para 40)

Order of detention is clearly a preventive measure and devised to afford protection to the society. When the preventive detention is aimed to protect the safety and security of the nation, balance has to be struck between liberty of an individual and the needs of the society. (Para 40)

In case of preventive detention, satisfaction of the detaining authority is “subjective” in nature and the court cannot substitute its opinion for the subjective satisfaction of the detaining authority and interfere with the order of detention. It does not mean that the subjective satisfaction of the detaining authority is immune from judicial reviewability. (This inference has been drawn on the basis of Para 42)

Copy of judgement: Judgement_18-Jul-2019

-Tushar Kaushik

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