CAUSE TITLE:
Shabna Abdulla v. Union of India & Others
DATE OF ORDER:
24th January 2023
JUDGE(S):
HONOURABLE MR. JUSTICE P.G. AJITHKUMAR
PARTIES:
Petitioner: Shabna Abdulla
Respondent: Union of India & Others.
SUBJECT:
The Hon’ble Kerala High Court (hereinafter referred to as ‘High Court’ or ‘the Court’), has stated that a detention order can only be revoked on the grounds that certain papers were withheld from the detainee and if he can demonstrate that by doing so, such act caused him harm. The court noted that it is the detainee's responsibility to justify why such materials are pertinent to the issuance of a detention order.
IMPORTANT PROVISIONS:
Indian constitution 1949
Article 226 – states the power of High Court to issue writ petition
Article 22(5) - When a person is held in accordance with an order made under a law allowing preventive detention, the ordering authority must, as soon as is practicable, inform that person of the reasons for the order and provide him with the earliest chance to object to it.
Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974
Section 3(1) – states the power of the central or the state government to make detention order against the offender under this act
BRIEF FACTS:
On 20th April 2021, 14763.300 grams of illegal gold worth Rs. 7,16,16,768 was discovered and seized inside the compressors of the detainees' freezers.
The detaining authority then issued a restraining order under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA Act).
The bail application filed by the offender was dismissed by the Additional Chief Magistrate but it was given by the Sessions court.
On the date of hearing the offender did no appear but gave a letter stating the reasons for his non-appearance. The same was repeated for next hearings also, therefore a letter was sent by him in order to know any detention order was issued against him or no.
On 5th march 2022 the offender was detained and the documents by the detaining authority were present on 7th march 2022 to him. It was stated by the offender that the document was drafted in a very technical language and he could not estimate what was said in the report. Therefore a request was made by him to the authority for further documents. He informed about the withholding of the documents to the Advisory board as the reason to adjourn the date of hearing.
The court direct the detention order of one year after the advisory board gave its opinion. On 24th may 2022 the confirmation of this order was sent and the offender was informed about the rejection of his representation on 28th may 2022 by mail and on 2nd June 2022.
A writ petition was made under article 266 of the Indian constitution seeking writ of habeas corpus over illegal detention of the petitioner.
QUESTIONS ROSE:
Whether the detention order is in accordance with the Article 22(5) of the Indian Constitution and Section 3(1) of the COFEPOSA Act?
ARGUMENTS ADVANCED BY THE PETITIONER:
Due to the lack of production of all required papers, the Detaining Authority's aesthetic satisfaction has been tainted.
The Detaining Authority's determination that the Offender had a history of engaging in smuggling activities, aiding in the smuggling of goods, and trading in smuggled items, making his imprisonment necessary, was invalidated by the excessive delay in enforcing the Detention Order.
The representation given by the offender was one of the essential materials that the Sponsoring Authority failed to bring to the Advisory Board.
It was also argued that there was delay in giving out detention order which raised question on the applicability of the finding of the authority
It was stated by the council that the detention order's documentation being withheld from the detainees is in violation of Article 22(5) of the Indian Constitution. Such order would also violate the detainees' other fundamental rights protected by Articles 14 and 21 of the Constitution.
ARGUMENTS ADVANCED BY THE RESPONDENT
The council argued that the detention was legal because the detaining authority had expressed satisfaction that the detainee wouldn't engage in goods smuggling, aiding in products smuggling, or engaging in the transportation, concealment, or retention of the smuggled goods.
It was stated that the offender escaped the legal system when he went to Dubai. There was no appearance of the offender in any proceedings or hearing of the court. Also, the documents which were asked by the opposite party were irrelevant to the case and were just delaying the justice.
ANALYSIS BY THE COURT:
The court noted that personal liberty is a valuable fundamental right and that precautionary detention severely infringes on that freedom. As a result, the court must "vigorously observe and enforce" these measures. Clauses (4) and (5) of Article 22 have been put into the Constitution to protect this freedom.
The claim that the respondent made about the validity of the findings of the authority were rejected by the court stating that person being the resident of India should be aware of official gazette especially when matter is regarding them.
The court determined that the offender had the right, under Section 3(3) of the COFEPOSA Act, to obtain any papers used by the detaining authority in the issue of the detention order if such records were required to arrive at subjective fulfilment. As the denial of such documents would amount to violation of right under article 22(5) to equal opportunity of being heard and represent in the court
The offender must justify the relevance of the papers and the harm that would result from not providing the information if the documents/materials requested by the detainee have merely a passing relationship to the reason for the incarceration.
The court ordered that the contentions raised by the petitioner were unacceptable and accordingly the Writ Petition was dismissed.
CONCLUSION
It can be seen from the above case that the criminal should only draw attention to the unlawfulness of the detention order; he is not needed to prove that order's perfection. It is up to the detaining authority to demonstrate that the subjective satisfaction obtained by the detaining authority was based on adequate and trustworthy evidence.
Since Article 21 of the Constitution clearly and expressly states that no one must therefore be denied of his life or personal liberty other than in compliance with a procedure prescribed by law, this court always has positioned the burden of proof to demonstrate that the confinement is in conformity with the law upon the detaining authority.
Therefore the court came to the conclusion that the detainee had not explained how the materials he had asked for related to his right to make a meaningful and persuasive argument or how the rejection of those documents affected that right.
Click here to download the original copy of the judgement
