Detainee's Right to know Ground for Detention in COFEPOSA Cases, Kerala HC Orders

Not supplying the documents relied upon for ordering preventive detention under Cofeposa (Conservation of Foreign Exchange and Prevention of Smuggling Activities) Act amounts to violation of the detenue's constitutional right, the Kerala high court ruled on June 3, while quashing a detention order issued by the Joint Secretary, Cofeposa, of the Ministry of Finance on August 24, 2021.

A division bench of Justices AK Jayasankaran Nambiar and Mohammed Nias CP quashed the detention order issued by the joint secretary, after considering three petitions challenging the order against three of the accused in a case where they were charged with smuggling gold bars worth Rs 7.16 crore by hiding them in a refrigerator's compressor.

In the judgment, the court said non-supply of the documents vitally affected the right of detenus under Article 22(5). This article provides that a person being detained under preventive detention should be informed of the grounds on which the order against him was issued, as soon as possible, and should be afforded the earliest opportunity to make a representation against the order.

The petitioners' counsel, M Ajay, had contended that certain documents needed for making an effective representation were denied to the detenus.

"In spite of a specific request... we find copies were not given. In as much as the contents of the above being relied upon and they have not been given despite asking for them, we feel there has been an infraction of the right of the detenus to make an effective representation seeking release," the court said while quashing the detention order.