Detenu cannot challenge detention order citing non-supply of documents if he is unable to prove prejudice: Kerala High Court

The Kerala High Court recently held that a detenu cannot challenge the detention order passed against him on the ground of non-supply of documents if he is unable to prove that prejudice was caused to him due to such documents being withheld from him [Shabna Abdulla v The Union of India and others]..A division bench consisting of Justices Anil K Narendran and PG Ajithkumar made it clear that a detenu can only demand documents after he states why and in what manner such documents are relevant for his meaningful representation in the case.“In the case of documents that are relied upon by the Detaining Authority, it is the absolute right of the detenu to get copies within the time prescribed in Section 3(3) of the COFEPOSA Act. If the documents, which are discussed in the course of arriving at the subjective satisfaction, are demanded, the authority is bound to furnish them. But, if the documents/materials demanded have only a casual connection with the cause for the detention, the detenu shall explain the relevance and the prejudice that may cause to him if the documents are denied. The detenu did not state in what way such documents are relevant for him to make his representation and how the non supply has affected his right to make a meaningful and effective representation. In such circumstances, his attack to the detention order on the ground of non-supply of documents also fails,” the judgment said..The judgment was delivered on a Habeas Corpus petition seeking production of a detenu, one Abdul Raoof, who was detained under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA Act).The plea sought to set him free and declare his Detention Order and Confirmation Order as unconstitutional, illegal, and unsustainable in law.By way of background, the unaccompanied baggage of a passenger named Althaf Moosan Mukri was checked by Customs authorities in April 2021 and a compressor of a refrigerator and contraband gold weighing 14763.300 grams valued at around ₹7 lakh were seized.Based on the statement of the passenger, the father-in-law of the detenue, the brother of the detenu, and the Customs G Card holder were summoned the same day and their statements were recorded under Section 108 of the Customs Act, 1962.The Directorate of Revenue Intelligence (DRI) recorded further statements from them in which they reiterated their earlier statements and gave further evidence from which complicity of the detenu was establishedAs per their statements, the detenu Raoof, who was residing in Dubai, was running a cargo handling and forwarding business and was scouting passengers who had unaccompanied cargo to be sent to India. The contraband gold concealed in the compressors of refrigerator of the detenu was thus sent along with his unaccompanied baggage which was cleared in Cochin by one of the accused persons and the baggage was received by another accused, the father-in-law of the detenu.They also admitted that apart from the detenu, the other three accused persons had also invested money to procure the contraband gold and after selling the contraband gold, money would be sent back to the detenu through hawala channels.In May 2021, the three accused persons were granted bail by the Session Court.In March 2022, the detenue was arrested under the COFEPOSA Act and was taken to the Central Prison, Poojappura where he is under detention.The matter was later heard by the Advisory Board under Section 8(b) of the COFEPOSA Act.The detenu addressed representations to the Advisory Board informing it about the withholding of information and documents he requested and requested for adjournment of the hearing till he gets the requisite information and documents.However, the Advisory Board took the view that there were sufficient reasons for the continued detention of the detenu and, therefore, confirmed the detention order under Section 8(f) of the COFEPOSA Act.This prompted the detenue to move the High Court.It was argued that the right of the detenu to make representation before the detaining authority and the government was scuttled due to non-supply of materials/documents demanded by the detenu.Consequently, he was denied his right guaranteed under Articles 14, 21 and 22(5) of the Constitution of India.The respondents filed a counter affidavit denying the allegations and contended that every document which is relevant has been considered by the detaining authority and subjective satisfaction was arrived at on the basis of necessary and sufficient materials.They further contended that the detenue didn’t provide sufficient material to establish any prejudice caused to him due to non-supply of the requested documents.The Court, after elaborately going through various precedents, found substance in the arguments of the respondents.It, therefore, dismissed the petition on the ground that a detenu cannot assail his detention order on the ground of non-supply of documents if he is unable to prove prejudice due to that.The petitioner was represented by advocates M Ajay and VP Prasad.The respondents were represented by Deputy Solicitor General of India S Manu, Central Government Counsel Suvin R Menon and Government Pleader KA Anas.[Read Judgment]