A bench of Justices A Muhamed Mustaque and MA Abdul Hakhim said that representation 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, we are of the view that detenu is entitled to the constitutional protection as it was not considered within three months
“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.
Source: Barandbench
