Supreme Court Clarifies Duties of Detaining Authorities and Rights of Detainees under Article 22(5) of the Constitution


LI Network

Published on: January 9, 2024 at 09:40 IST

In a recent ruling, the Supreme Court delved into the specifics of Article 22(5) of the Constitution, shedding light on the obligations of authorities in serving detention grounds to detainees and the detainee’s entitlement to present a representation.

The Court dismissed an appeal challenging the detention order of an individual apprehended for attempting to smuggle gold and foreign currencies without customs detection.

The Bench comprising Justice M. M. Sundresh and Justice Aravind Kumar emphasized the authorities’ responsibility not only to serve the grounds of detention and relevant documents promptly but also to ensure communication in a language understood by the detainee.

This facilitates the detainee’s earliest opportunity to challenge the detention order.

The case involved the detention of an individual under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA Act) following attempts to smuggle gold and foreign currencies without customs detection.

Despite multiple attempts by authorities, the detenue refused to accept the grounds of detention. A panchnama signed by the detenue confirmed this refusal. Subsequently, the detenue filed a writ petition claiming non-receipt of the grounds.

However, the High Court dismissed the petition, citing the panchnama as evidence of refusal. The Appellant, the detenue’s brother-in-law, approached the Supreme Court, contesting the detention order.

The Court outlined Article 22(5) of the Constitution, noting its requirement for the authorities to serve the grounds of detention to the detainee promptly in a language they understand, enabling them to challenge the order.

Additionally, it highlighted the detainee’s right to make a representation, stressing the need for comprehensive information about the basis of detention to exercise this right effectively.

The Bench observed that communication methods could include both oral and written means. It underscored the detainee’s need for clarity, especially regarding their right to challenge the detention order, considering literacy levels. Verbal explanations alone might not suffice, particularly when the detainee does not comprehend the language used.

The Court highlighted that if the grounds explicitly stated the right to make a representation in a known language, oral notification might not be necessary. However, in cases lacking such indications, verbal communication becomes essential.

The detenue’s deliberate refusal to receive the grounds despite proficiency in English was considered, and the Court found no procedural error on the part of the authorities, especially as they had made efforts to translate documents into Bengali.

In summary, the Court dismissed the Appeal, emphasizing the detainee’s awareness of the grounds of detention and rejecting additional grounds raised due to the detainee’s actions and knowledge of the detention order’s content.

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