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Union of India & Ors. v. Saleena

Criminal Appeal · Neutral citation not assigned (Criminal Appeal No. 1251 of 2015)Decided 29 Jan 2016
Criminal Appeal No. 1251 of 2015
Justice Dipak Misra · Justice Prafulla C. Pant

Background

The husband of the respondent was detained under Section 3(1) of the COFEPOSA Act (a preventive-detention law used against smuggling/foreign-exchange offenders) in February 2013. His representation against the detention was rejected by the competent authority, but the order of rejection was communicated to him only through a subordinate official (the Under Secretary), not directly by the authority itself. The Kerala High Court quashed the detention order and set the detenu free, holding that non-communication of the rejection order by the competent authority itself violated his constitutional right under Article 22(5) to have his representation properly considered. The Union of India appealed to the Supreme Court against this release.

Decision Breakdown

The Supreme Court held that the High Court's approach, treating non-communication of the order by the competent authority itself (as opposed to a subordinate official conveying it) as automatically fatal, was legally incorrect. What Article 22(5) truly guarantees is a genuine, fair, and prompt subjective consideration of the representation, not necessarily a speaking order personally transmitted by the top authority; courts can always call for and examine the file to verify real consideration occurred. On examining the file, the Court found genuine subjective satisfaction had been exercised, so the detention order was validly sustained. It accordingly set aside the High Court's judgment and allowed the appeal. On the separate practical question of whether the detenu (already released for over two years) should now be sent back into custody, the Court did not decide this itself but directed the detaining authority to re-examine, within two months, whether continued detention was still warranted given the lapse of time.

Lesson Learnt

In preventive detention cases, what the Constitution requires is genuine, fair consideration of a detenu's representation (verifiable from the official file), not necessarily a formal order communicated personally by the highest authority; courts look at substance over form, though the ultimate question of resuming a long-lapsed detention is left to fresh executive assessment rather than automatic reinstatement.

Official source (sci.gov.in)View Judgment (PDF)

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