SHABNA ABDULLAversusTHE UNION OF INDIA & ORS.

                 [2024] 8 S.C.R. 460 : 2024 INSC 612

                           Shabna Abdulla
                                  v.
                       The Union of India & Ors.
                    (Criminal Appeal No. 3082 of 2024)
                               20 August 2024
             [B.R. Gavai,* Prashant Kumar Mishra and
                      K.V. Viswanathan, JJ.]

                           Issue for Consideration
       Matter pertains to the correctness of the order passed by the
       Division Bench of the High Court dismissing the writ petition filed
       by the detenue’s sister-in-law challenging the detention order as
       well as the confirmation of detention on the ground of non-supply
       of relevant documents and thus, sought release of the detenue,
       when the coordinate Bench of the same High Court had allowed
       the writ petitions filed by the co-accused persons challenging the
       same detention order holding that documents relied upon in the
       detention orders ought to have been furnished to the detenus
       when they requested for the same, thus, the non-supply had vitally
       affected the right of the detenus and detention order was bad.

                                  Headnotes†
       Judicial discipline – Principles of – Detention orders u/s. 3
       of COFEPOSA against the detenue and three co-accused
       persons for the alleged seizure of contraband gold and arrested
       thereafter – Division Bench of the High Court dismissed the
       Writ Petition filed by the detenue’s sister-in-law challenging
       the detention order as well as the confirmation of detention
       on the ground of non-supply of relevant documents and thus,
       sought release of the detenue, when the coordinate Bench of
       the same High Court had allowed the writ petitions filed by
       the co-accused persons challenging the same detention order
       holding that documents sought had been relied upon in the
       detention orders and the same ought to have been furnished
       to the detenus when they requested for the same, thus, the
       non-supply had vitally affected the right of the detenus and
       the detention order was bad – Correctness:



* Author
[2024] 8 S.C.R.                                                         461

              Shabna Abdulla v. The Union of India & Ors.


     Held: Division Bench of the High Court while passing the
     impugned judgment and order should have followed the view
     taken by another Division Bench of the same High Court
     specifically when the grounds of detention and the grounds
     of challenge were identical in both the cases – In the event,
     the Division Bench of the High Court was of the view that the
     earlier decision of the Coordinate Bench of the same High
     Court was not correct in law, the only option available to it
     was to refer the matter to a larger Bench – Division Bench of
     the High Court in the while rejecting the case of the detenue,
     observed that the detaining authority had arrived at a subjective
     satisfaction on the basis of various documents and that non-
     supply of the WhatsApp chats would not vitiate the detention
     order, thus, held that the findings of the Coordinate Bench of
     the same High Court in the cases of the co-accused could not
     be followed in the instant case – When the Coordinate Bench of
     the same High Court based on same grounds of detention and
     on the basis of the same material, which was relied on by the
     detaining authority, had come to a considered conclusion that
     non-supply of certain documents had vitiated the right to make
     an effective representation of the detenus, another Coordinate
     Bench could not have ignored the same – Second Division
     Bench has sought to justify its decision by holding that the
     findings in the cases of co-accused and other connected matters
     would not be applicable to it since the detaining authority had
     also taken into consideration the other material while arriving
     at its subjective satisfaction – However, it is to be noted that
     if that was so in the case of present detenue, that was also
     so in the cases of other detenus – Thus, the detention order
     as also order of confirmation of detention order quashed and
     set aside – Conservation of Foreign Exchange & Prevention of
     Smuggling Activities Act, 1974. [Paras 12, 15-18]

                             Case Law Cited
     Official Liquidator v. Dayanand and Others [2008] 15 SCR 331 :
     (2008) 10 SCC 1; Nushath Koyamu v. Union of India and Others
     [2022 (3) KLT 885] – referred to.

                               List of Acts
     Conservation of Foreign Exchange & Prevention of Smuggling
     Activities Act, 1974; Constitution of India.
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                               List of Keywords
       Detention order; Confirmation of detention order; Non-supply of
       relevant documents; Release of detenue; Coordinate Bench of
       the High Court; Seizure of contraband gold; Reference to larger
       Bench; Copies of the WhatsApp chats.

                              Case Arising From
       CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 3082
       of 2024
       From the Judgment and Order dated 24.01.2023 of the High Court
       of Kerala at Ernakulam in WPCRL No.596 of 2022
                           Appearances for Parties
       Raghenth Basant, Sr. Adv., Ms. Aanchal Tikmani, Ms. Kaushitaki
       Sharma, Advs. for the Appellant.
       Nachiketa Joshi, Mukesh Kumar Maroria, Nishe Rajen Shonker, Mrs.
       Anu K Joy, Alim Anvar, Advs. for the Respondents.
                  Judgment / Order of the Supreme Court

                                   Judgment
       B.R. Gavai, J.
1.     The present appeal challenges the final judgment and order dated
       24th January 2023 in Writ Petition (Crl.) No. 596 of 2022, passed by a
       Division Bench of the High Court of Kerala, whereby the High Court
       dismissed the petition filed by the appellant, who is the sister-in-law of
       the detenue, and thereby upheld the detention order dated 24th August,
       2021 issued against the detenue (one Abdul Raoof) under Section 3
       of the Conservation of Foreign Exchange & Prevention of Smuggling
       Activities Act, 1974 (hereinafter referred to as, “COFEPOSA”) and
       its confirmation vide order dated 24th May, 2022.
2.     The facts, in brief, giving rise to the present appeal are as given below.
       2.1 On 20th April, 2021, the unaccompanied baggage of one Althaf
           Moosan Mukri was checked and inside the compressor of a
           refrigerator amongst the baggage, contraband gold weighing
           14,763.30 grams valued at Rs. 7,16,16,768/- was found and
           seized.
[2024] 8 S.C.R.                                                      463

              Shabna Abdulla v. The Union of India & Ors.


     2.2 Statements of co-accused persons were recorded, whereby
         they admitted that the detenue who was residing in Dubai,
         UAE, was running a cargo handling and forwarding business
         and was scouting passengers who had unaccompanied cargo
         to be sent to India. It was stated that the detenue would send
         contraband gold concealed in compressors of refrigerators
         along with unaccompanied baggage.
     2.3 On 24th August, 2021, detention orders under Section 3 of
         COFEPOSA were issued against the three co-accused persons
         namely Mohammad Ali (father-in-law of detenue), Abdulla
         S.S. (brother-in-law of detenue) and Biju V. Joy (Customs G
         Cardholder) and they were arrested. They later challenged their
         respective detention orders by way of separate Writ Petitions
         filed before the High Court of Kerala.
     2.4 On 27 th December, 2021, the detenue reached India. He
         repeatedly wrote letters/issued reminders to the Director General
         (DG), Central Economic Intelligence Bureau (hereinafter, “CEIB”)
         as well as the Joint Secretary, COFEPOSA, stating that he has not
         received any information of a detention order issued against him.
     2.5 On 5th March, 2022, the detenue was arrested and he was
         served with the detention order dated 24th August, 2021. He
         was supplied the grounds of detention on 7th March, 2022.
         Thereafter, by an order dated 24th March, 2022, the case of
         the detenue was referred by the CEIB to the Advisory Board
         under Section 8(b) of COFEPOSA Act.
     2.6 On 5th April, 2022, the detenue wrote letters to the DG, CEIB and
         Joint Secretary (COFEPOSA), seeking various documents that
         had not been provided to the detenue. He inter-alia sought audio
         recordings of the voice messages pertaining to the WhatsApp
         conversations relied upon by the Detaining Authority, as was
         evident from the grounds of detention. The Joint Secretary
         (COFEPOSA) rejected the request of the detenue, whereas
         the DG, CEIB kept the request pending for the Advisory Board
         to take an opinion on.
     2.7 On 24th May, 2022, in view of the opinion of the Advisory Board,
         the Central Government confirmed the detention order of the
         detenue for a period of one year from the date of detention.
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       2.8 On 3rd June, 2022, a Division Bench of the High Court by
           a common judgement, allowed the three writ petitions filed
           by the co-accused persons being W.P. (Crl.) Nos. 107-109
           of 2022. The High Court was of the opinion that documents
           sought had been relied upon in the detention orders and the
           same ought to have been furnished to the detenus when
           they requested for the same. It, accordingly, held that the
           non-supply had vitally affected the right of the detenus under
           Article 22(5) of the Constitution of India & therefore, the
           detention order was bad.
       2.9 On 29th June, 2022, the appellant filed a Writ Petition being W.P.
           (Crl.) No. 596 of 2022, challenging the detention order dated
           24th August, 2021, as well as the confirmation of detention vide
           order dated 24th May, 2022, by the Central Government on
           the ground of non-supply of relevant documents and therefore
           sought release of the detenue.
       2.10 On 24th January, 2023, a Division Bench of the High Court (other
            than the one which adjudicated upon the writ petitions filed by
            the co-accused persons), dismissed the Writ Petition filed by
            the appellant. Aggrieved thereby, the present appeal arises.
3.     We have heard Mr. Raghenth Basant, learned Senior Counsel
       appearing for the appellant and Mr. Nachiketa Joshi, learned Senior
       Counsel for the respondent(s).
4.     Mr. Raghenth Basant, learned Senior Counsel, submitted that the
       Division Bench of the High Court while dismissing the petition
       of the present appellant has failed to take into consideration the
       judgment and order dated 3rd June 2022 in the cases of Nushath
       Koyamu vs. Union of India and others1 and other connected
       matters delivered by a Coordinate Bench of the same High Court
       wherein it was held that the detention of the co-detenus was vitiated
       on account of non-supply of WhatsApp chats. He submits that the
       grounds of detention, insofar as the detenue in the present appeal
       is concerned, are identical with the grounds of detention with that
       of the co-detenue Mr. Biju V. Joy and two other detenus, whose
       detention was set aside by the order of the High Court dated 3rd


1    [2022 (3) KLT 885]
[2024] 8 S.C.R.                                                          465

                 Shabna Abdulla v. The Union of India & Ors.


     June 2022. It is, therefore, submitted that the detention order is
     liable to be quashed on this short ground.
5.   Mr. Nachiketa Joshi, learned counsel appearing on behalf of the
     Union of India, submits that the learned Division Bench of the High
     Court has rightly distinguished the decision of the Coordinate Bench
     of the same High Court in the cases of Nushath Koyamu (supra) and
     other connected matters. He, therefore, submitted that no inference
     with the impugned judgment and order is warranted.
6.   The material placed on record would reveal that the grounds of
     detention insofar as the present detenue and Mr. Biju V. Joy and
     other two detenus, whose detention has been held to be illegal by
     the judgment and order 3rd June 2022 passed by the Coordinate
     Bench of the same High Court in the cases of Nushath Koyamu
     (supra) are almost identical.
7.   It will be relevant to refer to the following ground of detention:
           "1.    Mr. Biju V. Joy, G card holder of M/s The Mercantile
                  and Marine services was summoned on 03.08.2021
                  and his voluntary statement was recorded under
                  Section 108 of Customs Act, 1962 wherein he, inter
                  alia, reiterated that his previous statements dated
                  20.04.2021 and 28.04.2021 were true and correct.
                  He further submitted printouts of WhatsApp chats
                  between him and Mr. Abdul Raoof i.e. you containing
                  the passport details of passenger Mr. Althaf Moosan
                  Mukri and details of previous consignments which
                  were cleared on behalf of Mr. Abdul Raoof i.e. you;
                  that he signed on the printouts of same and confirmed
                  that they were retrieved from his mobile phone.”
8.   Undisputedly, the said WhatsApp chats refer to the detenue in the
     present appeal as well as said Biju V. Joy.
9.   In the cases of Nushath Koyamu (supra) and other connected
     matters, the Coordinate Bench of the same High Court has recorded
     the submissions of the petitioner(s) therein with regard to non-supply
     of the WhatsApp chats. The same reads thus:
           “15. The learned counsel for the petitioner submits that
           in W.P. (Crl) No. 107 of 2022, the detenue had filed Ext.
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          P12 request for supply of the documents mentioned
          therein, particularly, a screen shot taken from the detenus
          phone which was relied upon by the detaining authority.
          It is mentioned in Ext. P12 that there were at least six
          voice messages visible on the screen shot which were
          relied on and those messages appear to be of 19th April
          2021, a day before the detenus in this case were taken
          into custody by the DRI. It is the contention that from the
          screen shot, the contents of the whatsapp chat cannot
          be understood and unless the chats in electronic form
          is provided, an effective representation cannot be made.
          Thus, the whatsapp chat in electronic form which was to
          be given on a pen drive or such other media to facilitate
          them to hear them and understand the content and offer
          the explanation has been deprived offending the right
          under Article 22(5) of the Constitution of India.”
10. On recording of the said submissions, the Coordinate Division Bench
    of the same High Court observed thus:
          “17. On a consideration of the rival submission on this
          aspect, we notice that there has been reliance made in the
          detention order regarding the documents mentioned above
          which might have forced the detaining authority to reach
          the conclusion about the previous smuggling activities
          and which necessitated the present order of detention. In
          spite of a specific request, as seen from Ext. P12 in the
          above cases, 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 infraction of the right of the detenus to make an
          effective representation seeking release.
          18. The learned counsel for the petitioner is right in stating
          that the detaining authority ought to have furnished the said
          materials as their right to make an effective representation
          has been impaired. It is relevant to note in the decision
          of the Supreme Court in Atma Ram Vaidya v. State of
          Bombay [AIR 1951 SC 157]. The Hon’ble Supreme Court
          held that:
[2024] 8 S.C.R.                                                             467

              Shabna Abdulla v. The Union of India & Ors.


           Para 10. “To put, it in other words, the detaining authority
           has made its decision and passed its order. The detained
           person is then given an opportunity to urge his objections
           which in cases of preventive detention comes always at
           a later stage. The grounds may have been considered
           sufficient by the Government to pass its judgment. But to
           enable the detained person to make his representation
           against the order, further details may be furnished to him.
           In our opinion, this appears to be the true measure of the
           procedural rights of the detained person under Article 22 (5).”
           Para 12. “The conferment of the right to make a
           representation necessarily carries with it the obligation on
           the part of the detaining authority to furnish the grounds,
           i.e., materials on which the detention order was made.
           In our opinion, it is therefore clear that while there is
           a connection between the obligation on the part of the
           detaining authority to furnish grounds and the right given
           to the detained person to have an earliest opportunity to
           make the representation, the test to be applied in respect
           of the contents of the grounds for the two purposes is
           quite different. As already pointed out, for the first, the
           test is whether it is sufficient to satisfy the authority. For
           the second, the test is, whether it is sufficient to enable
           the detained person to make the representation at the
           earliest opportunity”.
           Para 13 “But when grounds which have a rational
           connection with the ends mentioned in section a of the
           Act are supplied, the first condition is satisfied. If the
           grounds are not sufficient to enable the detenue to make
           a representation, the detenue can rely on his second right
           and if he likes may ask for particulars which will enable
           him to make the representation. On an infringement of
           either of these two rights the detained person has a
           right to approach the court and complain that there has
           been an infringement of his fundamental right and even
           if the infringement of the second part of the right under
           Article 22 (5) is established he is bound to be released
           by the court”.
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          19. In the light of the above, we cannot accept the contention
          of the learned counsel for the respondents that there was
          no duty to supply the documents mentioned above to the
          detenus. The decisions relied on by the learned counsel
          for the respondent for the proposition that the documents
          sought for in the instant cases need not be granted cannot
          be accepted as the same are rendered on different sets
          of facts. In as much as the documents sought has been
          relied upon in the detention orders, the same ought to have
          been furnished to the detenus when they requested for
          the same. The learned counsel for the petitioners is also
          right in relying on the following judgments for canvassing
          the same position that the relevant electronic info to be
          provided in the same format:
               1.    2016 (3) KHC – Reshmi v. Union of India
               2.    2019 KHC 914 – Hajira N.K. v. Union of India
               3.    2020 KHC 167 – Beevikunju v. Union of India
               4.    2021 KHC 303 – Waheeda Ashraf v. Union
                     of India
          In the light of the discussion above, we are convinced
          that the non-supply has vitally affected the right of the
          detnus under Article 22(5) of the Constitution of India. We,
          accordingly, hold that the detention order is bad for the
          non-supply of these documents sought for in Ext. P12.”
11. After observing the aforesaid, the Coordinate Division Bench of the
    same High Court held that non-supply of the documents had vitally
    affected the right of the detenus to make an effective representation
    and the detention order came to be quashed on the said ground.
12. In the present case also, the detenue had sought the copies of the
    said WhatsApp chats. However, the Division Bench of the High
    Court in the present case, while rejecting the case of the detenue,
    observed that the detaining authority had arrived at a subjective
    satisfaction on the basis of various documents and that non-supply
    of the WhatsApp chats would not vitiate the detention order. It,
    therefore, held that the findings of the Coordinate Bench of the
    same High Court in the cases of Nushath Koyamu (supra) and
[2024] 8 S.C.R.                                                          469

                 Shabna Abdulla v. The Union of India & Ors.


     other connected matters in respect of other detenus could not be
     followed in the present case.
13. We may gainfully refer to the following observations of this Court in
    the case of Official Liquidator vs. Dayanand and others2:
            “90. We are distressed to note that despite several
            pronouncements on the subject, there is substantial
            increase in the number of cases involving violation
            of the basics of judicial discipline. The learned Single
            Judges and Benches of the High Courts refuse to follow
            and accept the verdict and law laid down by coordinate
            and even larger Benches by citing minor difference
            in the facts as the ground for doing so. Therefore, it
            has become necessary to reiterate that disrespect to
            the constitutional ethos and breach of discipline have
            grave impact on the credibility of judicial institution and
            encourages chance litigation. It must be remembered
            that predictability and certainty is an important hallmark
            of judicial jurisprudence developed in this country in
            the last six decades and increase in the frequency of
            conflicting judgments of the superior judiciary will do
            incalculable harm to the system inasmuch as the courts
            at the grass roots will not be able to decide as to which
            of the judgments lay down the correct law and which
            one should be followed.
            91. We may add that in our constitutional set-up every
            citizen is under a duty to abide by the Constitution and
            respect its ideals and institutions. Those who have been
            entrusted with the task of administering the system and
            operating various constituents of the State and who
            take oath to act in accordance with the Constitution and
            uphold the same, have to set an example by exhibiting
            total commitment to the constitutional ideals. This
            principle is required to be observed with greater rigour
            by the members of judicial fraternity who have been
            bestowed with the power to adjudicate upon important


2   [2008] 15 SCR 331 : (2008) 10 SCC 1
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             constitutional and legal issues and protect and preserve
             rights of the individuals and society as a whole. Discipline
             is sine qua non for effective and efficient functioning of
             the judicial system. If the courts command others to act
             in accordance with the provisions of the Constitution and
             rule of law, it is not possible to countenance violation of
             the constitutional principle by those who are required
             to lay down the law.”
14. The aforesaid observations of this Court aptly apply to the facts of
    the present case.
15. When the Coordinate Bench of the same High Court based on same
    grounds of detention and on the basis of the same material, which
    was relied on by the detaining authority, had come to a considered
    conclusion that non-supply of certain documents had vitiated the
    right to make an effective representation of the detenus, another
    Coordinate Bench could not have ignored the same.
16. No doubt that, the second Division Bench has sought to justify
    its decision by holding that the findings in the cases of Nushath
    Koyamu (supra) and other connected matters would not be
    applicable to it since the detaining authority had also taken into
    consideration the other material while arriving at its subjective
    satisfaction. However, it is to be noted that if that was so in the
    case of present detenue, that was also so in the cases of other
    detenus.
17. We are of the considered opinion that the Division Bench of the High
    Court while passing the impugned judgment and order should have
    followed the view taken by another Division Bench of the same High
    Court specifically when the grounds of detention and the grounds of
    challenge were identical in both the cases. In the event, the Division
    Bench of the High Court was of the view that the earlier decision
    of the Coordinate Bench of the same High Court was not correct
    in law, the only option available to it was to refer the matter to a
    larger Bench.
18. In that view of the matter, the present appeal deserves to be allowed
    on this short ground. We accordingly pass the following order.
       (i)   The appeal is allowed.
[2024] 8 S.C.R.                                                        471

                 Shabna Abdulla v. The Union of India & Ors.


     (ii)    Order of detention dated 24th August 2021 passed by the Central
             Economic Intelligence Bureau, COFEPOSA Wing is quashed
             and set aside.
     (iii) Order of confirmation of detention order dated 24 th May
           2022 passed by the Central Economic Intelligence Bureau,
           COFEPOSA Wing is quashed and set aside.

     Result of the case: Appeal allowed.



     †
         Headnotes prepared by: Nidhi Jain