Preventive detention safeguards under Article 22: delay, non-supply of relied material, and detention start date shaped the outcome.

Preventive detention under Article 22 was examined on delay, non-supply of relied upon electronic material, representation handling, and the detention commencement date. Delay in passing or executing the order was treated as non-fatal where investigation was continuing and the detenus were evading custody, but unreasonable execution delay vitiated two detentions. Failure to supply relied upon USB and related materials denied an effective representation and invalidated those detention orders. Representations were found to have been considered within a reasonable time, and a representation sent only to the Advisory Board did not require separate independent consideration by authorities unaware of it. The detention period had to run from the actual date of detention.

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Issues: (i) Whether delay in passing or executing the preventive detention order vitiated the detention; (ii) Whether non-supply of relied upon and electronically stored materials denied an effective representation; (iii) Whether the representations were considered with reasonable expedition and whether a representation addressed only to the Advisory Board required independent consideration by the detaining authority and the Central Government; (iv) Whether the period of detention had to run from the actual date of detention and not from the later date mentioned in the confirmation order.

Issue (i): Whether delay in passing or executing the preventive detention order vitiated the detention.

Analysis: Preventive detention under Article 22 is a jurisdiction of suspicion, but the safeguards against arbitrary deprivation of liberty must be strictly observed. Delay between the last prejudicial act and the detention order does not by itself vitiate detention where the record shows continuing investigation and an organised smuggling racket. Delay in execution is not fatal where the detenus were abroad or were otherwise evading arrest and steps under the preventive detention statute were taken to secure their custody. However, where the material showed unjustified laxity and the detenus were available at their residential address, the delay in execution was held to be unreasonable.

Conclusion: The challenge based on delay failed in W.P.(Crl.) No. 255 of 2020, but succeeded in W.P.(Crl.) Nos. 279 of 2020 and 280 of 2020.

Issue (ii): Whether non-supply of relied upon and electronically stored materials denied an effective representation.

Analysis: The right to make an effective representation under Article 22(5) includes supply of all materials relied upon in the grounds of detention. Where the grounds expressly relied upon the contents of an electronic USB record and related materials, denial of copies of those materials impaired the detenus' ability to answer the allegations meaningfully. The distinction between relied upon documents and merely referred documents did not save the detention where the withheld material formed part of the basis of subjective satisfaction.

Conclusion: The detention orders in W.P.(Crl.) Nos. 279 of 2020 and 280 of 2020 were vitiated for non-supply of relied upon material.

Issue (iii): Whether the representations were considered with reasonable expedition and whether a representation addressed only to the Advisory Board required independent consideration by the detaining authority and the Central Government.

Analysis: The law prohibits unexplained delay in dealing with representations, but permits reasonable time for obtaining comments and deciding the matter. On the facts, the representations were disposed of within a reasonable time. A representation addressed only to the Advisory Board did not oblige the detaining authority or the Central Government to independently decide that very representation when they were unaware of it and separate representations had already been made to them. The constitutional right is to independent consideration of a representation actually made to the concerned authority, not of a representation never addressed to it.

Conclusion: These challenges failed in all the matters.

Issue (iv): Whether the period of detention had to run from the actual date of detention and not from the later date mentioned in the confirmation order.

Analysis: Once the detenue was actually detained and served with the order, the subsequent confirmation could not postpone the commencement of the detention period merely because of quarantine or administrative convenience. The operative detention had already begun on the date of actual custody.

Conclusion: The detention period in W.P.(Crl.) No. 255 of 2020 had to be reckoned from the date of actual detention.

Final Conclusion: The common judgment partly upheld the preventive detention in one matter, quashed the detention in the other two matters, and directed release of the two detenus while correcting the commencement date of detention in the dismissed petition.

Ratio Decidendi: In preventive detention matters, the order cannot be sustained where material expressly relied upon in the grounds, including electronically stored evidence, is not supplied so as to enable an effective representation under Article 22(5); delay and representation issues are judged on the facts, but unexplained or unjustified delay coupled with denial of relied upon material vitiates detention.

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