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Synopsis

The Supreme Court has on August 20, 2024 said if a division bench of the High Court is not agreement with a judgment of another coordinate bench, the only option available for it to refer with a larger bench.

A bench of Justices B R Gavai, Prashant Kumar Mishra and K V Vishwanathan allowed an appeal filed by Shabna Abdulla against the Kerala High Court's judgment of January 24, 2023.

The High Court had dismissed her writ petition against the detention order issued against Abdul Raoof under Section 3 of the Conservation of Foreign Exchange & Prevention of Smuggling Activities Act in connection with alleged seizure of contraband gold weighing 14,763.30 grams valued at Rs 7,16,16,768.

It was alleged 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.

On March 5, 2022, the detenue was arrested and he was served with the detention order of August 24, 2021. He was supplied the grounds of detention on March 7, 2022. 

On June 3, 2022, a division bench of the High Court by a common judgement, allowed the three writ petitions filed by the co-accused persons. The High Court opined 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 and therefore, the detention order was bad.

On June 29, 2022, the appellant also filed the writ petition which was dismissed by the High Court on January 24, 2023.

After hearing the counsel of the appellant and the central government, the bench noted 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.

"In the present case also, the detenue had sought the copies of the said WhatsApp chats. However, the division bench 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," the bench noted.

The court found the High Court, therefore, held that the findings of the coordinate bench in connected matters in respect of other detenus could not be followed in the present 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," the bench said.

The court felt 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," the bench said.

The court allowed the appeal on this short ground and quashed the detention order and its confirmation Central Economic Intelligence Bureau, COFEPOSA.