Sarabjeet Singh Mokha is said to have procured fake Remdesivir injections which were administered to patients during COVID-19 pandemic to make illegal profits.

Article 22 of the Constitution provides specific protections to undertrials and detainees in India. The communication of grounds is in aid of facilitating right of detenu to submit a representation against ‘order of detention’. In absence of grounds being communicated, detenu would be left in dark in regard to reasons which have led to ‘order of detention’. The importance is evident from use of the expression “as soon as may be”. The National Security Act, 1980 subscribes to the mandate of Article 22(5).

Justice A.N. Ray [as Learned Chief Justice then was], in Jayanarayan Sukul v. State of West Bengal, (1970) 1 SCC observed:

“It is established beyond any measure of doubt, appropriate authority is bound to consider the representation of detenu as early as possible; appropriate Government itself is bound to consider the representation as expeditiously as possible. The reason for immediate consideration of the representation is too obvious to be stressed. The personal liberty of a person is at stake. Any delay would not only be an irresponsible act on part of appropriate authority but also unconstitutional because the Constitution enshrines fundamental right of a detenu to have his representation considered and it is imperative when liberty of a person is in peril immediate action should be taken by relevant authorities.

Broadly stated, four principles are to be followed in regard to representation of detenus. First, appropriate authority is bound to give an opportunity to detenu to make a representation and to consider the representation of detenu as early as possible. Secondly, consideration of the representation of detenu by appropriate authority is entirely independent of any action by Advisory Board including consideration of the representation of detenu by Advisory Board. Thirdly, there should not be any delay in matter of consideration. It is true no hard and fast rule can be laid down as to measure of time taken by appropriate authority for consideration but it has to be remembered Government has to be vigilant in governance of citizens. A citizen’s right raises a correlative duty of State. Fourthly, appropriate Government is to exercise its opinion and judgment on the representation before sending the case along with detenu’s representation to Advisory Board. If appropriate Government will release detenu, Government will not send the matter to Advisory Board. If however Government will not release detenu, Government will send the case along with detenu’s representation to Advisory Board. If thereafter Advisory Board will express an opinion in favour of release of detenu, Government will release detenu. If Advisory Board will express any opinion against release of detenu, Government may still exercise power to release detenu.”

Constitution Bench in Haradhan Saha v. State of West Bengal,  (1975) 3 SCC 198 made a clear distinction between right of detenu to have their representation considered by appropriate Government and power which is entrusted to Advisory Board. Court noted, State Government, while considering the representation, has to ascertain whether ‘order’ is in conformity with power under law, while Board considers whether there is sufficient cause for detention in light of the representation.

Justice U.U. Lalit in Ankit Ashok Jalan v. Union of India, (2020) 16 SCC 127 categorized different stages for when a representation is received and disposed. The representation must be expeditiously disposed of, at every stage. Ankit Ashok Jalan held, State Government is not bound to wait on Advisory Board’s report before deciding the representation and must do so as expeditiously as possible.

It would be also important to note, principle of making simultaneous representations by detenu to State and Central Governments as enunciated by a Two-Judge Bench in Haji Mohd. Akhlaq v. District Magistrate, 1988 Supp. SCC 538.

As we have noted earlier, communication of grounds of detention to detenu “as soon as may be” and affording detenu earliest opportunity of making a representation against ‘order of detention’ to appropriate Government are intended to ensure a representation of detenu is considered by appropriate Government with sense of immediacy. State Government failed to do so. The making of a reference to Advisory Board could not have furnished any justification for State Government to not deal with the representation independently at earliest. There is a more fundamental reason for interference – failure to communicate rejection. Accordingly, ‘order of detention’ is invalidated on two grounds.

– Hon’ble Justice Dr. D.Y. Chandrachud, Sarabjeet Singh Mokha v. Ditrict Magistrate, Jabalpur, [Criminal Appeal No. 1301 of 2021].