New Delhi: The Supreme Court bench of Justices Krishna Murari and V. Ramasubramanian held on Monday, April 10, that where there is a possibility of the government exercising unfettered discretion of power, the apex court must analyse cases arising from such laws with extreme caution and excruciating detail, to ensure that there are checks and balances on the power of the government.The courts, in circumstances of preventive detention, are conferred with the duty that has been given the utmost importance by the constitution, which is the protection of individual and civil liberties, the bench held. This act of protecting civil liberties is not just the saving of rights of individuals in person and the society at large, but is also an act of preserving our constitutional ethos, which is a product of a series of struggles against the arbitrary power of the British state, the bench added.The instant caseThe bench made these observations in the case of Pramod Singla vs Union of India. The judgment, authored by Justice Krishna Murari, for the sake of clarity on the point of law, set aside the impugned detention order, and allowed the appeal of the appellant, although he had already been released on grounds of expiry of the detention period.In the instant case, the Delhi high court had denied the appellant’s plea to quash the detention order against him on grounds of delay in considering his representation. In November 2021, the appellant, along with other members of the syndicate, was arrested by the Directorate of Revenue Intelligence (DRI) on the allegation of smuggling gold to India under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA).The appellant was subsequently granted bail on December 13, 2021. However, on January 21, 2022, the DRI moved the Chief Metropolitan Magistrate, Patiala House Court, New Delhi for cancellation of bail granted to him on the ground that he had violated some of the conditions of the bail, imposed by the trial court. The preventive detention order under COFEPOSA was passed against him on February 1, 2022, and he was arrested by the DRI again on February 4, 2022.Also read: Powers Under Preventive Detention Law ‘Exceptional’, Cannot Be Exercised Routinely: SCThe detenu’s representation to the Detaining Authority was rejected on March 15, 2022. Subsequently, he made representations to the Union government, and to the Advisory Board (AB). On May 9, 2022, the Union government, on advice from the AB, after a delay of 60 days, rejected the representation. The Delhi high court dismissed his writ against the detention order on November 3, 2022. He was released from detention due to the expiry of the impugned detention order.On Monday, April 11, the Supreme Court bench held that the Union government was justified in taking time to answer the appellant’s representation, as it claimed it was waiting for the decision of the AB. However, the detaining authority, which is separate from that of the government, can pass its decision without the decision of the AB, which it correctly did in this case. Hence, the bench held that there was no delay in considering the appellant’s representation.However, on the issue of whether the illegible documents written in Chinese submitted to the appellant were grounds enough for quashing the impugned detention order, the bench decided in favour of the appellant. In cases where illegible documents have been supplied to the detenue, a grave prejudice is caused to the detenue in availing his right to send a representation to the relevant authorities, because the detenue does not have clarity on the grounds of his or her detention, the bench held. In such a circumstance, it said the relief under Article 22(5) of the constitution and the relevant statutory provisions allowing for submitting a representation are vitiated since no man can defend himself against an unknown threat.The Supreme Court noted that the illegible documents in Chinese are the very same documents that the authorities had relied upon to detain the appellant. Besides, as the co-detenue with identical circumstances, had already been granted the relief of quashing the detention order against him, the bench held that the principle of parity must apply, and the same relief should be extended to other similarly placed detenues.The bench observed that preventive detention laws in India are a colonial legacy, and have great potential to be abused and misused. “Laws that have the ability to confer arbitrary powers to the state, must in all circumstances, be very critically examined, and must be used only in the rarest of rare cases. In cases of preventive detention, where the detenue is held in arrest not for a crime he has committed, but for a potential crime he may commit, the courts must always give every benefit of doubt in favour of the detenue, and even the slightest errors in procedural compliances must result in favour of the detenue”, the bench clarified.