2016 (1) TMI 1475 - HC - Companies Law

Validity of continued detention - whether the continued detention of the detenus is vitiated on the ground that the grounds of detention were not communicated as provided under Article 22(5) of the Constitution of India, since the detenus were denied the opportunity to view the CCTV footages within the time provided under sub-section (3) of Section 3 of the COFEPOSA Act? - HELD THAT - On a plain reading of clause (5) of Article 22 of the Constitution of India, the requirement is to communicate to the detenu the grounds on which the order of detention has been made. The expression communicate to such person the grounds on which the order has been made was interpreted in various judicial pronouncements and it is now well settled that the constitutional requirement under Article 22(5) would not be fulfilled by just serving the grounds of detention on the detenu. It is also mandatory that the documents relied upon by the detaining authority in the grounds of detention also must be supplied to the detenu. The Constitution Bench in THE STATE OF BOMBAY VERSUS. ATMA RAM SRIDHAR VAIDYA 1951 (1) TMI 33 - SUPREME COURT also held that it is obvious that the grounds for making the order are the grounds on which the detaining authority was satisfied that it was necessary to make the order. What must be supplied are the grounds on which the order has been made and nothing less. It is, therefore, clear that if the representation has to be intelligible to meet the charges contained in the grounds, the information conveyed to the detained person must be sufficient to attain that object. Without getting information sufficient to make a representation against the order of detention, it is not possible for the detenu to make an effective representation. In HARIKISAN VERSUS STATE OF MAHARASHTRA 1962 (1) TMI 58 - SUPREME COURT , a Constitution Bench of the Supreme Court held that it is not sufficient that the detenu has been physically delivered the means of knowledge with which to make his representation. In order that the detenu should be in a position effectively to make his representation against the order of detention, he should have knowledge of the grounds of detention which are in the nature of the charge against him setting out the kinds of prejudicial acts which the authorities attribute to him. The Writ Petitions are allowed and the detenus are set at liberty forthwith, if their detention is not required in respect of any other case.

Summary

Issues Involved:
1. Legality of continued detention due to denial of opportunity to view CCTV footages.
2. Compliance with Article 22(5) of the Constitution of India.
3. Adequacy of communication of grounds of detention.

Issue-wise Detailed Analysis:

1. Legality of Continued Detention Due to Denial of Opportunity to View CCTV Footages:
The detenus were detained under Section 3(1) of the COFEPOSA Act for alleged involvement in gold smuggling activities. The grounds of detention included CCTV footage from Kochi International Airport, which was provided to the detenus in a compact disc. However, the detenus were not given the facility to view the footage until 11.7.2015. The court held that merely supplying a soft copy without facilitating its viewing does not meet the requirement of "communication" under Article 22(5) of the Constitution. The court emphasized that effective communication of grounds, including viewing the CCTV footage, is necessary for the detenus to make a meaningful representation. The failure to provide this opportunity within the stipulated time rendered the continued detention illegal.

2. Compliance with Article 22(5) of the Constitution of India:
Article 22(5) mandates that the grounds of detention must be communicated to the detenu at the earliest opportunity to enable them to make a representation against the detention order. The court referenced several precedents, including *The State of Bombay v. Atma Ram Shridhar Vaidya* and *Icchu Devi Choraria v. Union of India*, to underline that communication must include all documents relied upon in the grounds of detention. The court concluded that the detaining authority's failure to provide the facility to view the CCTV footage within the prescribed period violated the constitutional requirement, thus invalidating the continued detention.

3. Adequacy of Communication of Grounds of Detention:
The court scrutinized whether the CCTV footage was merely referenced or relied upon in the grounds of detention. It concluded that the footage was heavily relied upon to establish the involvement of the detenus in smuggling activities. Therefore, the footage was a crucial document that needed to be effectively communicated to the detenus. The court held that the failure to provide the facility to view the footage within the time frame stipulated under Section 3(3) of the COFEPOSA Act constituted a grave infringement of Article 22(5). This failure denied the detenus their right to make an effective representation, rendering the continued detention illegal.

Conclusion:
The court declared the continued detention of the detenus illegal due to the failure to provide the facility to view the CCTV footage within the prescribed period, thereby violating Article 22(5) of the Constitution. The writ petitions were allowed, and the detenus were ordered to be released forthwith unless required in connection with any other case. The court did not address other grounds of challenge, leaving them open for consideration.