9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2018 (5) TMI 988 - HC - Indian LawsDetention of petitioners - Smuggling - COFEPOSA Act - detention of the petitioners stand vitiated on account of non supply of either the printed copies/ hard copies of the documents contained in the CDs. Held that - It is well settled in law that the RUDs are an integral part and parcel of the GOD. The GOD contains the reasons and justification provided by the Detaining Authority on the basis of which he arrives at his subjective satisfaction regarding the necessity of preventively detaining of the detenue under Article 22 of the Constitution of India, read with Section 3 of the COFEPOSA Act. It is obligatory on the part of the Detaining Authority to supply copies of all the RUDs on which the subjective satisfaction of the Detaining Authority is based - The documents which are supplied on CDs, by themselves, are not viewable to the human eye. To read the documents on CDs, it is essential that the relevant hardware in the form of a CD player, or a laptop computer with the facility of reading the CD, or a Desktop computer with facility of reading a CD is employed. Without such aids, the person who is delivered the CD would never know as to what is the document, if any, contained therein. The CD is only a storage medium. To retrieve the documents stored therein, the necessary equipment is essential. Reliance placed on Section 3(3) of COFEPOSA Act is misplaced for the reason that the said section itself mandates that the grounds of detention must be communicated to the detenue soon after the detention but ordinarily not later than five days . The use of the negative language in Section 3(3) itself shows that the Parliament, in ordinary circumstances, did not consider it appropriate to grant more than five days to the Detaining Authority to serve the GOD and the RUD upon the detenue. However, in exceptional circumstances and for reasons to be recording in writing, not more than fifteen days from the date of detention, have been provided for the purpose of serving the GOD and the RUD on the detenue. The RUD contained in CDs taken note of herein above have been relied upon extensively in the GOD formulated by the Detaining Authority. The GOD are more or less identical in both the cases, since they stem out of the same transaction. The GODs repeatedly refer to the whatsapp messages contained in the CDs, as well as to the CDRs which have been relied upon by the Detaining Authority to establish the connection between the detenue and others concerned - The detention of the petitioners under Section 3(1) of the COFEPOSA Act cannot be sustained. Detention of petitioner set aside - petition allowed.
Issues Involved:
1. Non-supply of hardware to read soft copies of Relied Upon Documents (RUDs) on CDs. 2. Right to make effective representations under Articles 21 and 22 of the Constitution. 3. Compliance with Section 3(3) of the COFEPOSA Act. 4. Distinction between cases where requests for CD players were made and not made. 5. The obligation of the Detaining Authority to supply RUDs without waiting for a request. Detailed Analysis: 1. Non-supply of hardware to read soft copies of Relied Upon Documents (RUDs) on CDs: The petitioners challenged their detention under the COFEPOSA Act, arguing that they were provided with soft copies of certain RUDs on CDs without the necessary hardware to read them. The court noted that the documents at Sl. Nos. 12 and 69 in the RUDs were contained in CDs, which included WhatsApp conversations and Call Detail Records (CDRs). The petitioners contended that without a CD player or a computer, they could not view these documents, thus impairing their ability to make effective representations against their detention. 2. Right to make effective representations under Articles 21 and 22 of the Constitution: The court referred to the decision in Smitha Gireesh v. Union of India, where it was held that non-supply of a CD player along with CDs infringed Articles 21 and 22 of the Constitution. The court emphasized that the grounds of detention must be communicated in their entirety, including all documents, statements, or other material relied upon. The court reiterated that the right to make a representation is a constitutional right and that the supply of CDs without the means to view them violates this right. 3. Compliance with Section 3(3) of the COFEPOSA Act: The court examined Section 3(3) of the COFEPOSA Act, which mandates that the grounds of detention must be communicated to the detenue as soon as practicable, but not later than five days, and in exceptional circumstances, not later than fifteen days. The respondents argued that the CDs were shown to the detenues within the stipulated time frame. However, the court found that merely showing the CDs on a computer screen did not fulfill the obligation to supply the RUDs in a manner that the detenues could effectively use to make their representations. 4. Distinction between cases where requests for CD players were made and not made: The respondents attempted to distinguish the present case from Smitha Gireesh by arguing that the detenues in the present case did not specifically request a CD player, and the documents were shown to them on a computer screen. The court rejected this distinction, stating that the obligation to supply the RUDs in a usable form is not contingent on a request from the detenue. The court emphasized that it was the Detaining Authority's duty to provide the necessary means to view the documents on CDs without waiting for a request. 5. The obligation of the Detaining Authority to supply RUDs without waiting for a request: The court referred to the Supreme Court's decision in Mohd. Zakir v. Delhi Administration, which held that the Detaining Authority must supply the documents relied upon or referred to in the detention order along with the grounds of detention. The court emphasized that this obligation is a constitutional mandate and does not depend on a request from the detenue. The court concluded that the failure to provide either printed copies of the documents on CDs or the necessary hardware to view them rendered the service of the grounds of detention incomplete and ineffective. Conclusion: The court held that the detention of the petitioners was vitiated due to the non-supply of either printed copies of the documents contained in the CDs or the necessary hardware to view the CDs. The court quashed the detention orders and directed the immediate release of the detenues, unless they were required in any other case. The court reiterated that the supply of RUDs is essential for the detenue to make an effective representation and that the Detaining Authority cannot evade this obligation by merely showing the documents on a computer screen.
|
