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TMI Blog2018 (5) TMI 988X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 repeat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r detention at the earliest has been denied, which vitiates their continued detention. 4. Learned counsel for the petitioners has placed reliance on a decision of the Division Bench of this Court in Smitha Gireesh v. Union of India in W.P. (Crl.) No. 1060/2016 decided on 02.06.2016 in support of his said submission where this issue was raised and squarely considered by this court. In Smitha Gireesh (supra), some of the documents were supplied on CDs. The detenue in his representation had asked for a CD player to be able to view/ read the documents. Despite the said request, the CD player was not supplied to the detenue. In these circumstances, this court held that the non-supply of a CD player along with the CDs to enable the detenue to view/ read the documents contained in the CDs infringed Articles 21 and 22 of the Constitution of India i.e. the right of the detenue to make an effective representation at the earliest, which vitiated the detention. 5. The following extracts from the decision in Smitha Gireesh (supra) are pertinent, and have been relied upon by learned counsel: 57. It is a settled law when clause (5) of Article 22 and sub-section 3 of Section 3 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hus, the detenue has a right to receive documents taken into consideration by the detaining authority while formulating the terms of detention and non-supply of each and every document does not provide a ground for setting aside the detention order. The detenue, therefore, has a right to be supplied with material documents, on which reliance is placed and not a document referred to in the order, which is not relied upon for forming the opinion or made the basis of passing of the detention order. In case an audio file is heard prior to the passing of the detention order by the detenue is not reason enough to supply the CD or the player to enable him to hear or know the same. The audio/video files are primary evidence and are documents as defined in Section 3 of the Evidence Act. (emphasis supplied) 6. The Division Bench also relied on the judgment of an earlier Division Bench of this Court in Devender Singh Chadha Vs. U.O.I. Anr ., W.P. (Crl.) No.615/2015 decided on 27.05.2015, wherein the Detaining Authority had relied upon certain audio recordings. Only the transcripts of those audio recordings were supplied to the detenue, and not copies of the audio recordings t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd farcical but the detenue has right to raise contentions and meet the assertions against him by referring to the evidence relied upon. Right to make representation is a precious and preserved right. Final decision is the conclusion and termination after examination of the representation . (emphasis supplied) 7. After referring to several other decisions, the Division Bench observed in Smitha Gireesh (supra): 65. It has been repeatedly held by the Supreme Court of India that the relied upon documents must be supplied to a detenue. To say that at the time of recording of the statement under Section 108 of the Customs Act and at the stage when a show cause notice was issued to the detenue, copies of these CDs were provided to him and simply because the detenue was aware of what was the material which was contained in the CDs cannot be accepted. 66. In the case of Pawanammal v. State of Tamil Nadu Ors., reported at (1999) 2 SCC 413, the Supreme Court explained the distinction between the document, which has been relied upon by a detaining authoring on the grounds of detention in comparison to a document, which may find a mere reference in the grounds of detention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e days, and in exceptional circumstances and for reasons to be recorded in writing, not later than fifteen days from the date of detention. He submits that in the present case, the documents on CDs were shown to the detenues on 28.04.2018 i.e. on the 14th day after the detention of the detenue Dharaneesh Raju (since the detenue was detained on 14.04.2018), and in the case of the detention of detenue Sahil Mohd. Zafar, the same were shown on the 19th day after detention. 10. Mr. Mahajan submits that the Detaining Authority has recorded the exceptional circumstances due to which the said delay has occurred. He has tendered in court the relevant extract from the file of Detaining Authority in this respect. The said order appear to have been passed by Sh. Sitaram Kansari, IO, DRI, BZU, wherein he, inter alia, records: ... ... ... The SIO further stated that, Shri. Dharaneesh Shetty was served with the Grounds of Detention along the Relied Upon Documents (RUD) on the 14th of April 2018 in the presence of the Additional Senior Jailor, of Arthur Road Jail, which consisted of documents and also CD. The SIO further stated that, Shri. Dharaneesh Shetty in his Writ Petition filed bef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alani v. State of Maharashtra, (1981) 1 SCC 748 : 1981 SCC (Cri) 287 : (1981) 2 SCR 459 : AIR 1981 SC 814.] it is manifest that the question of demanding the documents is wholly irrelevant because it is the constitutional mandate which requires the detaining authority to give the documents relied on or referred to in the order of detention pari passu the grounds of detention in order that the detenu may make an effective representation immediately instead of waiting for the documents to be supplied with. In the instant case, the detenu did make a representation promptly on December 30, 1980 but was seriously handicapped in making an effective representation because the aforesaid documents which were of vital importance were not supplied to him . (emphasis supplied) 13. Having heard learned counsels and perused the record, as well as the decisions relied upon by learned counsels, we are of the view that the 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 enlisted at Sl. Nos.12 and 69 of the RUDs in both these cases, or the non provision of a CD player/ laptop/ Desktop computer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 17. The submission of Mr. Mahajan that the present cases are distinguishable from Smitha Gireesh (supra), because in Smitha Gireesh (supra) the detenue had specifically asked for a CD reader which was denied to him, whereas in the present case the documents were shown on the computer screen to the detenues by treating their present writ petitions as representations, is misplaced. This is for the reason that it was the primary obligation of the Detaining Authority to supply the detenues with either the hard copies of the documents contained on CDs, or to provide them with the aids so as to enable them to view the soft copies of the documents contained on CDs on a screen, on its own without waiting for any such request or representation. As held by the Supreme Court in Mohd. Zakir (supra), the question of demanding the RUDs is wholly irrelevant, because it is the constitutional mandate which requires the Detaining Authority to give the documents relied upon or referred to in the order of detention along with the grounds of detention, in order that the detenu may make an effective representation immediately, instead of waiting for the documents to be supplied with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... circumstances sought to be made out by the respondents are non-existent. The circumstance that the detenues preferred the present writ petitions cannot be considered as to exceptional circumstance . The GOD stated that the detenue have the right to make representation against your detention to the Detaining Authority, to the Central Government as well as to the Advisory Board. If you wish to avail this right, you should send your representation through the Jail Authorities where you are detained, ... ... . 21. Thus, it was only to be expected that the detenues would agitate their legal rights, either by making their representations or by challenging their detention, and there is nothing exceptional about it. 22. The Detaining Authority (and in this case the order on the file has not even been passed by the Detaining Authority, but by the IO, DRI, BZU) cannot make a self serving order, and claim that the fact - that the detenues have preferred the present writ petitions, constitutes exceptional circumstances . As to whether or not the circumstances are exceptional to justify service of the GOD and/ or RUD within 15 days of detention, would be determined by the Court, b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der to conduct a detailed study of the modus operandi, the chronological sequence of goods/ documents and to ascertain the major players involved in this racket, the CDR/ SDR of the all the 16 persons figured during the investigation was called for from various mobile phone operators vide DRI/BZU/S-IV/ENQ-56/(INT-NIL)/2017/2307 dated 02.01.2018 seeking details of calls made for the last six months i.e. from 06.01.2017 to 31.12.2017 in respect of the mobile phone numbers used by the individuals were made known to the investigating officers vide their respective statements. 44. M/s. Vodafone Mobile Services Limited, vide their letter dated 23.01.2018 had forwarded the Call Data Record‟s (CDR) and attested copies of the application form submitted by the subscribers at the time of obtaining the mobile connections pertaining to Mobile Nos. 9167847744, 9820056759, 9820065861, 9986088809, 9324832302, 9082106967 and 9619319144. M/s Bharti Airtel Limited, vide their letter dated 08.01.2018 had forwarded the Call Data Record‟s (CDR) and attested copies of the application form submitted by the subscribers at the time of obtaining the mobile connections pertaining to Mobile N ..... X X X X Extracts X X X X X X X X Extracts X X X X
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