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TMI Blog2016 (1) TMI 1475X X X X Extracts X X X X X X X X Extracts X X X X ..... kumar were working as Assistant Central Intelligence Officers at the Kochi International Airport, while P.K. Shajahan and Muhammed Rasheed are travel agents at Angamali. It is alleged that on 7.1.2015 and 14.1.2015, one Ijaz Abdulla K., a passenger in Dubai-Kochi flight, illegally brought 4 kgs. each of gold to India. The further allegation is that Manu E.V. and R. Krishnakumar facilitated the movement of gold from Airport to outside on 7.1.2015 and also agreed to do so on 14.1.2015. It is also alleged that P.K.Shajahan, Muhamed Rasheed, Kunhayankutty @ Kutty and Imthiyaz constituted a smuggling syndicate and with the help of passengers from Dubai to Kochi and the two Assistant Intelligence Officers at Kochi International Airport smuggled large quantities of gold on more than thirty occasions. The CCTV footage at the Kochi International Airport on 26.12.2014 and 7.1.2015 were relied on to arrive at the conclusion of the smuggling activities indulged in by Manu E.V., R.Krishnakumar, P.K.Shajahan and Muhammed Rasheed. A compact disc containing the CCTV footage was furnished to the detenus, but no facility was provided for the detenus to view the CCTV footages till 11.7.2015. 2. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es. Thereafter, Manu E.V. and R.Krishnakumar were summoned and their statements under Section 108 of the Customs Act were recorded. The statement of Muhammed Rasheed was also recorded under Section 108 of the Customs Act. 6. Ijaz Abdulla, Manu E.V. and R.Krishnakumar were arrested on 15.1.2015 and they were remanded to judicial custody by the Court. Their bail applications were rejected. At a later point of time, bail was granted to the aforesaid three persons. As stated above, on 28.5.2015 orders under Section 3(1) of the COFEPOSA Act were issued against Manu E.V., R. Krishnakumar, P.K.Shajahan and Muhammed Rasheed. 7. The Writ Petitions have been filed by the spouses of the respective detenus challenging the orders of detention as well as the continued detention. 8. Though several grounds have been taken in the Writ Petitions, the learned counsel appearing for the petitioners mainly focussed on the point that the continued detention of the detenus is illegal since they were denied the benefit of viewing the CCTV footages, soft copy of which were supplied to them along with the grounds and which were relied on by the detaining authority to arrive at the subjective satisfaction. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to view the CCTV footages on 11.7.2015. Therefore, they got an opportunity to make an effective representation to the Advisory Board based on the information gathered from the CCTV footages as well. 10. Article 22(5) of the Constitution of India provides that when any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest possible opportunity of making a representation against the order. The exception to clause (5) of Article 22 is contained in clause (6) therein which states that nothing in clause (5) shall require the authority making any such order to disclose facts which such authority considers to be against the public interest to disclose. The COFEPOSA Act is an Act to provide for preventive detention in certain cases for the purposes mentioned in the Act. Sub-section (3) of Section 3 of the COFEPOSA Act provides thus: "3. Power to make orders detaining certain persons.-- ......... (3) For the purposes of clause (5) of article 22 of the Constitution, the communication ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... person should have the earliest opportunity of making a representation against the order. The representation has to be against the order of detention because the grounds are only steps for the satisfaction of the Government and on which satisfaction the order of detention has been made. The third thing provided is in cl. (6). It appears to have been thought that in conveying the information to the detained person there may be facts which cannot be disclosed in the public interest. The authorities are, therefore, left with a discretion in that connection under cl. (6). The grounds which form the basis of satisfaction when formulated are bound to contain certain facts, but mostly they are themselves deductions of facts from facts. That is the general structure of Art.22, cls.(5) and (6) of the Constitution." 13. The Constitution Bench in Atma Ram's case 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 intelli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relied on. If there is failure or even delay in furnishing those documents it would amount to denial of the right to make an effective representation. This has been settled by a long line of decisions: Ramachandra A. Kamat v. Union of India ((1980) 2 SCC 270), Frances Coralie Mullin v. W.C. Khambra ((1980) 2 SCC 275), Icchu Devi Choraria v. Union of India ((1980) 4 SCC 531), Pritam Nath Hoon v. Union of India ((1980) 4 SCC 525), Tushar Thakker v. Union of India ((1980) 4 SCC 499), Lallubhai Jogibhai Patel v. Union of India ((1981) 2 SCC 427), Kirit Kumar Chaman Lal Kundaliya v. Union of India ((1981) 2 SCC 436) and Ana Carolina D'Souza v. Union of India (1981 Supp. SCC 53(1)). 20. It is immaterial whether the detenu already knew about their contents or not. In Mehrunissa v. State of Maharashtra ((1981) 2 SCC 709) it was held that the fact that the detenu was aware of the contents of the documents not furnished was immaterial and nonfurnishing of the copy of the seizure list was held to be fatal. To appreciate this point one has to bear in mind that the detenu is in jail and has no access to his own documents. In Mohd Zakir v. Delhi Administration ((1982) 3 SCC 216) it was rei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... detention referred to several documents and statements including two tape recorded conversations in which the detenu was also a party to the conversation. The grounds of detention were served on the detenu on 4.6.1980 when he was detained. But all the documents, statements and other materials relied upon in the grounds were not served on him till 11.7.1980. The detenu made a request to supply the documents, statements and materials relied upon in the grounds of detention including the transcripts of the tapes. The documents were supplied on 11.7.1980 and the copies of the tapes were given on 20.7.1980. In the above factual scenario, the Supreme Court held that the continuance of the detention of the detenu after 19.6.1980 was unconstitutional and it was not open to the detaining authority to seek to justify the continued detention of the detenu on the ground that there were sufficiently compelling reasons which prevented it from supplying copies of the documents, statements and other materials to the detenu until 11.7.1980 and copies of the tapes until 20.7.1980. 18. In Icchu Devi's case, the Supreme Court held thus: "6. ...... If there are any documents, statements or other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ined to the detenu and nothing in writing is left with him in a language which he understands, then that purpose is not served and the constitutional mandate in Article 22(5) is infringed. 20. The learned counsel appearing for respondents 1 and 2 relied on the decisions of the Supreme Court in Kamarunnissa v. Union of India and another ((1991) 1 SCC 128) and State of Tamil Nadu and another v. Abdullah Khader Batcha and another (AIR 2009 SC 507) to support the argument that merely because copies of some documents have been supplied, it cannot be said that all of them are relied upon documents. In Kamarunnissa's case it was held that it is not sufficient to say that the detenu was not supplied with copies of the documents in time on demand but it must further be shown that non-supply has impaired the detenu's right to make an effective and purposeful representation. Non-supply of a document would not vitiate an otherwise legal detention order merely on the ground that there is reference thereto in the grounds of detention. In that case, there was no pleading that non-supply of documents resulted in the impairment of the right of the detenu to make an effective representation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the CID report. In that context, the Supreme Court held that it is not the law that the evidence gathered by the detaining authority against the detenu must also be furnished to him. It was also held thus: "23. ...... If the order of detention refers to or relies upon any document, statement or other material, copies thereof have, of course, to be supplied to the detenu as held by this Court in Icchu Devi Choraria v. Union of India (AIR 1980 SC 1983). That question does not arise here since no such thing is referred to or relied upon in the first ground of detention. Indeed the furnishing of the CID report, of which a truncated extract was furnished to the respondent, was a superfluous exercise in the light of the facts of the instant case." 23. Now the decision of the case would rest upon the question whether the CCTV footage was a relied upon document or whether it was only referred to in the grounds of detention for the purpose of narration of facts. We have carefully gone through the grounds of detention. The grounds of detention would clearly disclose that the detaining authority heavily relied on the CCTV footage to arrive at the conclusion that Manu E.V. and R. Krishnakum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one of the relied upon documents was not effectively supplied to the detenus within the period provided under Section 3(3) of the COFEPOSA Act. This is a grave infringement of the mandatory requirements of Article 22(5) of the Constitution of India as well as Section 3(3) of the COFEPOSA Act. Thereby, the very valuable right of the detenus to make an effective and meaningful representation to the authorities was denied to them. 24. The contention raised by the third respondent is that after the CCTV footage was shown to the detenus on 11.7.2015, the detenus had an opportunity to make a representation to the Advisory Board which met on 24.7.2015 and 25.7.2015 and, therefore, the continued detention is not illegal. We are unable to accept this submission. The Supreme Court in K.M.Abdulla Kunhi and B.L. Abdul Khader v. Union of India and others ((1991) 1 SCC 476), settled the principles with reference to the constitutional rights under Article 22(5) with respect to submitting representations to various authorities and held thus: "11. It is now beyond the pale of controversy that the constitutional right to make representation under clause (5) of Article 22 by necessary implication ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f detention, the rights of the detenu to make a representation have been communicated in the following words: "61. You have a 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 your right of making representation, you should send it through the Jail Authorities, where you are detained, in the manner indicated below: I. Representation meant for the Detaining Authority should be addressed to the Joint Secretary (COFEPOSA), Government of India, Ministry of Finance, Department of Revenue, Central Economic Intelligence Bureau, 6th Floor, B Wing, Janpath Bhavan, Janpath, New Delhi - 110 001. II. Representation meant for the Central Government should be addressed to Secretary, Govt. of India, Ministry of Finance, Department of Revenue, Central Economic Intelligence Bureau, 6th Floor, B Wing, Janpath Bhavan, Janpath, New Delhi- 110001. III. Representation meant for the Advisory Board should be addressed to the Chairman, COFEPOSA Advisory Board, Delhi High Court, Sher Shah Road, New Delhi." The argument that the detenus could make a representation to one of these aut ..... X X X X Extracts X X X X X X X X Extracts X X X X
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