S. Reshmi v Union of India and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH THURSDAY, THE 28TH DAY OF JANUARY 2016/8TH MAGHA, 1937 ## **WP(Crl.).No. 386 of 2015 (S)** ## PETITIONER: S.RESHMI, AGED 25 YEARS, W/O.MANU E V, EDAPPALLIL VEEDU, EAST KALLADA P O, UPPODU, KOLLAM DISTRICT, PIN 691502 BY ADVS.SRI.O.V.MANIPRASAD SRI.JOSE ANTONY ## RESPONDENTS: 1. UNION OF INDIA REP BY THE SECRETARY TO GOVERNMENT OF INDIA, MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, CENTRAL ECONOMIC INTELLIGENCE BUREAU, 6TH FLOOR, B WING, JANPATH BHAVAN, JANPATH, NEW DELHI 110001 2. THE JOINT SECRETARY TO GOVERNMENT OF INDIA MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, CENTRAL ECONOMIC INTELLIGENCE BUREAU, 6TH FLOOR, B WING, JANPATH BHAVAN, JANPATH, NEW DELHI 110001 3. THE COMMISSIONER OF CUSTOMS(PREVENTIVE) CUSTOMS HOUSE, WILLINGTON ISLAND, COCHIN 682009 4. THE SUPERINTENDENT OF CENTAL PRISON, POOJAPURA, THIRUVANANTHAPURAM, PIN 695001 - R1&2 BY ADV. SRI.SUVIN R.MENON, CGC R3 BY ADV. SRI.JOHN VARGHESE,SC,CEN.BOARD OF EXCISE R4 BY ADV. ADDL.DIRECTOR GENERAL OF PROSECUTION R4 BY GOVERNMENT PLEADER THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 28.01.2016, ALONG WITH WPCR. 416/2015, WPCR. 423/2015, WPCR. 484/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## WP(Crl.).No. 386 of 2015 (S) ## APPENDIX ## PETITIONER'S EXHIBITS EXT.P1:TRUE COPY OF THE DETENTION ORDER DATED 28/5/2015 OF THE 2ND RESPONDENT. EXT.P2:TRUE COPY OF THE GROUNDS OF DETENTION SERVED ON THE DETENU EXT.P3:TRUE COPY OF THE BAIL APPLICATION 28/1/2015 FILED AS CRMP NO 233/2015 EXT.P4:TRUE COPY OF THE COMMON ORDER DATED 5/2/2015 EXT.P5:TRUE COPY OF THE ORDER DATED 10/2/2015 IN CRMP NO 116/2015 IN RC NO 3(A)/2015/CBI/ACB/COCHIN OF THE COURT OF SPECIAL JUDGE SPE/CBI-II, ERNAKULAM EXT.P6:TRUE COPY OF THE MAHAZAR EXT.P7:TRUE COPY OF THE STATEMENT GIVEN BY IJAZ ABDULLA ON 15/1/2015 EXT.P8:TRUE COPY OF THE APPLICATION FILED BY THE INSPECTOR OF CBI DATED 30/1/2015 EXT.P9:TRUE COPY OF THE STATEMENT RECORDED UNDER SECTION 108 OF THE CUSTOMS ACT FROM SAJEENDRAN PILLAI ON 22/1/2015 EXT.P10:TRUE COPY OF THE OFFICE ORDER NO 35/BOI/2015 DATED 15/1/2015 EXT.P11:TRUE COPY OF THE ORDER NO T2/10674/2015 DATED 12/3/2015 OF THE STATE POLICE CHIEF, KERALA EXT.P12:TRUE COPY OF THE MAHAZAR PREPARED ON 11/7/2015 BY THE CUSTOMS OFFICERS FROM THE CENTRAL PRISON, THIRUVANANTHAPURAM EXT.P13:TRUE COPY OF THE STATEMENT RECORDED FROM R KRISHNA KUMAR ON 15/1/2015 UNDER SECTION 108 OF CUSTOMS ACT EXT.P14:TRUE COPY OF THE STATEMENT RECORDED UNDER SECTION 108 OF THE CUSTOMS ACT ON 29/1/2015 FROM R KRISHNA KUMAR EXT.P15:TRUE COPY OF THE REPRESENTATION DATED 4/7/2015 ADDRESSED TO THE DETAINING AUTHORITY EXT.P16:TRUE COPY OF THE REPRESENTATION DATED 4/7/2015 ADDRESSED TO THE CENTRAL GOVERNMENT EXT.P17:TRUE COPY OF THE REPRESENTATION DATED 4/7/2015 ADDRESSED TP the ADVISORY BOARD. EXT.P18:TRUE COPY OF THE LETTER DATED 21/7/2015 BY THE DEPUTY SECRETARY TO GOVERNMENT OF INDIA TO REGISTRAR (COFEPOSA), DELHI HIGH COURT EXT.P19:TRUE COPY OF THE MOMORANDUM DATED 14 AUGUST 2015 EXT.P20:TRUE COPY OF THE MEMORANDUM DATED 14 AUGUST 2015 EXT.P21:TRUE COPY OF THE ORDER F NO.673/15//2015-CUS VIII DATED 21/8/2015 EXT.P22:TRUE COPY OF THE SUMMONS DATED 15/1/2015 RESPONDENTS' EXHIBITS EXT.R4(a) COPY OF THE DETENTION ORDER F.NO.673/15/2015-CUS-VIII, DATED 28.5.2015. EXT.R4(b) COPY OF THE REPRESENTATIONS DATED 4.7.2015. EXT.R4(c) OPY OF THE MEMORANDUM F.NO.683/308/2015-CUS-VIII DATED 14.8.2015. EXT.R4(d) COPY OF THE ORDER NO.581/ADB/COFEPOSA(C) DATED 13.7.2015. EXT.R4(e) COPY OF THE ORDER NO.F673/15/2015/CUS-VIII DATED 21.8.2015. //TRUE COPY// AHZ/ **“C.R.”** # **K.T.SANKARAN & K.P. JYOTHINDRANATH, JJ.** **---------------------------------------------------W.P.(Crl) Nos.386,416,423 & 484 of 2015 ---------------------------------------------------Dated this the 28[th] day of January, 2016** ## **JUDGMENT** Four persons, namely, Manu E.V., R. Krishnakumar, P.K.Shajahan and Muhammed Rasheed were detained as per the order dated 28.5.2015 issued under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as 'COFEPOSA Act'). Manu E.V. And R.Krishnakumar 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 ## **W.P.(Crl) Nos.386,416,423 & 484 of 2015** :: 2 :: 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 question involved in these Writ Petitions is 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. 3. The orders of detention were issued on 28.5.2015. In execution of the orders of detention, Manu E.V., R. Krishnakumar ## **W.P.(Crl) Nos.386,416,423 & 484 of 2015** :: 3 :: and Muhammed Rasheed were arrested on 1.6.2015, while P.K. Shajahan was arrested on 20.6.2015. The grounds of detention were served on the detenus within five days of their date of detention. One of the documents relied on by the detaining authority in the grounds of detention is the CCTV footage at the arrival hall of the Kochi International Airport, Nedumbassery on 26.12.2014 and 7.1.2015. 4. The grounds of detention served on the detenus would reveal the following facts: Ijaz Abdulla agreed to smuggle gold from Dubai to India at the instigation of one Rafnas and Muhafiz who were working in Dubai. Ijaz Abdulla was directed to place the baggage containing gold bars at the TLP counter situated inside the Immigration Hall. On 7.1.2015, Ijaz Abdulla brought 4 kgs. of gold in a laptop bag and left the bag at the TLP counter and walked away. On the same day, Ijaz Abdulla left for Dubai from Nedumbassery Airport. On 14.1.2015, Ijaz Abdulla carried 4 kgs. of gold from Dubai via Dubai Kochi international flight. As per the directions issued to him, he was about to leave the bag containing gold at the TLP counter at the Kochi International Airport. However, the TLP counter ## **W.P.(Crl) Nos.386,416,423 & 484 of 2015** :: 4 :: was not seen by Ijaz Abdulla and in fact, the TLP counter was renamed as “Visa on Arrival Fee Collection Counter”. Therefore, Ijaz Abdulla was not having any clear idea as to what should be done. He saw increased presence of customs officers in the Immigration Hall. Ijaz Abdulla was directed to proceed to the Immigration counter by the Customs Officers. He decided to go out through the customs green channel. However, the Customs Officials seized the gold from Ijaz Abdulla. 5. The Customs Officers recorded the statement of Ijaz Abdulla under Section 108 of the Customs Act on 15.1.2015, in which he narrated all the incidents. The facts revealed by Ijaz Abdulla led to the inspection of the CCTV footages. 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 ## **W.P.(Crl) Nos.386,416,423 & 484 of 2015** :: 5 :: 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. The learned counsel submitted that on a perusal of the grounds of detention, it would be crystal clear that the CCTV footages were relied on by the detaining authority to arrive at the subjective satisfaction for the purpose of issuing the orders of ## **W.P.(Crl) Nos.386,416,423 & 484 of 2015** :: 6 :: detention. It is submitted that by the mere supply of the soft copy of the CCTV footages, the requirement of Article 22(5) of the Constitution is not met. Unless the detenus were provided the opportunity to view the CCTV footages, it cannot be said that the said document was communicated to the detenus as provided under Article 22(5) of the Constitution of India. It is also submitted that the detenus were denied of an opportunity to make an effective and meaningful representation to the three authorities as mentioned in the grounds of detention. This would vitiate the continued detention of the detenus. 9. The learned counsel appearing for the respondents, on the other hand, submitted that though the CCTV footages were referred to in the grounds of detention, it was made only for the purpose of narration of facts. It is submitted that the mere fact that the soft copy of the CCTV footages was supplied along with the grounds of detention, it does not mean that the subjective satisfaction is arrived at on the basis of the CCTV footages as well. It is submitted that the statements of the detenus were taken under Section 108 of the Customs Act and their complicity in the smuggling activities is crystal ## **W.P.(Crl) Nos.386,416,423 & 484 of 2015** :: 7 :: clear from those statements. The detaining authority relied on those statements and also the undisputed facts and the mobile phone call registers to arrive at the subjective satisfaction that detention of the aforesaid four persons is required to be made under the COFEPOSA Act. The learned counsel also submitted that even without the CCTV footages, the subjective satisfaction could be said to be in tact. Non-availability of the facility to play the compact disc at the jail would not vitiate the continued detention. The learned counsel for the respondents further submitted that by not providing the facility to the detenus to view the CCTV footages till 11.7.2015, no prejudice was caused to them and, therefore, the continued detention could be justified on that ground as well. The learned counsel submitted that the Advisory Board met on 24.7.2015 and 25.7.2015 and before that the detenus were provided with the facility 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 ## **W.P.(Crl) Nos.386,416,423 & 484 of 2015** :: 8 :: 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 to a person detained in pursuance of a detention order of the grounds on which the order has been made shall be made as soon as may be after the detention, but ordinarily not later than five days, and in exceptional circumstances and for reasons to be recorded in writing, not later than fifteen days, from the date of detention.” ## **W.P.(Crl) Nos.386,416,423 & 484 of 2015** :: 9 :: 11. 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. 12. The scope of clauses (5) and (6) of Article 22 of the Constitution of India was discussed by a Constitution Bench of the Supreme Court in **The State of Bombay** v. **Atma Ram Shridhar Vaidya (AIR 1951 SC 157)** and it was held thus: “6. An order having been so permitted to be made, the next step to be considered is, has the detained person any say in the matter? In the chapter on Fundamental Rights, the Constitution of India, having ## **W.P.(Crl) Nos.386,416,423 & 484 of 2015** :: 10 :: given every citizen a right of freedom of movement, speech, etc. with their relative limitations prescribed in the different articles in Part III, has considered the position of a person detained under an order made under a Preventive Detention Act. Three things are expressly considered. In Art. 22 (5) it is first considered that the man so detained has a right to be given as soon as may be the grounds on which the order has been made. He may otherwise remain in custody without having the least idea as to why his liberty has been taken away. This is considered an elementary right in a free democratic State. Having received the grounds for the order of detention, the next point which is considered is, "but that is not enough; what is the good of the man merely knowing grounds for his detention if he cannot take steps to redress a wrong which he thinks has been committed either in belief in the grounds or in making the order." The clause, therefore, further provides that the detained 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 ## **W.P.(Crl) Nos.386,416,423 & 484 of 2015** :: 11 :: 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 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. ## **W.P.(Crl) Nos.386,416,423 & 484 of 2015** :: 12 :: ## 14. In **Harikisan** v. **State of Maharashtra and others (AIR** **1962 SC 911)** , 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. Communication, in this context, must, therefore, mean imparting to the detenu sufficient knowledge of all the grounds on which the order of detention is based. Communication, in this context, must mean bringing home to the detenu effective knowledge of the facts and circumstances on which the order of detention is based. ## 15. In **M. Ahamedkutty** v. **Union of India and another** **((1990) 2 SCC 1)** , the Supreme Court laid down the constitutional imperatives in Article 22(5) of the Constitution of India and held thus: ## **W.P.(Crl) Nos.386,416,423 & 484 of 2015** :: 13 :: “19. The next submission is that of non-supply of the bail application and the bail order. This Court, as was observed in _Mangalbhai Motiram Patel v. State of Maharashtra ((1980) 4 SCC 470)_ has 'forged' certain procedural safeguards for citizens under preventive detention. The constitutional imperatives in Article 22(5) are twofold: (1) The detaining authority must, as soon as may be, i.e., as soon as practicable, after the detention communicate to the detenu the grounds on which the order of detention has been made, and (2) the detaining authority must afford the detenu the earliest opportunity of making the representation against the order of detention. The right is to make an effective representation and when some documents are referred to or relied on in the grounds of detention, without copies of such documents, the grounds of detention would not be complete. The detenu has, therefore, the right to be furnished with the grounds of detention along with the documents so referred to or 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._ ## **W.P.(Crl) Nos.386,416,423 & 484 of 2015** :: 14 :: _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 reiterated that it being a constitutional imperative for the detaining authority to give the documents relied on and referred to in the order of detention pari passu the grounds of detention, those should be furnished at the earliest so that the detenu could make an effective representation immediately instead of waiting for the documents to be supplied with. The question of demanding the documents was wholly irrelevant and the infirmity in that regard was violative of constitutional safeguards enshrined in Article 22(5).” ## **W.P.(Crl) Nos.386,416,423 & 484 of 2015** :: 15 :: 16. In **Golam alias Golam Mallick** v. **The State of West Bengal ((1975) 2 SCC 4)** , a four Judges' Bench of the Supreme Court interpreted the scope and ambit of the expression “grounds” occurring in Article 22(5) of the Constitution of India and held thus: “7. ..... No doubt, clause (5) of Article 22 of the Constitution and Section 8 of the Act do not, in terms, speak of 'particulars' or 'facts', but only of 'grounds' to be communicated to the detenue. But this requirement is to be read in conjunction with and subservient to the primary mandate: “and shall afford him the earliest opportunity of making a representation against the order”, in the aforesaid clause (5). Thus construed, it is clear that in the context, 'grounds' does not merely mean a recital or reproduction of a ground of satisfaction of the authority in the language of Section 3 of the Act; nor is its connotation restricted to a bare statement of conclusions of fact. It means something more. That 'something' is the factual constituent of the 'grounds' on which the subjective satisfaction of the authority is based. All the basic facts and material particulars, therefore, which have influenced the detaining authority in making the order of detention, will be covered by “grounds” within the contemplation of ## **W.P.(Crl) Nos.386,416,423 & 484 of 2015** :: 16 :: Article 22(5) and Section 8, and are required to be communicated to the detenue unless their disclosure is considered by the authority to be against public interest. The question whether this requirement is complied with or not is justiciable. Indeed it is the duty of this Court as sentinel of the fundamental freedoms guaranteed by the Constitution, to see that the liberty of none is taken away except in accordance with procedure prescribed by law.” ## 17. In **Icchu Devi Choraria** _v._ **Union of India (AIR 1980 SC** **1983** ), the grounds of 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 ## **W.P.(Crl) Nos.386,416,423 & 484 of 2015** :: 17 :: 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 materials relied upon in the grounds of detention, they must also be communicated to the detenu, because being incorporated in the grounds of detention, they form part of the grounds and the grounds furnished to the detenu cannot be said to be complete without them. It would not therefore be sufficient to communicate to the detenu a bare recital of the grounds of detention,but copies of the documents, statements and other materials relied upon in the grounds of detention must also be furnished to the detenu within the prescribed time subject of course to cl. (6) of Article 22 in order to constitute compliance with clause (5) of Article 22 and Section 3, sub-section (3) of the COFEPOSA Act. One of the primary objects of communicating the grounds of detention to the detenu is ## **W.P.(Crl) Nos.386,416,423 & 484 of 2015** :: 18 :: to enable the detenu, at the earliest opportunity, to make a representation against his detention and it is difficult to see how the detenu can possibly make an effective representation unless he is also furnished copies of the documents, statements and other materials relied upon in the grounds of detention. There can therefore be no doubt that on a proper construction of clause (5) of Article 22 read with Section 3, sub-section (3) of the COFEPOSA Act, it is necessary for the valid continuance of detention that subject to clause (6) of Article 22 copies of the documents, statements and other materials relied upon in the grounds of detention should be furnished to the detenu along with the grounds of detention or in any event not later than five days and in exceptional circumstances and for reasons to be recorded in writing, not later than fifteen days from the date of detention. If this requirement of clause (5) of Article 22 read with Section 3, sub-section (3) is not satisfied, the continued detention of the detenu would be illegal and void.” ## 19. In **Mr. Kubic Dariusz** v. **Union of India and others (AIR** **1990 SC 605)** , the Supreme Court held that Article 22(5) of the Constitution contains the mandate that the grounds of detention must be communicated to the detenu. “Communication” is a strong ## **W.P.(Crl) Nos.386,416,423 & 484 of 2015** :: 19 :: word. It requires that sufficient knowledge of the basic facts constituting the grounds should be imparted effectively and fully to the detenu in writing in a language which he understands, so as to enable him to make a purposeful and effective representation. If the grounds are only verbally explained 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 ## **W.P.(Crl) Nos.386,416,423 & 484 of 2015** :: 20 :: 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. The Supreme Court held that no hard and fast rule can be laid down with respect to the question whether non-supply of the documents has impaired the rights of the detenu. If an incidental reference is made to a document, it cannot always be said that it was a relied upon document to arrive at the subjective satisfaction by the detaining authority. ## 21. In _**Abdullah Khader Batcha's case**_ , the Supreme Court held that merely because copies of some documents have been supplied they cannot by any stretch of imagination be called as relied upon documents. While examining whether non-supply of a document would prejudice a detenu, the Court has to examine whether the detenu would be deprived of making an effective representation in the absence of the document. Primarily, the documents which form the grounds for detention are to be supplied and non-supply thereof would cause prejudice to the detenu. It was ## **W.P.(Crl) Nos.386,416,423 & 484 of 2015** :: 21 :: held that “documents which are merely referred to for the purpose of narration of facts in that sense cannot be termed to be documents without the supply of which the detenu is prejudiced”. 22. The learned counsel appearing for the third respondent submitted that the CCTV footage is the only evidence forming part of the grounds and it does not constitute a material on which the grounds are based. The learned counsel also submitted that the facts stated in the grounds have independent existence dehors the CCTV footage and, therefore, the contention of the petitioners that the continued detention of the detenus is illegal on the ground that the CCTV footage was not played to them within the time permitted under Section 3(3) of the COFEPOSA Act, is unsustainable. He also submitted that the CCTV footage was shown to the detenus in jail on 11.7.2015 while the Advisory Board met only on 24.7.2015 and 25.7.2015. Therefore, the detenus had effective and meaningful opportunity to make a representation to the Advisory Board, even based on the scenes which they saw in the CCTV footage. The learned counsel relied on the decision of the Supreme Court in **State of Punjab and others** v. **Jagdev Singh Talwandi ((1984) 1 SCC** ## **W.P.(Crl) Nos.386,416,423 & 484 of 2015** :: 22 :: **596)** . In _**Jagdev Singh Talwandi's case,**_ ground No.1 of the grounds contained extracts from a CID report. But the materials supplied along with the grounds did not contain those portions extracted in the grounds of detention but contained other portions in 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 ## **W.P.(Crl) Nos.386,416,423 & 484 of 2015** :: 23 :: 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. Krishnakumar, the Assistant Central Intelligence Officers at the Kochi International Airport, were involved in the smuggling activities. The CCTV footages were also relied on in the matter of arriving at the conclusion that Manu E.V. and R.Krishnakumar along with P.K.Shajahan, Muhammed Rasheed, Ijaz Abdulla and others constituted a smuggling syndicate in order to smuggle large quantities of gold from Dubai to India. It is also to be noted that taking clue from the statement given by Ijaz Abdulla under Section 108 of the Customs Act, the Officers of the Customs got the CCTV footages for the purpose of finding out whether Manu E.V. and R.Krishnakumar were parties or privies to the smuggling activities. The documents supplied to the detenus contained the CCTV footages and the same were supplied in the form of a soft copy, namely, compact disc. Thus, it is clear from the admitted facts that the CCTV footage is a relied upon document by the detaining authority to arrive at the subjective satisfaction to detain the detenus. The CCTV footage being a document relied upon in the grounds of ## **W.P.(Crl) Nos.386,416,423 & 484 of 2015** :: 24 :: detention, it is mandatory to supply the copy of that document to the detenus. Supplying a soft copy containing the CCTV footage without any facility for the detenus to view the images contained in the CD does not constitute a sufficient compliance of the expression “communicate” in Article 22(5) of the Constitution of India. Communication is for the purpose of bringing home to the knowledge of the detenu of certain facts and details. By just handing over a compact disc and putting them in prison where it is not possible, as of right, for the detenus to get the CD played, is not a compliance of the mandatory requirement of Article 22(5) of the Constitution of India. It is known to all that the detenus could do nothing by getting the compact disc. To comprehend the contents of the same, they had to play it. There is no case for any of the respondents that any inmate in the jail has the facility to play the CD at their will and pleasure and that sufficient arrangements have been made for the same in the jail. There is also no case for the respondents that before 11.7.2015 the detenus were shown the images in the CCTV footage by playing the compact disc. Thus there was a failure to communicate the grounds of detention within the meaning of Article 22(5) of the Constitution to the detenus since ## **W.P.(Crl) Nos.386,416,423 & 484 of 2015** :: 25 :: 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 ## **W.P.(Crl) Nos.386,416,423 & 484 of 2015** :: 26 :: clause (5) of Article 22 by necessary implication guarantees the constitutional right to a proper consideration of the representation. Secondly, the obligation of the Government to afford to the detenu an opportunity to make representation and to consider such representation is distinct from the Government's obligation to refer the case of detenu along with the representation to the Advisory Board to enable it to form its opinion and send a report to the Government. It is implicit in clauses (4) and (5) of Article 22 that the Government while discharging its duty to consider the representation, cannot depend upon the views of the Board on such representation. It has to consider the representation on its own without being influenced by any such view of the Board. The obligation of the Government to consider the representation is different from the obligation of the Board to consider the representation at the time of hearing the references. The Government considers the representation to ascertain essentially whether the order is in conformity with the power under the law. The Board, on the other hand, considers the representation and the case of the detenu to examine whether there is sufficient case for detention. The consideration by the Board is an additional safeguard and not a substitute for consideration of the representation by the Government. ## **W.P.(Crl) Nos.386,416,423 & 484 of 2015** :: 27 :: The right to have the representation, considered by the Government, is safeguarded by Cl. (5) of Article 22 and it is independent of the consideration of the detenu's case and his representation by the Advisory Board under Cl. (4) of Article 22 read with Section 8(c) of the Act. [See: _Sk. Abdul Karim v. State of West Bengal ((1969) 1 SCC 433); Pankaj Kumar Chakrabarty v. State of West Bengal ((1969) 3 SCC 400); Shayamal Chakraborty v. Commissioner of Police, Calcutta ((1969) 2 SCC 426); B. Sundar Rao v. State of Orissa ((1972) 3 SCC 11); John Martin v. State of West Bengal ((1975) 3 SCC 836); Sk.Sekawat v. State of West Bengal ((1975) 3 SCC 249) and Haradhan Saha v. State of West Bengal ((1975) 3 SCC 198)_ ].” 25. In view of the decision in _**K.M.Abdulla Kunhi's case,**_ the contention raised by the third respondent that the detenus got an opportunity to make a representation to the Advisory Board and, therefore, making available the CCTV footage for viewing by the detenus after the prescribed time limit would not be fatal, is unsustainable. In the grounds of detention, the rights of the detenu to make a representation have been communicated in the following words: ## **W.P.(Crl) Nos.386,416,423 & 484 of 2015** :: 28 :: “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, 6[th] 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, 6[th] Floor, B Wing, Janpath Bhavan, Janpath, New Delhi110001. - III. Representation meant for the Advisory Board should be addressed to the Chairman, COFEPOSA Advisory Board, Delhi High Court, Sher Shah Road, New Delhi.” ## **W.P.(Crl) Nos.386,416,423 & 484 of 2015** :: 29 :: The argument that the detenus could make a representation to one of these authorities on the basis of communication of the relied upon documents belatedly is not acceptable at all. The right of the detenus to make representation to three authorities cannot be denied by the respondents and providing an opportunity to make a representation to one of the authorities is not a substitute for the mandate of Article 22(5) of the Constitution of India. 26. For the reasons mentioned above, we hold that the continued detention of the detenus is illegal. 27. The learned counsel for the petitioners submitted that several grounds have been taken in the Writ Petitions to contend that the order of detention itself is illegal and void and, therefore, disposal of these Writ Petitions releasing the detenus on the ground that their continued detention is illegal should not stand in the way of causing prejudice to the petitioners. We make it clear that since we have arrived at the finding that continued detention of the detenus is illegal, it is not necessary to consider the other points raised in the Writ Petitions and all those contentions are left open. ## **W.P.(Crl) Nos.386,416,423 & 484 of 2015** :: 30 :: 28. Accordingly, 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. The Registry will communicate gist of this judgment to the Superintendent of Central Prison, Poojappura, Thiruvananthapuram. **K.T.SANKARAN Judge** ## **K.P. JYOTHINDRANATH** **Judge** ahz/