Delhi High Court
Shaikh Mohammed Rizwan vs Uoi & Anr. on 28 March, 2017
$~8 to 14
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 28th March, 2017
+ W.P.(CRL) 2129/2016
SHAIKH MOHAMMED RIZWAN ..... Petitioner
Through: Mr. Pradeep Jain, Advocate with
Mr.Shubhankar Jha, Mr. Rahul Raheja,
Mr.Ashish Bansal, Mr. Vikas Sarin
and Ms. Mansi Awasthi, Advocates.
versus
UOI & ANR. ..... Respondents
Through: Mr. Akshay Makhija, CGSC with
Ms.Divya Kapur, Advocate for UOI.
+ W.P.(CRL) 2305/2016
ABDUL AZEEM SALAMTI ..... Petitioner
Through: Mr. Pradeep Jain, Advocate with
Mr.Shubhankar Jha, Mr. Rahul Raheja,
Mr.Ashish Bansal, Mr. Vikas Sarin
and Ms. Mansi Awasthi, Advocates.
versus
UOI REP. ITS JOINT SECRETARY MINISTRY OF FINANCE
NEW DELHI & ORS. ..... Respondents
Through: Mr. Sanjeev Narula, CGSC with
Mr.Abhishek Ghai, Advocate for UOI.
+ W.P.(CRL) 2306/2016
SYED ALI FURKHAN ..... Petitioner
W.P. (CRL) 2129/2016 & 6 Others Page 1 of 15
Through: Mr. Pradeep Jain, Advocate with
Mr.Shubhankar Jha, Mr. Rahul Raheja,
Mr.Ashish Bansal, Mr. Vikas Sarin
and Ms. Mansi Awasthi, Advocates.
versus
UOI REP.BY ITS JOINT SECRETARY MINISTRY OF FINANCE
NEW DELHI & ORS. ..... Respondents
Through: Mr. Sanjeev Narula, CGSC with
Mr.Abhishek Ghai, Advocate for UOI.
+ W.P.(CRL) 2307/2016
SYED ANEESH KARIKAL ..... Petitioner
Through: Mr. Pradeep Jain, Advocate with
Mr.Shubhankar Jha, Mr. Rahul Raheja,
Mr.Ashish Bansal, Mr. Vikas Sarin
and Ms. Mansi Awasthi, Advocates.
versus
UOI REP. BY ITS SECRETARY MINISTRY OF FINANCE NEW
DELHI & ORS. ..... Respondents
Through: Mr. Sanjeev Narula, CGSC with
Mr.Abhishek Ghai, Advocate for UOI.
+ W.P.(CRL) 2816/2016
PRAKASH MAALLAPA MANOTGI ..... Petitioner
Through: Mr. Pradeep Jain, Advocate with
Mr.Shubhankar Jha, Mr. Rahul Raheja,
Mr.Ashish Bansal, Mr. Vikas Sarin
and Ms. Mansi Awasthi, Advocates.
versus
W.P. (CRL) 2129/2016 & 6 Others Page 2 of 15
UOI & ANR. ..... Respondents
Through: Mr. Amit Mahajan, CGSC with
Mr.Kunal Dutt, Advocate for UOI.
+ W.P.(CRL) 3104/2016
DURE AFSHA ..... Petitioner
Through: Mr. Pradeep Jain, Advocate with
Mr.Shubhankar Jha, Mr. Rahul Raheja,
Mr.Ashish Bansal, Mr. Vikas Sarin
and Ms. Mansi Awasthi, Advocates.
versus
UNION OF INDIA & ANR ..... Respondents
Through: Mr. Amit Mahajan, CGSC with
Mr.Kunal Dutt, Advocate for UOI.
+ W.P.(CRL) 3107/2016
ABRARUL-UI-HAQ ..... Petitioner
Through: Mr. Pradeep Jain, Advocate with
Mr.Shubhankar Jha, Mr. Rahul Raheja,
Mr.Ashish Bansal, Mr. Vikas Sarin
and Ms. Mansi Awasthi, Advocates.
versus
UNION OF INDIA ..... Respondent
Through: Mr. Anil Soni, CGSC for UOI.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MR. JUSTICE VINOD GOEL
G.S. SISTANI, J. (ORAL)
1. Seven writ petitions have been filed. All the petitions seek a writ in
the nature of certiorari for quashing of detention orders, all dated
31.05.2015 passed by the respondent no. 2 under Section 3 (1) of the
Conservation of Foreign Exchange and Prevention of Smuggling
Activities Act, 1974 (briefly the „COFEPOSA Act‟). A direction is
also sought to quash the communication of the Central Government
whereby the detention orders were confirmed.
2. At the outset, learned counsel for the parties point out that all the
detenues have served their period of detention and have since been
released from jail.
3. Mr. Jain, learned counsel for petitioners, submits that all the writ
petitions are covered by a decision rendered by a Division Bench of
this court in Smitha Gireesh v. UOI and Ors, MANU/DE/1440/2016:
2016 SCC OnLine Del 3697. He further submits that the aforesaid
decision has attained finality, which is also confirmed by the learned
counsel for Union of India on instructions.
4. The detenue in Smitha Gireesh (Supra) therein was working as the
Assistant Central Intelligence Officer-I in the immigration department
under the supervision of the Intelligence Bureau and was on duty as
the Wing In-charge on 07.07.2014 when four persons had been
arrested consequent to seizure of 19.4 kgs of gold at Dabolim Airport,
Goa. The detenue therein had been implicated owing to his
conversations with one Sh.Javed Mohammad Sheikh, Assistant
Manager of Minar Travels. This led to the detention order dated
31.03.2015 being passed, which was challenged before this Court.
The writ petition was allowed on 02.06.2016 on two counts: first,
delay in execution of the detention order; and second, failure to supply
a CD player despite heavy reliance upon the contents of 12 Compact
Discs („CDs‟) in the detention order inhibiting the capacity of the
detenue therein to make an effective representation and violating
Article 22(5) of the Constitution.
BRIEF FACTS
5. In the present writ petitions, the detenues allege to have been
implicated in the same incident. The basic facts of each writ petition
are being noticed below:
5.1 In W.P. (Crl) 2129/2016, the detenue Shaikh Mohammad Javid was
working as the Assistant Manager with M/s Minar Travels when the
gold was seized on 07.07.2014. A detention order bearing
F.No.673/03/2015-Cus.VIII dated 31.03.2015 was passed and the
detenue surrendered on 30.10.2015 before the Goa Police, when the
detention order was served upon the detenue. Thereafter on
31.10.2015, the grounds of detention, list of relied upon documents
along with the documents were supplied to the detenue. Amongst the
relied upon documents, 12 CDs were supplied to the detenue. The
detenue requested the officials to be provided with an opportunity to
view the contents of the CDs to no avail. The detenue initially filed a
writ petition [Crl. W.P. 171/2015] before the Goa Bench of the
Bombay High Court, which has been withdrawn on 22.06.2016 with
liberty to file afresh.
5.2 The detenue/petitioner Abdul Azeem Salamti in W.P. (Crl) 2305/2016
has impugned the detention order F.No.673/09/2015-Cus.VIII dated
31.03.2015. The detenue had surrendered before the Police Inspector,
Vasco, Vasco-da-gama Police Station, Goa on 21.10.2015 and
thereafter, the list of relied upon documents and documents were
supplied to the petitioner on 23.10.2015. Along with the relied upon
documents were 12 CDs/audio cassettes, but no mechanism for
viewing the cassettes was provided. The detenue had previously
approached the Bombay High Court at Goa in Crl. W.P. 169/2015
impugning the same detention order, but has since withdrawn the same
with liberty to file afresh.
5.3 W.P. (Crl) 2306/2016 has been filed by Riyaz Ahmed on behalf of the
detenue Sh.Syed Ali Furkhan challenging the detention order
F.No.673/11/2015/Cus.VIII dated 31.03.2015 inter alia on the ground
that along with the detention order, the detenue was given 12 audio
cassettes/CDs without any means to view their contents. We may only
note that the detenue had surrendered on 21.10.2015 and the grounds
of detention, list of relied upon documents and the relied upon
documents were served on 23.10.2015. The detenue had approached
the Goa Bench of the Bombay High Court in Criminal Writ Petition
168/2015; this writ was withdrawn on 22.06.2016 "with liberty to file
fresh petitions challenging the same detention orders."
5.4 In W.P. (Crl) 2307/2016, the detenue Sh. Syed Anees Karikal has
impugned the detention order bearing F.No.673/10/2015-Cus.VIII
dated 31.10.2015. The remaining facts remain identical as W.P. (Crl)
2306/2016 inasmuch as the detenue surrendered on 21.10.2015 and the
grounds of detention, list of relied upon documents and the relied upon
documents were served on 23.10.2015. He had also impugned the
same detention order before the Goa Bench of the Bombay High Court
in Crl.W.P. 167/2015 which was withdrawn prior to the filing of the
present writ along with liberty to file afresh.
5.5 The petitioner/detenue in WP (Crl) 2816/2016 was working as casual
employee of Air India at Dabolim Airport, Goa. On 07.07.2014, he
received a white polythene bag containing gold from certain
international passengers at the airport, which was detected by the
authorities. The authorities immediately accosted the petitioner, who
confessed to receiving gold. The petitioner identified the three
international passengers and pursuant to a comprehensive search, the
three international passengers along with the detenue were arrested on
08.07.2014. All of them were granted bail on 10.07.2014 by the Chief
Judicial Magistrate. On the basis of this incident, a detention order
bearing No. F.No.673/04/2015-Cus.VIII dated 31.03.2015 was issued
against the petitioner. The petitioner claims to have learnt about the
order much later and immediately thereafter, surrendered before the
Goa Police on 30.10.2015. On the very same day, the detention order
was served upon him and the grounds of detention, list of relied upon
documents along with the relied upon documents were served on
31.10.2015. The petitioner inter alia claims that along with the relied
upon documents, 12 CDs were supplied to the petitioner without any
device to view the same despite request of the petitioner. In the first
week of December, 2015 the detenue had filed a writ petition
[Crl.W.P. 172/2015] before the Goa Bench of the Bombay High Court
which has since been withdrawn with liberty to file afresh. Thus, the
petitioner has impugned the detention order dated 31.03.2015 and the
consequent communication dated 31.12.2015 confirming the detention
order.
5.6 Dure Afsha has filed W.P. (Crl) 3104/2016 on behalf of her husband
Muhammed Saleem Musba (detenue) who has been detained pursuant
to Order bearing F.No.673/8/2015-Cus.VIII dated 31.03.2015. Her
husband had surrendered on 23.10.2015 before the Goa Police and was
detained in Sada Jail. On the same day of his arrest, the detenue was
served with the impugned detention order and the grounds of detention
along with list of relied upon documents and the relied upon
documents. This detention order has been impugned in the writ
petition on numerous grounds including the denial of a mechanism to
view the CDs/audio cassettes provided along with the grounds of
detention.
5.7 Similarly in W.P. (Crl) 3107/2016, the detenue Sh.Mohammad Asif,
being represented by his pariokar, has sought to challenge his
detention order F.No.673/7/2015-Cus.VIII dated 31.03.2015. The
detenue had surrendered on 23.10.2015; on which date the detention
order was served upon him. Later on 27.10.2015, the grounds of
detention along with list of relied upon documents and the relied upon
documents were provided to him. One of his grievance is that though
12 CDs were given to him, no mechanism was provided to view the
same. The detenue had previously approached the Bombay High
Court at Goa in Crl. W.P. 38/2015, which was withdrawn with liberty
to file afresh.
6. Mr.Jain submits that most of the detenues had previously approached
the Goa Bench of the Bombay High Court, which have since been
withdrawn with liberty to file fresh petitions impugning the same
detention orders. He further submits that the aforesaid order was
passed in the presence of the counsel for the respondents and there
was no opposition to such liberty having been granted.
7. Mr. Jain, learned counsel for the petitioners, submits that although
various grounds have been raised by the petitioners in their respective
writ petitions but the petitioners would only press one ground, i.e.
non-supply of relied upon documents in complete form and legible
copies of documents. To avoid prolixity, we only mention the broad
grounds urged in W.P. (Crl) 2129/2016:
a. Inordinate delay in passing the detention order;
b. Delay in execution of the detention order;
c. Failure to supply relied upon documents in complete form and
legible copies of documents;
d. Subjective satisfaction having wrongly arrived at inasmuch as the
notice of termination of service of the petitioner was not placed
before the detaining authority; and
e. Representation of the detenue to the Central Government and the
detaining authority has not been decided.
8. Mr. Jain submits that aforesaid ground sought to be urged was a
subject matter of the earlier writ petition which was filed in Delhi
High Court by a co-detenue in the case of Smitha Gireesh (Supra).
Learned counsel appearing for the Union of India in the respective
writ petitions adopt the arguments raised by them in the case of
Smitha Gireesh (Supra), but do not dispute the fact that the
arguments so urged did not find favour with the Court and the Court
had quashed the detention order. There is no quarrel with the fact that
the judgment in Smitha Gireesh (Supra) has attained finality.
9. Since the detention orders are substantially the same and the
arguments raised before us are also the same, we deem it appropriate
to discuss the judgment of a coordinate bench of this Court, of which
one of us (G.S. Sistani, J.) was a member, in extenso. A brief factual
background to the decision has already been given in paragraph 4
aforegoing. Today, we are only concerned with one ground, i.e. the
failure to supply a CD Player or any other alternative mechanism to
the detenues to enable them to view the CDs relied upon in the
detention order. The following question of law was framed by the
Bench:
"F. Whether the detention order is not liable to be set aside
on the ground of violation of detenue's right under
Article 22(5) of the Constitution of India as the
detaining authority failed to show the contents of the
CCTV footages so supplied to the detenue?"
10. The learned counsel for the petitioner therein had argued that the
detenue was supplied with 12 CDs containing 8 GB data each, but was
not supplied with a CD Player to view the same despite repeated
requests. The requests were later arbitrarily rejected altogether. This,
according, to the counsel for the petitioner was a serious lapse on the
part of the authorities depriving him from making an effective
representation against the detention order in violation of Article 22 (5)
of the Constitution. Additionally, a CD player was provided to a co-
detenue Imtivaz Hussain.
11. The counsel representing the Union of India therein had attempted to
controvert the submissions of the petitioner on the following counts:
a. The detenue had previously seen the contents of the CDs;
b. The authenticity of the CCTV footage was not in question nor
was the presence of the detenue in the same;
c. No prejudice had been shown by the detenue; and
d. That since the representation given by the detenue from Jail was
typed and more than 100 pages, he had access to an electronic
device to view the contents of the CDs.
12. The arguments for the Union did not find favour with the Court, which
came to the conclusion that depriving the detenue therein from
viewing the contents of the CDs, which were heavily relied upon and
found mentioned in the relied upon documents, had inhibited the
capacity of the detenue in making an effective representation and ran
afoul of the mandate of Article 22 (5) of the Constitution. While
coming to the conclusion, the Bench relied upon the judgments in
Icchu Devi Choriria v. Union of India & Ors., (1980) 4 SCC 531;
Smt.Dharmista Bhagat v. State of Karnataka and Anr., 1989 Supp
(2) SCC 155; Powanammal v. State of T.N. and Anr., (1992) 2 SCC
414; Mehrunissa v. State of Maharashtra, (1981) 2 SCC 709; and
Panawanammal v. State of Tamil Nadu & Ors., (1999) 2 SCC 413 of
the Apex Court and Devinder Singh Chadha v. UOI & Anr., W.P.
(Crl) 615/2015 dated 29.05.2015; and Satyaprakash Behl v. UOI &
Ors., W.P. (Crl.) 241/1997 dated 17.10.1997 of this Court. We deem
it appropriate to reproduce the relevant extract of the judgment in
Smitha Gireesh (Supra) below:
"57. It is a settled law when clause (5) of Article 22 and
sub-section 3 of Section 3 of COFEPOSA Act provide that
the grounds of detention should be communicated to the
detenue within five or fifteen days, as the case may be, what
is meant is that the grounds of detention in their entirety
must be furnished to the detenue. If there are any
documents, statements or other material relied upon in the
grounds of detention, they must also be communicated to the
detenue, because being incorporated in the grounds of
detention, as they form part of the grounds and the grounds
furnished to the detenue cannot be said to be complete
without them. It would not therefore be sufficient to
communicate to the detenue 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 detenue within the prescribed time. The
stand of the respondents that they had shown the CDs to the
detenu during the course of investigation is not a proper
service as per law. The detaining authority heavily relied
upon the CDs in the grounds of detention and thus were
duty bound to show the entire contents of the same to the
detenue as a matter of right. The Court cannot lose track of
the fact that the detenue was in judicial custody and he
could not have access to any facility for seeing the CDs and
cannot be forced to rely on his memory for making an
effective representation against the detention order. The
right to make a representation is a right provided in the
Constitution. The supply of 12 CDs as relied upon
documents are not disputed by the respondents, but the
respondents failed to provide the facility to see the CDs for
making an effective representation even before the meeting
of the Advisory Board which was held on 12.02.2016. It may
also be noted that from the list of events enclosed by the
respondents in their counter affidavit at Serial No. 106 of
page No. 38, that an officer was deputed to the Sub-Jail
Sada Goa along with a laptop to facilitate the viewing of the
CDS by the detenue-Imtiyaz Hussain. There is no
explanation why the respondents took a different approach
against the request of the present detenue and could not
provide a CD player to the detenue to view the CDs which
form part of the relied upon documents.
58. The law is well settled. Article 22(2) of the Constitution
provides (1) the detaining authority must, as soon as may
be, that is, as soon as practicable after the detention,
communicate to the detenue the grounds on which the order
of detention has been made, and (2) the detaining authority
must afford the detenue the earliest opportunity of making a
representation against the order of detention. Thus, 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.
...
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. The Supreme
Court also explained that non-supply of a copy of document,
relied upon in the grounds of detention, has to be held to be
fatal to continue detention and the detenue does not have to
show that any prejudice was caused to him, as non-supply
of such a document and of not being afforded the
opportunity of making an effective representation against
the order.
67. In this case, the CCTV footage contained in the 12 CDs
find mention in the grounds of detention.
68. There are reference to CCTV footage in paragraphs 87
to 89 and as many as 29 times in the entire grounds of
detention. In effect, it can safely be said that to form a
subjective satisfaction the detaining authority has relied on
the CCTV footage, and thus, the CCTV footage in the 12
CDs are held to be relied upon documents. Merely because
the CDs provided to the detenue along with the show cause
notice or he was shown the CCTV footage at the time of
recording of the statement under Section 108 of the Customs
Act, in our view cannot take the place of providing the
mechanism for viewing the CDs in view of the settled law of
the land. On this ground as well, in our view, the order of
detention is liable to be quashed."
(Emphasis Supplied)
13. Similarly in the cases before us, it is not in dispute that the CDs were
part of the relied upon documents and there are repeated references to
the CCTV footage contained in 12 CDs in the grounds of detention.
Thus, it can be safely concluded that the CCTV footage was relied
upon by the detaining authority to form his subject satisfaction. This
coupled with the fact that they were a part of the relied upon
documents, it was imperative for the authorities to provide an
electronic device to enable the detenues to view the CCTV footage
and merely because they were provided CDs along with the show
cause notice and shown CCTV footage at the time of recording of
their statements under Section 108 of the Customs Act cannot be a
substitute in place of a right provided in law.
14. Therefore, the detention orders in all the aforesaid writ petitions are
quashed on this ground alone which has been urged before us. All
other grounds, which have not been pressed, are kept open.
15. The above writ petitions are allowed in above terms.
16. No costs.
G. S. SISTANI, J.
VINOD GOEL, J.
MARCH 28, 2017
// /jitender
