TMI Blog2022 (6) TMI 326X X X X Extracts X X X X X X X X Extracts X X X X ..... s been infraction of the right of the detenus to make an effective representation seeking release. The learned counsel for the petitioner is right in stating that the detaining authority ought to have furnished the said materials as their right to make an effective representation has been impaired. The contention of the learned counsel for the respondents that there was no duty to supply the documents to the detenus, cannot be accepted - the nonsupply has vitally affected the right of the detnus under Article 22(5) of the Constitution of India - the detention order is bad for the non-supply of these documents sought for in Ext. P12. The detenus are forthwith set at liberty - Application allowed. - WP(CRL.) NO. 107 OF 2022 , WP(CRL.) NO. 108 OF 2022, WP(CRL.) NO. 109 OF 2022 - - - Dated:- 3-6-2022 - THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR And THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P. FOR THE PETITIONER : BY ADVS. M.AJAY V.P.PRASAD FOR THE RESPONDENT : BY ADVS. R1 R2 BY SRI.JAISHANKAR V.NAIR R3 SHRI.S.MANU, CGC, DIRECTORATE OF REVENUE INTELLIGENCE KERALA REGIONAL UNIT ADDL.DIRECTOR GENERAL OF PROSECUTION BY SRI.K.A.ANAS, GOVERNMENT PLEADER ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 021 as the DRI did not oppose the bail application on the ground of Covid 19 pandemic and thus bail was granted. Biju V. Joy alleges that he has retracted the statement on 29.5.2021, whereas, Mohammed Ali is said to have retracted his statement on 7.6.2021 and Abdulla.S.S on 8.6.2021. The DRI has issued a rebuttal letter to these persons on 15.6.2021. Further statements were also recorded and detention order, Ext.P1 was passed on 24.8.2021. Pursuant to the detention order passed on 24.08.2021, the detenus were detained at the Central Prison, Poojappura, Thiruvananthapuram on 1.9.2021. WP(Crl) No.107/2022 is filed Mohammed Ali, WP(Crl.)No.108/2022 is filed by Abdulla.S.S. and WP(Crl.)No.109/2022 is filed by Biju V.Joy. 3. The prejudicial activities alleged against the detenus and the contentions against the orders of detention are almost similar and hence all these petitions are heard together. 4. We have heard Sri.M.Ajay, the learned counsel for the petitioners and Sri.Manu.S, the learned counsel appearing for the DRI, Sri.Jaishankar V. Nair, learned counsel appearing for the Central Government and Sri.K.A.Anas, the learned Government Pleader. 5. The learned counsel for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... West Bengal (AIR 1959 SC 1335), Ganga Ramchand Bharvani v. Under Secretary to Government [(1980) 4 SCC 62] , Khudiram v. State of West Bengal (AIR 1975 SC 550), Pankaj Singh v. Adhikchak Janpad Karagar Unnao (2019 SCC OnLine All, 4089), Raishad K.T. v. Union of India [2021 (3) KHC 468]. 7. A counter affidavit has been filed on behalf of the third respondent denying the allegation that the statements were not voluntary and that the confessional statements of the accused, other evidence and the findings of the investigation were all placed before the detaining authority. It is also urged that the detenu has no right and the authorities have no corresponding obligation to supply anything more than the relied upon documents. It is also stated that the accused were produced before the ACJM(EO) court, Ernakulam along with the remand application submitted by the DRI and the court remanded the accused to judicial custody adhering to the proceedings. The copy of the order of the learned magistrate was not separately issued to the DRI and therefore it was not available with the sponsoring authority. It is also pointed out that the alleged retraction comes after almost 48 days and that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... garding the allegation of non supply of materials it is submitted that there is no obligation on the detaining authority to supply materials other than the relied upon documents and that the documents which are merely referred need not be supplied. Only those copies of documents on which the detention order is passed must be supplied and not the every documents which the detenus is asking for. It is also submitted that all the materials available with the sponsoring authority need not be produced before the detaining authority. The allegation of the incompetence of the advisory board is also refuted. The argument that the request for documents was not properly considered is met by saying that there has been due application of mind while rejecting their request. The learned counsel also cites the following judgments in support of his contention. State of Gujarat v. Adam Kasam Bhaya [(1981) 4 SCC 216] Asha Keshavarao Bhossle v. Union of India [(1985) 4 SCC 361] Gurudev Singh v. Union of India [(2002) 1 SCC 545] Union of India and others v. Arvind Shergil and others (AIR 2000 SC 2924) Saraswathi Seshagiri v. State of Kerala and others (AIR 1982 SC 1165) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnot be accepted at all. The role of the sponsoring authority and the detaining authority are distinct and different. After the proposal for detention placed before the detaining authority, the Central Screening Committee consisting of senior officers from the different organisations will screen the entire proposal and make the recommendation and only after this stage the proposal goes to the detaining authority. Thus distinct, different and independent authorities are to examine the materials and it is thereafter that the detaining authority has to independently arrive at the subjective satisfaction to decide whether to detain or not. The detaining authority has also to satisfy itself about the propensity of the proposed detenus to indulge in prejudicial activities in future. Viewed in this background the contention on behalf of the detenus, that at the stage of bail, the sponsoring authority did not contend anywhere that the accused would indulge in prejudicial activities in future and therefore the detention orders are bad, cannot be accepted at all. The power of preventive detention is qualitatively different from punitive detention. The power of preventive detention is a preca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... W.P. (Crl) No. 107 of 2022, the detenue had filed Ext. P12 request for supply of the documents mentioned therein, particularly, a screen shot taken from the detenus phone which was relied upon by the detaining authority. It is mentioned in Ext. P12 that there were at least six voice messages visible on the screen shot which were relied on and those messages appear to be of 19th April 2021, a day before the detenus in this case were taken into custody by the DRI. It is the contention that from the screen shot, the contents of the whatsapp chat cannot be understood and unless the chats in electronic form is provided, an effective representation cannot be made. Thus, the whatsapp chat in electronic form which was to be given on a pen drive or such other media to facilatate them to hear them and understand the content and offer the explanation has been deprived offending the right under Article 22(5) of the Constitution of India. 16. Similar request is made as Ext. P12 in W.P.(Crl). 108 of 2022. In W.P( Crl).109 of 2022, Ext.P12 has been made which relates to the documents pertaining to the transactions of the smuggled gold recorded from the mobile phone of Abdulla S.S. was sought ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Article 22 (5). Para 12 . The conferment of the right to make a representation necessarily carries with it the obligation on the part of the detaining authority to furnish the grounds, i.e., materials on which the detention order was made. In our opinion, it is therefore clear that while there is a connection between the obligation on the part of the detaining authority to furnish grounds and the right given to the detained person to have an earliest opportunity to make the representation, the test to be applied in respect of the contents of the grounds for the two purposes is quite different. As already pointed out, for the first, the test is whether it is sufficient to satisfy the authority. For the second, the test is, whether it is sufficient to enable the detained person to make the representation at the earliest opportunity . Para 13 But when grounds which have a rational connection with the ends mentioned in section a of the Act are supplied, the first condition is satisfied. If the grounds are not sufficient to enable the detenue to make a representation, the detenue can rely on his second right and if he likes may ask for particulars which will enable hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itutional mandate under Article 22(4) as well as violation of statutory mandate under Section 8 (c) of the COPFEPOSA Act rendering the confirmation order under Section 8 (f), null and void. 21. We are afraid that the said contention cannot be accepted. The requirement under Section 8 of the COFEPOSA Act in the background of the Constitutional provision is for a reference to an Advisory Board duly constituted and it is not the petitioner's case and the board which answered the reference in the instant case had any member who was not qualified or competent to hear the reference. The constitution of the Board was changed owing to the retirement of the Hon'ble Judges after issuance of Ext. P9. It is true that the retired Judges also could be members of the Advisory Board but extra care was given to see that the serving Judges were included in the Advisory Board. It has to be presumed, when an Advisory Board is constituted, comprising of high constitutional functionaries, that the case of the detenus will be considered with objectivity, fairness and competence, reassuring the Constitutional and statutory safeguards while expressing their opinion on the sufficiency of the caus ..... X X X X Extracts X X X X X X X X Extracts X X X X
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