Above: Delhi High Court said the petitioners’ right to make  representation against their arrest was denied

The Delhi High Court has set free two persons held under COFEPOSA on the ground that the documents detailing their Grounds of Detention (GoD) had not been given to them

~By Kunal Rao

The Delhi High Court recently quashed the detention order of two persons, arrested under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA Act). The Court ruled that the Relied Upon Documents (RUD)—which explains the Grounds of detention (GoD)—were not supplied to them by the Detaining Authority(DA), a must under the COFEPOSA Act.

Holding the detention as illegal and unconstitutional, the bench of Justices Vipin Sanghi and PS Teji said that “it is well settled law that RUDs are an integral part and parcel of the GoD. The Court held that the documents pertaining to the case were shown to the detenues well beyond the stipulated time and the petitioners contended that they were merely provided the soft copies of the concerned documents on CDs, without the relevant hardware to read CDs—either a CD player, or a desktop computer, or a laptop. It felt that the petitioners’ right to make effective representations against their detention at the earliest was denied.

The Court’s decision came on the pleas of duo Dharaneesh Raju Shetty and Sahil Mohd Zafar who were detained allegedly for the smuggling of readymade garments and evading duty. They contended that the RUD was in the form of a compact disk with pictures of the WhatsApp chat between the petitioners and one other person.

The counsel for the petitioner contended that in the Smitha Gireesh vs Union of India case, (supra), some of the documents were supplied on CDs. The detenue in this case had asked for a CD player so that he could view or read the documents. However, it was not given to the detenue. The Court had then ruled that it was violative of Article 21 and 22 of the Constitution as it took away the right of the detenue to make an effective representation at the earliest.

The Bench said that “the detention of the petitioners stand vitiated on account of non-supply of either the printed co-pies/hard copies of the documents contained in the CDs of the RUDs in both the cases, or the non-provision of a CD player/laptop/desktop computer to the petitioners, to enable them to read and peruse the documents contained in the CDs to be able to, firstly, know as to what documents the detaining authority has relied upon and, secondly, to be able to deal with the said incriminating material in their representations”.

Appearing for the Centre, its standing counsel Amit Mahajan submitted  that the documents were “shown” on the computer screen to the detenues. The Court while nixing the argument said, “It would be too much to expect the dentenues to be able to remember the contents of the documents that they may have viewed on the computer screen, and to be able to effectively make their representation thereafter. The DA cannot reasonably expect normal human beings to be able to do so. Supply of the RUDs is not an empty formality. Thus, the submission that, at least, one of the detenues, namely, Dharaneesh Raju Shetty has been “shown” the documents on the 14th day of his detention is of no avail”.

“The submissions of Mr Mahajan, counsel for the Centre that the supply of documents on CDs is akin to supply of illegible documents cannot be accepted. It is worse than supplying documents in a completely foreign language without true translations. It is like supplying documents in a locked trunk without the key to unlock the trunk,” the bench said.