SHORT NOTE
KERALA HIGH COURT
K.T.Sankaran and K.P.Jyothindranath, JJ.
S.Reshmi —Petitioner
versus
Union of India & Ors. —Respondents
W.P.(Crl) Nos.386, 416, 423 & 484 of 2015
Decided on 28.1.2016

IMPORTANT POINTS
(1) 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.
(2) The CCTV footage being a document relied upon in the grounds of 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.
(3) 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.

Headnote:COFEPOSA Act—Section 3—Preventive detention order—Detenu were working as Assistant Central Intelligence officers at airport and they were alleged to have facilitated movement of gold from airport to outside and constituted a smuggling syndicate—CCTV footage at airport were relied on to arrive at conclusion of smuggling activities induced by detenu and compact disc containing CCTV footage was supplied with grounds of detention—Whether continued detention was vitiated on ground that grounds of detention were not communicated as provided under article 22(5) of the Constitution of India since detenu were denied opportunity to view CCTV footage? Yes.

       Held: 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.

       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. 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 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 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.

       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.

       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.

       Result: Petition allowed.