The obligation of the Detaining Authority to supply the RUDs stems from Article 22 of the Constitution of India and Section 3(3) of the COFEPOSA Act, and the failure to provide the necessary equipment to view the soft copies of the documents contained in the CDs denied the detenues' right to make effective representations against their detention.

VIPIN SANGHI, J.

1. These writ petitions have been preferred by two detenues, who stand detained under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA Act) by the Detaining Authority vide detention orders – both dated 03.04.2018, passed under Section 3 of the COFEPOSA Act. Whereas the petitioner in W.P. (Crl.) No. 1270/2018, Dharaneesh Raju Shetty was detained on 14.04.2018, the petitioner in W.P. (Crl.) No. 1277/2018, Sahil Mohd Zafar was detained on 09.04.2018.

2. The challenge to the detention of these petitioners is premised on a very narrow compass. Undisputedly, the Detaining Authority while detaining these petitioners supplied the Relied Upon Documents (RUD), out of which the documents at Sl. Nos.12 and 69 – in both the cases, are soft copies of documents contained in Compact Disks (CDs). The document relied upon at Sl. No.12 in the RUD in both the cases are the Whatsapp conversation taken from the mobile phone of one Sh. Krishan Nayak during recording of his statement on 30.12.2017 under Section 108 of the Customs Act contained in a CD (described as CD-1). At Sl. No.69 of the RUD, in both the cases, Call Detail Records (CDRs) obtained from service providers are listed, which are contained in 2 CDs (described as CD-2).

3. The submission of the petitioners is that they have merely been provided the soft copies of these documents on CDs, without the relevant hardware to read the said CDs i.e. either a CD player, or a desktop computer, or a laptop. Consequently, they have not been able to view the contents of the said documents relied upon by the Detaining Authority while passing the detention orders against them. Resultantly, their right to make effective representations against their detention at the earliest has been denied, which vitiates their continued detention.

4. Learned counsel for the petitioners has placed reliance on a decision of the Division Bench of this Court in Smitha Gireesh v. Union of India in W.P. (Crl.) No. 1060/2016 decided on 02.06.2016 in support of his said submission – where this issue was raised and squarely considered by this court. In Smitha Gireesh (supra), some of the documents were supplied on CDs. The detenue in his representation had asked for a CD player to be able to view/ read the documents. Despite the said request, the CD player was not supplied to the detenue. In these circumstances, this court held that the non-supply of a CD player along with the CDs to enable the detenue to view/ read the documents contained in the CDs infringed Articles 21 and 22 of the Constitution of India i.e. the right of the detenue to make an effective representation at the earliest, which vitiated the detention.

5. The following extracts from the decision in Smitha Gireesh (supra) are pertinent, and have been relied upon by learned counsel:

“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