- In the recent judgment given by Hon’ble HC of Delhi, it was held that a detention order passed by the Detaining Authority based on “illegible” copies of documents suffered from excess power exercised by the concerned authority and was liable to be quashed. It further affirmed that failure and non-supply of legible copies of all documents to the detenu, despite request and representation, implies illegal detention and is bad in the eyes of law.
- In the case, ZAKIR KHAN v. UNION OF INDIA AND ORS. and other connected matters, two writ petitions under article 226 were filed by Zakir Khan referred to as “detenu No. 1” and Sanjeev Kumar referred to as “ detenu No. 2” prayed for quashing of detention orders, both dated 26.11.2021 u/s Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. The Court contended that since both the petitioners filed cases under the same question of law and are governed by the same facts, hence the judgment would be given under common order.
- The Income Tax Department conducted a search and seizure operation at 23 places belonging to detenu No. 1 and people associated with him. Several items such as old and used/refurbished laptops, mobile phones, etc were found which were subjected to investigation and detained by the Customs officers at Kolkata.
- During the search at detenu’s premises in Delhi, certain documents were found stored in the form of files, loose documents, writing pads, diaries, Certificate of Incorporation/Articles of Association pertaining to three Hong Kong-based supplier firms on which the name of the detenu No.1 was mentioned as a nominated person were recovered. All documents relevant to the investigation were detained for further investigations in relation to the suspected undervaluation of imported goods by the firms allegedly controlled/owned by detenu No.1.
- On further search conduct, a relationship between detenu No.1 and detenu No. 2 was established. It was purported that the clearance work of imports made in relation to the firms controlled/owned by detenu No. 1 was handled by detenu No.2. In the search conduct, certain documents were allegedly found stored in the said premises, in the form of files, loose documents, etc. which were purportedly controlled/owned by the detenu No.1. The DRI officers retained the said documents for further investigations.
- Subsequently, the detenus were arrested by officers of the DRI and produced before the Court of CMM (Duty Magistrate), Patiala House Courts, and were remanded in Judicial Custody. Since no criminal prosecution was filed against the detenus in the customs case, the detenus were granted statutory bail in terms of the mandate of the provision of Section 167(2) of the Code of Criminal Procedure.
- Detenus made a representation to the Detaining Authority, saying that a large number of documents furnished to them were illegible and many other documents that had been relied upon and referred to were not furnished, communicated, and/or supplied at all; therefore, demanding legible copies of all of the above, so as to enable them to make an effective representation. The detailed representation was rejected by the Detaining Authority.
- The Hon’ble HC of Delhi held in cases where orders of detention fail on the ground that the subjective satisfaction of the Detaining Authority is vitiated owing to non-application of mind. The protection afforded qua severability of grounds stipulated under the provision of 5A of the COFEPOSA Act is neither attracted nor available, in law.
- The Court relied on the precedent, Mehrunissa v. the State of Maharashtra, where the Apex Court held that the detenu was entitled to be supplied with copies of all material documents instead of having to rely upon his memory with respect to the content of the documents. The failure of the detaining authority to supply copies of such documents vitiated the detention and the detenu is entitled to be released and hence gave judgment in favor of the petitioner and against the respondent.
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