AI Drafter 
TaxTMI 
TaxTMI 
2018 (5) TMI 988
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.... 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 ....
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....effective representation against the detention order. The right to make a representation is a right provided in the Constitution. The supply of 12 CDs as relied upon documents are not disputed by the respondents, but the respondents failed to provide the facility to see the CDs for making an effective representation even before the meeting of the Advisory Board which was held on 12.02.2016. ... ... ... There is no explanation why the respondents took a different approach against the request of the present detenue and could not provide a CD player to the detenue to view the CDs which form part of the relied upon documents. 58. The law is well settled. Article 22(2) of the Constitution provides (1) the detaining authority must, as soon as may be, that is, as soon as practicable after the detention, communicate to the detenue the grounds on which the order of detention has been made, and (2) the detaining authority must afford the detenue the earliest opportunity of making a representation against the order of detention. Thus, the detenue has a right to receive documents taken into consideration by the detaining authority while formulating the terms of detention and non-supply of e....
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....n order to make an effective representation. This was possibly the most patent, crucial and decisive material and evidence against the detenue. He had the right to meet and challenge this evidence. That right and chance should not have been denied. This would be contrary to equity and law. The detenue has right to show and support his contention that there was tampering and/or the conversation did not have his voice. He should know what was heard by the detaining authority, before formulating her opinion. In this context, it was submitted by the petitioner that every recording on the phone need not have detenue‟s voice. Free translation text would lose its connection with the detenue, in case the detenue was not the person, who had conversed with Chandan Kumar Jain or if there was interpolation or tampering. We at this stage, note that as per the forensic report voice of Chandan Kumar Jain is present in the said audio file. The stand and stance of the detenue may be wrong, fallacious and farcical but the detenue has right to raise contentions and meet the assertions against him by referring to the evidence relied upon. Right to make representation is a precious and preserved ....
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....ority while passing the detention orders. 9. On the other hand, Mr. Mahajan, learned counsel for the respondents has submitted that there is material distinction between the facts of the present cases, and the facts considered by the Division Bench in Smitha Gireesh (supra). He points out that in Smitha Gireesh (supra), the detenue had made request for a CD player, which was not acceded to. However, in the present cases, the said requests were acceded to. The present writ petitions themselves were considered as representations, and the petitioners in both the cases were "shown" the documents on the computer screen. Mr. Mahajan has also drawn our attention to Section 3(3) of the COFEPOSA Act, which stipulates that for purposes of clause 5 of Article 22 of the Constitution, the communication to a person detained in pursuance of a detention order, of the grounds on which the order has been made, shall be made as soon as may be after the detention, but ordinarily not later than five days, and in exceptional circumstances and for reasons to be recorded in writing, not later than fifteen days from the date of detention. He submits that in the present case, the documents on CDs were sh....
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.... or unconstitutionality in the detention of the petitioners/ detenues. 12. In his rejoinder, learned counsel for the petitioners submits that the obligation of the Detaining Authority to supply the RUDs stems from Article 22 of the Constitution of India, and not from a request or demand made by the detenue. The Detaining Authority was obliged to supply the RUDs on his own, without waiting for any such request or demand. The RUDs form an integral part of the Grounds of Detention (GOD). Without them the GOD are incomplete. In this regard, he has placed reliance on a decision of the Supreme Court in Mohd. Zakir v. Delhi Administration & Ors. (1982) 3 SCC 216, wherein the Supreme Court, inter alia, observed: "2. ... ... In the view that we have taken in a number of decisions starting from Icchu Devi Choraria case [Icchu Devi Choraria v. Union of India, (1980) 4 SCC 531 : 1981 SCC (Cri) 25 : AIR 1980 SC 1983] to the case of Kamla Kanyalal Khushalani [Kamla Kanyalal Khushalani v. State of Maharashtra, (1981) 1 SCC 748 : 1981 SCC (Cri) 287 : (1981) 2 SCR 459 : AIR 1981 SC 814.] it is manifest that the question of demanding the documents is wholly irrelevant because it is the constit....
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...." 15. The documents which are supplied on CDs, by themselves, are not viewable to the human eye. To read the documents on CDs, it is essential that the relevant hardware in the form of a CD player, or a laptop computer with the facility of reading the CD, or a Desktop computer with facility of reading a CD is employed. Without such aids, the person who is delivered the CD would never know as to what is the document, if any, contained therein. The CD is only a storage medium. To retrieve the documents stored therein, the necessary equipment is essential. 16. The submission of Mr. Mahajan that 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. Supply of merely the CD serves no purpose, since the detenue will not be able to view or peruse the same. 17. The submission of Mr. Mahajan that the present cases are distinguishable from Smitha Gireesh (supra), because in Smitha Gireesh (supra) the detenue had specifically asked for a CD reader - which was denied to hi....
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....inst his detention. Thus, the submission of Mr. Mahajan 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. 19. Even otherwise, reliance placed on Section 3(3) of COFEPOSA Act is misplaced for the reason that the said section itself mandates that the grounds of detention must be communicated to the detenue soon after the detention "but ordinarily not later than five days". The use of the negative language in Section 3(3) itself shows that the Parliament, in ordinary circumstances, did not consider it appropriate to grant more than five days to the Detaining Authority to serve the GOD and the RUD upon the detenue. However, in exceptional circumstances and for reasons to be recording in writing, not more than fifteen days from the date of detention, have been provided for the purpose of serving the GOD and the RUD on the detenue. 20. The so-called exceptional circumstances sought to be made out by the respondents are non-existent. The circumstance that the detenues preferred the present writ petitions cannot be considered as to "exceptional circumstance". The GOD stated that the dete....
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....which the importer was importing various goods thereby creating a unique modus operandi to evade payment of customs duty. The list of various importers along with their IE codes is enclosed as Annexure to the statement of Krishna." "14. When shown printouts numbered 29 to 31 of the Whats App communication you stated that the messages from 29 to 31 pertain to forwards of contact numbers. The name saved as Sukal Gand is actually Shukla Gandhar of Khar Market having mobile number 9920988858. The name saved as Mahesh Chainai is Shri Mahesh of Chennai having mobile number 9566205155. The name saved as Dipak Man is of Khar Market having mobile number 9664024540. The name saved as Vike Hilrd is of Vicky from Hill Road having mobile number 9987444443. The name saved as Dipak Khar is of Deepak Chauhan from Khar Market having mobile number 9930129130. Ejaj Khar Pacipic (9867914190), Hemant Rajmame (9819219902) and Narayan New (9920588670) ... ..." "43. In order to conduct a detailed study of the modus operandi, the chronological sequence of goods/ documents and to ascertain the major players involved in this racket, the CDR/ SDR of the all the 16 persons figured during the investigatio....