'Top Secret' Communication Sent To District Police Chief Leaked, Kerala HC Orders DGP To Probe

The Kerala High Court recently directed the State Police Chief to investigate how Fasalu Rahman, an accused in a gold smuggling case, obtained a 'Top Secret' communication sent by the DGP to the District Police Chief Malappuram. 

The Division Bench of Justice Anil K Nareendran and Justice P.G. Ajithkumar, observed that State Police, which is the executing agency in preventive detentions under COFEPOSA Act, has to maintain absolute secrecy in executing the detention orders and thereby, directed a detailed enquiry into how the 'Top Secret' communication dated 04.06.2022 reached the hands of the petitioner.

...we deem it appropriate to direct the 3rd respondent State Police Chief to conduct a detailed enquiry through an officer not below the rank of Superintendent of Police as to how Ext.P2 'Top Secret' communication dated 04.06.2022 reached the hands of the petitioner.

The petitioner, in this case, is an accused in an alleged gold smuggling case punishable under Section 135 of the Customs Act. The Petitioner filed the Writ Petition seeking an order quashing the detention order passed against him by the Joint Secretary (COFEPOSA).

When the matter was taken up by the Court on July 15, Assistant Solicitor General of India, Advocate Manu S, pointed out that the document marked as 'Ext.P2' is copy of a 'Top Secret' communication dated 04.06.2022 of the State Police Chief, Kerala, addressed to the District Police Chief, Malappuram, copied using 'Redimi Note 9 Pro Aiquad Camera'. 

The Counsel appearing for the Directorate of Revenue Intelligence, Advocate Jayashankar V Nair, opposed the relief sought, stating that the detention order issued by the competent authority against the petitioner has not been executed so far, despite best efforts, as he is absconding. Referring to the Apex Court decision in Subhash Popatlal Dave v. Union of India, it was contended that the scope of the challenge against the detention order before execution is very limited.

It was also contended that the obligation to serve a copy of the detention order, as well as the grounds of detention, under the provisions of Article 22 of the Constitution of India and Section 3 of the COFEPOSA Act comes into operation only on execution of the detention order and not prior to that.

Nair also told the court the petitioner has produced, along with the writ petition, a copy of the 'Top Secret' communication and termed it a matter of s serious concern. The Counsel further submitted that the documents sent by the DGP is a communication conveying the detention orders of three detenus. 

"Once a detenu comes to know that similar orders have been issued against his associates, the information in all likelihood will be shared with others and they may abscond," the counsel for DRI argued.

The District Police Chief, Malappuram, submitted before the Court in a counter affidavit that an enquiry was conducted through the Deputy Superintendent of Police, Special Branch and it was found that the Mankada Station House Officer, while serving a copy of the detection order to the co-accused of the petitioner, had by mistake handed over the letter. 

The Court sided with the arguments raised by the respondents against quashing the detention order, however, allowed the petitioner to withdraw the Writ Petition. However, the court took note of the leak and said the explanation offered by the district police chief is not at all satisfactory. 

"It shows the apathy of the concerned officers in the State Police, who are responsible for the execution of the detention order," said the court

The Court observed that the State Police, which is the executing agency in preventive detentions under COFEPOSA Act, has to maintain absolute secrecy in executing the detention orders. Ordering an enquiry into the matter, the court said appropriate action be take against the concerned officers who may be found guilty.

"The action taken report of the State Police Chief shall be filed before this Court, on or before 28.11.2022," said the court

Case Title: Fasalu Rahman v. Union of India & Ors. 

Citation: 2022 LiveLaw(Ker) 495

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