The Kerala High Court has directed the State Police Chief to conduct a detailed inquiry as to how a 'Top Secret' Communication reached the hands of Gold smuggling accused which enabled them to abscond. The 'Top Secret' communication pertained to execution of detention orders against three accused persons.

The Bench of Justice Anil K. Narendran and Justice PG Ajithkumar observed that "…it is a matter of serious concern as to how a copy of Ext.P2 'Top Secret' communication reached the hands of the petitioner, who is the 1st accused in O.R.No.41 of 2021 on the file of the Directorate of Revenue Intelligence, Cochin. The detention order issued against the petitioner has not been executed so far, despite best efforts, as he is absconding."

The Court directed that "Considering the facts and circumstances of the case, as borne out from the pleadings and materials on record, 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 who was accused of an offence punishable under Section 135 of the Customs Act, 1962, filed a writ petition seeking a writ of certiorari to quash the detention order passed against him.

Senior Advocate M. Ramesh Chander represented the petitioner-accused whereas Deputy Solicitor General of India, Manu S. and Advocate Jaishankar V.Nair represented the Union of India and the Directorate of Revenue Intelligence and Government Pleader K.A. Anas appeared for State Police.

The Court observed that the petitioner had produced a copy of 'Top Secret' communication issued by the State Police Chief to the District Police Chief.

The Court noted that the detention order is confidentially communicated to the State Police Chief by the detaining authority and the State Police Chief in turn communicates the detention order with instructions in secret to the concerned District Police Chief, who in turn entrust the officers under him to execute that order. The copy of the secret communication from the State Police Chief is not a document to be supplied to the detenu.

"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. Therefore, absolute secrecy is to be maintained in executing the detention orders. Hence the State Police Chief has marked the communication as 'Top Secret'. However, it is seen that, a copy of that communication reached the hands of the petitioner and he has absconded.", the Court observed

The police told the Court that according to an enquiry carried out by the Special Branch into the leak of the top-secret document, it was found that while serving the detention order the confidential communication was handed over by mistake to the arrested person.

The Court held that the explanation was not at all satisfactory.

The Court directed State Police Chief to conduct a detailed enquiry in the matter and the Court held that based on the report of enquiry, appropriate action shall be taken against the concerned officers, who are responsible for not maintaining the secrecy of the communication.

The Writ Petition was dismissed as withdrawn.

Cause Title- Fasalu Rahman v. Union of India & Ors.

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