Kerala High Court orders probe after accused gets possession of "top secret" police communication, accidentally submits it before court

The Kerala High Court recently directed the State Police Chief to enquire and report back to it as to how a letter from the State Police Chief to a District Police Chief, marked "top secret", came to be in the possession of the accused in a case [Fasalu Rahman v Union of India]. .Interestingly, it was the accused himself who accidentally submitted it before a division bench of Justices Anil K Narendran and PG Ajithkumar while it was considering his plea to quash a preventive detention order issued against him.Even though the accused-petitioner later withdrew the case with the Court's permission, the Court directed the State Police Chief to probe the possible leak and submit an action taken report before it."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. Based on the report of enquiry, appropriate action shall be taken against the concerned officers, who are responsible for not maintaining absolute secrecy of that communication," the Court ordered. .The Court was considering a plea moved by a man accused of smuggling of nearly 10 kilogram of gold, thereby committing offenses punishable under Section 135 of the Customs Act, 1962.He approached the High Court for quashing the detention order passed against him by the Joint Secretary (COFEPOSA) as well as to obtain a copy of the order issued against him under Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA Act).During the course of the hearing, Assistant Solicitor General of India, S Manu, pointed out that the document marked as Ext.P2 is copy of a ‘Top Secret’ communication dated June 4, 2022 of the State Police Chief, Kerala, addressed to the District Police Chief, Malappuram, copied using ‘Redimi Note 9 Pro Aiquad Camera’. Opposing the reliefs sought, the respondents contended that the detention order issued by the competent authority against the petitioner has not been executed so far, despite best efforts, as he accused absconded. It was argued 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.It was also submitted that an enquiry through the Deputy Superintendent of Police revealed that Special Station House Officer, while serving a copy of the detention order to a co-accused of the petitioner, had handed over the letter by mistake.Even though the Court concurred with the respondents on the issue of quashing the detention order, it allowed the petitioner to withdraw the plea.However, it took a serious view of the fact that the letter was somehow in the possession of the accused, especially since the same may have intimated him of impending detention orders thereby helping him to abscond on time.Accordingly, it directed the State Police Chief to probe the leak and submit an action taken report by November 28. .The petitioner was represented by Senior Advocate Ramesh Chander and advocates C Dheeraj Rajan, Anand Kalyanakrishnan, and Hasheem Muhammed PM.The respondents were represented by Central Government Counsel Jaishankar V Nair and Government Pleader KA Anas..[Read Order]