The Delhi High Court today asked the Centre to inform it whether the messages sent on BlackBerry Messenger (BBM) can be read as evidence after the Supreme Court's judgement declaring the right to privacy a fundamental right.
The court raised the question while hearing a petition by controversial businessman and meat exporter Moin Akhtar Qureshi challenging his recent arrest by the Enforcement Directorate (ED) in a money laundering case.
According to the ED, Qureshi was arrested on the basis of BBM messages exchanged between him, former CBI chief A P Singh and several persons accused in other criminal cases.
A bench of Justices Siddharth Mridul and Nazmi Waziri asked the counsel representing the Centre and the ED, "We would like to know, can we look into these BBM messages after the Supreme Court's nine-bench privacy judgement?"
"Whether these private messages would be admissible as evidence. Privacy has been held as integral part of article 21 (life and liberty) of the Constitution. Please examine, as we would like to know it," the bench asked.
It issued notice to the government and ED on the petition and sought their response within five days and listed the matter for September 13.
"In view of the submissions of the counsel for the petitioner that he has not been informed of grounds of his detention in terms of constitutional imperative under Article 22, it is necessary to issue notice," the bench said.
During the hearing, advocate R K Handoo, appearing for Qureshi, contended that he was illegally detained by the ED. He claimed Qureshi was arrested after being called for questioning and was not informed about the grounds of arrest.
Central government standing counsel Anil Soni, who also appeared for ED, said there was due compliance of constitution mandate regarding informing a person about his arrest.
The bench, however, said a person cannot be taken into custody without telling him the grounds and giving him an effective legal aid.
"Information is not just to make a person read the grounds of arrest. You have to give him a copy of it," the bench said and asked the Centre and ED to show the records pertaining to the arrest on September 13.
"You cannot deny liberty to someone without grounds. We are afraid that this may take us to dark ages. It is negating the constitutional mandate.
"This is our prima facie view, so you have to show us the files. First, courts have to uphold constitutional mandate. There are rights which you cannot take away. That is why we want you to go through the privacy judgement of the Supreme Court," the bench said.
Qureshi was arrested on August 25 and sent to five-day custody of the ED by a trial court the next day for thorough investigation in the case against him and others.
The agency had claimed that "the witnesses have confirmed in their statements that they have delivered crores of rupees for Qureshi and his associates through his employees and one of the witnesses has stated that nearly Rs 1.75 crore have been exported by the accused from him and his friend in lieu of the help provided to him in a CBI case."
It had also alleged that Qureshi was involved in hawala transactions through Delhi hawala operators Parvez Ali of Turkman Gate and M/s South Delhi Money Changer (DAMINI) in Greater Kailash-I.
As per ED, Qureshi was arrested late night on August 25 here under provisions of the Prevention of Money Laundering Act (PMLA) after "he was not cooperating in the probe".
Qureshi has been questioned several times in the past by ED which is probing his role following the registration of two FIRs under the PMLA, it has said, adding that he was arrested in connection with offence alleged in the last FIR in which former CBI chief Singh has also been named.
The earlier PMLA case against Qureshi was lodged by the ED in 2015, based on an I-T prosecution complaint, it said.
The records collected by the ED from the Income Tax Department in the form of BBM messages, have "revealed that Qureshi has taken huge amount of money from different persons for obtaining undue favours from public servants after exercising his personal influence", it has said.
It added that there were also BBM exchanges between Qureshi and Singh, which are being probed both by the ED and the CBI as part of their separate criminal investigations.
In this way, the ED said, Qureshi "obtained huge amount of money and it was obtained in the name of government servants/political persons holding public offices and the said public servants illegally either obtained the money for themselves or through their kin."
The agency said an analysis of the BBM messages retrieved from mobile phones of Qureshi and his associates revealed that hawala operators were also used to transfer bribe money (belonging to government officials) to foreign locations like Paris and the UK.
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