Karnataka High Court
National Investigation Agency vs Union Of India on 10 August, 2022
Author: Krishna S.Dixit
Bench: Krishna S.Dixit
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU R
DATED THIS THE 10TH DAY OF AUGUST, 2022
BEFORE
THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT
WRIT PETITION NO.2360 OF 2022(GM-RES)
BETWEEN:
NATIONAL INVESTIGATION AGENCY,
HYDERABAD,
REPRESENTED BY ITS SPL. PP,
ASSISTED BY INSPECTOR OF POLICE &
CHIEF INVESTIGATING OFFICER,
HAVING ITS CAMP OFFICE AT CARLTON HOUSE,
CID HEAD QUARTERS, PALACE ROAD,
BENGALURU - 560 001.
...PETITIONER
(BY SRI. PRASANNA KUMAR P, ADVOCATE)
AND:
1. UNION OF INDIA
MINISTRY OF ELECTRONICS &
INFORMATION TECHNOLOGY
BY ITS SECRETARY,
ELECTRONICS NIKETAN,
6, CGO COMPLEX, LODHI ROAD,
NEW DELHI - 110 003.
REPRESENTED BY ITS ASST. SOLICITOR GENERAL
HIGH COURT OF KARNATAKA,
BENGALURU - 560 001.
2. UNIQUE IDENTIFICATION AUTHORITY OF INDIA
(UIDAI) 3RD FLOOR, SOUTH WING,
KHANIJA BHAVAN, 49, RACE COURSE ROAD,
BENGALURU - 560 001.
REPRESENTED BY ITS DEPUTY DIRECTOR.
3. ASHRAFUL MONDAL @ ASHRAFUL ISLAM
@ BOSS RAFI @ RAFIK @ RAFI,
ADDRESS AS SHOWN IN AADHAR,
S/O MOHD. KHAIRAL BASAR,
2
#1, 7TH CROSS, MUNISHAMAPPA LAYOUT,
K CHANNASANDRA, HORAMAVU,
BENGALURU,
KARNATAKA - 560 043.
4. SOBUJ SHAIK,
S/O KALAM SHAIK,
AGED 32 YEARS,
PERMANENT RESIDENT OF
SINGASURPUR BOARD OFFICE STREET,
NUDAIL PS KHULNA DISTRICT,
BANGLADESH.
ADDRESS AS SHOWN IN AADHAR
2ND FLOOR, TC PALYA,
MARAGONDANAHALLI MAIN ROAD,
BEML MEGA CITY LAYOUT,
BENGALORE NORTH,
BENGALURU - 560 036.
PRESENTLY LODGED IN CENTRAL PRISON,
PARAPPANAGRAHARA,
BENGALURU - 560 100.
5. RIDOY BABO @ RIDOY BABU @
RIFADUL ISLAM RUDAI @ AKASH
AGED 21 YEARS,
C/O MOJID SHAIK,
PERMANENT RESIDENT,
HOUSE NO. 527/6,
MOG BAZAR, AMBAGAN,
HATHIRJEEL DHAKA,
BANGLADESH - 1217.
ADDRESS AS SHOWN IN AADHAR
C/O MOJID SHAIK,
DODDAPALYA, HOSAKOTE,
BENGALURU RURAL - 562 114.
PRESENTLY LODGED IN CENTRAL PRISON
PARAPPANAGRAHARA,
BENGALURU - 560 100.
6. RAKIBUL ISLAM SAGAR,
AGED 25 YEARS,
C/O KAMRUL,
PERMANENT RESIDENT OF RANAGATA VILLAGE
FULTALA THANA,
3
JESSORE DISTRICT, BANGLADESH.
ADDRESS AS PER AADHAR
S/O KAMRUL, 17TH CROSS,
K CHANNASANDRA,
HORAMAVU CHANNASANDRA,
BENGALURU - 560 043.
PRESENTLY LODGED IN CENTRAL PRISON
PARAPPANAGRAHARA,
BENGALURU - 560 100.
7. MOHAMMAD BABU,
MOHAMMAD ANWAR SHAIK,
S/O ANWAR SHAIK,
AGED 25 YEARS,
PERMANENT RESIDENT OF
SINGASHOLPUR VILLAGE,
NEAR PUSHKARI LAKE,
NARAIL THANA, NARAIL DISTRICT,
BANGLADESH.
ADDRESS AS PER AADHAR
C/O ANWAR SHAIK,
NO.36, 1ST CROSS,
VADADARPALYA,
NEAR GOVERNMENT SCHOOL,
UTTARAHALLI SUBRAMANYAPURA,
BENGALURU - 560 061.
PRESENTLY LODGED IN CENTRAL PRISON
PARAPPANAGRAHARA,
BENGALURU - 560 100.
8. RAFSAN MONDAL @ ALAMI HUSSAIN @ RAFSAN
C/O MOHAMMAD KHAIRUL BASAR
AGED 22 YEARS,
PERMANENT RESIDENT OF VILLAGE &
PO CHANCHARA
KOTHALLI PS, JESSORE DISTRICT
KULNA DIVISION, BANGLADESH.
ADDRESS AS PER AADHAR,
C/O MOHD KHAIRUL BASAR,
NO.1 , 7TH CROSS, MUNISHAMPPA LAYOUT,
K CHANNASANDRA, HORAMAVU,
BENGALURU - 560 043.
4
PRESENTLY LODGED IN CENTRAL PRISON
PARAPPANAGRAHARA,
BENGALURU - 560 100.
9. SAMIT @ DAILM AHAMED JILLION,
S/O MOHAMMAD ABDUL HAI,
PERMANENT RESIDENT OF FUTULLAH VILLAGE & PO
NARAYANGANJ DHAKA, BANGLADESH,
ADDRESS AS PER AADHAR,
HOUSE NO. 39/1, MUNIYAPPA,
GARDEN, KANKANAGAR,
HORAMAVU BENGALURU - 43.
PRESENTLY LODGED IN CENTRAL PRISON
PARAPPANAGRAHARA,
BENGALURU - 560 100.
10. MOHAMMAD AZIM CHORYOR,
S/O MOHAMMAD GOLAM CHORYOR,
AGED 32 YEARS,
PERMANENT RESIDENT OF DEHERA VILLAGE,
RUPHSA PS, KHULNA DISTRICT,
BANGLADESH.
ADDRESS SHOWN IN AADHAR,
HOUSE NO.0, POOJA GARDEN,
KALKERE K CHANNASANDRA,
HORAVAMU, BENGALURU - 560 043.
PRESENTLY LODGED IN CENTRAL PRISON
PARAPPANAGRAHARA,
BENGALURU - 560 100.
11. MOHAMMAD JAMAL,
C/O HUSSAIN,
AGED 36 YEARS,
PERMANENT RESIDENT OF ROHINGYA CAMP,
KUTUBALIA CHITTAGONG DISTRICT,
BANGLADESH.
ADDRESS SHOWN IN AADHAR,
1ST CROSS, DEVASANDRA MAIN ROAD,
VINAYAKANAGAR KRISHNA THEATRE,
BENGALURU NORTH, BENGALURU - 36.
PRESENTLY LODGED IN CENTRAL PRISON
PARAPPANAGRAHARA,
BENGALURU - 560 100.
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12. RAIHAN SHAIK @ RAIHAN GHAZI
@ ENAMUL HAQUE SHUZAN
C/O HABI SHAIKH,
AGED 30 YEARS,
PERMANENT RESIDENT OF
ABHOYNAGAR NOVAPADA,
JESSORE DISTRICT,
BANGLADESH.
ADDRESS AS PER AADHAR
197, BHARATHI BANDE,
HENNUR MAIN ROAD,
BENGALURU NORTH,
BENGALURU - 77.
PRESENTLY LODGED IN CENTRAL PRISON
PARAPPANAGRAHARA,
BENGALURU - 560 100.
13. RASUL KHAN @ RUHUL AMIN KHAN
S/O JILAL KHAN ALIAS BILLAL
AGED 29 YEARS,
PERMANENT RESIDENT OF
IJLATHANA MOG BAZAR,
AMBAGAN BARISHAL,
BANGLADESH.
ADDRESS AS PER AADHAR
2ND FLOOR, BRINDAVAN LAYOUT,
KANAKANAGAR K CHANNASANDRA,
BENGALURU, KARNATAKA.
PRESENTLY LODGED IN CENTRAL PRISON
PARAPPANAGRAHARA,
BENGALURU - 560 100.
14. ROCKY KHAN @ RIDAY ISLAM
S/O RAINA KHAN,
AGED 31 YEARS,
PERMANENT RESIDENT OF PURAKALI VILLAGE,
SREEDARPUR PO, NOWPARA, UBAINAGAR PS
JESSOER DISTRICT, KULNAD DIVISION,
BANGLADESH.
ADDRESS AS PER AADHAR
NO.07, 26TH CROSS, KRILOSKAR LAYOUT,
BAGALGUNTE, BENGALURU NORTH, BENGALURU,
6
PRESENTLY LODGED IN CENTRAL PRISON
PARAPPANAGRAHARA,
BENGALURU - 560 100.
...RESPONDENTS
(BY SRI. H SHANTHI BHUSHAN, ASG FOR R1 & R2)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE REPLY
NOTICE DTD 22.09.2021 ISSUED BY THE R-2 VIDE ANNX-K
ANDCONSEQUENTLY DIRECT THE R-2 TO PROVIDE THE
REQUISITE INFORMATION AS SOUGHT FOR BY THE PETITIONER
IDE LETTER DTD 26.08.2021 VIDE ANNX-J;
THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
Petitioner - National Investigation Agency (hereinafter 'NIA') is knocking at the doors of Writ Court grieving against the order dated 22.09.2021 (Annexure K) issued by the 2nd Respondent - Unique Identification Authority of India (hereinafter 'UIDAI') whereby, requisition dated 26.08.2021 for disclosure of information of Aadhar Card registration in respect of private respondent nos. 3 - 14 has been turned down in light of the bar enacted in section 33 of the Aadhar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 (hereinafter 2016 Act).
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2. After service of notice, the answering first respondent having entered appearance through the learned Assistant Solicitor General opposes the petition making submission in justification of the impugned rejection of said requisition. Learned ASG contends that, the information in question being classified as personal to the individuals concerned, without a sanction order at the hands of this Court, cannot be parted with whoever be the requisition authority.
3. BRIEF FACTS:
(a) An FIR in Crime No. 185/2021 dated 08.06.2021 came to be registered by the Ramamurthynagara Police Station, Bangalore for the offences punishable u/s 370 & 343 IPC, Section 14 of Foreigners Act, 1946 and under Sections 3, 4, 5, 6 & 7 of the Immoral Traffic (Prevention) Act, 1956, against 13 accused persons who happen to be private respondents herein. This was pursuant to the raid conducted by the said police.
(b) The rescued girls revealed their identity as to Bangladesh nationality and they having been trafficked to India by the private respondent herein, on the false 8 promise of employment in India; these girls were initially sent to Kolkata where fake Aadhar Cards were generated and thereafter they were forced to prostitution in other parts of the country. Some of the accused were arrested and taken to custody by the police in connection with the registered crime in question.
(c) The Home Ministry of the Central Government having regard to the gravity of the offences and also to their international & inter-state ramifications entrusted the matter to the petitioner-agency for investigation in exercise of power u/s. 6 r/w Sec.8 of the National Investigation Agency Act, 2008 vide order dated 12.07.2021, pursuant to which petitioner re-registered the F.I.R. in R.C.No.16/2021/NIA/DLI on 13.07.2021.
(d) The preliminary investigation revealed that the arrested accused namely respondent nos.12 to 14 and absconding respondent no.3 along with other private respondents have been actively engaged in human trafficking of Bangladeshi women and they have been running brothels in Bangalore and other places. 9 Accordingly respondent nos. 4 to 11 came to be arrested on 25.07.2021 and presently they are lodged in judicial custody. It is stated that six women and one girl child were rescued from the brothel.
(e) The investigation also brought to light cross border trafficking of women and harbouring of trafficked women on the Indian side by generating fake Aadhar Cards, PAN Cards, Driving Licences, Ration Cards & such other documents by perpetrating fraud, forgery & fabrication. It also revealed of threat to life & limb of these poor victims lured to India by false promise of employment. During the raid, numerous incriminating documents and mobile phones were also seized. After completion of investigation, the Charge Sheet has been filed by the petitioner-NIA on 06.09.2021. Several fake addresses have been discovered after interacting with the Post Master General, Karnataka and the owners of the premises concerned.
(f) In order to unearth the larger conspiracy, petitioner felt the need of ascertaining the genuineness of the information and documents that led to generation of 10 Aadhar Cards & PAN Cards and therefore had requisitioned certain information & documents from the UIDAI vide letter dated 26.08.2021 which has been turned down by the 2nd respondent vide impugned reply dated 22.09.2021 expressing its inability to accede to the request in view of statutory bar in Sec.33 of the 2016 Act. Aggrieved thereby, petitioner-Agency is grieving in writ jurisdiction.
4. Having heard the learned counsel for the parties and having perused the petition papers, this Court is inclined to grant indulgence in the matter as under and for the following reasons:
(a) Learned Senior Panel Counsel appearing for the petitioners submits and this court agrees with the same that the bar enacted u/s 33 of the 2016 Act is not an impregnable wall and that with leave of this Court, the information & copies of documents sought for can be furnished. Sub-section (1) of sec.33 of 2016 Act which supports case of the petitioner NIA has the following text:
"33. Disclosure of information in certain case.- (1)Nothing contained in sub-section (2) or sub-
section(5) of section 28 or sub-section (2) of section 29 shall apply in respect of any 11 disclosure of information, including identify information or authentication records, made pursuant to an order of a court not inferior to that of a [Judge of a High Court]:Provided that no order by the court under this sub-section shall be made without giving an opportunity of hearing to the Authority [and the concerned Aadhaar number holder]..."
(b) Hon'ble Madras High Court in Crl.O.P 193/2020 between The Deputy Superintendent of Police vs. The Deputy Director, Unique Identification Authority of India disposed off on 21.04.2022 having scanned the provisions of this section has observed at paragraphs 7 & 8 as under:
"7. The above said Section enables the High Court to order an disclosure of information including the identity and authentication information of the Aadhaar Card holder. The information sought by the petitioner for investigation falls within the definition of "Identity Information" as per Section 2(n) of the Act, which reads as below:-
2. Definitions:- In this Act, unless the context otherwise requires,-
(a)....
(b).......
.
.
.
(n). "Identity Information" in respect of an individual, includes his Aadhaar number, his biometric information and his demographic information;
8. If the Aadhaar Card itself is not genuine, it is open to the respondent to inform the petitioner herein that the Aadhaar 12 Card is a fake document and not issued by them. By refusing to furnish the details sought for by the investigating agency which is permissible under law and not against the direction issued in the Judgment of Supreme Court, the due process of investigation of a serious crime gets stale. The reason of the respondent to refuse information to the petitioner herein is not justified as the information sought for is for investigation of crime."
Similarly, Hon'ble Delhi High Court in Crl.MC 3314/2021 between The State, Govt. of NCT of Delhi vs. Unique Identification Authority of India decided on 20.01.2022 at paragraphs 5,6, & 9 has observed as under:
"5. It is submitted that Section 33 (1) of the Aadhaar Act that deals with Disclosure of Information under the Aadhaar Act, has been amended by the Aadhaar and Other Laws (Amendment) Act, 2019 thus enabling this Court to order on disclosure of information including the identity and authentication information of the Aadhaar Cardholder. It is further submitted that the information as being sought by the Investigation Agency for purpose of verification falls within the ambit of 'identity information' as defined under Section 2 (n) of the Aadhaar Act.
6. Ms. Kusum Dhalla, learned APP for the Petitioner/State submitted that the information as sought by the investigation agency is crucial for establishing the forgery committed and would help in securing the ends of justice. It is further contended by the learned APP that a disclosure of such information by the Respondent Authority in no way amounts to 13 invasion of right to privacy of the card holders, and hence the prayer for direction be allowed by this Court.
7......
8.....
9. The Respondent is hereby directed to provide all relevant information, qua the persons named in Annexure P-3 of the petition, as required for the purposes of investigation as per the provisions of the Aadhaar Act. The Investigation Agency is also directed to investigate the matter, upon receiving the requested information, with due regard to the provisions of the statute."
(c) The protection of privacy rights & information lying in the domain of 2nd Respondent - UIDAI is confined to the cases of 'residents' as defined u/s 2(v) wherein genuine data is stored & authentic documents like Aadhar Cards, are generated. This becomes clear from the provisions of Chapter VI 2016 Act which deal with security & confidentiality of information and restriction on sharing such information. The provisions of Sec.33 have been structured as an exception inter alia to the provisions of Sections 28 & 29 inasmuch as they authorize sharing of information & documents on 'an order of a Court not inferior to that of a Judge of a High Court'. True it is, that before such an order is made, an opportunity of hearing needs to be afforded to the 2nd respondent -UIDAI. Accordingly, such an 14 opportunity has been given. Had it been intent of the Parliament that the persons concerned should also be heard before sharing their information, such a provision would have been made in the Act itself. The conspicuous absence of such a provision in the Act, presumably is because of legislative wisdom to that effect vide 'expressio unius est exclusio alterius' whose near literal translation is: the explicit mention of one thing is the exclusion of the other. Insisting upon consent of the persons whose information is sought for, can be metaphorically equated to mosquitoes insisting upon consent for combat against malaria. Even otherwise, the private respondents have chosen to remain unrepresented, one of them fleeing justice and therefore being shown as 'absconding'.
(d) India and Bangladesh being a party-States have ratified the SAARC CONVENTION ON PREVENTING AND COMBATING TRAFFICKING IN WOMEN AND CHILDREN FOR PROSTITUTION, 2002. The said Convention which intends to eradicate the evil of human trafficking has to be kept in view when construing the provisions of a Statute like the Immoral Traffic (Prevention) Act, 1956 & the Aadhar 15 (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016. The International Covenants which have been ratified by India are binding to the extent that they are not inconsistent with the provisions of domestic law. Such Conventions/Covenants can be relied upon by the Courts while construing the statutes which have kinship with the subject matter vide SAFAI KARMACHARI ANDOLAN vs. UNION OF INDIA1, at paragraph 16.
(e) It is pertinent to mention that a Five Judge Bench of the Supreme Court of United Kingdoms in BASFAR vs. WONG2 while treating a case of 'modern slavery' (human trafficking) in the light of similar convention, i.e., Palermo Protocol observed that, even defence of diplomatic immunity does not readily avail. This shows the enormous importance that the Nation-States do attach to the investigation of cases of human trafficking and to the prosecution of offenders. It hardly needs to be repeated that the case set up by the petitioner-NIA before this Court for securing the information & documents inter alia relates 1 (2014) 11 SCC 224 2 2022 UK SC 20 16 to cross border human trafficking and forcing the vulnerable women from Bangladesh, to prostitution. That being the position, this Court has to direct the 2nd respondent to furnish to the petitioner the requisition documents/information forthwith.
In the above circumstances, this writ petition succeeds; a Writ of Certiorari issues quashing the impugned endorsement dated 22.09.2021 issued by the 2nd respondent at Annexure-K; a Writ of Mandamus issues to the 2nd respondent to furnish to the petitioner all information & documents/records as sought for in the subject requisition or as may in addition be hereafter sought for. The petitioner-NIA shall not use the subject information & documents for any purpose alien to investigation of the offences and prosecution of the offenders. Time for compliance is ten days from the date a copy of this order is produced.
Costs made easy.
Sd/-
JUDGE Snb/