Derek Achong

Mag­is­trates must pro­vide the grounds on which they grant or­ders to de­tain cash un­der the the Pro­ceeds of Crime Act (POCA) and po­lice of­fi­cers should pro­vide cit­i­zens with copies of search war­rants when ex­e­cut­ing them.

The re­quire­ments were re­it­er­at­ed by the Ap­pel­late Judges Al­lan Men­don­ca, Pe­ter Ra­jku­mar and Ron­nie Boodoos­ingh as they up­held the ap­peal of liquor store own­ers Prim­nath and Dhan­ra­jie Gee­lal over an or­der, which de­tained their al­most $1 mil­lion in lo­cal and for­eign cur­ren­cy for two years.

Ac­cord­ing to the ev­i­dence in the case, po­lice ex­e­cut­ed a search war­rant for arms and am­mu­ni­tion on the Gee­lal’s premis­es on Ju­ly 31, 2015.

Al­though no il­le­gal items were found, the cou­ple was ar­rest­ed and the cash, which the cou­ple claimed was be­ing saved to pay their three chil­dren’s for­eign uni­ver­si­ty fees, was seized.

Af­ter the Gee­lals were re­leased with­out be­ing charged, the po­lice ap­plied un­der the POCA for the mon­ey to be de­tained. The or­der re­mained in place for two years be­fore the cash was re­turned.

The Gee­lals filed a law­suit in which they claimed that they were un­able to chal­lenge the pro­tract­ed de­ten­tion, as they were en­ti­tled to un­der the POCA, be­cause the mag­is­trate who grant­ed it failed to pro­vide grounds for her de­ci­sion.

The case was dis­missed by a High Court judge lead­ing to the ap­peal be­fore the pan­el.

Ra­jku­mar, who wrote the judg­ment, ruled that the fail­ure of the mag­is­trate breached the cou­ple’s due process rights un­der the Con­sti­tu­tion as her grounds were vi­tal to mount­ing a chal­lenge to the de­ten­tion or­der.

“The ap­pli­ca­tion ne­ces­si­tat­ed pro­ce­dur­al safe­guards to per­mit its ef­fec­tive ex­er­cise. The most fun­da­men­tal safe­guard was the need go know, and be pro­vid­ed with, the grounds of the ex-parte de­ten­tion or­der so as to en­able the ap­pel­lants to re­spond ef­fec­tive­ly, and to sat­is­fy the re­quire­ments of such an ap­pli­ca­tion,” Ra­jku­mar said.

Ra­jku­mar said the pro­vi­sion of such in­for­ma­tion was a right un­der the leg­is­la­tion and the ap­pel­lants should not have to bring an ap­pli­ca­tion or file a law­suit as they did to be pro­vid­ed with the grounds for the de­ci­sion.

He was care­ful to note that the mag­is­trate was not re­quired to pro­vide de­tailed rea­sons but could have mere­ly stat­ed the grounds in the or­der.

“Al­ter­na­tive­ly, but not nec­es­sar­i­ly, the Mag­is­trate could have adopt­ed the more labour in­ten­sive course of sup­ply­ing brief writ­ten rea­sons to ei­ther ac­com­pa­ny the or­der or short­ly there­after,” Ra­jku­mar said.

Ra­jku­mar al­so con­sid­ered the cou­ple’s com­plaint that they were not giv­en a copy of the search war­rant or al­lowed to read it.

“The ad­di­tion­al se­cre­cy in not pro­vid­ing grounds for the ini­tial search when the seizure of cash took place com­pounds the at­mos­phere of se­cre­cy that sur­round­ed the seizure and con­tin­ued de­ten­tion of the ap­pel­lant’s cash,” Ra­jku­mar said.

“No log­i­cal rea­son could ex­ist for not pro­vid­ing a copy of the search war­rant at the time it was ex­e­cut­ed,” he added.

Ra­jku­mar ruled that the de­ten­tion or­der with­out rea­sons was un­con­sti­tu­tion­al and or­dered the State to pay com­pen­sa­tion for such breach­es.

The com­pen­sa­tion is to be cal­cu­lat­ed by a High Court Judge at a lat­er date.

The State was al­so or­dered to pay the Gee­lals’ le­gal costs for the ap­peal.

The cou­ple was rep­re­sent­ed by Anand Ram­lo­gan, SC, Renu­ka Ramb­ha­jan and Jared Ja­groo.

Dou­glas Mendes, SC, Sacha Sukhram, and Am­ri­ta Ram­sook rep­re­sent­ed the State.