A Central businessman and his wife are to receive compensation from the State after they successfully appealed a judge’s dismissal of their challenge of a magistrate's order to detain over $1 million.
The money was held under the Proceeds of Crime Act (POCA).
In a written decision on Thursday, Justices of Appeal Allan Mendonca, Peter Rajkumar and Ronnie Boodoosingh allowed the appeal of Primnath Geelal and his wife Dhanrajie.
The court also granted three declarations that the couple’s rights to enjoyment of property and protection by the law were infringed, while also declaring the detention order of the chief magistrate, in August 2015, was unconstitutional, null, void and of no legal effect.
Compensation was ordered for the couple and will be assessed by a High Court judge.
In their challenge, the Geelals argued that the magistrate’s detention order, under the POCA, was invalid because it did not provide the grounds for the continued detention of the cash.
They argued this hampered their ability to effectively apply to the magistrate, under section 38(7) of the POCA, for the money to be returned.
Their judicial review claim was dismissed by Justice Robin Mohammed and the Geelals appealed.
The Court of Appeal was asked to decide if there was a requirement under the POCA to provide the couple with the grounds for the detention order, and the effect of not providing them.
Rajkumar, who delivered the ruling, said there was a requirement to provide grounds for the order.
“There should be no reluctance to recognise that a magistrate, in exercising draconian powers under the POCA to continue the detention of cash seized from a citizen, is required to ensure that the basis of the jurisdiction which he purports to exercise is a) satisfied and b) communicated to that citizen.
“A citizen cannot make such an application if he is not aware of, because he is not provided with, adequate grounds as to the basis of the order,” Rajkumar said.
He said the right to apply for the return of cash seized and held under an ex-parte order, was “a fundamental part of the due process.”
Rajkumar said the provision of the grounds for detaining property was important, as its purpose was to enable an effective application for the release of the cash.
He also said in this case, the failure to give effect to those procedural safeguards amounted to a denial of the due-process protection provided under the POCA and was unconstitutional
The Appeal Court was also critical of the police’s refusal to allow the couple to see a copy of the search warrant used to raid their home and seize their cash.
“The additional secrecy in not providing grounds for the initial search when the seizure of the cash took place compounds the atmosphere of secrecy that surrounded the seizure and the continued detention of the appellants’ cash.
“No logical reason could exist for not providing a copy of the search warrant at the time it was executed,” he said, pointing out Administration of Justice (Indictable Proceedings) (Amendment) Act, No. 1 of 2020, contained provisions that the police must supply a copy.
On July 31, 2015, police searched the Geelals' premises. They said they were only shown the search warrant from a distance.
They said they were told only that the search was for arms, ammunition, and drugs, and their request to see a copy of the warrant was refused. Police seized TT and foreign currencies amounting to $1 million.
They told the police the money was sales from their business and the foreign currency was leftovers from overseas travels, while the Canadian currency was earmarked to finance their children’s education.
The couple were arrested and released with no charges. However, the police applied for and received an order from the magistrate to detain the cash for three months under the POCA.
The cash was eventually returned to the couple after the maximum period of two years for its detention had expired.
The State was also ordered to pay the couple’s legal costs.
The Geelals were represented by attorney Anand Ramlogan, SC, Renuka Rambhajan and Jared Jagroo. Douglas Mendes, SC, Sacha Sukhram, Amrita Ramsook and Khadine Matthew represented the State.