Mumbai: The Supreme Court’s interim order barring the Enforcement Directorate (ED) from unlocking and examining electronic devices seized from Santiago Martin has stirred significant concerns among investigative agencies. The decision has sparked debates on privacy rights and its potential implications on ongoing and future investigations.
The apex court’s intervention follows a petition filed by Future Gaming, which seeks to protect fundamental rights, particularly the right to privacy. The petition argues that the information stored on personal digital devices is highly personal and intimate, necessitating safeguards against unrestricted access. The court has explicitly directed the ED “not to access and copy” the content of mobile phones belonging to lottery king Santiago Martin, who heads Future Gaming, and a range of electronic devices belonging to his company’s employees.
The ED, which is investigating Santiago Martin in connection with alleged money laundering activities involving large sums, has expressed disappointment over the order. A senior official, speaking on the condition of anonymity, stated that it won’t impact their case as they have strong evidence against Martin. but acknowledged it as a “major obstacle” in obtaining crucial digital data. Officials have also raised concerns that the Supreme Court’s decision could set a challenging precedent for ongoing and future cases. If accused individuals routinely challenge the seizure of electronic devices, it could hamper our ability to gather critical digital evidence, especially in cases involving financial fraud and money laundering.
Advocate Adity Talpade, representing several accused in CBI and DRI cases, commented, “The Supreme Court’s recent order will positively affect numerous cases nationwide. Seizing and examining someone’s mobile phone infringes on their privacy, which is integral to personal liberty and dignity. Additionally, in cases of mobile phone seizure, the hash value (a unique code representing the contents of a file or data) must be secured at the time of seizure, as required by the Information Technology Act, 2000, to ensure it is not tampered with.
Advocate Viquar Rajguru, representing Mohammad Salim Qureshi alias Salim Fruit, an associate of Chhota Shakeel, said, “This is a commendable decision by the Supreme Court, affirming its historic ruling on the right to privacy in the K.S. Puttaswamy case. This decision should be welcomed, as mobile phones contain a vast amount of personal digital information.” He referred to the Supreme Court’s 9-judge bench decision in K.S. Puttaswamy vs. Union of India (2017) 10 SCC 1, which recognized the right to privacy as a fundamental right, describing it as a natural, basic, inherent, and inalienable right. Regarding his case, Rajguru stated that the voice sample of Salim Fruit, taken by the NIA, is under challenge before the High Court, as it was taken without proper authorization, which falls under the category of a violation of the right to privacy.
However, Advocate Ejaz Nakvi argued for an appeal against the order, stating, “The Union Government should support this appeal to uphold the public’s right to know the truth, which aligns with the principle of ‘Satya Mev Jayate’. Santiago Martin’s dubious foreign connections and offshore activities demand transparency.”
The case involving Future Gaming has been combined with similar petitions, including one filed by employees of Amazon India challenging the ED’s demands to surrender their personal electronic devices during an investigation. This raises concerns about the scope of authority and privacy in corporate and individual contexts. Another key case in the consolidation is the Newsclick matter, where petitioners are seeking Supreme Court guidelines after the Delhi Police seized digital devices during a 2023 investigation into alleged financial irregularities. These cases collectively raise significant legal questions about the procedures, safeguards, and limits involved in seizing and accessing personal electronic data during investigations, highlighting the growing conflict between investigative powers and individual privacy rights.
A senior officer from the agency stated that the procedures being followed strictly adhere to established guidelines, including the CBI Manual on Search and Seizure of Digital Evidence. The officer emphasized that the investigation is proceeding within the boundaries of the law, ensuring a balance between the needs of the investigation and respect for individual rights.
Santiago Martin’s Future Gaming gained prominence recently as the single largest purchaser of now-defunct electoral bonds, having acquired bonds worth Rs 1,368 crore between 2019 and 2024. Data released by the Election Commission revealed the beneficiaries of these donations. The Trinamool Congress was the largest recipient at Rs 542 crore, followed closely by the Dravida Munnetra Kazhagam (DMK) at Rs 503 crore. Other significant recipients included the YSR Congress (Rs 154 crore) and the Bharatiya Janata Party (Rs 100 crore).
Prakash Shetty, noted criminal lawyer and special public prosecutor in several terror cases, said that “No doubt personal liberty of the citizens but at the same time investigation is also necessary. The investigation cannot be controlled.”
However, in this case, the order passed by the Supreme court is an interim order and can be revoked or vacated if need be. The Investigating officer has to satisfy the ground and urgency for the same. “No doubt it affects the investigation and delays the process but the investigating officer has to plead the court for the necessity.
Another senior public prosecutor, on the condition of anonymity said that the order hampers the investigating of the case to a greater extend. “Since the hearing is scheduled after two months, in this period lot of valuable information is lost its relevance. With the right of the accused, the court also needs to consider the rights of investigating officer who also faces pressure to complete the probe,” the prosecutor said.
However, he said in such cases, the officer should move and urgent plea seeking review of the order.
