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SUPREME COURT OF INDIA
B.R. GAVAI, PRASHANT KUMAR MISHRA, K.V. VISWANATHAN, JJ.
Shabna Abdulla – Appellant
Versus
The Union of India and Others – Respondents
Criminal Appeal No. 3082 of 2024
Decided On : 20-08-2024
Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, 1974 – Section 3 – Preventive detention – Appellant is sister-in-law of detenu – When Coordinate Bench of same High Court based on same grounds of detention and on the basis of same material, which was relied on by detaining authority, had come to a considered conclusion that non-supply of certain documents had vitiated right to make an effective representation of detenus, another Coordinate Bench could not have ignored the same – Division Bench of High Court while passing impugned judgment and order should have followed view taken by another Division Bench of same High Court specifically when grounds of detention and grounds of challenge were identical in both cases – In the event, Division Bench of High Court was of the view that earlier decision of Coordinate Bench of same High Court was not correct in law, only option available to it was to refer the matter to a larger Bench – Order of detention quashed and set aside. (Paras 15, 17 and 18)
Facts of the case:
Present appeal challenges final judgment and order dated 24th January 2023 in Writ Petition (Crl.) No. 596 of 2022, passed by a Division Bench of High Court of Kerala, whereby High Court dismissed petition filed by the appellant, who is sister-in-law of the detenu and thereby upheld the detention order dated 24th August, 2021 issued against detenu under Section 3 of Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, 1974 and its confirmation vide order dated 24th May, 2022.
Findings of Court:
Order of confirmation of detention order dated 24th May 2022 passed by Central Economic Intelligence Bureau, COFEPOSA Wing is quashed and set aside.
Result : Appeal allowed.
JUDGMENT :
B.R. GAVAI, J.
1. The present appeal challenges the final judgment and order dated 24th January 2023 in Writ Petition (Crl.) No. 596 of 2022, passed by a Division Bench of the High Court of Kerala, whereby the High Court dismissed the petition filed by the appellant, who is the sister-in-law of the detenue and thereby upheld the detention order dated 24th August, 2021 issued against the detenue (one Abdul Raoof) under Section 3 of the Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as “COFEPOSA”) and its confirmation vide order dated 24th May, 2022.
2. The facts, in brief, giving rise to the present appeal are as given below.
2.1 On 20th April, 2021, the unaccompanied baggage of one Althaf Moosan Mukri was checked and inside the compressor of a refrigerator amongst the baggage, contraband gold weighing 14,763.30 grams valued at Rs. 7,16,16,768/- was found and seized.
2.2 Statements of co-accused persons were recorded, whereby they admitted that the detenue who was residing in Dubai, UAE, was running a cargo handling and forwarding business and was scouting passengers who had unaccompanied cargo to be sent to India. It was stated that the detenue would send contraband gold concealed in compressors of refrigerators along with unaccompanied baggage.
2.3 On 24th August, 2021, detention orders under Section 3 of COFEPOSA were issued against the three co-accused persons namely Mohammad Ali (father-in-law of detenue), Abdulla S.S. (brother-in-law of detenue) and Biju V. Joy (Customs G. Cardholder) and they were arrested. They later challenged their respective detention orders by way of separate Writ Petitions filed before the High Court of Kerala.
2.4 On 27th December, 2021, the detenue reached India. He repeatedly wrote letters/issued reminders to the Director General (DG), Central Economic Intelligence Bureau (hereinafter “CEIB”) as well as the Joint Secretary, COFEPOSA, stating that he has not received any information of a detention order issued against him.
2.5 On 5th March, 2022, the detenue was arrested and he was served with the detention order dated 24th August, 2021. He was supplied the grounds of detention on 7th March, 2022. Thereafter, by an order dated 24th March, 2022, the case of the detenue was referred by the CEIB to the Advisory Board under Section 8(b) of COFEPOSA Act.
2.6 On 5th April, 2022, the detenue wrote letters to the DG, CEIB and Joint Secretary (COFEPOSA), seeking various documents that had not been provided to the detenue. He interalia sought audio recordings of the voice messages pertaining to the WhatsApp conversations relied upon by the Detaining Authority, as was evident from the grounds of detention. The Joint Secretary (COFEPOSA) rejected the request of the detenue, whereas the DG, CEIB kept the request pending for the Advisory Board to take an opinion on.
2.7 On 24th May, 2022, in view of the opinion of the Advisory Board, the Central Government confirmed the detention order of the detenue for a period of one year from the date of detention.
2.8 On 3rd June, 2022, a Division Bench of the High Court by a common judgment, allowed the three writ petitions filed by the co-accused persons being W.P. (Crl.) Nos. 107-109 of 2022. The High Court was of the opinion that documents sought had been relied upon in the detention orders and the same ought to have been furnished to the detenus when they requested for the same. It, accordingly, held that the non-supply had vitally affected the right of the detenus under Article 22(5) of the Constitution of India & therefore, the detention order was bad.
2.9 On 29th June, 2022, the appellant filed a Writ Petition being W.P. (Crl.) No. 596 of 2022, challenging the detention order dated 24th August, 2021, as well as the confirmation of detention vide order dated 24th May, 2022, by the Central Government on the ground of non-supply of relevant documents and therefore sought release of the detenue.
2.10 On 24th Janu
Preventive detention – There cannot be undue discrimination in matter of appreciation of evidence while deciding validity of detention.
Point of Law : Nature and extent of right to representation under Article 22(5) of Constitution of India has been a subject for serious deliberation for long.
Point of Law : Law cannot be subverted, particularly in the area of personal liberty in order to prevent a smuggler from securing his release from detention, because whatever is the law laid down by ....
A detenu under COFEPOSA has no inherent right to legal representation in Advisory Board proceedings unless the Detaining Authority is represented, and failure to furnish all relied upon documents doe....
Preventive detention – Detenu has right to be furnished with grounds of detention along with documents so referred to or relied on – Failure or even delay in furnishing those documents would amount t....
Preventive detention orders are invalidated if the grounds for detention are communicated in illegible or untranslated documents, infringing the detenu's constitutional rights to make effective repre....
Requirement under Section 8 of the COFEPOSA Act in the background of the Constitutional provision is for a reference to an Advisory Board duly constituted and it is not the petitioner's case and the ....
The illegibility of relied upon documents (RUDs) vitiates the subjective satisfaction of the detaining authority, rendering the detention order invalid.
Detention - statements under Section 108 of the Customs Act cannot be used for passing detention under the provisions of the COFEPOSA Act.
Action under Section 7 of COFEPOSA Act is not mandatory, failure to take action under section gives scope for doubt regarding assertion that detenu had absconded or concealed himself to avoid arrest.
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