IMPORTANT POINTS
The society must be protected from the social menace of smuggling by immobilizing the persons by detention of those engaged in such operations and to disrupt the machinery established for furthering smuggling and foreign exchange manipulations. Preventive detention, unlike punitive detention, is to protect the society by preventing the wrong being repeated. Customs Officials who are expected to man the prevention of smuggling, when found to be indulging in such acts, the detaining officer is certainly justified with the materials available to be subjectively satisfied that he should be detained as a means of prevention.

JUDGMENT :

Bechu Kurian Thomas, J.

The wife of a detenu seeks release of her husband, who is detained under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short, COFEPOSA Act).

2. The detenu is the Head Havildar of the Customs Department at the Cochin International Airport. Ext.P1 is the order of his detention dated 22.05.2019 which was executed on 30.05.2019. As per the grounds of detention served on the detenu, it is revealed that, information was received that smuggling of gold will take place on 01.03.2019 when an International passenger will attempt to take out the smuggled gold with the help of a Customs Official. On that information the Officers of the Directorate of Revenue Intelligence intercepted the detenu while he +was attempting to exit the International Airport at Cochin. Search of the body of the detenu revealed 2998.50 grams of gold hidden in between his legs within 4 undergarments which he was wearing. The three metal bars were wrapped in black insulation tape and kept in the undergarments. On interrogating him, the detenu is purported to have confessed that he had received the gold bars from one Adnan Khalid, who handed over the same from inside the toilet behind Belt No.1 at the arrival hall of Cochin International Airport. It was also confessed that there was a smuggling racket from whom he had already received money which was kept in his car, parked in the car park of the Airport. On the basis of the aforesaid confession, the Intelligence Officers seized even the currency notes amounting to Rs.1,75,000/-from his car parked in the Airport and registered in the detenu's name. The detenu gave a statement under S.108 of the Customs Act on 01.03.2019 in his own handwriting and again on 07.03.2019. Based on the above facts, Sponsoring Authority requested the 2nd respondent to issue a detention order. The 2nd respondent after considering the facts and circumstances, found it fit to issue the detention order on 22.05.2019. He concluded that there has been a modus operandi to smuggle gold through Cochin International Airport by involving various persons like passengers, operators and also the Customs Officials and that it was essential to detain Sri.Francis C.X., for a period of one year with a view to prevent him from indulging in further activities of smuggling or abetting smuggling in terms of Section 3(1) of the COFEPOSA Act. Pursuant to the order of detention, the detenu submitted a representation to the Advisory Board dated 23.07.2019 and based on the report of the Advisory Board, the Central Government confirmed the order of detention on 14.08.2019. The aforementioned detention order is under challenge in this petition under Article 226 of the Constitution of India.

3. We have heard Sri.C.Rajendran, the learned counsel for the Petitioner, Adv.Sri.Daya Sindhu Shree Hari, Central Government Counsel for respondents 1 & 2, Sri.K..Anas, the learned Public Prosecutor for the 3rd respondent and Adv.Sri.S. Manu, the learned counsel for the 4th respondent respectively.

4. Learned counsel for the petitioner, at the outset itself submitted that there was total non-application of mind while passing the detention order and also that the seizures were illegal, both of which have caused prejudice to the detenu. It was also submitted that out of the three persons, who were arrested in connection with the incident, orders of detention passed against two -Sri.Faizal and Sri.Adnan Khalid, were set aside by this Court as per the judgment dated 19.02.2020 in WP(Crl).Nos.377 & 378 of 2019. He submitted with due vehemence that the said orders of detention were set aside on the ground that the copy of the video footage relied upon by the detaining authority was not handed over to the detenu and that an identical situation exists in the instant case also. He submits that failure to give copy of the CCTV footage has caused prejudice to the detenu and the same could not have been used as a ground