Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(Ker) 445

IN THE HIGH COURT OF KERALA AT ERNAKULAM
A.K. Jayasankaran Nambiar, Gopinath P., JJ.
Raishad K.T. – Petitioner
Versus
Union of India, Represented By Director General Central Economic Intelligence Bureau, 6th Floor, 'B' Wing, Janpath Bhawan, Janpath New Delhi And Ors. – Respondents
WP (CRL.) No. 83 OF 2021
Decided On : 09-06-2021

Advocates:
Advocate Appeared:
For the Petitioner: P.A. Augustian, Smt. Swathy E.S., Advs.
For the Respondent: Shri. P. Vijayakumar, ASG of India, Addl. Director General Of Prosecution, Shri. S. Manu, Senior CGC, Shri. Jaishankar V. Nair, CGC, Shri. K.A. Anas, Spl. Govt. Plader

Point of Law: Smuggling gold – Detention order - Right to Liberty is further strengthened by provision that a law for preventive detention cannot authorise, in any case, detention for a longer period than two months, unless an Advisory Board has reported that there is sufficient cause for such detention

Headnote:
Indian Penal Code, 1860 – Sections 193 and 228 – Constitution of India, 1950 – Art.22 – Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 – Section 8 – Customs Act – Section 108 – Recovery of gold – Illegal Detention – Writ Petition (Criminal) is at instance of one Raishad K.T praying inter-alia for the issuance of a writ in the nature of habeas corpus for the release of his brother, one Ramees. K.T who is allegedly under illegal detention pursuant to an order issued under provisions of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974
Finding of the court: Only reasonable and practical way of reading the provision is to recognise the arrangement put in place by the Central Government, of delegating the functions of the Advisory Board, in respect of detentions outside Delhi and at the instance of the Central Government, to the Advisory Board constituted within the State concerned to deal with the matter in the same manner as it would deal with cases where the detention is at the instance of the State Government – Provisions of Section 8 (a) of the COFEPOSA Act provide for the constitution of Advisory Boards. – Significantly, those provisions do not use the words ‘appropriate Government’. Section 8 (b), no doubt says that the reference to the Advisory Board shall be by the ‘appropriate Government’ and uses the words ‘the Advisory Board’. – Court cannot, however, give any significance to the word ‘the’ before the words ‘Advisory Board’ to hold that the Advisory Board must be one constituted by the appropriate Government. – Decisions relied upon by the learned counsel for the petitioner regarding significance of the word ‘the’ has no application in the light of the provisions of the COFEPOSA Act. – Court must give effect to the plain meaning of the words used in the statute. – Court cannot add or subtract from it. – Constitution as it stands today does not call for such an interpretation. It appears to us that the provisions of Art.22(4) of the Constitution and Section 8 of the COFEPOSA only requires that the case of the detenu could be considered by an Advisory Board consisting of persons having the qualifications mentioned in Art.22(4) and constituted by appropriate notification under Section 8 of the COFEPOSA Act. – Counsel for the petitioner has no case that the Advisory Board which considered the case of the detenu has not been constituted under Section 8 of the COFEPOSA Act. At any rate, the detenu cannot be said to be prejudiced in any manner as his representation was duly considered by an Advisory Board comprising of such members as are recognised both by the unamended and amended provisions of Art.22(4) of the Constitution. – Court hold that there is no merit in the contention of the learned counsel for the petitioner that only the Board constituted under the notification was competent to consider the case of the detenu.
Result: Writ Petition Dismissed

JUDGMENT :

Gopinath, J.

This Writ Petition (Criminal) is at the instance of one Raishad K.T praying inter-alia for the issuance of a writ in the nature of habeas corpus for the release of his brother, one Ramees. K.T (hereinafter referred to as the 'detenu') who is allegedly under illegal detention pursuant to an order dated 19.11.2020 issued under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereafter ‘the COFEPOSA Act’).

2. On the basis of information received by the Customs Department that gold is being smuggled into India in huge quantities through diplomatic baggage, a consignment of cargo from Dubai was intercepted at the Thiruvananthapuram Air Cargo complex. The examination of the cargo led to the recovery of gold weighing 30.245 Kgs having a market value of about Rs.14.82 crores. Investigations carried out and statements recorded from various persons under Section 108 of the Customs Act, revealed that certain staff of the UAE Consulate at Thiruvananthapuram were involved in a racket of smuggling gold by concealing the same in diplomatic cargo which is not normally subjected to detailed customs examination. The investigation revealed that the detenu was a major player in the racket and that he was one of the main conspirators in hatching the plot to smuggle gold through diplomatic baggage. The statements recorded by the Customs Department revealed that the persons involved in the racket had regularly smuggled gold in a similar fashion during the period from 15.7.2017 to 27.6.2020. On a consideration of the entire materials, the 2nd respondent issued Ext.P1 order of detention under the provisions of the COFEPOSA Act against the detenu on 19.11.2020. The detention order was executed on 24.11.2020 while the detenu was in custody after being arrested for in connection with offences under the Customs Act, 1962 and the Unlawful Activities Prevention Act, 1967. On the date of passing of the detention order, the detenu had obtained statutory bail in respect of the offences under the Customs Act, but continued to be in custody on the allegation of having committed the offence under the Unlawful Activities Prevention Act, 1967. On being served with the grounds of detention (Ext.P2), the detenu preferred representations to the Government of India and to the detaining authority (through Exts.P5 and P6 respectively). These representations were rejected, by the Central Government through Ext.P7 dated 11.1.2021 and by the detaining authority through Ext.P8 dated 14.1.2021.

3. The Advisory Board constituted in terms of Section 8 of the COFEPOSA Act opined that there was sufficient reason for the continued detention of the detenu beyond the period of 11 weeks from the date of detention and accordingly Ext.P11 order was issued by the detaining authority. It is in the above circumstances, that the petitioner seeks a writ of habeas corpus for securing the release of the detenu from custody which is allegedly illegal. The petitioner also prays for certiorari to quash the order of detention.

4. We have heard Sri. P.A. Augustine, the learned counsel appearing for the petitioner, Sri. Jayasankar. V. Nair, the learned counsel for the Union of India, Sri. Manu.S., the learned Standing Counsel appearing for the Customs Department and Sri. K.A. Anas, the learned Government Pleader.

5. The learned counsel for the petitioner contends that the entire procedure commencing from issuance of Ext.P1 order of detention to its confirmation following the report of the Advisory Board is vitiated in law and cannot be sustained. In the main, he contends that the detenu is to be set at liberty on the following grounds :-

(i) Considering the date of the event which resulted in the order of detention being passed, there is a delay 0f 4 months and 14 days in issuing Ext.P1 order of detention resulting in the live link between the alleged prejudicial activity and the requirement of detention being snapped;

(ii) The

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2021 Supreme(Ker) 445

Cases Referred (8)