Point of Law: Detention - statements under Section 108 of the Customs Act cannot be used for passing detention under the provisions of the COFEPOSA Act.

JUDGMENT :

Mohammed Nias C.P., J.

In exercise of power under Section 3(1)(i) of the Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, 1974 ('COFEPOSA' for short), by orders dated 19-11-2020, the Joint Secretary, Ministry of Finance, directed that one Jalal A.M. and Mohammed Shafi P. be detained with a view to prevent them from smuggling.

2. Habeas Corpus Petition, WP(Crl) No.70 of 2021 has been filed by Sajmi, W/o. Jalal A.M. (hereinafter referred to as “detenue”) who is under detention from 25-11-2020 under the order aforesaid. The grounds of the detention were supplied to the detenue on 28-11-2020

3. Habeaus Corpus Petition, WP(Crl.) No.118 of 2021 is filed by Jamseena, W/o. Mohammed Shafi.P. (hereinafter referred to as “detenue”) who is under detention from 26-11-2020 under the order aforesaid. The grounds of the detention were supplied to the detenue on 28-11-2020.

4. Since in both cases, the detention orders arise from a similar set of allegations, they were heard together.

5. On the basis of the information received by the Customs department that gold in huge quantities was being smuggled in India through diplomatic luggage, one consignment of cargo with diplomatic immunity was intercepted at the Thiruvananthapuram Air Cargo Complex on 5-07-2020, which led to the recovery of gold weighing 30.245 kg valued at Rs. 14.82 crores concealed inside various electronic and other gadgets. Subsequent investigations 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 the diplomatic cargo taking advantage of the diplomatic immunity that existed.

6. The statements recorded as aforesaid also revealed that the persons involved in the racket had regularly smuggling gold during the period from 15-7-2017 to 27-6-2020 and had altogether smuggled 136 kilograms of gold in 21 consignments during the said period. On the evaluation of the entire materials, the 2nd respondent passed the detention orders. The detenue in WP(Crl) No.70 of 2021 was arrested by the Customs on 14-7-2020 in which he got statutory bail on 24-09-2020. But he continued to be in the custody on the allegation of having committed offences under the Unlawful Activities Prevention Act, 1967.

7. As submitted earlier, the detention orders were dated 19-11-2020 and the same was executed on 24-11-2020 with respect to the detenue in WP(Crl) No.70 of 2021 and he was sent to Central Jail, Poojapura, Thiruvananthapuram. On 28-11-2020, the grounds of detention including the relied upon documents were served on him and he preferred representations to the detaining authority, the Government of India as well as to the Advisory Board which are marked in the Writ Petition (Crl.) No.70 of 2021 as Exts. P2, P3 and P4. Ext. P2 representation was received on 30-12-2020 and Ext.P3 representation was received on 29-12-2020. Ext.P3 representation was disposed of on 6-1-2021 while Ext. P2 was disposed of on 12-2-2021.

8. As regards the detenue in WP(Crl) No.118 of 2021, the detention order was dated, 19-11-2020 and the same was executed on 24-11-2020 and the detenue was sent to Central Jail, Poojapura, Thiruvananthapuram. On 28-11-2020, the grounds of detention including the relied upon documents were served on the detenue. On being served with the grounds of detention, the detenue preferred representations to the detaining authority, Government of India as well as to the Advisory Board which is marked in the Writ Petition as Exts. P2. Ext. P2 representation was received on 30-12-2020, which was disposed of on 12-2-2021.

9. The Advisory Board, constituted in terms of Section 8 of the COFEPOSA Act, opined that there was sufficient reason of the continued detention of the detenues and accordingly, the opinion of the Advisory Board confirming the detention order was passed on 11-2-2021.

10. Under these circumstances, th