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IN THE HIGH COURT OF KERALA AT ERNAKULAM
A.K. JAYASANKARAN NAMBIAR, MOHAMMED NIAS C.P., JJ.
Kumari Prabha Suresh W/o Late Sukumaran Suresh – Petitioner
Versus
Union of India Rep. by Special Secretary, Central Economic Intelligence Bureau Department of Revenue, New Delhi – Respondent
W.P. (Crl.) Nos. 102, 152 of 2021
Decided On : 08-10-2021
Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 – Section 3(1) - Smuggling of goods/abetting the smuggling of goods and engaging in transporting or concealing or keeping smuggled goods in future – Gold in huge quantity was being smuggled through diplomatic luggage.
Finding of the Court:
Detaining authority has to bear in mind that orders of preventive detention have to be passed only in circumstances where the ordinary criminal laws are not effective in detaining the accused. In the instant case, the rejection of the bail application by the Special Court considering the UAPA case, together with the fact that no fresh bail application had been filed by the detenue till the date of the detention order ought to have engaged the attention of the detaining authority, who ought to have given reasons as to why, despite the above facts, he felts that a detention under the COFEPOSA Act was necessary.
Result : W.P.(Cri.) No. 102 of 2021 dismissed and W.P.(Cri) No. 152 of 2021 allowed.
JUDGMENT :
1. Sarith P.S. and Swapna Prabha Suresh were detained pursuant to the orders dated 19-11-2020 and 9-10-2020 made by the Joint Secretary, (COFEPOSA) Government of India, Ministry of Finance under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (“COFEPOSA” for short) with a view to prevent them from smuggling of goods/abetting the smuggling of goods and engaging in transporting or concealing or keeping smuggled goods in future.
2. Habeas Corpus Petition, W.P. (Crl.) No. 102 of 2021 has been filed by the mother of Sarith P.S. (hereinafter referred to as “detenu”) who is under detention from 24-11-2020 pursuant to Ext. P1 order of detention.
3. Habeas Corpus Petition, W.P. (Crl.) No. 152 of 2021 is filed by the mother of Swapna Pabha Suresh (hereinafter referred to as “detenue”) who is under detention from 11-10-2020 following Ext. P1 order of detention.
4. Based on specific intelligence that gold in huge quantity was being smuggled through diplomatic luggage, one consignment of cargo with diplomatic immunity in terms of Foreign Privileged Persons (Regulation of Customs Privileges) Rules, 1957 consigned from Dubai by Al Zatar Spices, Sharjah in the name of charged affairs of UAE Consulate was withheld for clearance on 5-7-2020 and subsequent examination of the said consignment resulted in the seizure of gold weighing 30244.90 grams having a value of Rs. 14,82,00,010. The Consulate Officers claimed ownership of those items declared as food items and did not claim the concealed gold and they were further informed by the charged affairs that one Sarith P.S. helps them in clearing the goods in India. On questioning, Sarith revealed that he was assisted by Swapna Prabha Suresh, the Secretary of the charged affairs in clearing the luggage. Investigation also revealed that Sarith along with one Sandheep and Swapna were involved in transporting huge quantity of gold concealed in various items sent through diplomatic baggage. It was in this background, the orders of detention were issued by the second respondent.
W.P. (Crl.) No. 102 of 2021
5. The detenue Sarith P.S. was arrested in O.R No. 7/2020 registered by the Customs on 6-7-2020. He was granted bail by the ACJM (EO), Ernakulam by order dated 17-09-2020 which could not be executed for non-compliance of the conditions imposed. He was arrested by the NIA on 16-7-2020 in RC 2/2020 registered under the Unlawful Activities Prevention Act, 1967 (for short “UAPA”). OR 13/2020 was registered by Customs on the allegation of smuggling of dollars in which the detenue was arrested on 18-11-2020. He was also arrested in S.C. No. 610/2020 registered by the Enforcement Directorate under the provisions of the Prevention of Money - Laundering Act, 2002 and his arrest was recorded on 22-7-2021. The bail application filed by the detenue in this case was pending consideration when the order of detention was passed. As stated earlier, the detention order was passed on 19-11-2020 and the same was executed on 24-11-2020. He was served with grounds of detention and relied upon documents on 25-11-2020 and on the opinion of the Advisory Board, the detention order was confirmed by order dated 11-2-2021. The detenue had made a representation to the detaining Authority as also to the Central Government on 17-2-2021. The detaining authority rejected the representation on 2-3-2021 and the representation addressed to the Central Government was rejected on 3-3-2021.
W.P. (Crl.) No. 152 of 2021
6. The detenue, Swapna Prabha Suresh was arrested on 11-7-2020 by the National Investigating Agency (NIA) in R.C. No. 2 of 2020 and on 22.07.2020 by the Enforcement Directorate (ED) in S.C. No. 610/2020. Her formal arrest was recorded by the Customs in OR No. 7 of 2020 on 24.07.2020. The Special Court for NIA cases dismissed the bail application of the detenue in the case registered under UAPA by Ext. P9 order on 10.08.2020. On 05.10.2020 the ACJM (EO), Ernakulam, granted
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