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IN THE HIGH COURT OF KERALA AT ERNAKULAM
A.K.Jayasankaran Nambiar, Mohammed Nias C.P., JJ.
Kumari Prabha Suresh – Petitioner
Versus
Union of India, Represented By Special Secretary, Central Economic Intelligence Bureau, Ministry of Finance, Department of Revenue, 6th Floor, B-Wing, Janpath Bhawan, Janpath, New Delhi and Ors. – Respondent
WP(CRL.) NO. 152 & 102 OF 2021
Decided On : 08-10-2021
Constitution of India,1950 - Article 22(5) and 21 - Customs Act - Section 108 - UA(P) Act - section 43D and 43D(5) – Criminal Procedure Code,1973 – Section173 - Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 - Section 3(1) - Foreign Privileged Persons (Regulation of Customs Privileges) Rules, 1957 - Seizure of gold - - Smuggling of goods/abetting smuggling of goods and engaging in transporting - 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 name of charge d' affairs of UAE Consulate was withheld for clearance subsequent examination of said consignment resulted in seizure of gold weighing 30244.90 grams - Consulate Officers claimed ownership of those items declared as food items and did not claim concealed gold and they were further informed by the charge d' affairs helps them in clearing goods in India - On questioning revealed that he was assisted Secretary of charge d' 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.
Finding of the Court:
Court has also through its judicial pronouncements created various legal bul-works and breakwaters into vast powers conferred on executive by the laws of preventive detention prevalent at different points of time - It is true that sometimes even a smuggler may be able to secure his release from detention if one of safeguards or requirements laid down by Constitution or law has not been observed by detaining authority but that can be no reason for whittling down or diluting safeguards provided by Constitution and the law - If detaining authority wants to preventively detain a smuggler - Constitution and law and if there is a breach of any such provision, the rule of law requires that detenue must be set at liberty, however wicked or mischievous he may be - Law cannot be subverted, particularly in the area of personal liberty in order to prevent a smuggler from securing his release from detention - Court would be laying down a dangerous precedent if it allows a hard case to make bad law – Court interpret provisions of Constitution and law in regard to preventive detention without being in any manner trammelled by the fact that this is a case where a possible smuggler is seeking his release from detention.
Result: W.P. (Crl.) 102 of 2021 is dismissed and W.P. (Crl) No. 152/2021 is allowed
JUDGMENT :
Mohammed Nias C.P., J
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, WP(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, WP(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 charge d' 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 charge d' 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 charge d' 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. 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. 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.
WP(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. 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 default
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