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IN THE HIGH COURT OF KERALA AT ERNAKULAM
A.K. JAYASANKARAN NAMBIAR, MOHAMMED NIAS C.P., JJ.
NUSHATH KOYAMU D/O MOHAMMED ALI – Petitioner
Versus
THE UNION OF INDIA – Respondent
WP (Crl.) Nos. 107, 108, 109 of 2022
Decided On : 03-06-2022
Prevention of detention - Orders of detention - Smuggling of gold from Dubai, in a concealed unaccompanied luggage imported through container Freight Station (CFS)- Requirement under Section 8 of the COFEPOSA Act in the background of the Constitutional provision is for a reference to an Advisory Board duly constituted and it is not the petitioner's case and the board which answered the reference in the instant case had any member who was not qualified or competent to hear the reference - interest of the detenus were sufficiently taken care of both in the constitution of the Board and while answering the reference - Any illegality in the constitution of the Board or while it answered the reference and contention on that count made on behalf of the detenu is accordingly rejected. (Para 21)
Finding of the Court:
When an Advisory Board is constituted, comprising of high constitutional functionaries, that the case of the detenus will be considered with objectivity, fairness and competence, reassuring the Constitutional and statutory safeguards while expressing their opinion on the sufficiency of the cause of detention. In such circumstances, the question of detenus being put to any prejudice much less any actual prejudice does not normally arise. The interest of the detenus were sufficiently taken care of both in the constitution of the Board and while answering the reference. We find no error, much less, any illegality in the constitution of the Board or while it answered the reference and contention on that count made on behalf of the detenu is accordingly rejected.
Result: Rejected.
JUDGMENT :
1. Specific, confidential information received by the officers of the Directorate of Revenue Intelligence, Cochin Zonal Unit (hereinafter referred to as ‘DRI’) that a smuggling syndicate, in connivance with a Gcard holder of Customs Broker, Cochin Sea Port, was engaged in smuggling of gold from Dubai, in a concealed unaccompanied luggage imported through container Freight Station (CFS), Willington Island, Kochi. The specific information conveyed that the gang had recruited one Althaf Moosan Mukri for whom unaccompanied baggage was sent from Jabal Ali Port of UAE, booked in the name of the said Althaf Moosan Mukri. It was conveyed that it contained huge quantity of concealed gold and would be cleared on 20-4-2021, in the guise of genuine unaccompanied baggage containing household items. Accordingly, the intelligence officers mounted surveillance in and around the port Container Freight Station. While so, the said Althaf Moosal Mukri arrived at CFS at about 2 p.m. for clearing the baggage. He was intercepted and the unaccompanied baggage addressed to him was examined in the presence of Superintendent of Customs and two independent witnesses. The baggage declaration was signed by the proprietor of M/s. Mercantile and Marine Services which was the Clearing House Agency (CHA). The staff of the CHA, Mr. Biju V. Joy and two other representatives were present there. After identifying the baggage, the said Althaf was informed about the purpose of their visit and with his consent, items were checked. On a detailed examination, it was found that, huge quantity of gold was concealed in the compressor of a refrigerator, brought as an unaccompanied luggage. It contained 126 pieces of gold bars and one cut piece. A Gold Assayer was called who weighed it and found that, it was pure gold bars of 999 purity and it weighed 14763.300 gms. valued at market price of about Rs. 7.16 crores.
2. Apart from the passenger, the statements of one Mohammed Ali, Biju V. Joy and Abdulla S.S. were taken on 20.04.2021. On 21.04.2021 yet another statement was recorded from Mohammed Ali. They were arrested on 21.04.2021 and the bail applications were moved on 23.04.2021, which were dismissed on 30.04.2021. The second set of bail applications filed was dismissed on 5.5.2021 and finally bail was granted by the Sessions Court by its order dated 11.5.2021 as the DRI did not oppose the bail application on the ground of Covid 19 pandemic and thus bail was granted. Biju V. Joy alleges that he has retracted the statement on 29.5.2021, whereas, Mohammed Ali is said to have retracted his statement on 7.6.2021 and Abdulla S.S. on 8.6.2021. The DRI has issued a rebuttal letter to these persons on 15.6.2021. Further statements were also recorded and detention order, Ext.P1 was passed on 24.8.2021. Pursuant to the detention order passed on 24.08.2021, the detenus were detained at the Central Prison, Poojappura, Thiruvananthapuram on 1.9.2021. WP (Crl) No. 107/2022 is filed Mohammed Ali, WP (Crl.) No. 108/2022 is filed by Abdulla S.S. and WP (Crl.) No. 109/2022 is filed by Biju V. Joy.
3. The prejudicial activities alleged against the detenus and the contentions against the orders of detention are almost similar and hence all these petitions are heard together.
4. We have heard Sri. M. Ajay, the learned counsel for the petitioners and Sri. Manu S. the learned counsel appearing for the DRI, Sri. Jaishankar V. Nair, learned counsel appearing for the Central Government and Sri. K.A. Anas, the learned Government Pleader.
5. The learned counsel for the petitioner, Sri. M. Ajay reiterating his contention in the writ petition submits that the detaining authority has failed to consider that the sponsoring authority had not opposed the applications for bail filed by the detenus before the Sessions Court which shows that there was no necessity to detain the detenus and further that there was no apprehension raised at any stage by the sponsoring authority about the likelihood of the
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