Point of Law: Action under Section 7 of COFEPOSA Act is not mandatory, failure to take action under section gives scope for doubt regarding assertion that detenu had absconded or concealed himself to avoid arrest.

JUDGMENT :

(Ajithkumar, J.)

1. The Joint Secretary to the Government of India in the Ministry of Finance (Department of Revenue) on 27.09.2019 in exercise of the powers under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for brevity 'the COFEPOSA Act') issued Ext.P1 ordering to detain Sri.Abdul Hakkeem P.P. @ Abdul Hakkim P.P. and keep him in custody in the Central Prison and Correctional Home, Thiruvananthapuram. The order was executed on 28.12.2021. In compliance with the provisions of Section 3(3) of the COFEPOSA Act read with Clause (5) of Article 22 of the Constitution of India the grounds of detention along with the documents mentioned and relied upon therein were communicated to the detenu. On receipt of the detention order and the grounds of detention, the detenu submitted representation dated 27.01.2022 to the Joint Secretary (COFEPOSA) and to the Central Government addressed to the Director General, Central Economic Intelligence Bureau. The representations were rejected on 04.02.2022 and 29.03.2022, respectively. Thereupon this Writ Petition under Article 226 of the Constitution of India has been filed, on behalf of the detenu, by his brother.

2. This writ petition was admitted on 08.04.2022. The learned Central Government Counsel entered appearance for respondent Nos.1 to 3. The Deputy Solicitor General of India took notice for the 4th respondent and the learned Government Pleader took notice for the 5th respondent.

3. A counter affidavit dated 19.05.2022 on behalf of respondent Nos.1 to 3 was placed on record by the Deputy Secretary to the Government of India, Central Economic Intelligence Bureau, Department of Revenue, Ministry of Finance. A counter affidavit dated 24.05.2022 for the 4th respondent was placed on record through Deputy Solicitor General of India. The petitioner has filed a reply affidavit dated 29.06.2022 in answer to the counter affidavits filed on behalf of respondent Nos.1 to 4.

4. Heard the learned counsel appearing for the petitioner, the learned Deputy Solicitor General of India, the Central Government Counsel and also the learned Government Pleader. Perused the records relating to the whole procedure, which are made available through the learned Central Government Counsel.

5. Following the arrest of Smt.Sareena Shaji and Sri.M.Sunil Kumar, and seizure from their possession 24998.61 grams of gold worth Rs. 8,17,45,455/-on 13.05.2019 by the officers of the Revenue Intelligence, Thiruvananthapuram and the ensued investigation, the action against the detenu was initiated.

6. The sequels leading to the action for detention of the detenu are the following :

Based on specific intelligence, two passengers viz. Shri.Sunil Kumar Mohanakumaran Thampi and Smt Sareena Shaji, who arrived at Trivandrum International Airport on 13.05.2019 from Dubai were intercepted at the exit gate of Customs Arrival Hall by the officers of DRI. Their baggage were searched. From the two hand baggage of Shri.Sunil Kumar 25 numbers of Gold bars of 24 Carat purity, totally weighing 24998.61 grams valued at Rs.8,17,45,455/-were seized and from the hand baggage of Smt.Sareena Shaji seized a Declaration Receipt made before Dubai Customs in respect of 24 Kgs. of gold in her name. Voluntary statements of both Shri.Sunil Kumar Mohanakumaran Thampi and Smt.Sareena Shaji were recorded under Section 108 of the Customs Act, 1962, wherein both of them admitted those facts and revealed that they were members of a smuggling syndicate which smuggled gold through Thiruvananthapuram International Airport. Smt.Sareena Shaji admitted that gold was being smuggled with the help of a Customs Officer and that gold was being smuggled for one Hakkeem, a native of Malappuram. Whereabouts of Shri.Hakkeem were claimed traced and it was revealed that Shri.Abdul Hakkeem P.P., the detenu, was working as Manager of a wholesale jewellery firm viz M/s. PPM Chains in Thiruvananthapuram, and that he is th