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IN THE HIGH COURT OF KERALA AT ERNAKULAM
ANIL K. NARENDRAN, P.G. AJITHKUMAR, JJ.
Shabna Abdulla - Petitioner
Versus
The Union of India, Rep. by its Special Secretary and Director General, Central Economic Intelligence Bureau, Ministry of Finance, Department of Revenue & Ors. - Respondents
W.P.(Crl.) No. 596 of 2022
Decided On : 24-01-2023
Constitution of India, 1950 - Article 226, 22(5), 14 and 21 - Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 - Section 3(1), (3), 8(f), 10, 7(1) - Customs Act, 1962 - Section 108 - Habeas corpus - Detention order - Seeking to issue a writ of habeas corpus to produce before this Court who is under detention and to set him at liberty forthwith - Statements recorded under Section 108 of Customs Act of co-accused and passengers in whose baggage gold was earlier imported, were considered by Detaining Authority. (Para 59)
Finding of the Court :
Detenu can resort to plea of invalidity of detention order for non-supply of those documents only if he substantiates that non-supply caused prejudice to him - It is also his obligation to explain in what way those documents are relevant for his making representation - If documents, which are discussed in course of arriving at subjective satisfaction, are demanded, authority is bound to furnish detenu did not state in what way such documents are relevant for him to make his representation and how non-supply has affected his right to make a meaningful and effective representation - In such circumstances, his attack to detention order on ground of non-supply of documents also fails - In conspectus, none of grounds raised by petitioner to challenge validity of Ext.P8 detention order and Ext.P19 confirmation order can be accepted.
Result : Petition dismissed.
JUDGMENT :
P.G. Ajithkumar, J.
This Writ Petition under Article 226 of the Constitution of India was filed seeking to issue a writ of habeas corpus to produce before this Court Sri. Abdul Raoof (‘the detenu’) who is under detention under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 [hereinafter referred to as 'the COFEPOSA Act'] and to set him at liberty forthwith; and to issue a writ of certiorari declaring that Ext.P8 Detention Order, as well as Ext.P19 Confirmation Order, as unconstitutional, illegal, and unsustainable in law.
2. Ext.P8 is the Detention Order issued by the second respondent under Section 3(1) of the COFEPOSA Act for the detention of Sri. Abdul Raoof. Exhibit P19 is the Confirmation Order issued by the authorised representative of the 1st respondent under Section 8(f) read with Section 10 of the COFEPOSA Act directing to detain him for a period of one year from the date of detention, 06.03.2022.
3. The incidents which culminated in the issuance of Exts.P8 and P19, gatherable from the narration of facts in the Writ Petition, are the following:
3.1 The unaccompanied baggage of one Althaf Moosan Mukri, was checked on 20.04.2021 and inside the compressor of the refrigerator amongst the baggage, contraband gold weighing 14763.300 Grams valued at Rs.7,16,16,768/- was found and seized. Based on the statement of the passenger, three persons, the father-in-law of the detenu, Sri. Mohammed Ali, the brother of the detenu, Sri. Abdulla S.S. and the Customs G Card holder, Sri. Biju V. Joy were summoned on 20.04.2021 and their statements were recorded under Section 108 of the Customs Act, 1962. On 21.04.2021 another statement was recorded from Sri. Mohammed Ali.
3.2. The Directorate of Revenue Intelligence (DRI) recorded further statements from them in which they reiterated their earlier statements and gave further evidence from which complicity of the detenu was established. In their statements, they admitted that the detenu who was residing in Dubai, UAE was running a cargo handling and forwarding business and was scouting passengers who had unaccompanied cargo to be sent to India. The contraband gold concealed in the compressors of refrigerators of the detenu was thus sent along with his unaccompanied baggage which was cleared in Cochin by Sri. Biju V. Joy. The baggage was received by Sri. Mohammed Ali, and was later handed over to the passenger after retrieving smuggled gold from the compressors. They also admitted that apart from the detenu, Sri. Mohammed Ali, Sri.Abdulla S.S. and Sri. Biju V. Joy had invested money to procure the contraband gold and after selling the contraband gold money would be sent back to the detenu through hawala channels.
3.3 Although bail applications filed by Sri. Mohammed Ali, Sri. Abdulla S.S. and Sri. Biju V. Joy were dismissed by the Additional Chief Magistrate (Economic Offences), Ernakulam; they were granted bail by the Sessions Court, Ernakulam on 11.05.2021.
3.4. On 27.07.2021 the detenu was served through the Indian Consulate, Dubai the summons issued by the Sponsoring Authority to appear before the investigating officer. But he did not appear before the investigating officer. However, he sent a letter stating that he was unable to appear in terms of the summons.
3.5. On 18.10.2021 on completion of the investigation Show Cause Notice dated 18.10.2021 was issued to many persons including the detenu. The detenu engaged a Counsel to participate in the adjudication proceedings to prove his innocence. Still, he did not appear and participate in the adjudication proceedings.
3.6. In order to understand whether there was any Detention Order issued against him, the detenu sent a letter to the DG, CEIB as well as the Detaining Authority on 31.12.2021 by Speed Post requesting each of them to inform him whether any Detention Order was issued against him.
3.7. The detenu came to India on 27.12.2021 and he claims that thereafter he has been living
Point of Law : Nature and extent of right to representation under Article 22(5) of Constitution of India has been a subject for serious deliberation for long.
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.
Quash of Detention order - Delay in passing detention order - There is nothing in Section 3 of COFEPOSA or in scheme of Act, which suggests that the especially empowered officer must act only on rece....
Quash of Detention order - Delay in passing detention order - There is nothing in Section 3 of COFEPOSA or in scheme of Act, which suggests that the especially empowered officer must act only on rece....
Point of Law : Right of Parliament and executive to place restrictions upon a man's freedom - There should not be “supine indifference/slackness or callous attitude” in considering representation - T....
Preventive detention orders are invalidated if the grounds for detention are communicated in illegible or untranslated documents, infringing the detenu's constitutional rights to make effective repre....
A detenu under COFEPOSA has no inherent right to legal representation in Advisory Board proceedings unless the Detaining Authority is represented, and failure to furnish all relied upon documents doe....
The illegibility of relied upon documents (RUDs) vitiates the subjective satisfaction of the detaining authority, rendering the detention order invalid.
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 ....
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