The court affirmed that delays in issuing a detention order do not invalidate it if due to necessary investigations, and that preventive detention is lawful if the authority recognizes a risk of the detenu’s release leading to prejudicial activities.

JUDGMENT

Gopinath, J.

This Writ Petition (Criminal) is at the instance of one Raishad K.T praying inter-alia for the issuance of a writ in the nature of habeas corpus for the release of his brother, one Ramees. K.T (hereinafter referred to as the 'detenu') who is allegedly under illegal detention pursuant to an order dated 19.11.2020 issued under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act , 1974 (hereafter ‘the COFEPOSA Act’).

2. On the basis of information received by the Customs Department that gold is being smuggled into India in huge quantities through diplomatic baggage, a consignment of cargo from Dubai was intercepted at the Thiruvananthapuram Air Cargo complex. The examination of the cargo led to the recovery of gold weighing 30.245 Kgs having a market value of about Rs.14.82 crores. Investigations carried out and statements recorded from various persons under Section 108 of the Customs Act , revealed that certain staff of the UAE Consulate at Thiruvananthapuram were involved in a racket of smuggling gold by concealing the same in diplomatic cargo which is not normally subjected to detailed customs examination. The investigation revealed that the detenu was a major player in the racket and that he was one of the main conspirators in hatching the plot to smuggle gold through diplomatic baggage. The statements recorded by the Customs Department revealed that the persons involved in the racket had regularly smuggled gold in a similar fashion during the period from 15.7.2017 to 27.6.202o. On a consideration of the entire materials, the 2nd respondent issued Ext.P1 order of detention under the provisions of the COFEPOSA Act against the detenu on 19.11.2020. The detention order was executed on 24.11.2020 while the detenu was in custody after being arrested for in connection with offences under the , 1962 and the Unlawful Activities Prevention Act , 1967. On the date of passing of the detention order, the detenu had obtained statutory bail in respect of the offences under the , but continued to be in custody on the allegation of having committed the offence under the , 1967. On being served with the grounds of detention (Ext.P2), the detenu preferred representations to the Government of India and to the detaining authority (through Exts.P5 and P6 respectively). These representations were rejected, by the Central Government through Ext.P7 dated 11.1.2021 and by the detaining authority through Ext.P8 dated 14.1.2021.

3. The Advisory Board constituted in terms of Section 8 of the COFEPOSA Act opined that there was sufficient reason for the continued detention of the detenu beyond the period of 11 weeks from the date of detention and accordingly Ext.P11 order was issued by the detaining authority. It is in the above circumstances, that the petitioner seeks a writ of habeas corpus for securing the release of the detenu from custody which is allegedly illegal. The petitioner also prays for certiorari to quash the order of detention.

4. We have heard Sri. P.A. Augustine, the learned counsel appearing for the petitioner, Sri. Jayasankar. V. Nair, the learned counsel for the Union of India, Sri. Manu.S., the learned Standing Counsel appearing for the Customs Department and Sri. K.A. Anas, the learned Government Pleader.

5. The learned counsel for the petitioner contends that the entire procedure commencing from issuance of Ext.P1 order of detention to its confirmation following the report of the Advisory Board is vitiated in law and cannot be sustained. In the main, he contends that the detenu is to be set at liberty on the following grounds:-

i) Considering the date of the event which resulted in the order of detention being passed, there is a delay 0f 4 months and 14 days in issuing Ext.P1 order of detention resulting in the live link between the alleged prejudicial activity and the requirement of detention being snapped;

ii) The detenu has not been supplied with documents such