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2021 (12) TMI 1116 - KERALA HIGH COURTSmuggling - Gold - validity of continued detention of the detenues - COFEPOSA - material on the basis which the detention order was passed are the statements recorded under Section 108 of the Customs Act - Corroboration of statements - HELD THAT:- The facts and inferences from facts are drawn from the search and seizure and host of other facts mentioned in the grounds. Most of the facts are according to the detaining authority corroborated by the statements of those with whom the petitioners had dealings. We also note that the power under Section 108 of the Customs Act is intended to be exercised by a gazetted officer of the customs department. Section 108(3) enjoins on the person summoned by the officer to serve upon any subject to which he is summoned. He is not excused from speaking the truth on the premise that such statements could be used against him. This requirement is included in the previous or the purpose of including the officer to elicit from the person interrogated. In the instance case, there has been no retraction of the confession statements made under section 108 of the Customs act. In such circumstances, we find nothing wrong in the detaining authority relying on the statements made under Section 108 of the Customs Act as they furnish sufficient and adequate materials on the basis of which the detaining authority can form its opinion. There is no merit in the contention of the learned senior counsel that there has been factual misstatements made about the various voluntary statements given by the detenue under section 108 of the Customs Act, we hold that the same is not acceptable. The copies of the statements dated 14-7-2020 and 29-7-2020 of the detenue were made available by the learned counsel for the Customs. Having gone through the statements, it is not found that there is any factual misstatement recorded in the detention order about the confession statement under Section 108 of the Customs Act. Thus, we repel the said contention. The CCTV footage has no bearing on the decision to detain as it is not primarily based on the said footage. The whole purpose of supplying the copies of the documents relied on is to ensure that the right of the detenue to make a representation against the detention order is not hampered in any manner by the non-supply. In the instant case, no findings are arrived at on the basis of the CCTV footage, and thus, non-supply of the same cannot be of any avail to the petitioner. With regard to the contention that there is no likelihood that the detenues would be enlarged on bail also cannot be accepted as several accused in the connected cases had been granted bail. All that the detaining authority was obliged while passing the order of detention is to be aware of the fact that detenue is in jail and about the chance of detenue being enlarged on bail, that having been done no fault can be found. We therefore, reject this contention. The proceeding of the Advisory Board is different from the proceedings of the judicial or quasi-judicial proceedings, before which there is a lis to adjudicate upon. The Advisory Board cannot be asked to take up the mantle of becoming the legal practitioner for the detenue. The detenue was free to produce materials to question the detention made against him and the Advisory Board has no obligation to summon any person or to call for records over and above the files placed before it. The Advisory Board in the instance case has opined that it was necessary to continue the detention. We do not not think that the detenue has been denied the protection either under Article 21 or 22 of the Constitution of India. The detenue did get the opportunity for making an effective representation against his detention - the contention is rejected. Petition dismissed.
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