TMI Blog2021 (12) TMI 1116X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 repres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #39;COFEPOSA' for short), by orders dated 19-11-2020, the Joint Secretary, Ministry of Finance, directed that one Jalal A.M. and Mohammed Shafi.P. be detained with a view to prevent them from smuggling. 2. Habeas Corpus Petition, WP(Crl)No.70 of 2021 has been filed by Sajmi, W/o. Jalal A.M. (hereinafter referred to as detenue ) who is under detention from 25-11-2020 under the order aforesaid. The grounds of the detention were supplied to the detenue on 28-11-2020 3. Habeaus Corpus Petition, WP(Crl.)No.118 of 2021 is filed by Jamseena, W/o. Mohammed Shafi.P. (hereinafter referred to as detenue ) who is under detention from 26-11-2020 under the order aforesaid. The grounds of the detention were supplied to the detenue on 28-11-2020. 4. Since in both cases, the detention orders arise from a similar set of allegations, they were heard together. 5. On the basis of the information received by the Customs department that gold in huge quantities was being smuggled in India through diplomatic luggage, one consignment of cargo with diplomatic immunity was intercepted at the Thiruvananthapuram Air Cargo Complex on 5-07-2020, which led to the recovery of gold weighing 30.245 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... constituted in terms of Section 8 of the COFEPOSA Act, opined that there was sufficient reason of the continued detention of the detenues and accordingly, the opinion of the Advisory Board confirming the detention order was passed on 11-2-2021. 10. Under these circumstances, the petitioners seek a Writ of Habeas Corpus for securing their release with a further prayer to quash the detention order dated 19-11-2020. 11. Heard learned Senior Advocate Sri. S. Sreekumar for the petitioner in WP(Crl)No.70 of 2021, learned counsel Sri. Nireesh Mathew for the petitioner in WP(Crl.)No.118 of 2021, Sri. Manu .S., the learned Standing Counsel appearing for the Customs Department, Sri. Jayasankar V. Nair and Sri. Suvin R. Menon, the learned counsel for the government of India and the learned Government Pleader for the State of Kerala. 12. Sri. S. Sreekumar, learned Senior Counsel made the following submissions (1) That the only material on the basis which the detention order was passed are the statements recorded under Section 108 of the Customs Act on 14-7-2020 and 29-7-2020 and that they cannot be relied on under the COFEPOSA Act but only for proceeding under the Customs Act. (2) Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons under Section 3(1) of the COFEPOSA Act. He also submits that apart from the statements made under Section 108 of the Customs Act, there has been no other material which the detaining authority considered to hold that the detenue is to be detained to prevent any further act of smuggling. Learned counsel also argues that in the representation given to the respondents, he had retracted the statements made under section 108 of the Customs Act. It is his further contentions that there has been a total non-application of mind by the Advisory Board while opining that there is a need for continued detention. He stresses his argument on section 8(c) of the COFEPOSA Act to say that the Advisory Board was under a duty, even if not asked for by the detenue, to call for the entire details and documents concerning the detention order and that not having been done, the writ petition must be allowed. He also contends that likelihood of getting bail was very remote in the case where the offences of UAPA were alleged and therefore, there was no need to pass an order of detentions and he was already in jail. 14. Learned counsel for the respondents opposing the contentions of the petitioner arg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the learned counsel for the petitioners, relying on the judgment reported in Edwin Andrew Minihan v. Union of India and Ors. [2016 (2) KLJ 686], that the statements under Section 108 of the Customs Act cannot be used for passing detention under the provisions of the COFEPOSA Act, it has to be noticed that the said decision will not help the petitioners in any manner as it held that the proceedings under the COFEPOSA Act are not proceeding before a court and therefore, section 65 (b) (4) of the Indian Evidence Act will not apply and on that basis, it was held that neither Section 65 B of the Evidence Act nor sections 138 C of the Customs Act would be applicable to the proceedings of a detaining authority for passing an order of detention. We find nothing in support of the petitioner in the said decision as according to us the ratio in the said case holds otherwise. 19. We also notice that the Hon'ble Supreme Court in the decision in Khudiram Das v. The State of West Bengal [AIR 1975 SC 550) has clearly held that the power of detention is not a quasi-judicial power. It is further held that while passing the detention order, on the basis of material which the detaining autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue had retracted the confession statements, the same does not take away the power of the detaining authority to still pass an order of detention as the only requirement then would be to consider both the confession statements along with the retraction. What weight is to be attached to the confession statements in the light of the other materials is a matter exclusively for the detaining authority to determine. Thus, in short, it is clear that the bar which is placed with regard to the consideration of evidence against an accused in the course of the criminal trial is clearly inapplicable while considering the materials for the purpose of detention. The provisions of the Evidence Act do not regulate the consideration of a material that is put before the detaining authority for consideration in order to decide whether it would pass an order of detention. We have no doubt that the detention orders can be passed upon the confession statements recorded under Section 108 of the Customs Act from the detenues, wherein the detenues admit their involvement in the previous incidents of smuggling. In fact, in the above cases, the detention is not based solely on the confession statements. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CTV 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, we hold that a non-supply of the same cannot be of any avail to the petitioner. We also hold that the judgment cited by the learned counsel for the petitioner in Beevikunju K.A. and Another v. Union of India and Others (2020 KHC 167) for the proposition that non-supply of CCTV footage is fatal is also clearly distinguishable as in that case it was held that CCTV footage was indeed relied on by the detaining authority to arrive at the subjective satisfaction. No conclusion has been arrived at by the detaining authority on the basis of CCTV footage and thus we reject the said contention on the non-supply of the same. 24. We are also guided by the principles laid down by the Hon'ble Supreme Court in Narendra Purushotam Umroa and Ors v. B.B.Gujral and Ors. [ (1979) 2SCC 639] to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. We, therefore, reject the said contention. 29. In WP(Crl.)No.118 of 2021 the detenue has not made any request before the Advisory Board seeking for any documents and we hold so after perusing the proceedings of the Advisory Board. The contention of the detenue in this regard is only to be rejected. 30. It won't be out of place to reproduce a passage from the case of Prakash Chandra Mehta v. Commissioner and Secretary, Gove ..... X X X X Extracts X X X X X X X X Extracts X X X X
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