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2020 (2) TMI 1597 - KERALA HIGH COURTSmuggling - contraband item - failure to supply documents that were relied on in the detention order - personal bias alleged against the sponsoring authority, detaining authority or the affirming authority - HELD THAT:- The detenu is heard, without the presence of Department officials for reason of the detenu being in preventive custody, on the subjective satisfaction of the detaining authority. The entire attempt being to secure his freedom; the detenu would have something to submit before the Advisory Board which he would be averse to state before the officials, under whose detention, he will be returned after the hearing - Section 8 of the COFEPOSA Act does not mandate even a hearing, unless it is thought necessary by the Board or the detenu desires so. On the detenu seeking a hearing, it is imperative. But there is no hearing contemplated of the Department. The Department's presence before the Advisory Board is only when the Board seeks any further information from the appropriate Government or through it. The Advisory Board, it is trite, is empowered to device its own procedure as there is no lis to be adjudicated. Section 8 empowers the Advisory Board to call for any information, as it may deem necessary, from or through the appropriate Government. Needless to say that such information, whether it be by way of documents or by oral clarifications has to be disclosed to the detenu. The detaining authority cannot place material or argue matters not evident from the records already supplied to the detenu. The subjective satisfaction should emanate from the order of detention and the documents relied on. The defect in procedure, which would vitiate an order of preventive detention, could be either the materials proffered being specious or the materials served on the detenu, being insufficient to establish the link to the smuggling activity alleged, which form the basis for preventive detention. In the instant case the very crucial video footage from which the entire case was generated was not supplied to the detenu. The corroborating facts, which could have led to a subjective satisfaction of a smuggling ring being in operation, as available from the call details and the travel details were not examined by the detaining authority. The detaining authority merely relied on the opinion of the sponsoring authority. The documents revealing the call details and the travel details were also not supplied to the detenu. The detenu in both the writ petitions shall be set at liberty forthwith, if their continued detention is not required in any other case - Petition allowed.
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