TMI Blog2017 (4) TMI 1076X X X X Extracts X X X X X X X X Extracts X X X X ..... The list of Relied Upon Documents and copies of the Relied Upon Documents were also served on each detenu. The video footages were also shown to them, as can be seen from the acknowledgments made in writing by each of the detenus in the presence of Jail authorities. The acknowledgment of receipt of the detention order, the grounds of detention, the list of the Relied Upon Documents and the copies of the Relied Upon Documents are signed by each of the detenus and those acknowledgments are counter signed by the Jail authority who was present while those materials were served. If the formalities prescribed by the Constitution and the COFEPOSA Act have been complied with, there would be no further examination by the Court, on an application seeking interference with preventive detention - the orders of detention have been issued on the basis of materials which are not extraneous to the purpose of statutory provisions which have been invoked by the detaining authority and the sponsoring authority. No plea of absence of due application of mind is available on the materials in the cases in hand. No ground exists to interfere with the impugned orders of detention and grant the relief ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on orders. WP(Cr).No.52 of 2016 in re Bibin Scaria and WP (Cr).No.58 of 2016 in re Shinoy K. Mohandas were filed after the confirmation of the detention orders. 4.Bearing in mind that each case would depend on facts relatable to that case, we proceed to state the relevant contentions as regards each case; which may appear to be an exercise of repetition. We do so, as we have considered the facts and materials of each case independently. They can be noticed as follows: (a)Contentions on behalf of Salim Melathu Makkar in WP(Cr).No.478 of 2015: The order of detention and grounds of detention reveals non-application of mind and the order of detention is invalid on such ground of non-application of mind. The English version of the order was served at the time of detention and the translation in Malayalam was not served contemporaneously thereby depriving the detenu of knowing the factum of his detention under the COFEPOSA Act and that the detention was effected by serving an order in the language not known to him. The Malayalam version of the detention order was not served at all and non-communication of the Malayalam version has deprived the detenu of the right to make an effecti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the grounds of detention. (c)WP(Cr).No.481 of 2015 in re Jabin K. Basheer was amended. That the order of detention and grounds of detention are manifestly erroneous and vitiated by non- application of mind and there is breach of Article 22(5) in both its facets and that the detention order is not in consonance with the COFEPOSA Act are pleaded as in the cases of Salim Melathu Makkar and Fazil K.B. referred to earlier. Not much different are the allegations in Jabin K. Basheer's case relating to the alleged non-providing of versions in Malayalam, including that the Malayalam version of the detention order was not served. In this case also, plea relating to the wordings of the detention order with reference to different sub-sections and clauses of Section 3 is also raised. It is the further contention that the detaining authority has not recorded subjective satisfaction with reference to the fact that the passports of all persons investigated and/or arrested, were either in the custody of the sponsoring authority or in the process of deposit or taking over by the courts in terms of the bail orders. It is pleaded that no prejudicial activity much less 'smuggling', co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Department. The material contradictions between different statements have not been noted and this also vitiates the impugned detention order. (d)WP(Cr).No.482 of 2015 is filed in re Noushad P.A. raising the self-same contentions noted above in relation to the quality and sustainability of the detention order and the communication of the order of detention and the grounds thereof. It is also pleaded that truncated documents have been placed before the detaining authority by the sponsoring authority and vital and relevant papers were not produced. The plea that the remand applications, retraction letters etc. of different persons, materials relating to the remand report and order passed by the Additional Chief Judicial Magistrate in the case of Ismail M.P., accused no.34, have not been placed, are also reiterated.The impugned detention order is pleaded as vitiated by non-application of mind and that the doctrine of severability does not apply to save the situation. (e)On behalf of Yasir Ibnu Muhamed, WP(Cr). No.496 of 2015 is filed on grounds and reasons which can be treated as running contemporaneous with those raised in the cases already noted herein above. The effect of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hose already noted above and certain other specific issues. It is pointed out that the detenu is never shown to have been involved in any previous criminal offence and being involved in a solitary crime is insufficient to curb the freedom of movement of a citizen. Ext.P4 order of bail was issued with stringent conditions and the detenu was directed not to enter any airport until the charge sheet is filed or for six months whichever is earlier. It is also the plea on behalf of Shinoy K. Mohandas that the detenu who was working in the Airport since last 10 years has been removed from the service and there is therefore no chance for him to indulge in any other activity. It is contended that there is inordinate and unexplained delay in passing the order of detention because Salim Melathu Makkar was intercepted on 24.5.2015 and the detention order was issued against Shinoy K. Mohandas on 14.10.2015. According to the writ petitioner, such delay has snapped the live and proximate link between the alleged prejudicial activity and the order of detention. 5.The sponsoring authority applied for and was impleaded in those writ petitions where it was not arrayed among the respondents at the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... already been referred to earlier. Ext.R4(d) evidences that the confirmed order of detention consequent on the opinion of the Advisory Board was served on the detenu and that he acknowledged it. Ext.R4 (e) evidences the acknowledgment of the detenu of having received the copy of proceedings of O.S.No.111 of 2015 which discloses the remand applications and orders. Ext.R4(f) evidences the detenu's acknowledgment of the copy of report submitted by the Superintendent of Customs to the Economic Offences Court, regarding the alleged assault on Ismail M.P. Ext.R4(g) is the list of retractions made before the Customs authorities and the relevant dates in relation to each of those retractions. Ext.R4(h) is the list showing the details of arrest and bail in respect of persons arrested in O.S.No.111 of 2015. An additional affidavit is filed on behalf of the sponsoring authority and an additional counter affidavit has been filed by the detaining authority producing the copies of documents which are in tandem with those produced by the sponsoring authority. 7.In view of the fact that many of the contentions in the other writ petitions impeaching the preventive detention of the other pers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; that Section 5A of the COFEPOSA Act is not available to the detaining authority to sustain the orders of detention, the grounds of detention and the reasons for detention being not severable; relevant materials which would have dissuaded the detaining authority from passing the detention orders were held back; and that relevant documents were not communicated in their entirety and in the language known to the detenus thereby depriving them of the right to make effective representation. Learned counsel also referred to the different precedents of the Honourable Supreme Court through which certain broad principles relating to preventive detention and judicial review in such matters are explained. We will refer to the relevant precedents and principles in that regard as we proceed. 12.Countering the arguments advanced on behalf of the detenus, the learned Additional Solicitor General argued that there is no defect in the orders of detention and that defects in that order, if at all there is any non-supply of translated version, will not vitiate the detention orders in the cases in hand. It is further argued that no question of non- application of mind can be deciphered on the bas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order for preventive detention has been passed shall be given the earliest opportunity of making a representation against the order of detention by communicating to him the grounds of detention, thus enabling him to effectively utilise such opportunity. Liberty of individual in terms of the Constitution is not merely a technical matter but a sacrosanct one. Judicial review of the preventive detention of a person has to be carried maintaining a fine equilibrium on the scales of the statute laws relevant to the preventive detention under challenge and Articles 21 and 22 of the Constitution; as also the constitutional values, principles and prescriptions lying embedded in the entire body of the Constitution, including its Preamble. Such cohesive consideration is indispensable in view of the fact that the constitutional provisions are so laid, that the rights and duties of the citizens including Fundamental Rights and the rules of governance of the Nation as discernible from the Constitution cannot be read in isolation among themselves. Individual liberty is among the prime salutary doctrines of the collective existence of the great polity governed by the Constitution of India. But wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l as collective and societal rights to physical freedoms from deprivation of life and also the collective eligibility to have economic and socio-economic liberty and rights of the citizens collectively and individually. The Constitution, always recognised as a vibrant document, which reflects the aspirations of the people as the primary rules of governance of a congenial society has to be appreciated and applied time centric and issue centric. Obviously, change of times and change of the statute laws made under the constitutional power which are to be applied from case to case would necessarily call for a differential approach when dealing with cases under different statutes, without losing the basic constitutional foundations. We may refer to the decision of the Division Bench of this Court in Abulais v. State of Kerala [2017(1) KLT 650] in which the precedent handed down by the Honourable Supreme Court of India in Subhash Popatlal Dave v. Union of India and another [(2014) 1 SCC 280] was noted to the effect that every Judge of constitutional courts vested with the authority to adjudicate the legality of any State action challenged on the ground that such action is inconsistent wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2015 before the Joint Secretary, COFEPOSA, New Delhi. He submitted another representation dated 20.11.2015, typed in English before the Secretary, Ministry of Finance, Government of India. That detenu's wife filed the captioned WP(Cr).No.479 of 2015 dated 21.11.2015. (c)Jabin K. Basheer was detained on 16.10.2015. Grounds of detention, list of the documents relied upon and the copies of relied upon documents along with Malayalam translations of grounds of the detention, list of the documents relied upon and the relied upon documents were served on the detenu on 20.10.2015. Two CDs containing video footages were also shown to him. Detenu's acknowledgment in that regard, duly attested by the Joint Superintendent, Central Prison, Thiruvananthapuram was also obtained. The detenu submitted a representation in Malayalam, dated 19.11.2015 before the Joint Secretary, COFEPOSA, New Delhi. He submitted another representation dated 20.11.2015, typed in English before the Secretary, Ministry of Finance, Government of India. Mother of that detenu filed the captioned WP(Cr).No.481 of 2015 dated 21.11.2015. (d)Noushad P.A. was also detained on 16.10.2015. Grounds of detention, list ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther of that detenu filed the captioned WP(Cr).No.497 of 2015 dated 7.12.2015. (g)Bibin Scaria was detained on 16.10.2015. Grounds of detention, list of the documents relied upon and the copies of relied upon documents along with Malayalam translations of grounds of the detention, list of the documents relied upon and the relied upon documents were served on the detenu on 20.10.2015. Two CDs containing video footages were also shown to him. Detenu's acknowledgment in that regard, duly attested by the Joint Superintendent, Central Prison, Thiruvananthapuram was also obtained. The detenu submitted a representation in Malayalam, dated 19.11.2015 before the Joint Secretary, COFEPOSA, New Delhi. He submitted another representation dated 23.11.2015, typed in English before the Secretary, Ministry of Finance, Government of India. (h)Shinoy K. Mohandas was also detained on 16.10.2015. Grounds of detention, list of the documents relied upon and the copies of relied upon documents along with Malayalam translations of grounds of the detention, list of the documents relied upon and the relied upon documents were served on the detenu on 20.10.2015. Two CDs containing video footages we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Advisory Board and that the said Board opined that there exists sufficient grounds for detention of the said person. The detention order was confirmed and Jabin K. Basheer was detained for a period of one year from the date of detention and the said order of confirmation of detention was served on the detenu on the date of confirmation itself under acknowledgment. (d) Through memoranda dated 5.1.2016 and 7.1.2016, the Deputy Secretary, CEIB, New Delhi informed Noushad P.A. that both his representations have been carefully examined and considered and that they have been rejected. The Deputy Secretary, CEIB, New Delhi, vide order dated 14.1.2016 informed Noushad P.A. that his case was placed before the Advisory Board and that the said Board opined that there exists sufficient grounds for detention of the said person. The detention order was confirmed and Noushad P.A. was detained for a period of one year from the date of detention and the said order of confirmation of detention was served on the detenu on the date of confirmation itself under acknowledgment. (e)Through memoranda dated 5.1.2016 and 7.1.2016, the Deputy Secretary, CEIB, New Delhi informed Yasir Ibnu Muhammed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry Board and that the said Board opined that there exists sufficient grounds for detention of the said person. The detention order was confirmed and Shinoy K. Mohandas was detained for a period of one year from the date of detention and the said order of confirmation of detention was served on the detenu on the date of confirmation itself under acknowledgment. 17. The sponsoring authority's proposals to detain the persons covered by the impugned preventive detention proceedings under the COFEPOSA Act were on the basis of the facts and factors, to be treated as allegations, generating the grounds for preventive detention of those persons and available as part of the grounds of detention as communicated to each among the detenus. They are as follows: i.Noushad P.A. was allegedly involved in smuggling, abetting smuggling, concealing and dealing with smuggled goods. He operated three channels for smuggling gold through Cochin International Airport, hereinafter referred to in this judgment as Airport , and smuggled in approximately 1928 kgs of gold into India. His three channels were coordinated through different combinations of persons. The first channel was one through the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s car and hand over it to Noushad P. A. or his men. Assets worth ₹ 5 crores were unearthed from him during the investigation. All those assets were acquired in recent years. Reconstruction of the smuggling scene by Jabin K. Basheer showed his expertise in retrieving the gold from the AC duct of the toilet of the Immigration Hall. v.Yasir Ibnu Muhammed introduced Shinoy K. Mohandas (another detenu) and Baburajan K. Hassan to Noushad P.A. who, according to the Department, is the kingpin. He had also coordinated the smuggling operations, arranged carriers, received gold smuggled out of the airport from airport staff and handed it over to Noushad P.A., the kingpin. Yasir Ibnu Muhammed had abetted smuggling of about 190 kgs of gold through carrier passengers engaged by him. Till he was detained, Yasir Ibnu Muhammed was absconding. vi.Fazil K.B. is the brother-in-law of Salim Melathu Makkar (another detenu). He abetted smuggling and transporting and coordinated smuggling operations among the staff of airport and also introduced Salim into smuggling. He received smuggled gold from airport staff, paid remuneration, transported the gold in his car, handed over the gold to the me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re-degree. He had worked in Saudi Arabia for 10 years. He owns an autorickshaw and drives it. iii.Shinoy K. Mohandas, a post graduate had worked as Deputy Manager(BWFS) at the Airport and knows Malayalam, English and Hindi. iv.Jabin K. Basheer, who knows English and Malayalam, holds a B.Com degree and is a Civil Police Officer in Kerala Armed Police since 2011, presently under suspension. He had worked as a Security Assistant on deputation at Bureau of Immigration, Airport from 2011 to 2015. v.Yasir Ibnu Muhammed knows English and Malayalam and is a postgraduate in Business Management and had graduated from the University of Bedfordshire, United Kingdom. vi.Fazil K.B. worked as a salesman in a jewellery. vii.Saifudheen M.S., who knows English and Malayalam, graduated in Aeronautical Engineering and had worked in the Airport for one year. viii.Bibin Scaria, who knows English and Malayalam, holds a B.A.(Economics) degree and IATA and had worked as a Ramp Supervisor in BWFS at the Airport for years. 19.We have perused the original files of the sponsoring authority and the detaining authority. 20.We have also seen the advice tendered by the Central Advisory Boar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es not disclose the grounds of detention inasmuch as the contents of that order are apparently an admixture of different limbs and components of various clauses of Sub-section (1) of Section 3 of the COFEPOSA Act and there is no specific indicator on the face of the order of detention as to what is actually meant by the detaining authority and the said order is issued in such a manner as the real import of the intention of the detaining authority in making the order is not communicated to the detenu. The detention order in each case says that the said order is issued 'with a view to prevent him from engaging in abetting, smuggling and transporting of the smuggled goods in future.' The use of the words 'abetting, smuggling and transporting of smuggled goods' in one go, as activity in which the particular detenu is likely to engage in future; according to the submissions on behalf of the detenus; is not referable to the different grounds enumerated in Sub-section (1) of Section 3 of the COFEPOSA Act and that Section 5A of the COFEPOSA Act, would not save the detention orders. 25.The conjunction used as between the different clauses (i) to (v) of Sub-section (1) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a and Another [(1991) 1 SCC 128], which precedent also lays down the principle that non- mentioning of the different clauses of Section 3 (1) of the COFEPOSA Act does not render the detention order invalid. 26.When the detenus are shown to be conversant with English and Malayalam languages, it would be an imprudent judicial exercise, if we were to hold that the translations of the documents into Malayalam should be examined in such a manner as to find out whether there is any jumbling or mixing up of its contents. Except in exceptional situations, translations do not result in deprivement of effective communication or distortion of the contents of the documents in the translated versions. Having examined the translations, in particular, the specific portions pointed out on behalf of the detenus, we do not find our way to come to the aid of the detenus on this count. We also stand advised in this regard by the salutary doctrine of common course of human conduct, which is one of the sound principles of commonsense and which deserves to be duly and effectively applied in such matters. The nature of allegations and the manner of activities, as also the nature of employment of differ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the detaining authority and the sponsoring authority. No plea of absence of due application of mind is available on the materials in the cases in hand. 29.Having noticed that adequacy or sufficiency of relevant materials is not a matter for consideration in writ jurisdiction dealing with preventive detention, many of the arguments raised by the petitioners, including on the alleged non-availability of certain factors, are not of any importance. The contents of the statements of the detenus given to the Customs Authorities or the effect of the retractions are matters which can be deciphered on the basis of the materials on record. Similarly, the pendency of the criminal proceedings, bail orders and different remand applications and remand orders are all materials on record. This is not as if the sponsoring authority had omitted to place any material of such importance which had resulted in deprivation of appropriate decision at the hands of the detaining authority in terms of law. The materials which were available with the detaining authority have been provided by the sponsoring authority and the materials which have been communicated to the detenus along with the grounds of d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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