TMI Blog2016 (3) TMI 1426X X X X Extracts X X X X X X X X Extracts X X X X ..... irement of Article 22(5) of the Constitution of India and Section 3(3) of the COFEPOSA Act would be satisfied if copies of the relied upon documents are furnished to the detenu. All the contents in the laptop were not produced by the sponsoring authority before the detaining authority since they were not necessary. The Court cannot sit in judgment over the discretion exercised by the sponsoring authority in respect of the same. It is stated in the grounds of detention that the laptop was seized from the possession of the petitioner. Section 138C of the Customs Act is in Chapter XVI under the heading 'offences and prosecutions' - In the present case, the document in question, namely Ext. P5, was made available before the detaining authority by the sponsoring authority. The proceeding before the detaining authority is not a proceeding under the Customs Act. The proceeding before the detaining authority is a proceeding under the COFEPOSA Act. Therefore, neither Section 65B of the Evidence Act nor Sections 138C of the Customs Act would be applicable to the proceedings before the detaining authority for the purpose of arriving at the subjective satisfaction and in passing an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... close the identity of Nibu Mathew Varghese. The grounds of detention states as follows: 16. An examination of the CCTV footages pertaining to the days of stay of Shri Edwin Andrew Minihan and Alina Hrisca Carmen in Cochin, received from the hotels M/s. Quality Airport Hotels and M/s. Courtyard Marriott vide letters dated 17/07/2015 and 21/07/2015 respectively and further investigation conducted in this regard revealed that the person to whom you handed over the gold was one Shri Nibu Mathew Varghese who owns a black colour Logan car bearing Reg. No. KL-07-BJ-5455; that Shri Nibu Mathew Varghese had often come in this car to the hotels to visit you; that the mobile number of Shri Nibu Mathew Varghese is 9846899666. It was also learnt that you had also travelled in a black colour BMW car owned by Shri Akbar, father of Tharique Akbar Mohamed with smuggled gold and that this vehicle has been parked at Flora Airport Hotel, Nedumbassery, Cochin.... 2. It was alleged that the petitioner identified the photographs of Tharique Akbar Mohamed and Nibu Mathew Varghese. On an examination of the laptop belonging to the petitioner, various statements indicating the profit sharing out of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said acknowledgment dated 12/09/2015 is produced herewith and marked as Ext. R2(c)..... 5. The learned counsel appearing for the first respondent submitted that the CCTV footages relate only to the stay of the detenu at various hotels and his interaction with Nibu Mathew Varghese. The CCTV footages were relied on only for the purpose of identification of Nibu Mathew Varghese with the detenu. The learned counsel submitted that the CCTV footages were shown to the detenu on 12/09/2015 and still he submitted his representation on 30/09/2015. This itself would show that no prejudice was caused to the detenu by the time lag between 04/09/2015 and 12/09/2015. The learned counsel for the first respondent relied on the decision in Kamarunnissa v. Union of India and Another 1991 KHC 870 : (1991) 1 SCC 128 : 1991 SCC (Cri) 88 : AIR 1991 SC 1640 : 1991 CriLJ 2058 : 1991 (1) Crimes 131. 6. Article 22(5) of the Constitution of India provides that when any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SAAct. As rightly pointed out by the learned counsel appearing for the first respondent, there is no case for the petitioner in the Writ Petition that the compact discs were played on any date and that there was unexplainable delay. What is stated in the Writ Petition is that the compact discs could not be played at all. Only in the counter-affidavit it was revealed that the compact discs were played in front of the detenu on 12/09/2015, as evidenced by Ext. R2(c) receipt signed by the detenu. It is only at that juncture the learned counsel for the petitioner raised a contention at the belated stage and that too without any pleadings in support of the same that the delay is not explained. The learned counsel for the first respondent submitted that as there was no pleading in the Writ Petition, that point was not answered in the counter-affidavit. We are of the view that there was compliance of the requirement of Article 22(5) of the Constitution of India and Section 3(3) of the COFEPOSA Act, since the compact discs were supplied to the detenu on the date of his arrest and they were played in front of him within a period of fifteen days. It is also relevant to note that the detenu s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner to make an effective representation. 12. The contention raised by the petitioner as stated above was replied by the first respondent in paragraph 9 of the counter-affidavit thus: The petitioner in his statement dated 13/07/2015, given under Section 108 of the Customs Act stated voluntarily that the petitioner carried undeclared gold from 27/06/2014 on various occasions and printed out the excel statements showing the gross profit, expenses, net profit and the profits shared for each Trip, which was saved in his laptop. Only the above save documents, saved in the said laptop are relevant to the case at hand. The laptop might contain photos, music, movies etc. All that is not relevant in the proceedings initiated against the petitioner. It is submitted that all the relied upon documents in this case were served on the petitioner with his proper acknowledgment. 13. We do not find any substance in the contention raised by the petitioner that the laptop as such should have been produced by the sponsoring authority before the detaining authority and that the subjective satisfaction arrived at by the detaining authority without perusing the entire contents in the laptop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the order of detention. Crux of the matter lies in whether the detenu's right to make a representation against the order of detention, is hampered by non-supply of the particular document. 15. The learned counsel for the petitioner submitted that a statement purportedly under Section 108 was taken from the petitioner on 25/07/2015 after getting his custody on 24/07/2015. As per Ext. P6 order dated 24/07/2015, the learned Magistrate directed custody of the petitioner to be given to the Superintendent of Customs, Special Intelligence and Investigation Branch, Cochin. The petitioner submits that the statement dated 25/07/2015 cannot be a statement under Section 108 of the Customs Act since the petitioner/detenu was not summoned by the customs officer, but the petitioner was in his custody. The learned counsel also submitted that the statement dated 25/07/2015 is hit by Article 20(3) of the Constitution of India. It is submitted that since the statement dated 25/07/2015 is not admissible and since it was relied upon by the detaining authority, the order of detention is vitiated. The further submission is that Ext. P5 profit sharing account was taken from the laptop on the in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed against him, by the Assistant Collector of Customs complaining of the commission of offences under Section 135(a) and Section 135(b) of the Customs Act. 18. The Supreme Court held in Veera Ibraim's case that it is well settled that only a person against whom a formal accusation relating to the commission of an offence has been levelled, which in the normal course may result in his prosecution, would fall within the ambit of the expression a person accused of an offence under Article 20(3) of the Constitution of India. 19. In Ramesh Chandra Mehta v. State of West Bengal 1968 KHC 263 : 1968 KLT SN 49 : AIR 1970 SC 940, a Constitution Bench of the Supreme Court held that a person arrested by a customs officer because he is found in possession of smuggled goods or on suspicion that he is concerned in smuggling is not a person accused of an offence within the meaning of Section 20(3) of the Constitution of India, when that person is called upon by the customs officer to make a statement or to produce document or thing. In Illias v. The Collector of Customs, Madras 1970 KHC 703 : AIR 1970 SC 1065 : 1969 (2) SCR 613 : 1970 CriLJ 998, the question which came up for consider ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unt was not certified as provided under Section 65B(4) of the Indian Evidence Act and therefore it should not have been relied on by the detaining authority. Section 1 of the Evidence Act, 1872 states that it extends to the whole of India (except the State of Jammu and Kashmir) and applies to all judicial proceedings in or before any Court, including Courts-martial. The proceedings under the COFEPOSA Act are not proceedings before a Court and therefore Section 65B(4) of the Indian Evidence Act would not apply. However, it is to be noted that Section 138C of the Customs Act deals with admissibility of micro films, facsimile copies of documents and computer print outs as evidence. Sub-section 4 of Section 138C provides that in any proceedings under the Act and the Rules made thereunder, where it is desired to give a statement in evidence by virtue of the section, a certificate containing the matters mentioned in Clauses (a) to (c) and signed by a person mentioned therein shall be evidence of the matter stated in the certificate. Section 138C of the Customs Act is in Chapter XVI under the heading 'offences and prosecutions'. In the present case, the document in question, namel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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