TMI Blog2018 (11) TMI 1887X X X X Extracts X X X X X X X X Extracts X X X X ..... f Gold. There is absolutely no doubt that the person, who has been apprehended did not have any business, whatsoever, to fly frequently to UAE. It was only once that he was apprehended and his interrogation led to the involvement of the detenu indulging in abetting of smuggling Gold from UAE to India - The statements of all those witnesses would indicate the involvement of the detenu Faisal P.A. which has resulted in 113 KGs of Gold being smuggled into India not only by the detenu but also his brother Noushad P.A. based in Muvattupuzha, who was actively involved in recruiting persons as carriers of Gold. The said Noushad was involved in arranging the tickets for the carriers trough the aforementioned travel agency and was also proceeded against under COFEPOSA Act. An adjudication under the provisions of the Customs Act, 1962 as well as under the COFEPOSA Act does not require the standard of proof, which is normally required for the conviction of a person who stands on trial before a criminal court for whatever offence he has been charge-sheeted against. Adjudicatory process in a preventive detention is only a fact finding process by which the authorities need to be satisfied sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was made after a long lapse of time of about two years and that there was no live-link to detain the detenu as he has not been involved in any case subsequent to the passing of Ext.P1 detention order. (ii) That the abnormally vague grounds of detention running into 77 pages makes it obscure; (iii) A reading of Ext.P2 grounds of detention would indicate that there are no specific grounds or materials in support of the satisfaction entered by the authorised officer as to the apprehension of the detenu continuing with his activities, except for a few vague and bald statements, which are insufficient to order detention under the COFEPOSA Act. (iv) Apart from the use of the words smuggling, aiding and concealing/transporting of smuggled goods , there is absolutely no material for the subjective satisfaction of the detaining authority to pass such an order warranting detention. Apart from mere acquaintance with the other detenus, there is not a scintilla of evidence pin-pointing the involvement of the detenu. (v) There are contradictions in the detention order when it states that the detenu and another had utilised other people for smuggling more than 1900 KGs of Gold. At t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relies on Ext.P5 copy of a document registered on 04.01.2016 at Muvattupuzha Sub Registrar's office by the detenue in person, to impress upon us that the detenue was not absconding as alleged by the Government. 6. Reliance is placed on a Division Bench decision of this Court in 2017 (2) KHC 231 (DB) [Fazeela Salim v. Joint Secretary to the Government of India COFEPOSA Unit Others], wherein it is held that the person against whom an order of preventive detention has been passed, shall be given an earliest opportunity of making a representation against the order of detention, by indicating to him the grounds of his detention; thus enabling him to effectively utilize such opportunity. 7. Coming to the facts of the case in hand, it is to be noted that the detenu was not available to be apprehended so as to confine him to detention. The fact that he had appeared before the Sub Registrar s Office to execute the document produced here as Ext.P5 alone would not lead us to the conclusion that the detenu was available throughout. It is also not necessary that the Sub Registrar, who executed the document would be aware of the executant s involvement in a crime and would have recog ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g that person from acting in any manner prejudicial to the conservation or augmentation of the foreign exchange or with a view to preventing him inter-alia from smuggling goods or abetting the smuggling of goods. 11. The learned Senior Counsel argues that a reading of Ext.P2 does not include any direct involvement of the detenu in the alleged smuggling of Gold. It was on 24.05.2015 that one Salim Melathu Makkar, who arrived by Spice Jet flight from Delhi to Kochi, was apprehended by the officers of the Air Intelligence Unit, Air Customs of Cochin International Airport. He was noted to be a frequent flier and had visited UAE five times during the year 2015 within a span of four months and had no proper explanation for the purpose of those visits. On examination of the person and his baggage, no contraband or dutiable goods were recovered. But on interrogation, he admitted having concealed eight gold bars weighing about 8 KGs beneath the last row seat of the passenger ferry bus, in which he travelled from the Aircraft to the arrival terminal of the Airport. Consequent to this statement given by him, the Gold concealed beneath the last row seat of the passenger ferry bus was recove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arranging the tickets for the carriers trough the aforementioned travel agency and was also proceeded against under COFEPOSA Act. 13. It is true that Ext.P2 gives a rather elaborated version of the involvement of the detenu especially considering the huge network unearthed by the authorities, which had been carrying on these subversive activities for quite a long period of time. However, a careful reading of the order would bring to light the precise role of the detenu in the smuggling activities. A reading of the order undoubtedly indicate the involvement of the detenu in abetting carriers to smuggle Gold into India. The racket was first detected on the interception of one Salim Melathu Makkar, a frequent flier who had no worthwhile business in the Middle East. Though no contraband was recovered from his person or baggage, the information supplied by him led to recovery of 8 kgs. Of gold concealed by him under the last row seat of the passenger ferry bus. A search conducted on other ferry buses also led to detection of yet another concealment, in a like manner of 5 KGs. Gold, which pointed to involvement of airport staff also. Salim, in his statement revealed the various instan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onded to and an anticipatory bail application was filed jointly by the detenu and the brother-in-law of Salim. One Siraj T.K., who was working as a Customer Service Agent in the very same flight services agency confessed to his active involvement in the racket and stated that at least five times the detenu had recieved the Gold from him, which he recovered from the various places inside the Airport were the carriers on instructions conceal it. He also stated that he knew of the other employees in the very same agency actively engaged in smuggling for the detenu. One Ashiq M. Shanavas as mentioned by Salim also spoke of his active involvement and the Gold he had handed over to various persons, who he knew as accomplices of Fazil and the detenu. Jabin K. Basheer, a Civil Police Officer with the Kearala Armed Police-I was arrested in the crime, who was alleged to have ammassed wealth and had admittedly purchased a shopping complex, was also part of the network. His father had deposed that he was aware of the smuggling activities carried on by his son. Further the estranged wife of the said CPO specifically spoke of the detenu and identified his photograph along with his brother Nousha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . No proof beyond reasonable doubt is essential for the passing of an order of detention. 17. We are also not in agreement with the learned Senior Counsel for the petitioner regarding the propriety of the communication of the order of detention to the detenu. As we have already observed, the detenu was not available for the detention order to be executed. He had been served with the first notice. Thereafter, he had absconded and did not volunteer to appear before the authorities to face the adjudicatory process against him. Only when he was apprehended ultimately at the International Airport in New Delhi that he could be forced to undergo the detention, after almost a period of two years. The argument of the learned Senior Counsel that the statements recorded by the Investigating Officers would only have the effect of statements recorded under Section 161 of the Code of Criminal Procedure and that an order of detention could not be made relying solely on such statements recorded by the investigating authorities as they are not substantive evidence and could only be used to contradict the witnesses in the course of trial cannot also be countenanced. 18. In the decision reporte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Hon'ble Supreme Court held thus; 11. The conspectus of the above decisions can be summarised thus. The question whether the prejudicial activities of a person necessitating to pass an order of detention is proximate to the time when the order is made or the live-link between the prejudicial activities and the purpose of detention is snapped depends on the facts and circumstances of each case. No hard and fast rule can be precisely formulated that would be applicable under all circumstances and no exhaustive guidelines can be laid down in that behalf. It follows that the test of proximity is not a rigid or mechanical test by merely counting number of months between the offending acts and the order of detention. However, when there is undue and long delay between the prejudicial activities and the passing of detention order, the Court has to scrutinise whether the detaining authority has satisfactorily examined such a delay and afforded a tenable and reasonable explanation as to why such a delay has occasioned, when called upon to answer and further the Court has to investigate whether the causal connection has been broken in the circumstances of each case. We reiterate, t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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