TMI Blog2019 (4) TMI 2036X X X X Extracts X X X X X X X X Extracts X X X X ..... the very opinion in the case of Sri.Shahbas in the same transaction was given by the Board itself. When in the case of a co-detenu in the same transaction an opinion was given by the Advisory Board, when it takes up the case of another detenu involved in the same transaction, the Board was bound to consider its earlier opinion in regard to the co-detenu. Shortly stated, in this case, despite the communication of Annexure-1 in Ext.P6 pertaining to the co-detenu the Advisory Board had failed to take it into consideration in its true perspective. In the contextual situation, it is all the more relevant to note that even going by Ext.P2, Sri.Shahbas is the head of 'MPC General Trading LLC' that is involved in smuggling activities and it was his detention, in the same transaction, that was revoked as per Annexure-1 of Ext.P6. Non-consideration of all the aspects by the Government, they are sufficient to hold Ext.P8 order confirming the order of detention, as vitiated. Once it is found that Ext.P8 order whereby Ext.P1 order was confirmed is vitiated owing to non-consideration of Annexure-1 in Ext.P6, Ext.P8 order is liable to be interfered with. The impugned order is set a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... covery of 3 Kgs. of gold bars, from each of them, which were concealed in their body. It is the case of the respondents that in their statements recorded under Section 108 of the Customs Act, 1962 on 08.11.2013 both of them admitted regarding the smuggling of gold on that day and also on certain previous occasions. In their statement, they stated that the detenu, on an earlier occasion i.e., on 19.09.2013, accompanied them from Dubai to Kochi when they were smuggling gold bars. In fact, according to the statements of Ms.Rahila and Ms.Hiromasa, they smuggled 4 and 3 Kgs. of gold bars respectively on that occasion and they handed over the gold to an associate of Shahbas and Company. In the statement of Rahila, she stated that she had been associated with a firm by name 'MPC General Trading LLC', Dubai which was owned by one Shahbas M. and one Nabeel. In her statement Ms.Hiromasa stated that she was working as a Cabin Crew with Air India Express, Ms.Rahila was her room-mate and owing to financial difficulties she expressed willingness to Ms.Rahila to work as a Carrier Passenger for gold smuggling gang led by Shahbas. Subsequent to the recording of statements of the aforesaid t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per Ext.P8 order. Based on the aforesaid aspects, it is contended that the failure to take note of the said crucial factor is fatal to the impugned order of detention and also to the order of its confirmation. According to the petitioner, Exts.P1 and P8 orders got vitiated and are liable to be set aside. To buttress the said contention, the learned counsel relied on a Division Bench judgment of the Mumbai Highcourt in Smt.Chandbi Mohomed Hanif Abubakar v. Union of India and others (1986 0 Supreme (Mah) 343), the Division Bench decisions of Rajasthan High Court in Kamal Kishore Tripathi son of Shri.Ram Niwas v. The State of Rajasthan reported in 2017 0 Supreme (Raj) 316, this Court in Priya Menon v. State of Kerala reported in 2016 (4) KLT 574 and Leema Sebastian v. State of Kerala (2015 (4) KLJ 49) and a Constitutional Bench decision of the Hon'ble Apex Court in K.M.Abdulla Kunhi v. Union of India reported in (1991) 1 SCC 476. 4. Resisting the contention raised relying on the said decisions the learned Public Prosecutor as also learned counsel appearing for the third respondent submitted that the opinion given by the Advisory Board as also the order confirming the detention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case under the COFEPOSA Act. Referring to Section 8 therein the Apex Court held that Clause (f) of Section 8 provides that when in the opinion of the Advisory Board there is sufficient cause for the detention of a person the Government may confirm the detention order and continue with the detention for such period as the government deem fit subject to the maximum period permissible under the Act. However, in every case where the Advisory Board in its report gave the opinion that there is no sufficient cause for the detention of the person, the Government should revoke the detention order and release the person forthwith. The Apex Court also held that the provision under Section 8 of the Act, i.e., consideration by the Board is an additional safeguard and not a substitute for consideration of the representation by the Government and that the right to have the representation considered by the Government, is safeguarded by Clause (5) of Article 22 of the Constitution and it must be independent consideration of the detenu's case. Paragraph 16 of the judgment in K.M.Abdulla Kunhi's case (supra) is also relevant for the purpose of this case. Paragraph 16 is extracted hereunder:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot be treated as embedded formalities. The right to representation available under the constitutional provision is intended to achieve a purpose as in matters like the one on hand, it is only as a preventive measure that the person was detained and not at all based on any order punishing him for commission of an offence, on being found guilty. In the decision in Smt.Chandbi Mohomed Hanif Abubakar's case (supra) the Division Bench of Bombay High Court was considering a question whether non-placement and consequential non-consideration of the report by the Advisory Board submitted in the case of a co-detenu by the detaining authority, is fatal to the impugned order of detention. In other words, whether it would vitiate the order of detention. In that case, the impugned order was issued to the detenu on 23.6.1983. The list of documents furnished to the detenu would not reveal that the report of the Advisory Board submitted in the case of the said co-detenu was placed before the detaining authority for consideration. Evidently, in that case, the report of the Advisory Board pertaining to the detenu and his co-detenu virtually carried divergent opinion. In such circumstances, the Di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... year 2017. Evidently, in the case of Sri.Shahbas, the co-detenu of Sri.Abulais, the order of revocation of the order of detention was passed pursuant to the receipt of an opinion from the Advisory Board that in respect of Shahbas there is no sufficient ground for detention. The question whether the order passed by the Government revoking the order of detention is communicated to the Advisory Board or not would got no insignificance for the simple reason that the very opinion in the case of Sri.Shahbas in the same transaction was given by the Board itself. When in the case of a co-detenu in the same transaction an opinion was given by the Advisory Board, when it takes up the case of another detenu involved in the same transaction, the Board was bound to consider its earlier opinion in regard to the co-detenu. Shortly stated, in this case, despite the communication of Annexure-1 in Ext.P6 pertaining to the co-detenu the Advisory Board had failed to take it into consideration in its true perspective. This would certainly vitiate the opinion of the Advisory Board in respect of the detenu Sri.Abulais. Add to it, the indisputable and undisputed fact is that this aspect was not at all co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thout referring to the judgments cited by both sides. In such circumstances, the said contention of the learned counsel for the third respondent cannot be upheld. 10. In this contextual situation, it is relevant to refer to the decision of the Apex Court in Alpesh Navinchandra Shah v. State of Maharashtra ((2007) 2 SCC 777), after referring to the earlier judgment in Pawan Bhartiya v. Union of India ((2003 11 SCC 479). The Apex Court held thus:- The above judgment, in our view, squarely applies to the facts and circumstances of the case on hand. In the instant case, the petitioner's brother has already been released on the ground there was no sufficient cause for the detention of the detenu under Section 3(1) of the Act. The Government also accordingly revoked the detention order issued against him and the Government of Maharashtra, after considering the report of the Advisory Board and the material on record and in exercise of the powers conferred by Section 8(f) of the COFEPOSA Act revoked the aforesaid detention order and further directed that Kamlesh Navinchandra Shah be released forthwith on receipt of the said order dated 05.06.2006. In our opinion, the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng an order of preventive detention against the petitioner and non-consideration of the revocation order would not vitiate the order. In that case, the order of revocation passed in respect of a co-detenu was not considered before passing detention order in respect of the petitioner therein. In that case, one co-accused by name Arun Kumar Jain was also detained in respect of the same transaction, under Section 3 of the National Security Act. In his case, the order of detention was revoked. A contention was raised that the order of detention of Arun Kumar is a confidential document and therefore, it could not be made available to the detaining authority. The High Court held that the said order could not be said to be a confidential document for the State. It was held that it vitiated the order passed in the case of the petitioner therein. In the case on hand, as noticed hereinbefore, at the time when Ext.P1 detention order was passed Annexure-1 in Ext.P6 was not in existence. But, at the same time, we are of the view that the ratio of the said decision is applicable in this case. This is because the order of revocation in respect of co-detenu Sri.Shahbas was passed by the Govern ..... X X X X Extracts X X X X X X X X Extracts X X X X
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