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TMI Blog2021 (6) TMI 1108X X X X Extracts X X X X X X X X Extracts X X X X ..... examination of the cargo led to the recovery of gold weighing 30.245 Kgs having a market value of about Rs. 14.82 crores. Investigations carried out and statements recorded from various persons under Section 108 of the Customs Act, revealed that certain staff of the UAE Consulate at Thiruvananthapuram were involved in a racket of smuggling gold by concealing the same in diplomatic cargo which is not normally subjected to detailed customs examination. The investigation revealed that the detenu was a major player in the racket and that he was one of the main conspirators in hatching the plot to smuggle gold through diplomatic baggage. The statements recorded by the Customs Department revealed that the persons involved in the racket had regularly smuggled gold in a similar fashion during the period from 15.7.2017 to 27.6.2020. On a consideration of the entire materials, the 2nd respondent issued Ext.P1 order of detention under the provisions of the COFEPOSA Act against the detenu on 19.11.2020. The detention order was executed on 24.11.2020 while the detenu was in custody after being arrested for in connection with offences under the Customs Act, 1962 and the Unlawful Activities Preve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly upon confessional statements is bad in law; iv) The fact that the detenu was under judicial custody and facing charges under the Unlawful Activities Prevention Act, 1967, was not properly appreciated by the detaining authority while issuing the detention order. In other words, the requirement of issuing an order of preventive detention, when the detenu is already in judicial custody without any realistic chances of bail, shows that there is non-application of mind, which vitiates the detention order; v) The Advocate engaged by the detenu to represent his case before the Advisory Board was not permitted to address arguments and therefore, the proceedings before the Advisory Board are vitiated; and vi) The Advisory Board which considered the case of the detenu under Section 8 of the COFEPOSA Act, 1974 was not competent to consider the case of the detenu. 6. The learned counsel for the respondents, on the other hand, submits that the detenu was clearly involved in an organized illegal activity and that it was necessary to detain him under the provisions of the COFEPOSA Act in order to prevent him from indulging in similar activities. He submits that a reference to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 21(3) KLT 74, where we have considered the question as to whether the delay in passing of the detention order, on account of the investigation, can be a ground to hold that the detention order is invalid. We have, after considering the ratio in Rajendrakumar Natvarlal Shah v. State of Gujarat and others; (1988) 3 SCC 153 and Maliva Shah v. State of West Bengal; (1974) 4 SCC 127 held that a delay in issuing an order of detention on account of detailed investigation being required is not a ground to invalidate the order of detention. In the facts of this case, the most proximate prejudicial activity was detected in the month of June/July of 2020 and Ext.P1 order of detention was issued on 19.11.2020. We, therefore, hold that there is no delay in passing Ext.P1 order of detention. 9. The next contention raised by the learned counsel for the petitioner is that the order of detention is invalid on account of the fact that several crucial materials were not supplied to the detenu along with the grounds of detention, thereby affecting his valuable right to make an effective representation against the order of detention. It is specifically contended that certain Whatsapp chats, which are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ake a proper and effective representation. Insofar as the non-supply of the CCTV footage is concerned, the learned counsel for the petitioner submits that though the CCTV footage is not relied upon in the grounds of detention, the detenu is entitled to a copy of the CCTV footage as the same is likely to prove his innocence. We have considered the law regarding the supply of documents in our judgment in Waheeda Ashraf (supra). We have held that, while there is no charm in the expressions "relied on", "referred to", or based upon" as held in Kirti Kumar Chamanlal Kundaliya v. Union of India; (1981) 2 SCC 436, the question as to whether the materials supplied are sufficient to enable the making of effective representations which, is a right guaranteed under the Constitution, will depend on the facts of each case. It is clear from the grounds of detention that no CCTV footage has been relied upon or referred, to sustain the order of detention. That being the position, we are of the clear view that when the Court is concerned only with the subjective satisfaction of the detaining authority based on materials relied upon or referred to in the grounds of detention, the question of supply ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntive detention ought to be issued in order to prevent the detenu from engaging in any prejudicial activities. 13. In reply, the learned counsel for the petitioner submits that in a case registered under the provisions of the Unlawful Activities Prevention Act, an accused person is not entitled to any statutory bail before the expiry of a period of six months unlike in the case of an offence under the Customs Act where statutory bail would be available after a much smaller period of time if the final report was not filed within the time specified. 14. The learned Standing Counsel for the Revenue countered the argument of the learned counsel for the petitioner by stating that though the time limit prescribed for statutory bail is larger in cases under the Unlawful Activities Prevention Act, the concerned Court can always grant a regular bail even without waiting for the completion of six months period. He would submit that the detaining authority was clearly aware of the fact that the detenu may be released on bail, thereby necessitating an order of preventive detention. He would also submit that as a matter of fact, the bail application of the detenu was pending consideration of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nu being released on bail, we will not substitute our satisfaction for that of the detaining authority for what the law requires is only the subjective satisfaction of the detaining authority. (See paragraph 42 of Dimple Happy Dhakad (supra) regarding the need for preventive detention and paragraph 43 of the same judgment regarding the 'subjective' satisfaction required is that of the detaining authority and the Court's inability to substitute its opinion or wisdom for that of the detaining authority). 16. The next contention raised by the learned counsel for the petitioner is that the learned counsel for the detenu was not given an opportunity for hearing before the Advisory Board constituted under Section 8 of the COFEPOSA Act, 1974. In order to examine this contention, we had called for the records of the matter before the Advisory Board. We note that, on 15.1.2021, when the matter was considered by the Advisory Board, the detenu had requested that he may be permitted the assistance of a lawyer in the proceedings. At the request of the detenu, the matter was adjourned to 22.1.2021 to enable the appearance of his Advocate. The proceedings of the Advisory Board indica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red by the Government of India in the Department of Revenue (Economic Intelligence Bureau) and letter No. PD-13004/01/2018-COFEPOSA dated 2.1.2019 was issued to the Chief Secretaries to all State Governments and to the Registrars of all the High Courts in the respective States regarding the reference to the Advisory Board in cases where the detention order is issued by an officer of the Central Government. A copy of the said letter has been placed before us for perusal. The letter states that the Advisory Board constituted under Section 8 of the COFEPOSA Act in the respective State where the detenu has been detained shall be the Advisory Board to which a reference has to be made regarding the question as to whether the continued detention of the detenu beyond the time specified is required or not. It was directed that only in cases where no 'State' Advisory Board has been constituted should the matter be referred to the 'Central' Advisory Board. It was further ordered that the 'Central' Advisory Board will, therefore, consider only cases relating to the State of Delhi. 19. The learned counsel for the petitioner submits that the instructions/letter dated 2.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 2.1.2019. The argument of the learned counsel for the petitioner though attractive at first blush must necessarily fail on closer scrutiny. Our reading of the provisions of Art. 22 of the Constitution and the aforesaid provisions of the COFEPOSA lead us to conclude that neither the Constitution nor the COFEPOSA Act require that in every case where the detention order is passed by the Central Government, its confirmation must be by an Advisory Board constituted by the Central Government under Section 8(a) of the COFEPOSA Act. Art. 22(4) of the Constitution of India only provides that no law providing for preventive detention shall authorise the detention of a person for a period longer than three months unless 'an Advisory Board' consisting of persons who are, or have been, or are qualified to be appointed as Judges of a High Court have reported before the expiration of the period of three months that there is, in its opinion, sufficient cause for such detention. Art. 22(4) was sought to be amended by the Constitution (44th Amendment) Act, 1978 by which, among other things, it was provided that the Advisory Board shall consist of a Chairman who has to be a serving Judge o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1.2019 only constitute a procedure for reference and do not contradict the provisions of Article 22(4) or the provisions of the COFEPOSA Act or any Notification issued thereunder. 21. Further, the provisions of Section 8(a) of the COFEPOSA Act provide for the constitution of Advisory Boards. Significantly, those provisions do not use the words 'appropriate Government'. Section 8(b), no doubt says that the reference to the Advisory Board shall be by the 'appropriate Government' and uses the words 'the Advisory Board'. We cannot, however, give any significance to the word 'the' before the words 'Advisory Board' to hold that the Advisory Board must be one constituted by the appropriate Government. The decisions relied upon by the learned counsel for the petitioner regarding significance of the word 'the' has no application in the light of the provisions of the COFEPOSA Act. We must give effect to the plain meaning of the words used in the statute. We cannot add or subtract from it. In other words we cannot read into Section 8(a), the requirement that the reference must be to an Advisory Board constituted by the appropriate Government. S ..... X X X X Extracts X X X X X X X X Extracts X X X X
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