TaxTMI 
TaxTMI 
2023 (1) TMI 1295
X X X X Extracts X X X X
X X X X Extracts X X X X
....n Order issued by the authorised representative of the 1st respondent under Section 8(f) read with Section 10 of the COFEPOSA Act directing to detain him for a period of one year from the date of detention, 06.03.2022. 3. The incidents which culminated in the issuance of Exts.P8 and P19, gatherable from the narration of facts in the Writ Petition, are the following: 3.1. The unaccompanied baggage of one Althaf Moosan Mukri, was checked on 20.04.2021 and inside the compressor of the refrigerator amongst the baggage, contraband gold weighing 14763.300 Grams valued at Rs. 7,16,16,768/-was found and seized. Based on the statement of the passenger, three persons, the father-in-law of the detenu, Sri. Mohammed Ali, the brother of the detenu, Sri. Abdulla S.S. and the Customs G Card holder, Sri. Biju V. Joy were summoned on 20.04.2021 and their statements were recorded under Section 108 of the Customs Act, 1962. On 21.04.2021 another statement was recorded from Sri. Mohammed Ali. 3.2. The Directorate of Revenue Intelligence (DRI) recorded further statements from them in which they reiterated their earlier statements and gave further evidence from which complicity of the detenu was esta....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ection 3(1) of the COFEPOSA Act was served on the detenu. The detenu was taken to the Central Prison, Poojappura where he is under detention. Copies of the Grounds of Detention were served on the detenu on 7.3.22, a copy of which is Ext.P9. Copies of the documents relied upon by the Detaining Authority were also served along with Ext.P9. 3.9. On 24.03.2022 the 1st respondent referred the case of the detenu under Section 8(b) of the COFEPOSA Act to the fourth respondent, the Advisory Board. 3.10. The detenu saying that the voluminous documents served on him contained extremely technical jargon and were beyond his comprehension and he was unable to fathom and that many materials on which the Detaining Authority had placed reliance for his conclusions were not supplied to him; he addressed the Detaining Authority and the DG, CEIB on 05.04.2022 requesting for further materials, documents and information. Copies of those requests are Exts.P12 and P13. 3.11. Ext.P12 addressed to the Detaining Authority was treated as a representation and was disposed of by him on 07.04.2022. The Memorandum dated 07.04.2022 issued by the Director (COFEPOSA) conveying the rejection of the representation....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ndia. 5. Respondents No. 1 and 2 filed a counter affidavit wherein the contention and allegations of the petitioner are denied. It is contended that every document which is relevant has been considered by the Detaining Authority and subjective satisfaction was arrived at on the basis of necessary and sufficient materials. Detention order could not be executed in time solely because the detenu evaded the process of law. He was abroad. He reached India not through a proper channel for travel. He came to India along the Nepal border whereby he could conceal himself from the notice of the authorities and bypass the look out circular issued against the detenu. He did not appear before the authorities, despite issuing the look out circular. He hid himself and kept aloof. He created documents to camouflage that he has been available in the station. The authorities had taken all possible steps to arrest him but it was not possible since he was absconding. It is incorrect that the representation of the detenu was not placed before the Advisory Board. The documents demanded by the detenu were not relied upon documents. Totally irrelevant documents were asked for. Screenshots of the whatsapp....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ctive satisfaction against the detenu. It is further submitted that by withholding those documents the Sponsoring Authority violated the mandate of Article 22(5) of the Constitution of India and that resulted in infringement of rights of the detenu under Articles 14 and 21 as well. 9. In Motilal Jain v. State of Bihar [ AIR 1968 SC 1509] a Six-Judge Bench of the Apex Court held that individual liberty is a cherished right, one of the most valuable fundamental rights guaranteed by our Constitution to the citizens of this country. If that right is invaded, excepting strictly in accordance with law, the aggrieved party is entitled to appeal to the judicial power of the State for relief. It further held that the interest of the society is no less important than that of the individual and our Constitution has made provision for safeguarding the interests of the society. Its provisions harmonise the liberty of the individual with social interest. The authorities are obliged to act solely on the basis of those provisions and they cannot deal with the liberty of the individual in a casual manner. 10. In Kamaleshkumar Ishwardas Patel v. Union of India [(1995) 4 SCC 51] a Constitution Benc....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ance with procedure established by law. 13. The parameters for arriving at the subjective satisfaction have been delineated by the Apex Court in Gurdev Singh v. Union of India [(2002) 1 SCC 545]. It was held that the subjective satisfaction arrived at by the Detaining Authority shall be on consideration of all the relevant materials placed before it by the Sponsoring Authority. In that case, the detainee had no case that the Sponsoring Authority did not place before the Detaining Authority any material in its possession which is relevant and material and if considered by the Detaining Authority, might have resulted in taking a different view in the matter. The contention was that the Detaining Authority should have taken further steps before being satisfied that a case for detention under the COFEPOSA Act has been made out against the detenu. The Apex Court observed that whether the detention order suffers from non application of mind by the Detaining Authority is not a matter to be examined according to any straight jacket formula or set principles. It depends on the facts and circumstances of the case, the nature of the activities alleged against the detenu, the materials collec....
X X X X Extracts X X X X
X X X X Extracts X X X X
....cument which has no link with the issue cannot be construed as relevant." 15. As held by the Apex court whether the documents allegedly withheld by the Sponsoring Authority, want of which is said to have vitiated the detention order, is a question to be decided in the facts and circumstances of each case. The contention of the petitioner is that although the Sponsoring Authority produced the screenshots from the mobile phone of Sri. Biju V. Joy, failed to produce voice chats sent to the detenu on 19.04.2021 and nearby dates. It is contended that those voice chats, if produced, would have established the innocence of the detenu. The learned counsel thus would contend that the findings of the Detaining Authority that the propensity of the detenu indulging in continuous smuggling activities was established is vitiated. Similarly it is contended that the orders dated 21.04.2021 and 04.05.2021 of the Additional Chief Judicial Magistrate (Economic Offences), Ernakulam were not produced and that also vitiated the subjective satisfaction arrived by the Detaining Authority. 16. Ext.P9 is the grounds on which Ext.P8 detention order was issued. The statements of not only the co accused, Sri....
X X X X Extracts X X X X
X X X X Extracts X X X X
....that materials sufficient to arrive at a finding regarding involvement of the detenu in the repeated activities of smuggling of gold to India were produced before the Detaining Authority. When such materials were available on record, the contention that audio clippings in the Whatsapp chats between the detenu and Sri. Biju V.Joy and two remand orders of the Magistrate, which never reached in the possession of the Sponsoring Authority, vitiated the subjective satisfaction of the detaining authority is not able to be appreciated. 19. Exts.P17 and P18 are the explanations submitted by the detenu before the Advisory Board. One of the specific contentions taken up in Ext.P17 was that the detenu had requested the Detaining Authority and the Government information, materials which were required for him to submit effective explanation and representations. He requested postponement of proceedings also on that ground. The Advisory Board considered the said contention and rendered its opinion without waiting for such documents. The Board concluded that there was sufficient materials to justify the detention even in the absence of such documents and materials. 20. As held by the Apex Court i....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t the issuance of the notification and therefore that plea raised by them now only cannot be reckoned with. The learned counsel for the petitioner would contend that if the detenu knew about the notification, he would not have sent Exts.P5 and P6 reminders referring to Exs.P1 and P2 to the Director General, CEIB and the Detaining Authority. 24. The learned Counsel for the petitioner accordingly would contend that no plausible explanation is offered by respondents 1 to 3 or respondents 6 and 7 as to why the detenu was not arrested till 05.03.2022 on which date he was arrested from his house at Kothamangalam and non-explanation of the delay throws considerable doubt on the genuineness of the subjective satisfaction of the Detaining Authority. It is also contended that such unexplained and inordinate delay entails an inevitable assumption that the live and proximate link between the reason for detention and the purpose of detention is snapped. 25. In Sk.Serajul v. State of West Bengal [1975] 2 SCC 78] a Four-Judge Bench of the Apex Court held that if there is any delay in making the Order of detention or in arresting the detenu which is prima facie unreasonable, the State must give ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hammad v Union of India [(1990) 3 SCC 537] the facts were that two notices were served, one on the detenu's mother and another on the petitioner's brother directing the petitioner to appear before the Detaining Authority. The petitioner has intentionally absconded and thereby evaded arrest. It was held that, in such circumstances, the delay was properly explained and the link between the grounds of detention and the avowed purpose of detention has not been snapped. 28. In Waheeda Ashraf and others v. Union of India and others [ILR 2021 (3) Ker.751], this Court relied on the principle of law laid down by the Apex Court in Malwa Shah v. State of West Bengal [(1974) 4 SCC 127] and Mukesh Tikaji Bora v. Union of India [(2007) 9 SCC 28]. It was held that, insofar as an absconding detenu is concerned, the live link between the incident and the purpose of detention was not snapped but strengthened on account of the conduct of the detenu. 29. As pointed out above Ext.P8 detention order was issued on 24.08.2021. Indisputably, the detenu was abroad at that time. During the proceedings leading to Ext.P8, a summons was issued to the detenu on 23.04.2021, to which he replied that he w....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e postal receipts affixed on Exts.P1 and P2 would show that not from the post office where he claimed to have been residing, but from a different post office, those letters were sent. Be that as it may, those documents would not show that he was available at his residence for being intercepted by the revenue authorities or the police. 33. It may be noted that the 2nd respondent published the order of detention in the official gazette dated 11.02.2022. It was a notice asking the detenu to appear before the police for the execution of the detention order. Invoking the provisions of Section 7(1)(b) of the COFEPOSA Act, such a notification was published. The detenu would contend that he was not aware of such gazette notification and the respondents did not state the particulars of that notification in their counter affidavit. That is not correct. It is stated in the counter affidavit filed by respondents 1 and 2 that repeated summons were sent to the detenu and steps under Section 7(1)(b) of the COFEPOSA Act was taken, but the detenu did not turn up. 34. A person residing in India cannot resort to a contention that he was not aware of the gazette notification. Although the notificati....
X X X X Extracts X X X X
X X X X Extracts X X X X
....of Ext.P8 detention order resulted in invalidating the same is untenable and rejected. Ground No. iii) The Sponsoring Authority did not produce necessary documents before the Advisory Board, namely, the representation submitted by the detenu. 39. The detenu submitted Ext.P12 representation before the Director General, Central Economic Intelligence Bureau, Government of India, New Delhi and Ext.P13 before the Joint Secretary, COFEPOSA, Government of India, New Delhi. The petitioner would allege that those representations along with parawise comments thereon were not submitted before the Advisory Board and therefore the detention order gets vitiated. 40. In K.M. Abdulla Kunhi and B.L. Abdul Khader v. Union of India [(1991) 1 SCC 476], a Constitution Bench of the Apex Court held that the representation may be received before the case is referred to the Advisory Board, but there may not be time to dispose of the representation before referring the case to the Advisory Board. In that situation the representation must also be forwarded to the Advisory Board along with the case of the detenu. The representation may be received after the case of the detenu is referred to the Board. Even....
X X X X Extracts X X X X
X X X X Extracts X X X X
....although the order rejecting it was submitted. When Ext.P13, the representation submitted to the Government along with the para-wise comments and Ext.P15 the order rejecting Ext.P12 representation were submitted before the Advisory Board, non-production of Ext.P12 which is a similar representation has no relevance. That cannot have the effect of vitiating the whole process and the contention of the petitioner in that regard has no merits. Ground No. iv) Right of the detenu to make representation before the Detaining Authority and the Government was scuttled due to non supply of materials/documents demanded by the detenu whereby his right guaranteed under Articles 14, 21 and 22(5) of the Constitution of India was infringed. 44. Exts.P12 and P13 are the representations submitted by the detenu to the detaining authority and the Government. He requested in the said representations to supply the following documents: i) Audio chats between the detenu and Sri. Biju V.Joy retrieved and copied in a pen drive or a similar electronic gadget from the mobile phone of Sri. Biju V Joy. ii) Copies of orders remanding to Sri. Althaf, Sri. Muhammed Ali, Sri. Abdulla S.S and Sri. Biju V Joy on ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ty to the detention and relevance to the grounds for detention. The learned counsel for the petitioner would submit that when the detenu demands documents, which in his estimation, are required for his making an effective representation, non-supply of the same would fail his right guaranteed under Articles under not only 22(5) but also 14 and 21 of the Constitution of India. Reliance has been made in this regard on the decision in Kamla Kanyalal Kushlani v. State of Maharashtra [(1981) 1 SCC 478] where the Apex Court held that preventive detention has to conform to Articles 14 and 21 in addition to Article 22(5) of the Constitution of India. 49. In Ramachandra A. Kamat v. Union of India [(1980) 2 SCC 270] a Three-Judge Bench of the the Apex Court held that it is the duty of the Detaining Authority to satisfactorily explain the delay, if any, in furnishing of the documents. It was explained that the Court did not mean thereby the statements and documents not referred to in the grounds of detention for, it may be that they are not in the possession of the Detaining Authority and that reasonable time may be required for furnishing copies of the relevant documents, which may not be in....
X X X X Extracts X X X X
X X X X Extracts X X X X
....shath Koyamu were regarding the legality of the orders of detention of Sri. Muhammed Ali K.T, Sri Abdulla S.S and Sri Biju V Joy. On a reading of the said decision, it is seen that all relating to the same incident, but grounds for the detention of different persons are different. The detenu Sri. Abdul Raoof was the person who contracted with the passenger Sri. Althaf and sent the baggage from Dubai to India. If so, he is the person who said to have personally involved in originating the consignment, whereas the other detenus were part of the contingent who said to have dealt with the consignment in India. Therefore the reasons for detention of Sri. Abdul Raoof cannot be equated with the reasons for detention of the other detenus. In that view of the matter, the facts of Nushath Koyamu (supra) and this case are different. Hence the principle in Nushath Koyamu is not applicable to the facts of this case. 53. In J. Abdul Hakeem v. State of Tamil Nadu and others [(2005) 7 SCC 70] the Apex Court held that the detenu has a right to be supplied with the material documents on which the reliance is placed by the Detaining Authority for passing the detention order but the detention order w....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the aforesaid principle was laid down, the Apex Court in Powanmal (supra) held that every document and materials which finds a passing reference in the course of narration of facts in the ground of detention need not be supplied. But such documents, non-supply of which would prejudice the detenu in making an effective representation are to be supplied to him. The reason is that non-supply of such documents would amount to denial of the right of being communicated the grounds and being afforded the opportunity of making effective representation against the detention order. 57. The learned counsel appearing for the petitioner brought to our attention a few decisions of both the Apex Court and different High Courts, where the question, whether non supply of various documents amounted to denial of the right of the detenu having the effect of vitiating the order of detention, was considered. We do not propose to deliberate upon those decisions since those are decisions on facts and no proposition of law different from what has been enunciated in the aforesaid decisions was evolved. 58. In Ankit Ashok Jalan v. Union of India and others [2020 (16) SCC 127] the Apex Court held that the ....