9911796707
TMI Blog2024 (8) TMI 1047X X X X Extracts X X X X X X X X Extracts X X X X ..... ld weighing 14,763.30 grams valued at Rs. 7,16,16,768/- was found and seized. 2.2 Statements of co-accused persons were recorded, whereby they admitted that the detenue who was residing in Dubai, UAE, was running a cargo handling and forwarding business and was scouting passengers who had unaccompanied cargo to be sent to India. It was stated that the detenue would send contraband gold concealed in compressors of refrigerators along with unaccompanied baggage. 2.3 On 24th August, 2021, detention orders under Section 3 of COFEPOSA were issued against the three co-accused persons namely Mohammad Ali (father-in-law of detenue), Abdulla S.S. (brother-in-law of detenue) and Biju V. Joy (Customs G Cardholder) and they were arrested. They later challenged their respective detention orders by way of separate Writ Petitions filed before the High Court of Kerala. 2.4 On 27th December, 2021, the detenue reached India. He repeatedly wrote letters/issued reminders to the Director General (DG), Central Economic Intelligence Bureau (hereinafter, "CEIB") as well as the Joint Secretary, COFEPOSA, stating that he has not received any information of a detention order issued against him. 2.5 On 5t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l, submitted that the Division Bench of the High Court while dismissing the petition of the present appellant has failed to take into consideration the judgment and order dated 3rd June 2022 in the cases of Nushath Koyamu vs. Union of India and others [2022 (3) KLT 885] and other connected matters delivered by a Coordinate Bench of the same High Court wherein it was held that the detention of the co-detenus was vitiated on account of non-supply of WhatsApp chats. He submits that the grounds of detention, insofar as the detenue in the present appeal is concerned, are identical with the grounds of detention with that of the co-detenue Mr. Biju V. Joy and two other detenus, whose detention was set aside by the order of the High Court dated 3rd June 2022. It is, therefore, submitted that the detention order is liable to be quashed on this short ground. 5. Mr. Nachiketa Joshi, learned counsel appearing on behalf of the Union of India, submits that the learned Division Bench of the High Court has rightly distinguished the decision of the Coordinate Bench of the same High Court in the cases of Nushath Koyamu (supra) and other connected matters. He, therefore, submitted that no infe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... explanation has been deprived offending the right under Article 22(5) of the Constitution of India." 10. On recording of the said submissions, the Coordinate Division Bench of the same High Court observed thus: "17. On a consideration of the rival submission on this aspect, we notice that there has been reliance made in the detention order regarding the documents mentioned above which might have forced the detaining authority to reach the conclusion about the previous smuggling activities and which necessitated the present order of detention. In spite of a specific request, as seen from Ext. P12 in the above cases, we find copies were not given. In as much as the contents of the above being relied upon and they have not been given despite asking for them, we feel there has been infraction of the right of the detenus to make an effective representation seeking release. 18. The learned counsel for the petitioner is right in stating that the detaining authority ought to have furnished the said materials as their right to make an effective representation has been impaired. It is relevant to note in the decision of the Supreme Court in Atma Ram Vaidya v. State of Bombay [AIR 195 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndent for the proposition that the documents sought for in the instant cases need not be granted cannot be accepted as the same are rendered on different sets of facts. In as much as the documents sought has been relied upon in the detention orders, the same ought to have been furnished to the detenus when they requested for the same. The learned counsel for the petitioners is also right in relying on the following judgments for canvassing the same position that the relevant electronic info to be provided in the same format: 1. 2016 (3) KHC - Reshmi v. Union of India 2. 2019 KHC 914 - Hajira N.K. v. Union of India 3. 2020 KHC 167 - Beevikunju v. Union of India 4. 2021 KHC 303 - Waheeda Ashraf v. Union of India In the light of the discussion above, we are convinced that the non-supply has vitally affected the right of the detnus under Article 22(5) of the Constitution of India. We, accordingly, hold that the detention order is bad for the non-supply of these documents sought for in Ext. P12." 11. After observing the aforesaid, the Coordinate Division Bench of the same High Court held that non-supply of the documents had vitally affected the right of the detenus to m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erved with greater rigour by the members of judicial fraternity who have been bestowed with the power to adjudicate upon important constitutional and legal issues and protect and preserve rights of the individuals and society as a whole. Discipline is sine qua non for effective and efficient functioning of the judicial system. If the courts command others to act in accordance with the provisions of the Constitution and rule of law, it is not possible to countenance violation of the constitutional principle by those who are required to lay down the law." 14. The aforesaid observations of this Court aptly apply to the facts of the present case. 15. When the Coordinate Bench of the same High Court based on same grounds of detention and on the basis of the same material, which was relied on by the detaining authority, had come to a considered conclusion that non-supply of certain documents had vitiated the right to make an effective representation of the detenus, another Coordinate Bench could not have ignored the same. 16. No doubt that, the second Division Bench has sought to justify its decision by holding that the findings in the cases of Nushath Koyamu (supra) and other connec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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