Kerala High Court
Raishad K.T vs Union Of India on 9 June, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE MR. JUSTICE GOPINATH P.
WEDNESDAY, THE 9TH DAY OF JUNE 2021 / 19TH JYAISHTA, 1943
WP(CRL.) NO. 83 OF 2021
PETITIONER:
RAISHAD K.T.
0
AGED 39 YEARS
B/O. RAMEES K.T. (DETENUE), R/O THEKKEKALATHIL(H),
KANNAMTHODI, VETTATHOOR P.O., PERUNTHALMANA,
MALAPPURAM-679 326.
BY ADVS.
P.A.AUGUSTIAN
SMT.SWATHY E.S.
RESPONDENTS:
1 UNION OF INDIA
REPRESENTED BY DIRECTOR GENERAL CENTRAL ECONOMIC
INTELLIGENCE BUREAU, 6TH FLOOR, 'B' WING, JANPATH
BHAWAN, JANPATH NEW DELHI-110 001.
2 JOINT SECRETARY (COFEPOSA)
GOVT. OF INDIA, DEPARTMENT OF REVENUE, MINISTRY OF
FINANCE, 6TH FLOOR, 'B' WING, JANPATH BHAWAN,
JANPATH, NEW DELHI-110 001.
3 THE SUPERINTENDENT
CENTRAL PRISON, THIRUVANANTHAPURAM-695 001.
4 COMMISSIONER OF CUSTOMS (PREVENTIVE)
CATHOLIC CENTRE, BROADWAY, COCHIN-682 031.
BY ADVS.
SHRI.P.VIJAYAKUMAR, ASG OF INDIA
ADDL.DIRECTOR GENERAL OF PROSECUTION
SHRI.S.MANU, SENIOR CGC - R4
SHRI. JAISHANKAR V. NAIR, CGC - R1 & R2
SHRI. K.A. ANAS, SPL. GOVT. PLADER-R3
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON
09.06.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P (Crl) No.83/2021 -2-
'C.R.'
JUDGMENT
Gopinath, J.
This Writ Petition (Criminal) is at the instance of one Raishad K.T praying
inter-alia for the issuance of a writ in the nature of habeas corpus for the release
of his brother, one Ramees. K.T (hereinafter referred to as the 'detenu') who is
allegedly under illegal detention pursuant to an order dated 19.11.2020 issued
under the provisions of the Conservation of Foreign Exchange and Prevention of
Smuggling Activities Act, 1974 (hereafter 'the COFEPOSA Act').
2. On the basis of information received by the Customs Department
that gold is being smuggled into India in huge quantities through diplomatic
baggage, a consignment of cargo from Dubai was intercepted at the
Thiruvananthapuram Air Cargo complex. The 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 27.6.202o. 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 Prevention Act, 1967. On the date of passing of the detention order,
the detenu had obtained statutory bail in respect of the offences under the
Customs Act, but continued to be in custody on the allegation of having
committed the offence under the Unlawful Activities Prevention Act, 1967. On
being served with the grounds of detention (Ext.P2), the detenu preferred
representations to the Government of India and to the detaining authority
(through Exts.P5 and P6 respectively). These representations were rejected, by
the Central Government through Ext.P7 dated 11.1.2021 and by the detaining
authority through Ext.P8 dated 14.1.2021.
3. The Advisory Board constituted in terms of Section 8 of the
COFEPOSA Act opined that there was sufficient reason for the continued
detention of the detenu beyond the period of 11 weeks from the date of detention
and accordingly Ext.P11 order was issued by the detaining authority. It is in the
above circumstances, that the petitioner seeks a writ of habeas corpus for
securing the release of the detenu from custody which is allegedly illegal. The
petitioner also prays for certiorari to quash the order of detention.
4. We have heard Sri. P.A. Augustine, the learned counsel appearing for
the petitioner, Sri. Jayasankar. V. Nair, the learned counsel for the Union of
India, Sri. Manu.S., the learned Standing Counsel appearing for the Customs
Department and Sri. K.A. Anas, the learned Government Pleader.
5. The learned counsel for the petitioner contends that the entire
procedure commencing from issuance of Ext.P1 order of detention to its
confirmation following the report of the Advisory Board is vitiated in law and
cannot be sustained. In the main, he contends that the detenu is to be set at
liberty on the following grounds:-
i) Considering the date of the event which resulted in the order
of detention being passed, there is a delay 0f 4 months and 14 days
in issuing Ext.P1 order of detention resulting in the live link
between the alleged prejudicial activity and the requirement of
detention being snapped;
ii) The detenu has not been supplied with documents such as the
documents relating to the alleged past activities of the detenu, the
Whatsapp chats which are relied on in the grounds of detention and
also certain CCTV footage which was sought to prove the innocence
of the detenu;
iii) The detention order based only 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
the grounds of detention will show the clear involvement of the detenu in the
matter. He submits that the fact that the detenu was under judicial custody at the
time when Ext.P1 order of detention was passed, is clearly no reason to set aside
the order of detention. He submits that the detaining authority was evidently
informed of the fact that the detenu was in judicial custody. He would submit
that, in the facts and circumstances of the case, there is absolutely no delay in
passing the order of detention and therefore, that the order of detention cannot
be faulted on the ground that it was passed nearly four months after the most
proximate prejudicial activity alleged. He further submits that all necessary
materials which led to the detaining authority forming his subjective satisfaction
to issue an order of detention have been given to the detenu in order to enable
him to make an effective representation and that the grounds of detention cannot
be faulted for any failure to present the detenu with all the materials to enable
him to make an effective representation.
7. The learned counsel for the Central Government submits with
reference to letter No.PD-13004/01/2018-COFEPOSA issued by the Government
of India, in the Department of Revenue that the Advisory Board which considered
the case of the detenu was clearly competent in the matter and that the petitioner
cannot, on the basis of notification bearing No.GSR183(E) dated 17.3.2020,
contend that only the Advisory Board constituted in terms of the aforesaid
notification dated 17.3.2o20 could have considered the issue.
8. The first contention raised by the learned counsel for the petitioner
that there was a delay in issuing Ext.P1 detention order does not appeal to us. A
reading of the grounds of detention shows that the most proximate prejudicial
activity was the alleged smuggling of gold through diplomatic cargo in June/July
of 2020. The grounds of detention produced as Ext.P2 in the writ petition show
that the investigation into the matter would necessarily require reasonable time,
considering the nature of the activity and the manner in which it was carried out.
A large number of persons were involved in the matter. Considering the above,
we cannot hold that there was a delay in issuing Ext.P1 order of detention. We
have considered an almost identical contention in Waheeda Ashraf v. Union
of India; 2021(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 referred to in the grounds of detention were not supplied. A reference
is made in this regard to the fact that these Whatsapp chats are mentioned in the
statement of one Sarith P.S. in paragraph 1 (xxvii) of the grounds of detention. It
is then contended that the alleged documents relating to the alleged past
prejudicial activities mentioned in paragraph 1 (clx) of the grounds of detention
were not supplied. It is also contended that certain CCTV footage which would
prove the innocence of the detenu was not supplied, despite specific request. It is
settled law that the detenu has the right to receive all documents which are relied
upon in the grounds of detention and such other documents/materials to enable
him to make an effective representation against the order of detention. We are of
the opinion that it is not the law that the detenu can request any document that
he wants. The documents requested must necessarily have some bearing to the
grounds recorded by the detaining authority to reach its subjective satisfaction.
Going through the grounds of detention, we notice that the Whatsapp chats and
the alleged past prejudicial activities are recorded as part of confessional
statements of the detenu and certain others who were allegedly involved in the
matter. These statements were recorded under Section 108 of the Customs Act.
It is settled law that a statement recorded under Section 108 of the Customs Act
is a piece of evidence, in view of the fact that sub-section (4) of Section 108 of
Customs Act deems a proceeding under Section 108 of the Customs Act to be a
judicial proceeding within the meaning of Sections 193 and 228 of the Indian
Penal Code. To our specific query as to whether any of these statements have
been retracted, the learned counsel for the petitioner answered in the negative
which, can only lead us to conclude that the statements were made voluntarily
and constituted a piece of evidence as they have not been retracted in any manner
known to law. Copies of statements referred to in the grounds of detention have
been supplied to the detenu along with the grounds of detention. We are
therefore unable to hold that non-supply of a copy of the Whatsapp chats
mentioned in the statement of Sarith P.S. and the non-supply of documents
relating to the alleged previous prejudicial activities of the detenu have any
bearing on the right of the detenu to make 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 of CCTV footage in order to
prove the innocence of the detenu is really not a part of the right conferred on
him under Art. 22(5) of the Constitution of India. If the materials referred to and
relied upon are sufficient to reach a subjective satisfaction regarding the
requirement of detention, no other material is required to be provided to the
detenu. The right to make a representation must be based on the materials
referred to, or relied upon, by the detaining authority to reach its subjective
satisfaction. We, therefore, find that no right of the detenu has been affected by
the failure to provide any CCTV footage to him.
10. The next contention of the learned counsel for the petitioner is that
Ext.P1 detention order was passed entirely on the basis of confessional
statements. This contention of the learned counsel for the petitioner does not
appeal to us for the simple reason that there is no law that holds that an order of
detention cannot be validly passed on the basis of confessional statements given
under Section 108 of the Customs Act. We have already indicated in an earlier
part of the judgment that statements under Section 108 of the Customs Act are
themselves, evidence, especially when statements have not been retracted. We,
therefore, reject the contention of the learned counsel for the petitioner that,
since the detention order is based only on confessional statements, the same
must be found to be invalid.
11. The next contention of the learned counsel for the petitioner is that
the fact of the detenu being under judicial custody based on charges under the
Unlawful Activities Prevention Act, 1967 should have weighed with the detaining
authority in determining whether it is necessary at all to issue an order of
preventive detention.
12. The learned counsel for the Revenue contends that the law only
requires the detaining authority to be aware of the fact that the detenu is in
custody in relation to criminal charges and it is not the law that wherever the
detenu is under judicial custody, an order of preventive detention cannot be
issued. He would refer to the grounds of detention to point out that the detaining
authority has applied its mind to the fact that the detenu was under judicial
custody and it is after noticing the fact that the detenu is likely to get the bail that
the detaining authority came to the conclusion that an order of preventive
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 the Court at the time when the detention order was passed.
15. Both sides have relied on the judgment in Kamarunnissa and
others v. Union of India and others; AIR 1991 SC 1640 and the judgment in
Union of India and others v. Dimple Happy Dhakad; (2019) 20 SCC 609
to substantiate their contentions. Our reading of Kamarunnissa (supra) and
Dimple Happy Dhakad (supra), leads us to conclude that all that is required
in law is an awareness in the mind of the detaining authority that the detenu,
though in custody, may be released on bail and if so released, he would indulge in
prejudicial activities. We deem it appropriate to refer to Paragraph 35 of
Dimple Happy Dhakad (supra). It reads thus: -
38. In the light of the well-settled principles, we have to see, in
the present case, whether there was awareness in the mind of
the detaining authority that detenu is in custody and he had
reason to believe that detenu is likely to be released on bail and
if so released, he would continue to indulge in prejudicial
activities. In the present case, the detention orders dated 17-5-
2019 record the awareness of the detaining authority:
(i) that the detenu is in custody;
(ii) that the bail application filed by the detenus have been
rejected by the Court.
Of course, in the detention orders, the detaining authority has
not specifically recorded that the "detenu is likely to be
released". It cannot be said that the detaining authority has not
applied its mind merely on the ground that in the detention
orders, it is not expressly stated as to the "detenu's likelihood of
being released on bail" and "if so released, he is likely to indulge
in the same prejudicial activities". But the detaining authority
has clearly recorded the antecedent of the detenus and its
satisfaction that detenus Happy Dhakad and Nisar Aliyar have
the high propensity to commit such offences in future.
Here, in the facts and circumstances of this case, we are satisfied that the
detaining authority was aware of the fact that the detenu was in judicial custody;
that he is likely to be released on bail; and that if so released, he would engage in
prejudicial activity (See paragraphs 2, 4, 5, 7 & 8 of Ext.P.2 - Grounds of
detention). If the grounds of detention show that the detaining authority was
alive to these facts, and was satisfied that there was a real likelihood of the detenu
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 indicate that even on the
adjourned date, the Advocate for the detenu was not present. It is also clear that
the detenu himself was heard by the Board through video conferencing. Though
the hearings before the board were concluded on 22.1.2021, it was only on
29.1.2021 that a request was received from the Advocate for the detenu enclosing
a detailed representation on behalf of the detenu and requesting for a hearing. It
is obvious that considering the time limit imposed under Section 8 0f the
COFEPOSA Act, 1974 the Board was not in a position to grant any further
adjournment to accommodate any request of the detenu. It is also clear that the
Advisory Board had also considered the representation dated 29.1.2021 despite
the fact that the representation was received after the hearing was concluded on
22.1.2021. We are, therefore, unable to accept the contention of the learned
counsel for the petitioner that proceedings of the Advisory Board are vitiated on
account of the failure to permit the detenu to be represented by an Advocate of
his choice. We can only hold that the opportunity extended to the detenu to be
represented by a counsel was not availed by the detenu.
17. The last and final contention of the learned counsel for the petitioner
is that the Advisory Board which considered the case of the detenu under Section
8 of the COFEPOSA Act is not competent to consider the same. According to
him, the Central Government has through notification dated 17.3.2020
constituted an Advisory Board consisting of Hon'ble the Chief Justice of the Delhi
High Court and two other Hon'ble Judges of that Court as the Advisory Board
under Section 8(a) of the COFEPOSA Act. According to him, the detaining
authority being the Central Government, only the Advisory Board constituted
under the aforesaid notification of 7.3.2020 is competent to consider the case of
the detenu and therefore, the continued detention of the detenu beyond the time
specified under Section 8 of the COFEPOSA Act, without the matter being
referred to that Advisory Board, is illegal and invalid.
18. Sri. Jayasankar. V. Nair, the learned Central Government Counsel
appearing for the Union of India, however, contends that the question as to
whether the Advisory Board constituted by the Central Government should
consider all cases where the detaining authority is an officer of a Central
Government was considered 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 2.1.2019 cannot override the statutory notification dated
7.3.2020 constituting an Advisory Board with the Hon'ble The Chief Justice of
the Delhi High Court as its Chairperson. A copy of the notification dated 17 th
March 2020 has been placed on record at page 178 of the writ petition paper
book. The learned counsel submits (through his additional written submissions
dated 31.5.2021) that the question as to whether the Advisory Board constituted
in terms of the notification dated 17th March 2020 alone could consider the case
of the detenu is a substantial question of law and since the matter involves the
question of personal liberty we should not treat the aberration as a mere defect of
procedure and refers to the judgments in Ram Manohar Lohia v. State of
Bihar, (1966) 1 SCR 709, Tsering Dolkar v. Administrator, Union
Territory of Delhi, (1987) 2 SCC 69, Hem Lall Bhandari v. State of
Sikkim, (1987) 2 SCC 9 & State of Punjab v. Sukhpal Singh, (1990) 1 SCC
35 in support of this contention. He submits that in the light of the definition of
'appropriate Government' in Section 2 (a) of the COFEPOSA Act, the constitution
of the Advisory Board under Section 8 (a) of the said Act must also be by the
'appropriate Government'. He refers to the judgment of the Supreme Court in
Canon India Pvt. Ltd v. Commissioner of Customs in Civil Appeal
No.1827/2018 and Consolidated Coffee Ltd. v. Coffee Board Bangalore;
(1980) 3 SCC 358 to essentially contend that the word 'the' just before the words
'Advisory Board' in Section 8(b) of the COFEPOSA Act is of significance as the
requirement of the law is a reference to the Advisory Board, constituted by the
'appropriate Government', as defined in Section 2(a) of the said Act. In other
words, his contention is that a combined reading of Article 22 (4) of the
Constitution and Sections 2 (a), 8 (a) and 8 (b) of the COFEPOSA Act together
with the notification dated 17th March 2020 leads to the irresistible conclusion
that only the Advisory Board constituted under the notification dated 17th March
2020 would have the authority to consider the case of the detenu.
20. In order to consider this issue, we have perused the provisions of
Art.22 of the Constitution, Sections 2 (a), 8(a) and 8 (b) of the COFEPOSA Act,
the terms of the notification dated 17.3.2020 and the contents of the
letter/instruction dated 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 (44 th 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 of the 'appropriate High Court' and further
providing that 'appropriate High Court' means, in case of an order of detention
made by the Government of India or an officer or authority subordinate to that
Government, the High Court of Delhi and in case of an order of detention issued
by the State Government, the High Court for that State. The aforesaid
amendment is contained in Section 3 of the Constitution (44 th Amendment) Act,
1978. However Section 3 of the 44 th amendment Act has not been notified. In
order to understand the purpose and intent of the aforesaid amendment (though
not notified) we have perused the Statement of Objects and Reasons for the
Constitution (44th Amendment) Act, 1978. There the only reference in the
Statement of Objects and Reasons for the Constitution (44 th Amendment) Act,
1978 to the Amendment proposed in Article 22 of the Constitution is contained in
the following words:-
"The Right to Liberty is further strengthened by the
provision that a law for preventive detention cannot
authorise, in any case, detention for a longer period than
two months, unless an Advisory Board has reported that
there is sufficient cause for such detention. An additional
safe guard would be provided by the requirement that the
Chairman of an Advisory Board shall be a serving Judge of
the appropriate High Court and that the Board shall be
constituted in accordance with the recommendations of the
Chief Justice of that High Court".
We have extracted the Statement of Objects and Reasons to the extent it is
relevant only to emphasise that even the Amending Act was never intended to be
for the purpose of clarifying or laying down that the Advisory Board which
considers the case of the detenu must be one constituted by the Government or
authority which issued the order of detention. Under the circumstances, the only
reasonable and practical way of reading the provision is to recognise the
arrangement put in place by the Central Government, of delegating the functions
of the Advisory Board, in respect of detentions outside Delhi and at the instance
of the Central Government, to the Advisory Board constituted within the State
concerned to deal with the matter in the same manner as it would deal with cases
where the detention is at the instance of the State Government. The instructions
contained in letter No.PD-13004/01/2018-COFEPOSA dated 2.1.2019 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. Section 8 (b) uses the words 'appropriate Government'
only to indicate that the reference must be made by the appropriate Government
as defined in Section 2 (a). The Parliament deliberately has not used the words
'appropriate Government' in Section 8 (a) and we see no reason to read it in that
manner. The Constitution as it stands today does not call for such an
interpretation. It appears to us that the provisions of Art.22(4) of the
Constitution and Section 8 of the COFEPOSA only requires that the case of the
detenu could be considered by an Advisory Board consisting of persons having
the qualifications mentioned in Art.22(4) and constituted by appropriate
notification under Section 8 of the COFEPOSA Act. The Learned Counsel for the
petitioner has no case that the Advisory Board which considered the case of the
detenu has not been constituted under Section 8 of the COFEPOSA Act. At any
rate, the detenu cannot be said to be prejudiced in any manner as his
representation was duly considered by an Advisory Board comprising of such
members as are recognised both by the unamended and amended provisions of
Art.22(4) of the Constitution. We, therefore, hold that there is no merit in the
contention of the learned counsel for the petitioner that only the Board
constituted under the notification dated 17.3.2020 was competent to consider the
case of the detenu.
No other point has been raised. In the light of our findings as above, the
writ petition (Criminal) fails and it is accordingly dismissed.
Sd/-
A.K.JAYASANKARAN NAMBIAR
JUDGE
Sd/-
GOPINATH P.
JUDGE
acd
APPENDIX OF WP(CRL.) 83/2021
ANNEXURE/EXHIBITS
EXHIBIT P1 TRUE COPY OF IMPUGNED ORDER DATED
19.11.2020.
EXHIBIT P2 TRUE COPY OF THE GROUNDS OF DETENTION WITH
COPY OF THE LIST OF RELIED UPON DOCUMENTS.
EXHIBIT P3 TRUE COPY OF LETTER DATED 27.12.2020.
EXHIBIT P4 TRUE COY OF THE LETTER NO.PD-13002/01/2020-
COFEPOSA DATED 5.1.2021.
EXHIBIT P5 TRUE COPY OF THE REPRESENTATION DATED
5.1.2020.
EXHIBIT P6 TRUE COPY OF THE REPRESENTATION BEFORE THE
HON'BLE JOINT SECRETARY (COFEPOSA) DATED
5.1.2021.
EXHIBIT P7 TRUE COPY OF THE ORDER DATED 11.1.2021.
EXHIBIT P8 TRUE COPY OF THE ORDER DATED 14.1.2020.
EXHIBIT P9 TRUE COPY OF THE COMMUNICATION DATED
14.1.2021.
EXHIBIT P10 TRUE COPY OF LETTER 29.1.2021 WITH COPY OF
THE REPRESENTATION DATED 29.1.2021.
EXHIBIT P11 TRUE COPY OF THE ORDER NO.PD-12002/09/2020-
COFEPOSA DATED 11.2.2021.
EXHIBIT P12 TRUE COPY OF THE ORDER NO.PD-15002/02/2021-
COFEPOSA DATED 12.2.2021.
