Fousia Rabins vs Union Of India
2021 Latest Caselaw 22312 Ker

            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
    THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR
                                  &
        THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
TUESDAY, THE 9TH DAY OF NOVEMBER 2021 / 18TH KARTHIKA, 1943
                    WP(CRL.) NO. 206 OF 2021
PETITIONER/S:

            FOUSIA RABINS
            AGED 38 YEARS
            W/O.RABIN KARIKKANAKUDIYIL HAMEED (DETENU)
            R/O.KARIKKANAKUDIYIL HOUSE, PERUMATTOM,
            VELLOORKUNNAM VILLAGE, PUTHUPPADY P.O.,
            MUVATTUPUZHA, ERNAKULAM - 686 673.
            BY ADV P.A.AUGUSTIAN


RESPONDENT/S:

    1       UNION OF INDIA
            REPRESENTED BY DIRECTOR GENERAL, CENTRAL ECONOMIC
            INTELLIGENCE BUREAU, 6TH FLOOR, 'B' WING, JANPATH
            BHAWAN, JANP;ATH, 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.
    4       THE COMMISSIONER OF CUSTOMS (PREVENTIVE)
            CATHOLIC CENTRE, BROADWAY, COCHIN - 682 031.
            BY ADVS.
            SHRI SUVIN R. CENTRAL GOVENMENT COUNSEL (FOR R1 &
            R2)
            SR. STANDING COUNSEL SRI, MANU FOR CUSTOMS
            SRI.MANU.S, CGC FOR (R4)
            SHRI.K.A. ANAS GOVERNMENT PLEADER FOR (R3)
     THIS    WRIT   PETITION   (CRIMINAL)   HAVING   COME   UP   FOR
ADMISSION ON 28.10.2021, THE COURT ON        9-11-2021 DELIVERED
THE FOLLOWING:
 W.P. (Crl. No. 206 of 2021
                                           -2-


                          W.P. (Crl. No. 206 of 2021
                ..............................................................


              Dated, this the 9th day of November, 2021



                                   JUDGMENT

Mohammed Nias,J.

In this Habeas Corpus Petition, the petitioner questions the

detention of her husband Rabins K. Hameed ("the detenu" for short)

under the Conservation of Foreign Exchange and Prevention of

Smuggling Activities Act, 1974 ("COFEPOSA" for short), pursuant to

the order passed by the 2nd respondent on 15-3-2021 and executed

on 17-3-2021.

2. Based on specific intelligence that gold in huge quantity was

being smuggled through diplomatic luggage, one consignment of cargo

with diplomatic immunity in terms of Foreign Privileged Persons

(Regulation of Customs Privileges) Rules, 1957 consigned from Dubai

by Al Zatar Spices, Sharjah in the name of charge d' affairs of UAE

Consulate was withheld for clearance on 5-7-2020 and subsequent

examination of the said consignment resulted in the seizure of gold

weighing 30.244 kilograms having a value of Rs. 14.82 Crores. W.P. (Crl. No. 206 of 2021

3. The investigations that followed the seizure on 5-7-2020

revealed that one K.T.Ramees, a major investor along with the other

organizers and facilitators like Swapna Suresh, Sarith P.S., and

Sandeep contacted the habitual offenders including Jalal A.M., the

detenu and others and they conducted two trial consignments and the

group had altogether smuggled around 136 kilograms of gold in 21

consignments including the one seized on 5-7-2020, during the period

between 15-7-2019 to 27-6-2020. Investigations further revealed that

the detenu along with Jalal A.M. had joined the smuggling racket and

invested money for smuggling gold and on three occasions, the detenu

had purchased gold and got it concealed with the help of a goldsmith

at Ajman and had sent it to India in the name of Faisal Fareed. It was

alleged that they had smuggled 12.853 kilograms of gold, by

concealing it inside a diplomatic cargo and attempted to smuggle

about 5.50 kgs of gold, included in the 30kgs of gold which was seized

on 5-7-2020. It was in this background, the order of detention was

issued by the second respondent.

4. The detenu was in UAE and was extradited and arrested on

26-10-2020 by the National Investigating Agency ("NIA" for short)

which registered RC 2/2020 under the Unlawful Activities Prevention W.P. (Crl. No. 206 of 2021

Act, 1967 (for short "UAPA"). Later, the Customs recorded the arrest

of the detenu on 15-12-2020 after obtaining necessary permission

from the Special Court dealing with the NIA case above mentioned.

From 18-1-2021 to 28-1-2021, the detenu was in the custody of the

customs. The detention order, as stated earlier, was passed on 15-3-

2021 and the same was executed on 17-3-2021. Reference was made

to the Advisory Board vide Ext. P3 dated 1-4-2021 and the detenu had

requested for copies of certain documents on 3-5-2021 and he also

submitted a representation on the same day to the advisory board.

The advisory board, in terms of 8(f) of the COFEPOSA Act confirmed

the detention order on 20-5-2021. Request for copies made before the

2nd respondent was also rejected on 5-5-2021. Representation was

also made before the detaining authority on 9-5-2021. The petitioner

also alleges that he had sent another representation through e-mail

on 10-6-2021 to the jail authorities to be forwarded to the central

government, but both of them denied having received any such

representation. Representation submitted later on 5-8-2021 to the

central government was rejected on 11-8-2021.

5. The petitioner alleges that the order being in total violation

of the Constitutional mandates under Article 22 of the Constitution of

India as well as against the provisions of the COFEPOSA Act seeks W.P. (Crl. No. 206 of 2021

the release of the detenu as well as to quash the detention order.

6. Counter affidavits opposing the prayers in the Writ Petition

were filed on behalf of the Central Government, Customs, and the

State of Kerala.

7. Heard the learned counsel for the petitioner Sri. K.A.

Augustine, the learned Senior Standing Counsel for Customs Sri.

Manu, the learned CGC Sri. Suvin.R and the learned Government

Pleader Sri. Anas K.A.

8. The learned counsel for the petitioner submits that the

detention order is bad for the following reasons:

That relevant documents relied on in the detention order were

not supplied, that the non-consideration of the representation dated

10-6-2021 is fatal, that there has been undue delay in passing the

detention order, that there was no application of mind by the

detaining authority regarding the potentiality of the detenu to engage

in prejudicial activities in future, that relevant documents were not

placed before the advisory board by the detaining authority and

further that there has been suppression of facts by the sponsoring

authority in not placing the order rejecting the bail application of W.P. (Crl. No. 206 of 2021

the detenu by the NIA Court and finally that the advisory Board

constituted in the case of the detenu was not competent to consider

the same. Apart from the above, he also argued that the detention

in this case is solely on the basis of his statements under Section 108

of the Customs Act and also that of one Jalal A.M. which has since

been retracted by him and in short there was hardly any material to

pass an order of detention under COFEPOSA Act.

9. The learned counsel for the Customs Sri. Manu argued that

copies of all the relevant documents relied on in the detention order

have been furnished and that no prejudice has been caused to the

detenu on that count. He also submitted that no relevant material

has been kept away by the sponsoring authority from the detaining

authority and that subjective satisfaction has been arrived at by

referring to the relevant documents and that there has been no

infraction of any right of the detenu much less any non-compliance of

the statutory requirements. He also submits that the detenu had

sufficient opportunity to point out the subsequent events, which the

detenu feel relevant before the advisory board and the alleged

omission of the detaining authority to bring the subsequent events

before the advisory board does not vitiate the detention. The learned

counsel appearing for the Central Government apart from adopting the W.P. (Crl. No. 206 of 2021

contention of the learned Standing Counsel for the Customs submitted

that no representation was received on 10-6-2021 or forwarded by

the jail authorities to them and the representation which they have

received later had been considered promptly and rejected. The

learned Government Pleader for the State Government also submitted

that no representation, allegedly sent by email on 10-6-2021, was

received by the Jail authorities.

10. The learned counsel for the Customs relying on the

judgment in Rajendrakumar Natvarlal Shah v. State of Gujarat and

Others (AIR 1988 SC 1255) argues that the non-placing of the order

rejecting appeal and does not amount to a suppression of relevant

material vitiating the detention order. What is essential is the

knowledge of the detaining authority that the proposed detenu is in

custody and the instant case there is ample awareness of the detaining

authority about the fact that the detenu is in custody.

11. The subjective satisfaction with regard to the necessity

of passing detention order cannot be held to be void because of the

subsequent infraction of the detenu's right or for the non-compliance

of the procedure. Even in those cases only the further detention

becomes illegal but the same cannot affect the validity of the order W.P. (Crl. No. 206 of 2021

of detention.

12. The learned counsel for the petitioner submits that there

has been non-supply of the documents relied on in the detention

order as the order-in-original of the previous proceedings against the

detenu for smuggling was not furnished to him. The detaining

authority relied on a letter dated 9-3-2021 received from the Special

Investigation and Intelligence Branch, Customs House, Cochin and

those facts are relied on in the detention order, but the fact that the

petitioner had filed an appeal against the penalty proceedings against

him and that the appeal is still pending are not placed by the

sponsoring authority with a view to suppress it from the detaining

authority.

13. The learned counsel also argues, by Ext. P5 dated

3-5-2021 the detenu had requested the 2nd respondent to issue

copies of the documents, which he believes the detaining authority

had relied upon to notice his previous involvement in the smuggling

activities. In that case the copy of the appeal which he filed against

the penalty imposed was also very relevant and he requested for

furnishing the same. Seven other documents were also requested to

be furnished. The learned counsel submits that in spite of a W.P. (Crl. No. 206 of 2021

request, the same has not been supplied to him. The non-supply of

these documents, according to him vitiate the detention order.

14. Relying on the judgment in Shalini Soni v. Union of India

& Others [(1980) 4 SCC 544 the learned counsel argues that sub-

section (3) of Section 3 of the CFEPOSA Act provides that the

grounds of detention should be communicated to the detenu and the

grounds of detention includes the documents, statements or other

materials relied upon in the grounds of detention, and if, any of them

are not supplied, it must be taken that the grounds furnished to the

detenu was not complete. According to him, in the instant case, the

relevant documents were not supplied to the detenu which affects his

Constitutional right to make a representation at the earliest. He also

relies on the decision in Ibrahim Ahmad Battiu v. State of Gujrat and

Others (AIR 1982 SC 1500) for the proposition that all the documents,

statements and other materials incorporated in the grounds by

reference and which influenced the detaining authority in arriving at

the requisite satisfaction must be furnished to the detenu and failure to

do so, would amount to a breach of the twin duties cast on the

detaining authority under Article 22 (5) of the Constitution of India.

This contention of the learned counsel for the petitioner is met by the

learned Standing Counsel for the Customs by submitting that the W.P. (Crl. No. 206 of 2021

requirement under law is only to supply such documents which are

relied on for the purpose of arriving at the subjective satisfaction and

not every document narrated in the detention order. The learned

Standing Counsel for the Customs also relied on the judgments in (1)

State of Tamil Nadu and Others v. Abdullah Khader Batcha and Others

[(2009) 1 SCC 333) and Kamarunnissa and Others v. Union of India and

Others [(1991) 1 SCC 128] for the proposition that the documents

which are merely records for the purpose of narration of facts cannot

be terms as documents which need to be supplied. It is trite that only

those documents on which the impugned detention order is primarily

based need be supplied and not any and every document. This

position is well settled and admits of no doubt.

15. The learned Standing Counsel also argues that the detenu

in his voluntary statement under Section 108 of the Customs Act

admitted his earlier involvement in a smuggling case from Cochin

Airport and that a penalty of 50 lakhs was imposed on him. All that

was furnished by the Special Intelligence and Investigation Branch,

Customs House, Cochin, was the details of case which the detenu

himself had admitted in his statement and the letter dated 9-3-2021 of

the SIIB referred above is a part of the relied upon documents and

served on the detenu. Order in original which is sought for by the W.P. (Crl. No. 206 of 2021

detenu was not in the possession of the sponsoring authority and the

detaining authority had only narrated about the detenu's antecedents

for arriving at the conclusion that he is a habitual offender. For so

doing the letter dated 9-3-2021 of the SIIB read with the statements

under Section 108 of the Customs Act given by the detenu were

sufficient. No further details about the case or the rival contentions

were taken into account by the detaining authority. As such there was

no reference or reliance to any other documents with respect to the

previous smuggling activities and therefore, there is no requirement to

supply the same. Equally, there was no requirement to supply the

same even when the detenu requested for it as per Ext. P5. On a

consideration of the contentions made in this regard, we hold that

the letter dated 9-3-2021 of the SIIB which is part of the relied upon

documents and the detenu's statements were relied upon by the

detaining authority for concluding about the antecedents of the

detenu. We find nothing wrong in the said approach and we repeal

the detenu's contention that relevant documents were not supplied

and that non-consideration of his request for the supply of the same

was in no way improper.

16. The learned counsel for the petitioner argued that Ext. P10

representation dated 9-6-2021, sent by e-mail by his lawyer on W.P. (Crl. No. 206 of 2021

10-6-2021 enclosing the representation on behalf of the detenu, to the

Jail Authorities as well as to the 2nd respondent and that Ext. P11 is

the proof for having sent Ext. P10 representation.

17. The learned counsel for the petitioner also relies on the

decision in Kamlesh Kumar Ishwardas Patel & Ors. v. Union of India &

Others [(1995) 4 SCC 51] to contend that once the detention order

is passed by an officer, the said Officer is obliged to consider the

representation sent by the detenu and failure on the part to do so in

denial of the rights conferred on the detenu to make a representation,

vitiates the detention order. The learned counsel for the 2nd

respondent as well as the learned counsel for the State Government

denies having received the said mail enclosing the representation.

18. There is nothing on record to show that such a

representation was received by the 2nd respondent or the Jail

Authorities except the bald assertion in the Writ Petition. It is also

apposite to note that the subsequent representation sent on 5-8-2021

has been duly considered by the 2nd respondent and rejected as per

Ext. P13 order dated 11th August 2021.

19. The petitioner also relies on Section 88A of the Evidence Act W.P. (Crl. No. 206 of 2021

to argue that there is a presumption that the electronic mail sent to

the addressee was received as is clear from Ext. P11. It has to be

straightaway noticed that Section 88A only presumes about the

contents of the messages and not the proof of its receipt and will have

no application in a case where the receipt of the mail itself is disputed.

Ext. P11 is no proof of the fact that the mail was received by the

addressees. We hold, going through the provisions of the section that

it refers only to the contents of the e-mail and it does not deal with

the question of receipt of the mail.

20. We do not think that the said judgment in Kamalesh Kumar

(supra) has any application to the facts of the present case as there

is nothing on record to suggest the 2nd respondent having received

the representation as alleged by the detenu. We do not find any

reason to disbelieve the assertions of the 2nd and the 4th

respondent in their counter affidavits denying the receipt of Ext. P10

representation of the detenu dated 9-6-2021. The contention in this

regard is liable to be rejected and we do so.

21. The learned counsel for the petitioner argues that there is

considerable delay in passing the detention order as according to

him the last prejudicial activity was on 5-7-2020 and even if the W.P. (Crl. No. 206 of 2021

contention of the respondent that the role of the detenu was brought

to light only on 27-09-2020 is accepted, still there is considerable

delay in passing the detention order, months later on 15-3-2020.

The learned counsel in support of his contention relied on the

judgment in Saeed Zakir Hussain Malik v. State of Maharashtra and

Others [(2012) 8 SCC 233] which held as follows:-

5....Indeed mere delay in passing a detention order is not conclusive., but we have to see the type of grounds given and consider whether such grounds could really weigh with an officer some 7 months later in coming to the conclusion that it was necessary to detain the petitioner to prevent him from acting in a manner prejudicial to the maintenance of essential supplies of foodgrains. It is not explained why there was such a long delay in passing the order. The District Magistrate appears almost to have passed an order of conviction and sentence for offences committed about 7 months earlier. The authorities concerned must have due regard to the object with which the order is passed, and if the object was to prevent disruption of supplies of food grains one should think that prompt action in such matters should be taken as soon as incidents like those which are referred to in the grounds have taken place. In our opinion, the order of detention is invalid.

In T.V. Abdul Rahman v. State of Kerala and Other (1989) 4 SCC 741, in similar circumstance,

10...The question whether the prejudicial activities of a person necessitating to pass an order of detention is proximate to the time when the order is made or the live-link between the prejudicial activities and the purpose of detention is snapped depends on the facts and circumstances of each case.No hard and fast reule can be precisely formulated that would be applicable under all circumstances and no exhaustive guidelines can be laid down in that behalf. It follows that the test of proximity is not a rigid or mechanical test by merely counting number of months between the offending W.P. (Crl. No. 206 of 2021

acts and the order of detention. However, when there s undue and long delay between the prejudicial activities and the passing of detention order, the court has to scrutinise whether the detaining authority has satisfactorily examined such a delay and afforded a tenable and reasonable explanation as to why such a delay has occasioned, when called upon to answer and further the court has to investigate whether the causal connection has been broken in the circumstances of each case".

22. The learned counsel for the Customs pointed out that the

decision to detain in the instant case was taken after verifying all the

three statements of the detenu made under Section 108 of the

Customs Act on 15-12-2020, 22-1-2021 and 27-01-2021 and the

investigation was progressing steadily and the last statement as

mentioned above was on 27-1-2021 and after due consideration of all

the materials and inputs, the detention order was passed on 15-3-

2021. The investigation of this nature was bound to take some time,

given the fact that voluminous documents are involved. We notice

that the delay has to be reckoned with reference to the reason put

forth and it is such explanation for the delay that matters much

more than the length of the delay itself. It is only the unexplained

delay that can be held as vitiating a detention order. The judgment of

the Hon'ble Supreme Court reported in Rajendrakumar Natvarlal Shah

v. State of Gujrat and Ors. (AIR 1988 SC 1255) succinctly held as

follows:

W.P. (Crl. No. 206 of 2021

"In the enforcement of a law relating to preventive detention like the conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 there is apt to be some delay between the prejudicial activity complained of under S. 3 (1) of the Act and the making of an order of detention. When a person is detected in the act of smuggling or foreign exchange racketeering, the Directorate of Enforcement has to make a thorough investigation into all the facts with a view to determine the identity of the persons engaged in these operations which have a deleterious effect on the national economy. Quite often these activities are carried on by persons forming a syndicate or having a wide network and therefore this includes recording of statements of persons involved, examination of their books of accounts and other related documents. Effective administration and realisation of the purpose of the Act is often rendered difficult by reason of the clandestine manner in which the persons engaged in such operations carry on their activities and the consequent difficulties in securing sufficient evidence to comply with the rigid standards, insisted upon by the Courts. Sometimes such investigation has to be carried on for months together due to the magnitude of the operations. Apart from taking various other measures i.e. launching of prosecution of the persons involved for contravention of the various provisions of the Acts in question and initiation of the adjudication proceedings, the Directorate has also to consider whether there was necessity in the public interest to direct the detention of such person or persons under S. 3(1)of the Act with a view to preventing them from acting in any manner prejudicial to the conservation and augmentation of foreign exchange or with a view to preventing them from engaging in smuggling of goods etc. The proposal has to be cleared at the highest quarter and is then placed before a Screening Committee. For ought we know, the Screening Committee may meet once or twice a month. If the Screening Committee approves of the proposal, it would place the same before the detaining authority. Being conscious that the requirements of Art. 22 (5) would not be satisfied unless the 'basic facts and materials' which weighed with him in reaching his subjective satisfaction, are W.P. (Crl. No. 206 of 2021

communicated to the detenu and the likelihood that the Court would examine the grounds specified in the order of detention to see whether they were relevant to the circumstances under which the impugned order was passed, the detaining authority would necessarily insist upon sufficiency of the grounds which would justify the taking of the drastic measure of preventively detaining the person.

Viewed from this perspective, we wish to emphasise and make it clear for the guidance of the different High Courts that a distinction must be drawn between the delay in making of an order of detention under a law relating to preventive detention like the Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, 1974 and the delay in complying with the procedural safeguards of Art. 22 (5) of the Constitution. It has been laid down by this Court in a series of decisions that the rule as to unexplained delay in taking action is not inflexible. Quite obviously, in cases of mere delay in making of an order of detention under a law like the Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, 1974 enacted for the purpose of dealing effectively with persons engaged in smuggling and foreign exchange racketeering who, owing to their large resources and influence have been posing a serious threat to the economy and thereby to the security of the nation, the Courts should not merely on account of delay in making of an order of detention assume that such delay, if not satisfactorily explained, must necessarily give rise to an inference that there was no sufficient material for the subjective satisfaction of the detaining authority or that such subjective satisfaction was not genuinely reached. Taking of such a view would not be warranted unless the Court finds that the grounds are 'stale' or illusory or that there is no real nexus between the grounds and the impugned order of detention.

23. A reading of the above decision judged in the light of the

facts obtaining in the instant case would make us hold that even on W.P. (Crl. No. 206 of 2021

27-1-2021 investigation was progressing and it is after that steps

were taken after perusing the documents and the relevant inputs

which culminated in the order of detention on 15-3-2021. We,

therefore, reject the contention that there is undue delay in passing

the order for detention.

24. The learned counsel for the petitioner strenuously

argued that the petitioner's application for bail in the N.I.A.case was

rejected on 22-3-2021, and the said fact, which according to him is

very crucial, was never brought to the notice of the detaining

authority by the sponsoring authority which resulted in the detaining

authority not placing the same before the advisory board. The

rejection of bail under the provisions of the UAPA Act, according to the

learned counsel, being a very crucial document in deciding whether

to detain or not, the non-production of the said document is fatal.

25. The learned counsel for the petitioner also argues

relying on the judgment in Ayya @ Ayub v. State of U.P. and another

[(1989) 1 SCC 374] for the proposition that the non-placing of the

order rejecting bail, a vital piece of evidence, was fatal and the

detention order has to be set aside on that ground alone. W.P. (Crl. No. 206 of 2021

26. The learned counsel for the petitioner relies on a

judgment of the Madras High Court Thaarmar v. the State of Tamil

Nadu and Others (Habeas Corpus Petition (MD) No. 635 of 2011) to

content that the documents which came into being after the passing of

the detention order, if relevant the detaining authority is under duty to

put those documents before the Advisory Board. We are afraid that

we cannot accept the said contention or the view laid down in the

above judgment of the Madras High Court in the light of the judgment

of the Hon'ble Supreme Court in the decision reported in Raverdy

Marc Germain Jules v. State of Maharashtra and Ors. [1982 (3) SCC

135].

"9. The second limb of the submission was that in any event that retraction letter ought to have been forwarded to the Advisory Board. In para 12 of the petition it is alleged that the letter retracting the confessional statement was not considered by the Advisory Board. One Shri C.V.

Karnik, Assistant Secretary, Government of Maharashtra Home Department (Special) in his counter-affidavit para 6 has stated that all the documents which were before the detaining authority were also placed before the Advisory Board. It is further averred that the Advisory Board examines the question of subjective satisfaction of the detaining authority on the material the detaining authority had before it and as the retraction was no before the detaining authority it is immaterial that the Advisory Board did not take the same into consideration. This stand may not be very satisfactory and may necessitate our deeper examination but for the fact that the detenu himself was before the W.P. (Crl. No. 206 of 2021

Advisory Board. He is a highly qualified, highly placed person and it is unthinkable that he would not have informed the Advisory Board that he had retracted his confessional statement.

Therefore, nothing turns on the letter retracting the confessional statement being not placed before the Advisory Board and the contention must be negatived".

27. The learned counsel for the customs also countered the said

argument by stating that the petitioner was a literate person and had

engaged the services of a lawyer who appeared before the advisory

board and this fact could have been brought to the notice of the

advisory board by either the detenu or by his lawyer, and thus no

fault can be attributed to the detaining authority in this regard and

further submits that no prejudice has been caused to the detenu. In

the above case, the detenu cannot be said to have been prejudiced or

put at a disadvantageous position by the detaining authority in not

producing the order of rejection of the bail application as the detenu as

well as his lawyer appeared before the advisory board and got every

opportunity to place the same and going by the principles in the

decisions mentioned above, the argument of the detenu in this regard

cannot be accepted, and thus, we are clearly disinclined to accept the

argument on this aspect.

28. The learned counsel for the petitioner argues that the W.P. (Crl. No. 206 of 2021

detenu was in judicial custody and that too under the provisions of the

UAPA Act and the chance of him being enlarged on bail was very bleak

and this aspect has not been considered by the detaining authority at

all. The Hon'ble Supreme Court in the decision reported in Abdul

Sathar Ibrahim Manik and Ors. v. Union of India (UOI) and Ors. [(1992)

1 SCC 1] has clearly held, referring to most of the earlier decisions

as follows:-

"Having regard to the various above-cited decisions on the points often raised we find it appropriate to set down our conclusions as under:

(1) A detention order can validly be passed even in the case of a person who is already in custody. In such a case, it must appear from the grounds that the authority was aware that the detenu was already in custody.

(2) When such awareness is there then it should further appear from the grounds that there was enough material necessitating the detention of the person in custody. This aspect depends upon various considerations and facts and circumstances of each case. If there is a possibility of his being released and on being so released he is likely to indulge in prejudicial activity then that would be one such compelling necessity to pass the detention order. The order cannot be quashed on the ground that the proper course for the authority was to oppose the bail and that if bail is granted notwithstanding such opposition the same can be questioned before a higher Court.

(3) If the detenu has moved for bail then the application and the order thereon refusing bail even if not placed before the detaining authority it does not amount to suppression of relevant material. The question of non-application of mind and satisfaction being impaired does not arise as long as the detaining authority was aware of the fact that the detenu was in actual custody.

W.P. (Crl. No. 206 of 2021

(4) Accordingly the non-supply of the copies of bail application or the order refusing bail to the detenu cannot affect the detenu's right of being afforded a reasonable opportunity guaranteed under Article 22 (5) when it is clear that the authority has not relied or referred to the same".

29. The detaining authority in the instant case was very much

alive to the fact that the detenu is in judicial custody and also that he

had moved an application for bail in the NIA case and the same was

pending. Thus, it cannot be said that the conclusion arrived at by

the detaining authority about the possibility of release on bail is bad

in law. The learned counsel for the petitioner also relied on the

judgment of this Court in Kumari Prabha Suresh v. Union of India and

Others [WP (Crl.) No. 152 of 2021] for the proposition that

non-placement of the order rejecting the bail was fatal. In that case,

we have held that the non-placement of the order rejecting the bail

application by the NIA court, two months prior to the passing of the

detention order was fatal. In the instant case, the application for bail

was pending when the detention order was passed and therefore, the

decision in Kumari Prabha Suresh (supra) is clearly distinguishable

and has no application to the facts of this case. We, accordingly,

reject the contention on the non-placement of the bail application by

the sponsoring authority before the detaining authority. W.P. (Crl. No. 206 of 2021

30. The learned counsel for the petitioner also argued that the

advisory Board in the instant case was not competent to consider the

case of the detenu or to pass orders pass orders in terms of Section 8

(f) of the COFEPOSA as they were not authorised by the notification

as the advisory Board under the Hon'ble High Court of Kerala is not

empowered under clause (a) of Section 8 of the COFEPOSA Act to

consider the case of detention issued by the Union of India as the

State Advisory Board was not notified by the appropriate government

in the instant case. It is to be noticed that the said contention is

squarely covered against the detenu by the decision of this Court

reported in Raishad v. Union of India 2021 (3) KLT 799.

"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 W.P. (Crl. No. 206 of 2021

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"

The above contention on the competency of the advisory

Board is only to be rejected, and we do so.

31. The learned counsel for the petitioner also argues that

the detenu, even according to the allegations against him, is only a

financier as since he was extradited from Dubai and his passport was

also cancelled, there is no chance of him indulging in further

smuggling activity and that the live and the proximate link stands

snapped and therefore, there is no requirement of detaining him.

Responding to this argument, the learned counsel for the customs

submitted that his role as a financier as well as his antecedents points W.P. (Crl. No. 206 of 2021

out to his propensity to continue the smuggling activities in further as

well and the only effective way to prevent the prejudicial activities in

future was by detaining him. We find considerable force in this

argument and we have no doubt in our mind that the subjective

satisfaction on this aspect was arrived at by taking into account all

the relevant inputs and it was a cumulative effect from those

materials that cannot be faulted at all. We repel the contentions of the

detenu in this regard as well.

32. The learned counsel for the petitioner citing the

judgment in Mrs. Tsering Dolkar v. The Administrator, Union Territory

of Delhi and Others (AIR 1987 SC 1192) argues that in the backdrop

of the allegations in the Writ Petition, the detaining authority himself

should have filed the counter affidavit dealing with the averments

raised. This issue is covered against the detenu by our judgment in

Kumari Prabha Suresh (supra) as there is no such requirement for the

detaining authority to file a counter affidavit in every case in the

absence of any allegation of malafides or bias alleged against the

person who passed the detention order.

On a keen consideration of the issues raised in the above case,

we hold, without any doubt that the impugned detention order is W.P. (Crl. No. 206 of 2021

legal and the same has been passed by the 2 nd respondent with due

application of mind and after arriving at the requisite subjective

satisfaction based on the sufficient materials, facts and circumstances

of the case.

This Writ Petition thus, fails and is dismissed.

A.K. JAYASANKARAN NAMBIAR, Judge

MOHAMMED NIAS C.P , Judge

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