Kerala High Court
Jamseena vs Union Of India on 23 September, 2021
W.P. (Crl) Nos. 70 & 118 of 2021
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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.
THURSDAY, THE 23RD DAY OF SEPTEMBER 2021 / 1ST ASWINA, 1943
WP(CRL.) NO. 118 OF 2021
PETITIONER:
JAMSEENA, AGED 34 YEARS
W/O. MOHAMMED SHAFI P.,
CRESCENT, CHERUKAVU,
AYIKKARAPADI,
MALAPPURAM DISTRICT, PIN-673637.
BY ADV NIREESH MATHEW
RESPONDENTS:
1 UNION OF INDIA
REPRESENTED BY THE SECRETARY,
MINISTRY OF FINANCE,
DEPARTMENT OF REVENUE,
CENTRAL ECONOMIC INTELLIGENCE BUREAU,
6TH FLOOR, B-WING
JANPATH BHAVAN,
JANPATH, NEW DELHI, PIN-110001.
2 JOINT SECRETARY (COFEPOSA),
GOVERNMENT OF INDIA, MINISTRY OF FINANCE,
DEPARTMENT OF REVENUE,
CENTRAL ECONOMIC INTELLIGENCE BUREAU,
6TH FLOOR, B-WING,
JANPATH BHAVAN,
JANPATH, NEW DELHI, PIN-110001.
3 THE SUPERINTENDENT,
CENTRAL PRISON, POOJAPURA,
THIRUVANANTHAPURAM, PIN-695012.
W.P. (Crl) Nos. 70 & 118 of 2021
2
4 THE COMMISSIONER OF CUSTOMS,
CUSTOMS HOUSE, COCHIN, PIN-682009.
SHRI.P.VIJAYAKUMAR, ASG OF INDIA
ADDL.DIRECTOR GENERAL OF PROSECUTION
SHRI.S.MANU,SR. SC
SRI.SUVIN R.MENON, CGC.
SRI.JAISHANKAR V.NAIR
SHRI.P.NARAYANAN, ADDL.PUBLIC PROSECUTOR
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION
ON 07.09.2021, ALONG WITH WP(Crl.)No.70/2021, THE COURT ON
23.09.2021 DELIVERED THE FOLLOWING:
W.P. (Crl) Nos. 70 & 118 of 2021
3
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.
THURSDAY, THE 23RD DAY OF SEPTEMBER 2021 / 1ST ASWINA, 1943
WP(CRL.) NO. 70 OF 2021
PETITIONER:
SAJMI, AGED 29 YEARS
W/O JALAL A.M, ARYANKALAYIL(H),
ANIKKADU, ADOOPARAMBU,
AVOLI PANCHAYATH,
MUVATTUPUZHA P.O.ERNAKULAM-686 661.
BY ADVS.
S.SREEKUMAR (SR.)
SRI.P.MARTIN JOSE
SRI.MANU TOM
SRI.M.A.MOHAMMED SIRAJ
SRI.P.PRIJITH
SRI.THOMAS P.KURUVILLA
SRI.R.GITHESH
SRI.AJAY BEN JOSE
SRI.MANJUNATH MENON
SRI.SACHIN JACOB AMBAT
SHRI.HARIKRISHNAN S.
RESPONDENTS:
1 UNION OF INDIA
REPRESENTED BY ITS SECRETARY,
MINISTRY OF FINANCE, DEPARTMENT OF REVENUE,
CENTRAL ECONOMIC INTELLIGENCE BUREAU,
6TH FLOOR, B-WING JANPATH BHAVAN,
JANPATH, NEW DELHI-110 001.
2 JOINT SECRETARY (COFEPOSA),
GOVT OF INDIA, MINISTRY OF FINANCE,
DEPARTMENT OF REVENUE,
CENTRAL ECONOMIC INTELLIGENCE BUREAU, 6TH FLOOR,
W.P. (Crl) Nos. 70 & 118 of 2021
4
B-WING JANPATH BHAVAN,
JANPATH, NEW DELHI-110 001.
3 THE SUPERINTENDENT,
CENTRAL PRISON, POOJAPURA,
THIRUVANANTHAPURAM-695 012.
4 THE COMMISSIONER OF CUSTOMS,
CUSTOMS HOUSE, COCHIN-682 009.
BY ADVS.
SHRI.P.VIJAYAKUMAR, ASG OF INDIA
ADDL.DIRECTOR GENERAL OF PROSECUTION
SHRI.S.MANU,SR. SC
SRI.SUVIN R.MENON, CGC.
SRI.JAISHANKAR V.NAIR
SHRI.P.NARAYANAN, ADDL.PUBLIC PROSECUTOR
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON
07.09.2021, ALONG WITH WP(Crl.)No.118/2021, THE COURT ON 23.09.2021
DELIVERED THE FOLLOWING:
W.P. (Crl) Nos. 70 & 118 of 2021
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"C.R."
A.K.Jayasankaran Nambiar
&
Mohammed Nias C.P. JJ
..............................................................
W.P. (Crl) Nos. 70 & 118 of 2021
................................................................
Dated this the 23rd day of September, 2021
JUDGMENT
Mohammed Nias C.P. J
In exercise of power under Section 3(1)(i) of the Conservation of
Foreign Exchange & Prevention of Smuggling Activities Act, 1974
('COFEPOSA' for short), by orders dated 19-11-2020, the Joint Secretary,
Ministry of Finance, directed that one Jalal A.M. and Mohammed Shafi.P.
be detained with a view to prevent them from smuggling.
2. Habeas Corpus Petition, WP(Crl)No.70 of 2021 has been filed
by Sajmi, W/o. Jalal A.M. (hereinafter referred to as "detenue") who is
under detention from 25-11-2020 under the order aforesaid. The grounds
of the detention were supplied to the detenue on 28-11-2020
3. Habeaus Corpus Petition, WP(Crl.)No.118 of 2021 is filed by
Jamseena, W/o. Mohammed Shafi.P. (hereinafter referred to as
W.P. (Crl) Nos. 70 & 118 of 2021
"detenue") who is under detention from 26-11-2020 under the order
aforesaid. The grounds of the detention were supplied to the detenue on
28-11-2020.
4. Since in both cases, the detention orders arise from a similar
set of allegations, they were heard together.
5. On the basis of the information received by the Customs
department that gold in huge quantities was being smuggled in India
through diplomatic luggage, one consignment of cargo with diplomatic
immunity was intercepted at the Thiruvananthapuram Air Cargo
Complex on 5-07-2020, which led to the recovery of gold weighing
30.245 kg valued at Rs. 14.82 crores concealed inside various electronic
and other gadgets. Subsequent investigations 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 the diplomatic
cargo taking advantage of the diplomatic immunity that existed.
6. The statements recorded as aforesaid also revealed that the
persons involved in the racket had regularly smuggling gold during the
period from 15-7-2017 to 27-6-2020 and had altogether smuggled 136
W.P. (Crl) Nos. 70 & 118 of 2021
kilograms of gold in 21 consignments during the said period. On the
evaluation of the entire materials, the 2nd respondent passed the
detention orders. The detenue in WP(Crl)No.70 of 2021 was arrested by
the Customs on 14-7-2020 in which he got statutory bail on 24-09-2020.
But he continued to be in the custody on the allegation of having
committed offences under the Unlawful Activities Prevention Act, 1967.
7. As submitted earlier, the detention orders were dated 19-11-
2020 and the same was executed on 24-11-2020 with respect to the
detenue in WP(Crl)No.70 of 2021 and he was sent to Central Jail,
Poojapura, Thiruvananthapuram. On 28-11-2020, the grounds of
detention including the relied upon documents were served on him and
he preferred representations to the detaining authority, the Government
of India as well as to the Advisory Board which are marked in the Writ
Petition (Crl.) No.70 of 2021 as Exts. P2, P3 and P4. Ext. P2
representation was received on 30-12-2020 and Ext.P3 representation
was received on 29-12-2020. Ext.P3 representation was disposed of on
6-1-2021 while Ext. P2 was disposed of on 12-2-2021.
8. As regards the detenue in WP(Crl)No.118 of 2021, the
detention order was dated, 19-11-2020 and the same was executed on 24-
11-2020 and the detenue was sent to Central Jail, Poojapura,
W.P. (Crl) Nos. 70 & 118 of 2021
Thiruvananthapuram. On 28-11-2020, the grounds of detention including
the relied upon documents were served on the detenue. On being served
with the grounds of detention, the detenue preferred representations to
the detaining authority, Government of India as well as to the Advisory
Board which is marked in the Writ Petition as Exts. P2. Ext. P2
representation was received on 30-12-2020, which was disposed of on 12-
2-2021.
9. The Advisory Board, constituted in terms of Section 8 of the
COFEPOSA Act, opined that there was sufficient reason of the continued
detention of the detenues and accordingly, the opinion of the Advisory
Board confirming the detention order was passed on 11-2-2021.
10. Under these circumstances, the petitioners seek a Writ of
Habeas Corpus for securing their release with a further prayer to quash
the detention order dated 19-11-2020.
11. Heard learned Senior Advocate Sri. S. Sreekumar for the
petitioner in WP(Crl)No.70 of 2021, learned counsel Sri. Nireesh Mathew
for the petitioner in WP(Crl.)No.118 of 2021, Sri. Manu .S., the learned
Standing Counsel appearing for the Customs Department, Sri. Jayasankar
V. Nair and Sri. Suvin R. Menon, the learned counsel for the government
W.P. (Crl) Nos. 70 & 118 of 2021
of India and the learned Government Pleader for the State of Kerala.
12. Sri. S. Sreekumar, learned Senior Counsel made the following
submissions (1) That the only material on the basis which the detention
order was passed are the statements recorded under Section 108 of the
Customs Act on 14-7-2020 and 29-7-2020 and that they cannot be relied
on under the COFEPOSA Act but only for proceeding under the Customs
Act. (2) That even the statements allegedly made under Section 108 have
been falsely misstated in the detention order vitiating the subjective
satisfaction arrived at by the detaining authority. (3) That the material for
arriving at the subjective satisfaction being completely illegal and
inadmissible, the fact that there has not been any retraction of the
confession statements made under Section 108 cannot in any manner be
relevant in as much as the statements under Sec. 108 of the Customs Act
cannot be used for passing an order of detention under the COFEPOSA
Act. He would also argue that the provisions of the Evidence Act are not
applicable to COFEPOSA proceedings and thus the statements above
referred cannot be relied upon at all. In that view of the matter, it is his
further submission that the detention order is completely violative of
Articles 21 and 22 of the Constitution and thus prayed for allowing the
Habeaus Corpus Petition. (4) The learned Sr. counsel also submitted that
the non-supply of CCTV footage, which is relied upon by the detaining
W.P. (Crl) Nos. 70 & 118 of 2021
authority is fatal and cuts at the root of the detention order. (5) He also
submits that gold was never seized from the detenue and as such, there is
no direct involvement and therefore, detention order made under Section
3(1)(i) cannot stand the test of law. (6) The learned counsel also submits
that the detenue was in jail when the detention order was passed and the
chance of getting bail for the offences alleged against him was very bleak
and remote and this aspect is not seen considered by the detaining
authority in the correct perspective. Learned counsel cites the judgment
in Edwin Andrew Minihan v. Union of India [2016 (3) KHC 88] and
Beevikunju K.A. and Another v. Union of India and Others (2020
KHC 167) in support of his contentions. Thus, learned senior counsel
contended that for the above reason, the detention order is invalid in law
being violative of Articles 21 and 22 of the Constitution of India and has
to be quashed.
13. Learned counsel for the petitioner in WP(CRl)No.118 of
2021, apart from adopting the contentions raised on behalf of the
petitioner in WP(Crl)No.70 of 2021 raised the following contentions: The
first contention was that even if the allegations set out in the detention
order are correct, it is only a case where the detenue had only invested
amounts which cannot attract any of the provisions under Section 3(1) of
the COFEPOSA Act. He also submits that apart from the statements made
W.P. (Crl) Nos. 70 & 118 of 2021
under Section 108 of the Customs Act, there has been no other material
which the detaining authority considered to hold that the detenue is to be
detained to prevent any further act of smuggling. Learned counsel also
argues that in the representation given to the respondents, he had
retracted the statements made under section 108 of the Customs Act. It
is his further contentions that there has been a total non-application of
mind by the Advisory Board while opining that there is a need for
continued detention. He stresses his argument on section 8(c) of the
COFEPOSA Act to say that the Advisory Board was under a duty, even if
not asked for by the detenue, to call for the entire details and documents
concerning the detention order and that not having been done, the writ
petition must be allowed. He also contends that likelihood of getting bail
was very remote in the case where the offences of UAPA were alleged
and therefore, there was no need to pass an order of detentions and he
was already in jail.
14. Learned counsel for the respondents opposing the
contentions of the petitioner argued that there were several instances
where the detenues had in the past indulged in smuggling and the same
is clearly admitted by them in the statements made before the Customs
authority. Therefore, unless the detenues were detained by orders of
preventive detention, they would further indulge in the act of smuggling.
W.P. (Crl) Nos. 70 & 118 of 2021
15. Learned counsel for the Customs Sri. Manu countering the
arguments made on behalf of the detenues submitted that the reliance on
the statements taken under Section 108, which stands on a high pedestal,
is fully justified and that apart from the said statements, there was chain
of occurrences which led to the detaining authority arriving at the
subjection satisfaction requisite for passing the detention order. Reliance
placed by the detaining authority are on materials which are completely
lawful and as such prayed for rejecting the contentions of the detenue on
that count. He further submits that the very nature of the proceedings
under the COFEPOSA Act are administrative in nature and not quasi-
judicial and that the application of the provisions of the Evidence Act are
excluded. To fortify his submissions, the learned counsel cites following
judgments in Kudhiram Das v. State of West Bengal and Others
(AIR 1975 SC 550), Narendra Purushotam Umrao v. B.B.Gujral and
Others (AIR 1979 SC 420) AIR 1968 Madras 218, Anthony alias Sandy
John Nigero v. S. Ramamurthi Commissioner of Police for Greater
Bombay and others 1993 Crl.L.J. 3259] as well as the judgment of
this Hon'ble Court reported in 2016 (2) KLJ 186.
16. He further submits that that the fact that the detenues were
in jail was considered by the detaining authority. The contention of the
W.P. (Crl) Nos. 70 & 118 of 2021
petitioner that there is no chance to be released on bail cannot be
countenanced as some of the accused in the very same case were granted
bail. Lastly, the learned counsel submitted that on a similar matter
arising from the same set of facts, the Habeas Corpus filed on behalf of a
detenue, raising almost similar contentions, was dismissed by this Court
vide judgment reported in Raishad v. Union of India [2021 (3) KLT
799] and thus prayed for dismissal of the Writ Petition.
17. Having considered the rival contention, we are of the firm
view that the contentions raised on behalf of the detenues cannot be
accepted for the reasons to be stated hereunder.
18. In respect to the first contention of the learned counsel for
the petitioners, relying on the judgment reported in Edwin Andrew
Minihan v. Union of India and Ors. [2016 (2) KLJ 686], that the
statements under Section 108 of the Customs Act cannot be used for
passing detention under the provisions of the COFEPOSA Act, it has to
be noticed that the said decision will not help the petitioners in any
manner as it held that the proceedings under the COFEPOSA Act are not
proceeding before a court and therefore, section 65 (b) (4) of the Indian
Evidence Act will not apply and on that basis, it was held that neither
Section 65 B of the Evidence Act nor sections 138 C of the Customs Act
W.P. (Crl) Nos. 70 & 118 of 2021
would be applicable to the proceedings of a detaining authority for
passing an order of detention. We find nothing in support of the
petitioner in the said decision as according to us the ratio in the said case
holds otherwise.
19. We also notice that the Hon'ble Supreme Court in the
decision in Khudiram Das v. The State of West Bengal [AIR 1975 SC
550) has clearly held that the power of detention is not a quasi-judicial
power. It is further held that while passing the detention order, on the
basis of material which the detaining authority considers relevant having
regard to the past conduct judged in the light of the surrounding
circumstances and other relevant materials and arrives at the conclusion
that the detenue is likely to act in a prejudicial manner as contemplated
in any of sub-clauses (i), (ii) and (iii) of Clause (1) of Sub-section (1) of
Section 3, and if so, whether it is necessary to detain him with a view to
preventing him from so acting. These are not matters susceptible of
objective determination and they could not be intended to be judged by
objective standards. These are essentially matters which have to be
administratively determined for the purpose of taking administrative
action.
20. The Hon'ble High Court of Madras in the decision reported
W.P. (Crl) Nos. 70 & 118 of 2021
in Suman and Ors. v. State of Tamil Nadu and Ors. ( AIR 1986
Madras 318) has also held that the proceedings under the COFEPOSA Act
are neither judicial or quasi-judicial character, nor are they of a criminal
or a quasi-criminal character. The jurisdiction to detain by way of
preventive detention is a jurisdiction of suspicion and not based on proof
of any offence or act beyond all reasonable doubt. There cannot be a
parallel between prosecution in a Court of law and a detention order
under the COFEPOSA Act. One is a punitive action whereas the other is
a preventive act. In one case a person is punished on proof of his guilt on
a standard of proof beyond reasonable doubt whereas in preventive
detention a man is prevented from doing something which is necessary
for reasons mentioned in Section 3 of the COFEPOSA Act to prevent.
Applying the principles of the Evidence Act is foreign to the jurisdiction
exercised under the COFEPOSA Act to make an order of preventive
detention. In short, none of the normal rules of criminal jurisprudence or
the provisions of the Evidence Act are attracted while invoking the
provisions of the COFEPOSA Act. No embargo can be placed on the
material which a detaining authority may consider and no artificial
restriction can be placed on the so-called analogy of the sections of the
Evidence Act to restrict the material which the administrative authority
exercising statutory powers of detention may consider. No constitutional
or statutory bar disables the detaining authority from considering the fact
W.P. (Crl) Nos. 70 & 118 of 2021
that the proposed detenue has made a confession under Section 108 of
the Customs Act. Even if the detenue had retracted the confession
statements, the same does not take away the power of the detaining
authority to still pass an order of detention as the only requirement then
would be to consider both the confession statements along with the
retraction. What weight is to be attached to the confession statements in
the light of the other materials is a matter exclusively for the detaining
authority to determine. Thus, in short, it is clear that the bar which is
placed with regard to the consideration of evidence against an accused in
the course of the criminal trial is clearly inapplicable while considering
the materials for the purpose of detention. The provisions of the
Evidence Act do not regulate the consideration of a material that is put
before the detaining authority for consideration in order to decide
whether it would pass an order of detention. We have no doubt that the
detention orders can be passed upon the confession statements recorded
under Section 108 of the Customs Act from the detenues, wherein the
detenues admit their involvement in the previous incidents of smuggling.
In fact, in the above cases, the detention is not based solely on the
confession statements. The facts and inferences from facts are drawn
from the search and seizure and host of other facts mentioned in the
grounds. Most of the facts are according to the detaining authority
corroborated by the statements of those with whom the petitioners had
W.P. (Crl) Nos. 70 & 118 of 2021
dealings. We also note that the power under Section 108 of the Customs
Act is intended to be exercised by a gazetted officer of the customs
department. Section 108(3) enjoins on the person summoned by the
officer to serve upon any subject to which he is summoned. He is not
excused from speaking the truth on the premise that such statements
could be used against him. This requirement is included in the previous
or the purpose of including the officer to elicit from the person
interrogated. In the instance case, there has been no retraction of the
confession statements made under section 108 of the Customs act. In
such circumstances, we find nothing wrong in the detaining authority
relying on the statements made under Section 108 of the Customs Act as
they furnish sufficient and adequate materials on the basis of which the
detaining authority can form its opinion.
21. We are also in respectful agreement with the judgment of
the Hon'ble High Court of Bombay reported in Anthony v. Rammurthi
and Ors. (1993 CriLJ 3259) that detention is based not on fact proved as
per Evidence Act or Cr.P.C, but on the subjective satisfaction of the
detaining authority.
22. There is no merit in the contention of the learned senior
counsel that there has been factual misstatements made about the
W.P. (Crl) Nos. 70 & 118 of 2021
various voluntary statements given by the detenue under section 108 of
the Customs Act, we hold that the same is not acceptable. The copies of
the statements dated 14-7-2020 and 29-7-2020 of the detenue were made
available by the learned counsel for the Customs. Having gone through
the statements we do not think that there is any factual misstatement
recorded in the detention order about the confession statement under
Section 108 of the Customs Act. Thus, we repel the said contention.
23. With respect to the contention that the CCTV footage
mentioned in the detention order has not been supplied, we notice that
though there is a narration about the CCTV footage in the detention order
since they have not been relied upon for arriving at the subjective
satisfaction, the footage need not be furnished to the detenue. In other
words, the CCTV footage has no bearing on the decision to detain as it is
not primarily based on the said footage. The whole purpose of supplying
the copies of the documents relied on is to ensure that the right of the
detenue to make a representation against the detention order is not
hampered in any manner by the non-supply. In the instant case, no
findings are arrived at on the basis of the CCTV footage, and thus, we
hold that a non-supply of the same cannot be of any avail to the
petitioner. We also hold that the judgment cited by the learned counsel
for the petitioner in Beevikunju K.A. and Another v. Union of India
W.P. (Crl) Nos. 70 & 118 of 2021
and Others (2020 KHC 167) for the proposition that non-supply of CCTV
footage is fatal is also clearly distinguishable as in that case it was held
that CCTV footage was indeed relied on by the detaining authority to
arrive at the subjective satisfaction. No conclusion has been arrived at
by the detaining authority on the basis of CCTV footage and thus we
reject the said contention on the non-supply of the same.
24. We are also guided by the principles laid down by the
Hon'ble Supreme Court in Narendra Purushotam Umroa and Ors v.
B.B.Gujral and Ors. [ (1979) 2SCC 639] to hold against the contention
on behalf of the detenue that there was no seizure of gold from him and
therefore it cannot be said that he has smuggled gold and at best the
ground could have been under Clause (iv) sub-section (1) of Section 3 of
the COFEPOSA Act and not under Section 3(1)(i) of the said Act.
25. The term 'smuggling' as defined under Section 2(e) of
the Act has the same meaning as in Section 2(39) of the Customs Act,
1962, which, when read with Section 111 of that Act, is wide enough to
include and make liable not only the actual smuggler but also persons
abetting the smuggling of contraband goods as well as all persons dealing
with such goods, etc. We do not agree with the contention on behalf of
the detenues in this regard and the same is rejected.
W.P. (Crl) Nos. 70 & 118 of 2021
26. It is worthy to add here that there is some element of
suspicion, anticipation and speculation inherent in exercise of power
while ordering detention .
27. With regard to the contention that there is no
likelihood that the detenues would be enlarged on bail also cannot be
accepted as several accused in the connected cases had been granted
bail. All that the detaining authority was obliged while passing the order
of detention is to be aware of the fact that detenue is in jail and about the
chance of detenue being enlarged on bail, that having been done no fault
can be found. We therefore, reject this contention.
28. With respect to the contention on behalf of the detenue in
WP(Crl.)No.118 of 2021 based on Section 8(c) of the COFEPOSA Act that
the Advisory Board was enjoined to collect all materials and to conduct a
detailed enquiry, even if the detenue did not ask for the same. We cannot
accept the said contention and at the outset it is to be stated that in the
proceedings before the Advisory Board, the question for consideration is
not whether the detenue is guilty of any charge but whether there is any
sufficient cause for the detention of the person concerned. The
detentions, it must be remembered, are based not on facts proved either
W.P. (Crl) Nos. 70 & 118 of 2021
by applying by test of preponderance of probabilities or of reasonable
doubt. The detention is based on the subjective satisfaction of the
detaining authority, which finds it necessary to detain a person in order
to prevent him from acting in the manner prejudicial to certain stated
objects. The proceeding of the Advisory Board is different from the
proceedings of the judicial or quasi-judicial proceedings, before which
there is a lis to adjudicate upon. The Advisory Board cannot be asked to
take up the mantle of becoming the legal practitioner for the detenue.
The detenue was free to produce materials to question the detention
made against him and the Advisory Board has no obligation to summon
any person or to call for records over and above the files placed before it.
The Advisory Board in the instance case has opined that it was necessary
to continue the detention. We do not not think that the detenue has been
denied the protection either under Article 21 or 22 of the Constitution of
India. The detenue did get the opportunity for making an effective
representation against his detention. We, therefore, reject the said
contention.
29. In WP(Crl.)No.118 of 2021 the detenue has not made any
request before the Advisory Board seeking for any documents and we
hold so after perusing the proceedings of the Advisory Board. The
contention of the detenue in this regard is only to be rejected.
W.P. (Crl) Nos. 70 & 118 of 2021
30. It won't be out of place to reproduce a passage from the
case of Prakash Chandra Mehta v. Commissioner and Secretary,
Government of Kerala, 1986CriLJ786
"There is no rule of law that commonsense should be put in
cold storage while considering constitutional provisions for
safeguards against misuse of powers by authorities though
these constitutional provisions should be strictly construed
..... Court is not the place where one can sell all tales'.
31. The detaining authority had acted entirely in accordance
with the statutory purpose set out in Section 3 of the COFEPOSA Act
while passing the impugned orders of detention.
32. We are not in a position to conclude, that there has
been a shortcoming, let alone any illegality while passing the detention
orders in the instant case.
In the light of our findings as above, the writ petitions fail, and
they are accordingly dismissed.
Sd/-
A.K.JAYASANKARAN NAMBIAR,JUDGE
Sd/-
MOHAMMED NIAS.C.P., JUDGE
dlk/15.09.2021
W.P. (Crl) Nos. 70 & 118 of 2021
APPENDIX OF WP(CRL.) 70/2021
PETITIONER'S EXHIBITS
EXHIBIT P1 TRUE COPY OF THE GROUNDS OF DETENTION WHICH
RAN INTO 65 PAGES
EXHIBIT P2 TRUE COPY OF REPRESENTATION SUBMITTED BEFORE
DIRECTOR GENERAL CENTRAL ECONOMIC INTELLIGENCE
BUREAU, GOVT OF INDIA NEW DELHI DATED
28.11.2020
EXHIBIT P3 TRUE COPY OF REPRESENTATION SUBMITTED BEFORE
JOINT SECRETARY (CFEPOSA) GOVT OF INDIA DATED
28.11.2020
EXHIBIT P4 TRUE COPY OF REPRESENTATION SUBMITTED BEFORE
CHAIRMAN COFEPOSA ADVISORY BOARD, HIGH COURT
OF KERALA DATED 28.11.2020
EXHIBIT P5 TRUE COPY OF MEMORANDUM DATED 12.2.2021
EXHIBIT P6 TRUE COPY OF ORDER DATED 11.2.2021 ISSUED BY
L.R.CHAUHAN DIRECTOR (COFEPOSA)
W.P. (Crl) Nos. 70 & 118 of 2021
APPENDIX OF WP(CRL.) 118/2021
PETITIONER'S EXHIBITS
EXHIBIT P1 TRUE PHOTO COPY OF THE LIST OF RELIED UPON
DOCUMENTS.
EXHIBIT P2 TRUE PHOTO COPY OF THE REPRESENTATION
SUBMITTED BY THE DETENU BEFORE THE CHAIRMAN,
COFEPOSA ADVISORY BOARD.
EXHIBIT P3 TRUE PHOTO COPY OF THE MEMORANDUM DATED
12.2.2021.
