Kerala High Court
Shabna Abdulla vs The Union Of India on 3 June, 2022
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.
FRIDAY, THE 3RD DAY OF JUNE 2022 / 13TH JYAISHTA, 1944
WP(CRL.) NO. 107 OF 2022
PETITIONER:
NUSHATH KOYAMU,D/O.MOHAMMED ALI,
KANIYERI HOUSE, OMACHAPPUZHA P.O.,
MANALIPPUZHA, MALAPPURAM DISTRICT,
PIN - 676320.
BY ADVS.
M.AJAY
V.P.PRASAD
RESPONDENTS:
1 THE UNION OF INDIA
REPRESENTED BY ITS SPECIAL SECRETARY AND DIRECTOR
GENERAL, CENTRAL ECONOMIC INTELLIGENCE BUREAU,
MINISTRY OF FINANCE, DEPARTMENT OF REVENUE,
5TH FLOOR, B WING, JANPATH BHAVAN, JANPATH,
NEW DELHI, PIN - 110001
2 THE JOINT SECRETARY COFEPOSA), GOVERNMENT OF
INDIA MINISTRY OF FINANCE, DEPARTMENT OF REVENUE,
CENTRAL ECONOMIC INTELLIGENCE BUREAU,
5TH FLOOR, B WING, JANPATH BHAVAN, JANPATH,
NEW DELHI, PIN - 110001.
3 THE DIRECTORATE OF REVENUE INTELLIGENCE,
(REPRESENTED HEREIN BY THE PRINCIPAL ADDITIONAL
DIRECTOR GENERAL) ZONAL UNIT, 32/641A VYLOPPILLI
ROAD, ST. THOMAS LANE, PALLINADA, PALARIVATTOM,
KOCHI, PIN - 682025
4 THE COFEPOSA ADVISORY BOARD, HIGH COURT OF
KERALA, REPRESENTED BY THE SECRETARY(COFEPOSA),
REGISTRAR (JUDICIAL), HIGH COURT BUILDINGS,
ERNAKULAM, PIN - 682031
5 THE SUPERINTENDENT, CENTRAL PRISON AND
CORRECTIONAL HOME, POOJAPPURA
-2-
W.P.(Crl).Nos.107,108 & 109 of 2022
THIRUVANANTHAPURAM, PIN - 695012,
BY ADVS.
R1 & R2 BY SRI.JAISHANKAR V.NAIR
R3 SHRI.S.MANU, CGC, DIRECTORATE OF REVENUE
INTELLIGENCE KERALA REGIONAL UNIT
ADDL.DIRECTOR GENERAL OF PROSECUTIONBY
SRI.K.A.ANAS, GOVERNMENT PLEADER
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR
ADMISSION ON 03.06.2022, ALONG WITH WP(Crl.).108/2022,
109/2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
-3-
W.P.(Crl).Nos.107,108 & 109 of 2022
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.
FRIDAY, THE 3RD DAY OF JUNE 2022 / 13TH JYAISHTA, 1944
WP(CRL.) NO. 108 OF 2022
CRIME NO.17/2021 OF COMMISSIONARATE OF CUSTOMS PREVENTIVE,
Ernakulam
PETITIONER:
SHABNA ABDULLA
AGED 38 YEARS, W/O.ABDULLA,
SAITHUKUDIYIL, ELAMBRA, THRIKARIYOOR P.O.,
NELLIKUZHI, KOTHAMANGALAM, ERNAKULAM DISTRICT.
PIN - 686691,
BY ADVS.
M.AJAY
V.P.PRASAD
RESPONDENTS:
1 THE UNION OF INDIA
REPRESENTED BY ITS SPECIAL SECRETARY AND DIRECTOR
GENERAL, CENTRAL ECONOMIC INTELLIGENCE BUREAU,
MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, 5TH
FLOOR, B WING, JANPATH BHAVAN, JANPATH,
NEW DELHI, PIN - 110001
2 THE JOINT SECRETARY COFEPOSA), GOVERNMENT OF
INDIA MINISTRY OF FINANCE, DEPARTMENT OF REVENUE,
CENTRAL ECONOMIC INTELLIGENCE BUREAU, 5TH FLOOR,
B WING, JANPATH BHAVAN, JANPATH,
NEW DELHI, PIN - 110001.
3 THE DIRECTORATE OF REVENUE INTELLIGENCE,
(REPRESENTED HEREIN BY THE PRINCIPAL ADDITIONAL
DIRECTOR GENERAL) ZONAL UNIT, 32/641A VYLOPPILLI
-4-
W.P.(Crl).Nos.107,108 & 109 of 2022
ROAD, ST. THOMAS LANE, PALLINADA, PALARIVATTOM,
KOCHI, PIN - 682025
4 THE COFEPOSA ADVISORY BOARD, HIGH COURT OF
KERALA, REPRESENTED BY THE SECRETARY(COFEPOSA),
REGISTRAR (JUDICIAL), HIGH COURT BUILDINGS,
ERNAKULAM, PIN - 682031
5 THE SUPERINTENDENT, CENTRAL PRISON AND
CORRECTIONAL HOME, POOJAPPURA
THIRUVANANTHAPURAM, PIN - 695012,
BY ADVS.
R1 & R2 BY SRI.JAISHANKAR V.NAIR
R3 SHRI.S.MANU, CGC, DIRECTORATE OF REVENUE
INTELLIGENCE KERALA REGIONAL UNIT
ADDL.DIRECTOR GENERAL OF PROSECUTIONBY
SRI.K.A.ANAS, GOVERNMENT PLEADER
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR
ADMISSION ON 03.06.2022, ALONG WITH WP(Crl.).107/2022 AND
CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
-5-
W.P.(Crl).Nos.107,108 & 109 of 2022
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.
FRIDAY, THE 3RD DAY OF JUNE 2022 / 13TH JYAISHTA, 1944
WP(CRL.) NO. 109 OF 2022
PETITIONER:
SANGEETH PAUL K, W/O.BIJU,
AGED 46 YEARS
VALIYAMUKKATH HOUSE, THOPPUMPADY
P.O. CHULLIKKAL, KOCHI, ERNAKULAM DISTRICT,
PIN - 682005.
BY ADVS.
M.AJAY
V.P.PRASAD
RESPONDENTS:
1 THE UNION OF INDIA
REPRESENTED BY ITS SPECIAL SECRETARY AND DIRECTOR
GENERAL, CENTRAL ECONOMIC INTELLIGENCE BUREAU,
MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, 5TH
FLOOR, B WING, JANPATH BHAVAN, JANPATH,
NEW DELHI, PIN - 110001
2 THE JOINT SECRETARY COFEPOSA), GOVERNMENT OF
INDIA MINISTRY OF FINANCE, DEPARTMENT OF REVENUE,
CENTRAL ECONOMIC INTELLIGENCE BUREAU, 5TH FLOOR,
B WING, JANPATH BHAVAN, JANPATH,
NEW DELHI, PIN - 110001.
3 THE DIRECTORATE OF REVENUE INTELLIGENCE,
(REPRESENTED HEREIN BY THE PRINCIPAL ADDITIONAL
DIRECTOR GENERAL) ZONAL UNIT, 32/641A VYLOPPILLI
ROAD, ST. THOMAS LANE, PALLINADA, PALARIVATTOM,
KOCHI, PIN - 682025
-6-
W.P.(Crl).Nos.107,108 & 109 of 2022
4 THE COFEPOSA ADVISORY BOARD, HIGH COURT OF
KERALA, REPRESENTED BY THE SECRETARY(COFEPOSA),
REGISTRAR (JUDICIAL), HIGH COURT BUILDINGS,
ERNAKULAM, PIN - 682031
5 THE SUPERINTENDENT, CENTRAL PRISON AND
CORRECTIONAL HOME, POOJAPPURA
THIRUVANANTHAPURAM, PIN - 695012,
BY ADVS.
R1 & R2 BY SRI.JAISHANKAR V.NAIR
R3 SHRI.S.MANU, CGC, DIRECTORATE OF REVENUE
INTELLIGENCE KERALA REGIONAL UNIT
ADDL.DIRECTOR GENERAL OF PROSECUTIONBY
SRI.K.A.ANAS, GOVERNMENT PLEADER
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR
ADMISSION ON 03.06.2022, ALONG WITH WP(Crl.).107/2022 AND
CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
-7-
W.P.(Crl).Nos.107,108 & 109 of 2022
"C.R."
JUDGMENT
Mohammed Nias C.P. J
Specific, confidential information received by the officers of the
Directorate of Revenue Intelligence, Cochin Zonal Unit (hereinafter
referred to as 'DRI') that a smuggling syndicate, in connivance with a G-
card holder of Customs Broker, Cochin Sea Port, was engaged in
smuggling of gold from Dubai, in a concealed unaccompanied luggage
imported through container Freight Station (CFS), Willington Island,
Kochi. The specific information conveyed that the gang had recruited
one Althaf Moosan Mukri for whom unaccompanied baggage was sent
from Jabal Ali Port of UAE, booked in the name of the said Althaf
Moosan Mukri. It was conveyed that it contained huge quantity of
concealed gold and would be cleared on 20-4-2021, in the guise of
genuine unaccompanied baggage containing household items.
Accordingly, the intelligence officers mounted surveillance in and around
the port Container Freight Station. While so, the said Althaf Moosal
Mukri arrived at CFS at about 2 p.m. for clearing the baggage. He was
intercepted and the unaccompanied baggage addressed to him was
examined in the presence of Superintendent of Customs and two
independent witnesses. The baggage declaration was signed by the
W.P.(Crl).Nos.107,108 & 109 of 2022
proprietor of M/s. Mercantile and Marine Services which was the
Clearing House Agency (CHA). The staff of the CHA, Mr. Biju v. Joy and
two other representatives were present there. After identifying the
baggage, the said Althaf was informed about the purpose of their visit
and with his consent, items were checked. On a detailed examination, it
was found that, huge quantity of gold was concealed in the compressor
of a refrigerator, brought as an unaccompanied luggage. It contained
126 pieces of gold bars and one cut piece. A Gold Assayer was called
who weighed it and found that, it was pure gold bars of 999 purity and it
weighed 14763.300 gms. valued at market price of about Rs. 7.16
crores.
2. Apart from the passenger, the statements of one Mohammed
Ali, Biju V. Joy and Abdulla S.S. were taken on 20.04.2021. On
21.04.2021 yet another statement was recorded from Mohammed Ali.
They were arrested on 21.04.2021 and the bail applications were moved
on 23.04.2021, which were dismissed on 30.04.2021. The second set of
bail applications filed was dismissed on 5.5.2021 and finally bail was
granted by the Sessions Court by its order dated 11.5.2021 as the DRI
did not oppose the bail application on the ground of Covid 19 pandemic
and thus bail was granted. Biju V. Joy alleges that he has retracted the
statement on 29.5.2021, whereas, Mohammed Ali is said to have
retracted his statement on 7.6.2021 and Abdulla.S.S on 8.6.2021. The
W.P.(Crl).Nos.107,108 & 109 of 2022
DRI has issued a rebuttal letter to these persons on 15.6.2021. Further
statements were also recorded and detention order, Ext.P1 was passed
on 24.8.2021. Pursuant to the detention order passed on 24.08.2021, the
detenus were detained at the Central Prison, Poojappura,
Thiruvananthapuram on 1.9.2021. WP(Crl) No.107/2022 is filed
Mohammed Ali, WP(Crl.)No.108/2022 is filed by Abdulla.S.S. and
WP(Crl.)No.109/2022 is filed by Biju V.Joy.
3. The prejudicial activities alleged against the detenus and the
contentions against the orders of detention are almost similar and hence
all these petitions are heard together.
4. We have heard Sri.M.Ajay, the learned counsel for the
petitioners and Sri.Manu.S, the learned counsel appearing for the DRI,
Sri.Jaishankar V. Nair, learned counsel appearing for the Central
Government and Sri.K.A.Anas, the learned Government Pleader.
5. The learned counsel for the petitioner, Sri.M.Ajay
reiterating his contention in the writ petition submits that the detaining
authority has failed to consider that the sponsoring authority had not
opposed the applications for bail filed by the detenus before the Sessions
Court which shows that there was no necessity to detain the detenus and
further that there was no apprehension raised at any stage by the
W.P.(Crl).Nos.107,108 & 109 of 2022
sponsoring authority about the likelihood of the detenus to indulge in
smuggling in further. The second contention is that certain documents
requested for vide Ext.P12, which were needed for making an effective
representation, were denied and the non-supply of those documents is
fatal. The detenus also contend that even if the documents requested for
Ext.P12 was not granted to them, they should have been forwarded to
the Central Government and also to the Advisory Board so that they
could have independently considered the request made therein and
passed appropriate directions. It is alleged that the rejection of Ext.P12
representation by Ext.P13 exhibits sheer non-application of mind as it
was not a representation seeking release of the detenus but only for
supply of the documents. It is also argued that the detaining authority
has failed to give sufficient reason for rejection of Ext.P12. It is argued
that the reference of the case of the detenus was to an advisory board
constituted as per Ext.P9, but reference was not answered by the said
advisory board but instead by a Board having different composition and
thus the confirmation of the detention order is illegal. It is also argued
that there has been non application of mind by the detaining authority
in not considering the relevant aspects to find out whether the ordinary
laws of the land was sufficient to deal with the detenus instead of
adopting a harsh measure of preventive detention should be forced.
6. The learned counsel for the petitioners also cites the
W.P.(Crl).Nos.107,108 & 109 of 2022
decisions in Varadharaj v. State of Tamil Nadu [(2002) 6 SCC 735]
Aysha Nazreem v. Government of Kerala (2002 KHC 1016), Reshmi
v. Union of India [2016(3) KHC 20 (DB)], Hajira N.K. v. Union of
India [2019 KHC 914 (DB)], Beevikunju. v. Union of India [2020
KHC 167 (DB)], Waheeda Ashraf v. Union of India [2021 KHC 303
(DB)], Rahamath Nisha v. State of T.N (2010 SCC OnLine Mad. 221),
Atma Ram Vaidya v. State of Bombay (AIR 1951 SC 157), Naresh
Chandra Ganguli v. State of West Bengal (AIR 1959 SC 1335), Ganga
Ramchand Bharvani v. Under Secretary to Government [(1980) 4
SCC 62] , Khudiram v. State of West Bengal (AIR 1975 SC 550),
Pankaj Singh v. Adhikchak Janpad Karagar Unnao (2019 SCC
OnLine All, 4089), Raishad K.T. v. Union of India [2021 (3) KHC 468].
7. A counter affidavit has been filed on behalf of the third
respondent denying the allegation that the statements were not
voluntary and that the confessional statements of the accused, other
evidence and the findings of the investigation were all placed before the
detaining authority. It is also urged that the detenu has no right and the
authorities have no corresponding obligation to supply anything more
than the relied upon documents. It is also stated that the accused were
produced before the ACJM(EO) court, Ernakulam along with the remand
application submitted by the DRI and the court remanded the accused to
judicial custody adhering to the proceedings. The copy of the order of
W.P.(Crl).Nos.107,108 & 109 of 2022
the learned magistrate was not separately issued to the DRI and
therefore it was not available with the sponsoring authority. It is also
pointed out that the alleged retraction comes after almost 48 days and
that the same is only an after thought and that Althaf M.M., the
passenger who brought the unaccompanied baggage has not retracted
his statement and smuggling done by the gang in the previous instances
were also revealed from the statements of the detenus and from the
passengers employed by them and the material objects like refrigerators
seized from the residential premises of Mohammed Ali proved the same.
8. Respondents 1 and 2 have filed a counter affidavit stating
that the detaining authority had elaborated the active role of the
petitioners in smuggling and that sensing the magnitude of the offence
committed by the detenus and their likelihood to indulge in smuggling
activity in future, the detaining authority had passed the orders of
detention. The grounds of detention along with the relied upon
documents were duly served on the detenus and that their voluntary
statements also proved the previous instances of smuggling. It is also
stated that the representation was duly considered and after a careful
consideration of the facts and circumstances of the case, the nature of
activity, the material collected, the potency and potentiality of the
detenue to indulge in such activities in future all these were taken into
account before passing the detention order. It is also stated that the law
W.P.(Crl).Nos.107,108 & 109 of 2022
declared by the Supreme Court has also been followed by the detaining
authority while arriving at the subjective satisfaction for passing the
detention order.
9. After the interception of all the three detenues, statements
under S. 108 of the Customs Act of Muhammed Ali were recorded on 20-
4-2021, 21-4-2021 and 28-4-2021. Statements of Biju V.Joy were
recorded on 20-4-2021 and 28-4-2021 and that of S.S. Abdulla recorded
on 20-4-2021 and 28-4-2021. Muhammed Ali in his statement admitted
that on clearing the goods sent through other persons, they were taken
to his residence and after retrieving the gold, the household articles and
the gold were sold. The proceeds were sent to Dubai for reinvesting in
the gold smuggling.
10. The learned counsel for the third respondent also submitted
that the confessional statements of the detenus clearly proved the
previous smuggling activities as well as the method employed by them.
The statements are all relied upon documents. It is also submitted that
the scope of judicial review on the aspect of subjective satisfaction is
limited. Regarding the allegation of non supply of materials it is
submitted that there is no obligation on the detaining authority to supply
materials other than the relied upon documents and that the documents
which are merely referred need not be supplied. Only those copies of
W.P.(Crl).Nos.107,108 & 109 of 2022
documents on which the detention order is passed must be supplied and
not the every documents which the detenus is asking for. It is also
submitted that all the materials available with the sponsoring authority
need not be produced before the detaining authority. The allegation of
the incompetence of the advisory board is also refuted. The argument
that the request for documents was not properly considered is met by
saying that there has been due application of mind while rejecting their
request. The learned counsel also cites the following judgments in
support of his contention.
State of Gujarat v. Adam Kasam Bhaya [(1981) 4 SCC 216]
Asha Keshavarao Bhossle v. Union of India [(1985) 4 SCC 361]
Gurudev Singh v. Union of India [(2002) 1 SCC 545]
Union of India and others v. Arvind Shergil and others (AIR
2000 SC 2924)
Saraswathi Seshagiri v. State of Kerala and others (AIR 1982
SC 1165)
Golam v. State of Weest Bengal [(1975) 2 SCC 4]
Icchu Devi Choraria v. Union of India (UOI) and others [(1980)
4 SCC 531]
Mangalbhai Motiram Patel v. State of Maharashtra and
others [(1980) 4 SCC 470]
Madan Lal Anand and others v. Union of India and others
W.P.(Crl).Nos.107,108 & 109 of 2022
[(1990) 1 SCC 81]
Abdul Hakeen v. State of Tamil Nadu [(2005) 7 SCC 70]
Sunila Jain v. Union of India and others [(2006) 3 SCC 321]
Vinod K.Chawla v. Union of India [(2006) 7 SCC 337]
Usha Agarwal v. Union of India (UOI) and others [(2007) 1 SCC
295]
Thahira v. State of Kerala and others [(2014 Cri. L J 684]
L.M.S.Ummu Saleema v. B.B.Gujaral and others [1981 KHC
636: (1981) 3 SCC 317]
Radhakrishnan Prabhakaran v. The State of Tamil Nadu and
others [2000 KHC 1427: (2000) 9 SCC 170: 2000 SCC (Cri) 1198]
State of Tamil Nadu and others v. Abdulla Kadher Batchs and
others [2009 KHC 4268 : (2009) 1 SCC 333)
Syed farooq Mohammed v. Union of India (UOI) and others
(1990 KHC 860 : (1990) 3 SCC 537]
State of Punjab & ors v. Jagdev Singh Talwandi [(1984 KHC 594
: (1984) 1 SCC 596]
Vakil Singh v. State of J & K [AIR 1974 SC 2337 , 2341]
Har Jas Dev Singh v. State of Punjab [1974 (1) SCR 281], 288 :
AIR 1973 SC 2469]
11. The medical examination of all the accused were conducted and
produced before the magistrate court. The detenus Abdulla.S.S and Biju V.
W.P.(Crl).Nos.107,108 & 109 of 2022
Joy were tested for Covid 19 and as per the then existing Covid guidelines,
all the accused were produced before the magistrate court through video
conferencing adhering to the court protocol, and as directed by the court
they were admitted to the Covid first line treatment centres and Mohammed
Ali was remanded to the Sub Jail, Aluva. We do not find anything wrong in
the procedure adopted when they were arrested or while producing the
detenus before the jurisdictional magistrate. Appearance through video
conferencing / through a whatsapp call, under the circumstances has to be
taken as appearance before the magistrate and we do not think there is any
illegality committed. The contentions to the contra are rejected as at any
rate they are irrelevant to the present proceedings.
12. With respect to the contentions that at no stage of bail the
sponsoring authority had a contention that the detenus would further
indulge in act of smuggling or that they had to be detained, cannot be
accepted at all. The role of the sponsoring authority and the detaining
authority are distinct and different. After the proposal for detention placed
before the detaining authority, the Central Screening Committee consisting
of senior officers from the different organisations will screen the entire
proposal and make the recommendation and only after this stage the
proposal goes to the detaining authority. Thus distinct, different and
independent authorities are to examine the materials and it is thereafter
that the detaining authority has to independently arrive at the subjective
satisfaction to decide whether to detain or not. The detaining authority has
W.P.(Crl).Nos.107,108 & 109 of 2022
also to satisfy itself about the propensity of the proposed detenus to indulge
in prejudicial activities in future. Viewed in this background the contention
on behalf of the detenus, that at the stage of bail, the sponsoring authority
did not contend anywhere that the accused would indulge in prejudicial
activities in future and therefore the detention orders are bad, cannot be
accepted at all. The power of preventive detention is qualitatively different
from punitive detention. The power of preventive detention is a
precautionary power exercised in reasonable anticipation. It may or may not
relate to an offence. It is not a parallel proceeding. It does not over lap with
prosecution even if it relies on certain facts for which prosecution may be
launched or to be launched. An order of preventive detention, may be made
before or during prosecution. An order of preventive detention may be made
with or without prosecution and in anticipation or after discharge or even
acquittal. The pendency of prosecution is no bar to an order of preventive
detention. An order of preventive detention is also not a bar to prosecution.
13. With respect to the contention that the detenus retracted the
statements made under section 108 of the Customs Act, it has to be noted
that the sponsoring authority had already issued the rebuttal statement and
the detaining authority has considered the retraction as well as the rebuttal
of the sponsoring authority in the grounds of detention which is done in the
orders of detention in these cases. There is no further requirement on the
part of the detaining authority as far as the retractions are concerned
except to consider the confessional statements, the retraction and the
W.P.(Crl).Nos.107,108 & 109 of 2022
rebuttals if any of the sponsoring authority. As a matter of fact, even after
the retractions, fresh statement has been given on 29.7.2021 stating that
all the previous statements were true wherein the previous acts of
smuggling were also admitted. The contention on this count are also
accordingly rejected.
14. The further contention on behalf of the detenus that though the
bail of the accused was opposed by the magistrate court, the sponsoring
authority had conceded to the grant of bail in the Sessions Court does not
appear to be factually correct. The reason why bail was not opposed in the
Sessions Court was only because of the Covid pandemic and the same is
noticed in the order granting bail. It is also to be noted that the detenus had
also tested positive for Covid 19 while in judicial custody and the directions
of the Hon'ble Supreme Court regarding the interim bail granted to the
remand persons for offences punishable for 7 years or less was also a
factor which the sponsoring authority took note of. The decision in
Varadharaj (supra) is therefore clearly distinguishable and inapplicable to
the facts of the case.
15. The learned counsel for the petitioner submits that in W.P. (Crl)
No. 107 of 2022, the detenue had filed Ext. P12 request for supply of the
documents mentioned therein, particularly, a screen shot taken from the
detenus phone which was relied upon by the detaining authority. It is
W.P.(Crl).Nos.107,108 & 109 of 2022
mentioned in Ext. P12 that there were at least six voice messages visible on
the screen shot which were relied on and those messages appear to be of
19th April 2021, a day before the detenus in this case were taken into
custody by the DRI. It is the contention that from the screen shot, the
contents of the whatsapp chat cannot be understood and unless the chats in
electronic form is provided, an effective representation cannot be made.
Thus, the whatsapp chat in electronic form which was to be given on a pen
drive or such other media to facilatate them to hear them and understand
the content and offer the explanation has been deprived offending the right
under Article 22(5) of the Constitution of India.
16. Similar request is made as Ext. P12 in W.P.(Crl). 108 of 2022. In
W.P( Crl).109 of 2022, Ext.P12 has been made which relates to the
documents pertaining to the transactions of the smuggled gold recorded
from the mobile phone of Abdulla S.S. was sought for, since it was alleged
that a "Syndicate" was formed, the contents of the mobile phones of,
whatsapp and the other media of the phones etc. is very much necessary for
making an effective representation seeking release. It is the contention of
the learned counsel for the petitioners that these details sought for were
absolutely crucial as the same has been relied upon by the detaining
authority for arriving at the subjective satisfaction to detain and resultantly
the non-furnishing of which renders the detention order bad. The learned
counsel for the respondents on the other hand contends that though there
has been narration in the detention order about the screen shots/whatsapp,
W.P.(Crl).Nos.107,108 & 109 of 2022
they had not been relied upon and hence there is no duty on them to give
copies in electronic form to the detenus.
17. On a consdieration of the rival submission on this aspect, we
notice that there has been reliance made in the detention order regarding
the documents mentioned above which might have forced the detaining
authority to reach the conclusion about the previous smuggling activities
and which necessitated the present order of detention. Inspite of a specific
request, as seen from Ext. P12 in the above cases, we find copies were
not given. In as much as the contents of the above being relied upon and
they have not been given despite asking for them, we feel there has been
infraction of the right of the detenus to make an effective representation
seeking release.
18. The learned counsel for the petitioner is right in stating that the
detaining authority ought to have furnished the said materials as their right
to make an effective representation has been impaired. It is relevant to note
in the decision of the Supreme Court in Atma Ram Vaidya v. State of
Bombay [AIR 1951 SC 157]. The Hon'ble Supreme Court held that :
Para 10. "To put, it in other words, the detaining authority has
made its decision and passed its order. The detained person is then
given an opportunity to urge his objections which in cases of
preventive detention comes always at a later stage. The grounds
may have been considered sufficient by the Government to pass its
W.P.(Crl).Nos.107,108 & 109 of 2022
judgment. But to enable the detained person to make his
representation against the order, further details may be furnished to
him. In our opinion, this appears to be the true measure of the
procedural rights of the detained person under Article 22 (5)."
Para 12 . "The conferment of the right to make a representation
necessarily carries with it the obligation on the part of the detaining
authority to furnish the grounds, i.e., materials on which the
detention order was made. In our opinion, it is therefore clear that
while there is a connection between the obligation on the part of the
detaining authority to furnish grounds and the right given to the
detained person to have an earliest opportunity to make the
representation, the test to be applied in respect of the contents of
the grounds for the two purposes is quite different. As already
pointed out, for the first, the test is whether it is sufficient to satisfy
the authority. For the second, the test is, whether it is sufficient to
enable the detained person to make the representation at the
earliest opportunity".
Para 13 "But when grounds which have a rational connection with
the ends mentioned in section a of the Act are supplied, the first
condition is satisfied. If the grounds are not sufficient to enable the
detenue to make a representation, the detenue can rely on his
second right and if he likes may ask for particulars which will
enable him to make the representation. On an infringement of
W.P.(Crl).Nos.107,108 & 109 of 2022
either of these two rights the detained person has a right to
approach the court and complain that there has been an
infringement of his fundamental right and even if the infringement
of the second part of the right under Article 22 (5) is established he
is bound to be released by the court".
19. In the light of the above, we cannot accept the contention of
the learned counsel for the respondents that there was no duty to supply the
documents mentioned above to the detenus. The decisions relied on by the
learned counsel for the respondent for the proposition that the documents
sought for in the instant cases need not be granted cannot be accepted as
the same are rendered on different sets of facts. In as much as the
documents sought has been relied upon in the detention orders, the same
ought to have been furnished to the detenus when they requested for the
same. The learned counsel for the petitioners is also right in relying on the
following judgments for canvassing the same position that the relevant
electronic info to be provided in the same format:
1. 2016 (3) KHC - Reshmi v. Union of India
2. 2019 KHC 914 - Hajira N.K. v. Union of India
3. 2020 KHC 167 - Beevikunju v. Union of India
4. 2021 KHC 303 - Waheeda Ashraf v. Union of India
In the light of the discussion above, we are convinced that the non-
supply has vitally affected the right of the detnus under Article 22(5) of the
Constitution of India. We, accordingly, hold that the detention order is
W.P.(Crl).Nos.107,108 & 109 of 2022
bad for the non-supply of these documents sought for in Ext. P12.
20. The learned counsel for the petitioner also argues that the
confirmation of the detention order by the Central Government following the
opinion of the Advisory Board is also completely illegal in as much as the
reference of the case of the detenus was to an Advisory Board consisting of
a Chairman and two members addressed by name as disclosed from Ext.
P9 but the reference was answered by an Advisory Board consisting of
judges different from those notified in Ext.P9. Thus, the learned counsel
argues that the constitution of the Board was wrong and that it must be
taken that the Advisory Board to which the case of the detenus were
referred did not answer such reference by rendering an opinion under
Section 8 (c) and as such it is the violation of the constitutional mandate
under Article 22(4) as well as violation of statutory mandate under Section
8 (c) of the COPFEPOSA Act rendering the confirmation order under Section
8 (f), null and void.
21. We are afraid that the said contention cannot be accepted. The
requirement under Section 8 of the COFEPOSA Act in the background of
the Constitutional provision is for a reference to an Advisory Board duly
constituted and it is not the petitioner's case and the board which
answered the reference in the instant case had any member who was not
qualified or competent to hear the reference. The constitution of the Board
was changed owing to the retirement of the Hon'ble Judges after issuance
W.P.(Crl).Nos.107,108 & 109 of 2022
of Ext. P9. It is true that the retired Judges also could be members of the
Advisory Board but extra care was given to see that the serving Judges
were included in the Advisory Board. It has to be presumed, when an
Advisory Board is constituted, comprising of high constitutional
functionaries, that the case of the detenus will be considered with
objectivity, fairness and competence, reassuring the Constitutional and
statutory safeguards while expressing their opinion on the sufficiency of the
cause of detention. In such circumstances, the question of detenus being
put to any prejudice much less any actual prejudice does not normally arise.
The interest of the detenus were sufficiently taken care of both in the
constitution of the Board and while answering the reference. We find no
error, much less, any illegality in the constitution of the Board or while it
answered the reference and contention on that count made on behalf of the
detenu is accordingly rejected.
In view of our finding on the issue of non-supply, Ext.P1 orders of
detention are quashed and the detenus are forthwith set at liberty provided
they are not wanted in connection with any other case.
Sd/-
A.K.JAYASANKARAN NAMBIAR, JUDGE
Sd/-
MOHAMMED NIAS C.P., JUDGE
dlk
W.P.(Crl).Nos.107,108 & 109 of 2022
APPENDIX OF WP(CRL.) 107/2022
PETITIONER'S EXHIBITS
Exhibit P1 A TRUE COPY OF THE ORDER OF DETENTION
PD-12001/13/2021-COFEPOSA ISSUED BY THE
SECOND RESPONDENT DATED 24.8.21.
Exhibit P2 A TRUE COPY OF THE GROUNDS OF DETENTION
SERVED ON THE DETENU BY THE OFFICERS OF
THE THIRD RESPONDENT DATED 24.8.2021
Exhibit P3 A TRUE COPY OF THE LIST OF DOCUMENTS
ISSUED TO THE DETENU ALONG WITH THE
GROUNDS OF DETENTION
Exhibit P4 A TRUE COPY OF THE REPRESENTATION SENT
TO THE DIRECTOR GENERAL OF THE CENTRAL
ECONOMIC INTELLIGENCE BUREAU BY THE
DETENU DATED 18/9/2021
Exhibit P5 A TRUE COPY OF THE REPRESENTATION SENT
TO THE SECOND RESPONDENT BY THE DETENU
DATED 18/9/2021
Exhibit P6 A TRUE COPY OF THE REPRESENTATION SENT
TO THE FOURTH RESPONDENT BY THE DETENU
DATED 18/9/2021
Exhibit P7 A TRUE COPY OF THE MEMORANDUM
15001/16/2021-COFEPOSA REJECTING EXHIBIT
P - 4 REPRESENTATION ADDRESSED BY THE
DEPUTY SECRETARY OF THE FIRST RESPONDENT
DATED 29.9.21
Exhibit P8 A TRUE COPY OF THE MEMORANDUM
15001/15/2021-COFEPOSA REJECTING EXHIBIT
P - 5 REPRESENTATION ADDRESSED BY THE
DEPUTY SECRETARY OF THE FIRST RESPONDENT
DATED 29.9.21
Exhibit P9 A TRUE COPY OF THE COMMUNICATION PD-
13001/01/2021-COFEPOSA REFERRING THE
CASE OF THE DETENU TO THE ADVISORY BOARD
BY THE DEPUTY SECRETARY TO THE FIRST
RESPONDENT DATED 29.9.21
Exhibit P10 A TRUE COPY OF THE MEMORANDUM PD-
13001/01/2021-COFEPOSA DATED 14.10.21
ISSUED BY THE DIRECTOR (COFEPOSA) OF THE
FIRST RESPONDENT TO THE DETENU DATED
21.10.21
Exhibit P11 A TRUE COPY OF THE CONFIRMATION ORDER
W.P.(Crl).Nos.107,108 & 109 of 2022
PD-12001/13/2021-COFEPOSA ISSUED BY THE
FIRST RESPONDENT DATED 22.11.21
Exhibit P12 A TRUE COPY OF THE COMMUNICATION SENT BY
THE DETENU TO THE SECOND RESPONDENT
DATED 20.12.21
Exhibit P13 A TRUE COPY OF THE MEMORANDUM PD-
15001/15/2021-COFEPOSA ISSUED BY THE
DEPUTY SECRETARY TO THE FIRST RESPONDENT
DATED 29.12.21
W.P.(Crl).Nos.107,108 & 109 of 2022
APPENDIX OF WP(CRL.) 108/2022
PETITIONER'S EXHIBITS
Exhibit P1 A TRUE COPY OF THE ORDER OF DETENTION
PD12001/16/2021-COFEPOSA ISSUED BY THE
SECOND RESPONDENT DATED 24.8.21
Exhibit P4 A TRUE COPY OF THE REPRESENTATION SENT TO
THE DIRECTOR GENERAL OF THE CENTRAL
ECONOMIC INTELLIGENCE BUREAU BY THE DETENU
DATED 18.9.21
Exhibit P5 A TRUE COPY OF THE REPRESENTATION SENT TO
THE SECOND RESPONDENT BY THE DETENU DATED
18.9.21
Exhibit P2 A TRUE COPY OF THE GROUNDS OF DETENTION
SERVED ON THE DETENU BY THE OFFICERS OF THE
THIRD RESPONDENT DATED 2.9.21
Exhibit P3 A TRUE COPY OF THE LIST OF DOCUMENTS ISSUED
TO THE DETENU ALONG WITH THE GROUNDS OF
DETENTION
Exhibit P6 A TRUE COPY OF THE REPRESENTATION SENT TO
THE FOURTH RESPONDENT BY THE DETENU DATED
18.9.21
Exhibit P7 A TRUE COPY OF THE MEMORANDUM NO. PD-
15001/20/2021-COFEPOSA REJECTING EXHIBIT P
- 4 REPRESENTATION ADDRESSED BY THE DEPUTY
SECRETARY OF THE FIRST RESPONDENT DATED
29.9.21
Exhibit P8 A TRUE COPY OF THE MEMORANDUM NO. PD-
15001/19/2021-COFEPOSA REJECTING EXHIBIT P
- 5 REPRESENTATION ADDRESSED BY THE DEPUTY
SECRETARY OF THE FIRST RESPONDENT DATED
29.9.21
Exhibit P9 A TRUE COPY OF THE COMMUNICATION PD-
13001/01/2021-COFEPOSA REFERRING THE CASE
OF THE DETENU TO THE ADVISORY BOAR BY THE
DEPUTY SECRETARY TO THE FIRST RESPONDENT
DATED 29.9.21
Exhibit P10 A TRUE COPY OF THE MEMORANDUM PD-
13001/01/2021-COFEPOSA DATED 14.10.21
ISSUED BY THE DIRECTOR (COFEPOSA) OF THE
FIRST RESPONDENT TO THE DETENU DATED
21.10.21
W.P.(Crl).Nos.107,108 & 109 of 2022
Exhibit P11 A TRUE COPY OF THE CONFIRMATION ORDER PD-
12001/16/2021-COFEPOSA ISSUED BY THE FIRST
RESPONDENT DATED 22.11.21
Exhibit P12 A TRUE COPY OF THE COMMUNICATION SENT BY
THE DETENU TO THE SECOND RESPONDENT DATED
20.12.21
Exhibit P13 TRUE COPY OF THE MEMORANDUM PD-
15001/19/2021-COFEPOSA ISSUED BY THE DEPUTY
SECRETARY TO THE FIRST RESPONDENT DATED
29.12.21
W.P.(Crl).Nos.107,108 & 109 of 2022
APPENDIX OF WP(CRL.) 109/2022
PETITIONER'S EXHIBITS
Exhibit P1 A TRUE COPY OF THE ORDER OF DETENTION
PD-12001/14/2021-COFEPOSA ISSUED BY THE
SECOND RESPONDENT DATED 24.8.21.
Exhibit P2 A TRUE COPY OF THE GROUNDS OF DETENTION
SERVED ON THE DETENU BY THE OFFICERS OF
THE THIRD RESPONDENT DATED 24.8.2021
SERVED ON THE DETENU ON 2.9.21
Exhibit P3 A TRUE COPY OF THE LIST OF DOCUMENTS
SUPPLIED TO THE DETENU ALONG WITH THE
GROUNDS OF DETENTION
Exhibit P4 A TRUE COPY OF THE REPRESENTATION SENT
TO THE DIRECTOR GENERAL OF THE CENTRAL
ECONOMIC INTELLIGENCE BUREAU BY THE
DETENU DATED 18.09.2021
Exhibit P5 A TRUE COPY OF THE REPRESENTATION SENT
TO THE SECOND RESPONDENT BY THE DETENU
DATED 18.09.2021
Exhibit P6 A TRUE COPY OF THE REPRESENTATION SENT
TO THE FOURTH RESPONDENT BY THE DETENU
DATED 18.09.2021
Exhibit P7 A TRUE COPY OF THE MEMORANDUM NO.
15001/18/2021-COFEPOSA REJECTING EXHIBIT
P - 4 REPRESENTATION ADDRESSED BY THE
DEPUTY SECRETARY OF THE FIRST RESPONDENT
DATED 29.9.21
Exhibit P8 A TRUE COPY OF THE MEMORANDUM NO.
15001/17/2021-COFEPOSA REJECTING EXHIBIT
P - 5 REPRESENTATION ADDRESSED BY THE
DEPUTY SECRETARY OF THE FIRST RESPONDENT
DATED 29.9.21
Exhibit P9 A TRUE COPY OF THE COMMUNICATION PD-
13001/01/2021-COFEPOSA REFERRING THE
CASE OF THE DETENU TO THE ADVISORY BOARD
BY THE DEPUTY SECRETARY TO THE FIRST
RESPONDENT DATED 29.9.21
Exhibit P10 A TRUE COPY OF THE MEMORANDUM PD-
13001/01/2021-COFEPOSA DATED 14.10.21
ISSUED BY THE DIRECTOR (COFEPOSA) OF THE
FIRST RESPONDENT TO THE DETENU DATED
W.P.(Crl).Nos.107,108 & 109 of 2022
21.10.21
Exhibit P11 A TRUE COPY OF THE CONFIRMATION ORDER
PD-12001/14/2021-COFEPOSA ISSUED BY THE
FIRST RESPONDENT DATED 22.11.21
Exhibit P12 A TRUE COPY OF THE COMMUNICATION
ADDRESSED BY THE DETENU TO THE SECOND
RESPONDENT DATED 20.12.21
Exhibit P13 A TRUE COPY OF THE MEMORANDUM PD-
15001/17/2021-COFEPOSA ISSUED BY THE
DEPUTY SECRETARY TO THE FIRST RESPONDENT
DATED 29.12.21
W.P.(Crl).Nos.107,108 & 109 of 2022
