Preventive detention under COFEPOSA upheld where delay was explained, relied-on materials were supplied, and custody concerns were addressed.

Preventive detention under COFEPOSA was examined on delay, disclosure of relied-on materials, Section 108 Customs statements, custody and bail awareness, and Advisory Board procedure. The delay between the alleged smuggling activity and detention was explained by the investigation and did not snap the live link. Non-supply of WhatsApp chats, CCTV footage and similar unrelied materials did not violate the right to make an effective representation. Unretracted Section 108 statements could legitimately support subjective satisfaction, and the detaining authority was shown to have considered custody and likely release on bail. The Advisory Board hearing and its competence were upheld, so the detention stood.

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Issues: (i) Whether the detention order was vitiated by delay and snapping of the live link; (ii) Whether non-supply of Whatsapp chats, past-activity materials and CCTV footage impaired the detenu's right to make an effective representation; (iii) Whether the detention could rest on statements recorded under Section 108 of the Customs Act; (iv) Whether the detaining authority failed to apply its mind to the detenu's judicial custody and possible release on bail; (v) Whether the proceedings before the Advisory Board were vitiated for want of effective hearing through counsel; and (vi) Whether the Advisory Board that considered the case was incompetent under the COFEPOSA Act.

Issue (i): Whether the detention order was vitiated by delay and snapping of the live link.

Analysis: The prejudicial activity relied on was the alleged smuggling activity in June and July 2020. The investigation involved multiple persons and required time because of the manner in which the racket operated. The gap between the proximate activity and the detention order was therefore explained by the investigative process and did not break the nexus between the activity and the need for preventive detention.

Conclusion: The delay challenge failed and the detention order was not invalid on this ground.

Issue (ii): Whether non-supply of Whatsapp chats, past-activity materials and CCTV footage impaired the detenu's right to make an effective representation.

Analysis: The relevant test was whether the materials were relied upon or formed part of the grounds of detention so as to bear upon the detenu's right under Article 22(5) of the Constitution of India. The statements and related materials actually relied upon were supplied. The requested CCTV footage was not relied upon in the grounds of detention, and materials that were not part of the basis of subjective satisfaction did not have to be furnished merely because they were said to support the detenu's innocence.

Conclusion: The non-supply challenge failed.

Issue (iii): Whether the detention could rest on statements recorded under Section 108 of the Customs Act.

Analysis: Statements recorded under Section 108 of the Customs Act are evidence, and in this case the statements had not been retracted. There is no rule that a preventive detention order cannot be founded on such statements if they legitimately contribute to the detaining authority's satisfaction.

Conclusion: The detention order was not bad merely because it was founded on statements under Section 108 of the Customs Act.

Issue (iv): Whether the detaining authority failed to apply its mind to the detenu's judicial custody and possible release on bail.

Analysis: The governing principle is that the detaining authority must be aware that the detenu is in custody and must have reason to believe that release on bail is likely and that prejudicial activity may continue if released. The grounds of detention disclosed such awareness and satisfaction. The Court would not substitute its own view for the subjective satisfaction of the detaining authority.

Conclusion: The custody and bail objection was rejected.

Issue (v): Whether the proceedings before the Advisory Board were vitiated for want of effective hearing through counsel.

Analysis: The record showed that the matter was adjourned to enable the detenu's counsel to appear, but counsel did not appear even on the adjourned date. The detenu himself was heard through video conferencing, and a later representation from counsel was also considered. The opportunity to be represented was afforded but not availed in a timely manner.

Conclusion: The Advisory Board proceedings were not vitiated.

Issue (vi): Whether the Advisory Board that considered the case was incompetent under the COFEPOSA Act.

Analysis: Article 22(4) of the Constitution of India and Section 8 of the COFEPOSA Act require consideration by an Advisory Board of qualified judges, but they do not mandate that every case arising from a Central Government detention order must be referred only to a Board specifically constituted by the Central Government. Section 8(a) does not refer to the appropriate Government, and Section 8(b) uses that expression only to indicate who must make the reference. The administrative instructions and the notification did not displace this statutory scheme.

Conclusion: The competence challenge failed.

Final Conclusion: None of the grounds assailing the preventive detention order was accepted, and the detention was upheld.

Ratio Decidendi: In preventive detention matters, delay explained by necessary investigation, reliance on un-retracted Section 108 Customs statements, awareness of custody with likelihood of bail, and consideration by a duly constituted Advisory Board do not invalidate the detention where the detenu's constitutional and statutory rights are not shown to have been infringed.

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