TaxTMI 
TaxTMI 
2017 (4) TMI 1076
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....ration and issuance of the impugned preventive detention orders by the authority competent to do so, is founded on the bedrock of facts and factors which are cohesive. This is apparent from the fact that paragraphs 1 to 205, enumerated among the grounds of detention of all the detenus, are the same; and it is thereafter that the segregable allegations are pointed out, also with reference to materials in relation to each detenu covered by the particular detention order. The documents relied upon by the authorities are the same for all the detenus. Keeping aside certain pleadings and submissions with reference to the facts of the individual cases; the pleadings, contentions and arguments by and advanced on behalf of the detenus, as well as those on behalf of the authority which issued the impugned detention orders and those by and on behalf of the sponsoring authority, are those which are to be considered simultaneously and to be decided together. Hence, these eight writ petitions seeking release of eight different persons from preventive detention under the COFEPOSA Act are heard jointly and answered through this common judgment. 3.All the detention orders were issued on 14.10.2015....
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....nts of the grounds of detention originally made in English. Different documents and materials including the remand applications, retraction letters, remand report, court proceedings relating to deposit of passports etc. were not brought to the notice of the detaining authority and those materials have been ignored resulting in breach of Article 22(5) of the Constitution. The non- communication of the grounds of detention and the materials relied on were thus much short of the requisite benchmarks prescribed for such purpose by the laws. (b)Similar are the pleadings in WP(Cr).No.479 of 2015 which impeaches the detention of Fazil K.B. Making reference to the relied upon documents, an attempt is made to show that the documents relied on and incorporated with reference to grounds of detention have not been furnished and therefore, there is non-furnishing of relied upon documents and hence, the order of detention is bad in law. Remand reports relating to the other persons have not been placed before the detaining authority by the sponsoring authority and this has vitiated the decision. Apart from reiterating many of the grounds raised in Salim Melathu Makkar's case referred to abo....
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....en considered. The non-furnishing of different such documents discloses non-application of mind and has adversely affected the decision making process leading to the impugned detention order. The sponsoring authority is accused of suppressing crucial facts from the detaining authority, in particular, the petitions sent by the detenu and his brother Nibin K. Basheer and the materials which disclosed that the Customs officials had threatened to hurt and torture the mother and younger sister of the detenu. The earliest retractions were not considered, it is contended. The statement given by the estranged wife of the detenu has been relied on heavily to issue the detention order. The contentious proceedings stated to be pending before the court as between the detenu and his wife is a relevant factor which ought to have been taken note of. It is pointed out that the entire documents ought to have been placed before the detaining authority and it is not within the domain of the sponsoring authority to sift and choose materials classifying them as relevant and irrelevant. It is further contended that the possibility of Jabin K. Basheer continuing with the alleged activities is apparently ....
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....y stating that the investigation could not arrive at a specific conclusion as to what is the connection between the arrest of the detenu and the original seizure of 8 kgs of gold on 24.5.2015. It is further submitted that pursuant to the grant of bail, the detenu is complying with the bail conditions and he has surrendered his passport and that though he was an employee of Bird Worldwide Flight Services, hereinafter in this judgment, "BWFS", for short, as a Ramp Supervisor, there is nothing even through the bank account or other details which were subjected to investigation in detail by the Customs, to have him covered by a preventive detention order. It is also the plea that he has recently married and the writ petitioner, who is his wife was in advance stage of pregnancy while instituting the writ petition in February, 2016 and that the unfortunate implication of the detenu as accused in O.S.No.111 of 2015 has shattered the normal and peaceful life of that couple. Learned counsel argued that on the basis of the materials, there was absolutely no reason to cover Bibin Scaria through preventive detention order that would sustain on the facet of Article 22(5) and the provisions of t....
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....der the Cofeposa Act and I have understood the same." It is also contended that typographical errors could have crept in when the translation was of documents running around 2900 pages and that by itself has not affected the right of the detenu to make effective representation. The reasons for the detention were told to the detenu in Malayalam in the presence of the Joint Superintendent of Central Prison and such action is a matter of record. Ext.R1(a) is a receipt written in Malayalam by the detenu and counter- signed by the prison authority through which the detenu has acknowledged the receipt of grounds of detention, list of relied upon documents and attested copies of the relied upon documents in the presence of the jail authorities and also of having been shown different images contained in two CDs which is part of the relied upon documents. Through application for reception of additional documents, I.A.No.12995 of 2016, Exts.R4(a) to R4(h) are produced supported by an additional affidavit. Those documents evidence the acknowledgment of the detenu as stated above and the endorsement of the officer of the sponsoring authority and signed by the detenu and the jail authority thro....
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....tion of the sponsoring authority as between the different persons who are involved in the racket particularly Noushad P.A., Shinoy K. Mohandas and Bibin Scaria and the material showing that Bibin Scaria had obtained remuneration of Rs. 70 lakhs are relied on to show that the plea challenging the detention order is unsustainable. It is also pleaded that the conditions in the bail order and all relevant facts and materials were notified to the detaining authority which has arrived at a subjective satisfaction that an order of preventive detention is required to cover Shinoy K. Mohandas as well. 10.Heard the learned senior advocates and the other learned advocates appearing for the petitioners and the learned Additional Solicitor General. 11.It is argued on behalf of the detenus, inter alia, that the detention orders are ex-facie invalid and are vitiated by non-application of mind; the similarly detention orders are so worded that they do not even disclose the imputations levelled against each of the detenus; grounds of detention were not served in the language known to the detenus, contemporaneous with the order or within the time prescribed; the version of the detention order in M....
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....wise thereof, is not a matter for judicial review and that discrepancies, if any, are so minor that they are immaterial. It is argued that no material which could be called as extraneous, has been shown to have been considered and, therefore, the satisfaction of the detaining authority does not warrant interference in judicial review. It is further argued that the grounds against the detenus are severable and even a solitary incident is sufficient to effectuate the invocation of jurisdiction to pass preventive detention order and the reasonable belief on the basis of past conduct would be sufficient. The concept of reasonable belief and impact on the public and the society, at large, are issues to be borne in mind and, therefore, no ground exists to interfere with the impugned detention orders, it is contended. Reference was made to different precedents, including many of those which were referred to by the learned counsel on behalf of the detenus, essentially, pointing out the broad principles and cases in situations dealt with different sets of facts. To the extent relevant, principles and precedents would be referred to by us during the course of consideration. 13.The protectio....
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....ded certain other aspects than what were covered under the DIR. The quality and nature of allegations which would have brought a person under cover of preventive detention under those provisions and the statutory provisions of the COFEPOSA Act have purposive and qualitative variations which cannot be ignored while choosing judicial precedents rendered in connection with different legislative provisions, though the cardinal liberty doctrine in re preventive detention recognised as Fundamental Right through the different clauses of Article 22 ought to be read as a lead chord of the Constitution. The evaluation of cases falling under COFEPOSA enforcement cannot be treated under any straight jacket formula applying the precedent law laid down with reference to the earlier statute laws. When we say this, we underscore the need to insist upon full compliance of the constitutional commands handed down while prescribing the Fundamental Right guaranteed under Article 22 of the Constitution of India. Unless liberty issues in contextually different settings which occur in the society with the change of times, are examined bearing in mind the situational requirement in terms of the Constitutio....
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....d upon and the copies of relied upon documents along with Malayalam translations of grounds of the detention, list of the documents relied upon and the relied upon documents were served on the detenu on 20.10.2015. Two CDs containing video footages were also shown to him. Detenu's acknowledgment in that regard, duly attested by the Joint Superintendent, Central Prison, Thiruvananthapuram was also obtained. The detenu submitted a representation in Malayalam, dated 19.11.2015 before the Joint Secretary, COFEPOSA, New Delhi. He submitted another representation dated 20.11.2015, typed in English before the Secretary, Ministry of Finance, Government of India. That detenu's wife filed the captioned WP (Cr).No.478 of 2015 dated 21.11.2015. (b)Fazil K.B. was also detained on 17.10.2015. Grounds of detention, list of the documents relied upon and the copies of relied upon documents along with Malayalam translations of grounds of the detention, list of the documents relied upon and the relied upon documents were served on the detenu on 20.10.2015. Two CDs containing video footages were also shown to him. Detenu's acknowledgment in that regard, duly attested by the Joint Superin....
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....on 20.11.2015. Two CDs containing video footages were also shown to him. Detenu's acknowledgment in that regard, duly attested by the Joint Superintendent, Central Prison, Thiruvananthapuram was also obtained. The detenu submitted a representation in Malayalam, dated 21.11.2015 before the Joint Secretary, COFEPOSA, New Delhi. He submitted another representation dated 28.11.2015, typed in English before the Secretary, Ministry of Finance, Government of India. The mother of that detenu filed the captioned WP(Cr).No.496 of 2015 dated 7.12.2015. (f)Saifudheen M.S. was detained on 12.11.2015. Grounds of detention, list of the documents relied upon and the copies of relied upon documents along with Malayalam translations of grounds of the detention, list of the documents relied upon and the relied upon documents were served on the detenu on 19.11.2015. Two CDs containing video footages were also shown to him. Detenu's acknowledgment in that regard, duly attested by the Joint Superintendent, Central Prison, Thiruvananthapuram was also obtained. The detenu submitted a representation in Malayalam, dated 27.11.2015 before the Joint Secretary, COFEPOSA, New Delhi. He submitted anoth....
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....d person. The detention order was confirmed and Salim Melathu Makkar was detained for a period of one year from the date of detention and the said order of confirmation of detention was served on the detenu on the date of confirmation itself under acknowledgment. (b) Through memoranda dated 5.1.2016 and 7.1.2016, the Deputy Secretary, CEIB, New Delhi informed Fazil K.B. that both his representations have been carefully examined and considered and that they have been rejected. The Deputy Secretary, CEIB, New Delhi, vide order dated 14.1.2016 informed Fazil K.B. that his case was placed before the Advisory Board and that the said Board opined that there exists sufficient grounds for detention of the said person. The detention order was confirmed and Fazil K.B. was detained for a period of one year from the date of detention and the said order of confirmation of detention was served on the detenu on the date of confirmation itself under acknowledgment. (c) Through memoranda dated 5.1.2016 and 7.1.2016, the Deputy Secretary, CEIB, New Delhi informed Jabin K. Basheer that both his representations have been carefully examined and considered and that they have been rejected. The Deputy ....
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....rder was confirmed and Saifudheen M.S. was detained for a period of one year from the date of detention and the said order of confirmation of detention was served on the detenu on the date of confirmation itself under acknowledgment. (g) Through memoranda dated 5.1.2016 and 7.1.2016, the Deputy Secretary, CEIB, New Delhi informed Bibin Scaria that both his representations have been carefully examined and considered and that they have been rejected. The Deputy Secretary, CEIB, New Delhi, vide order dated 14.1.2016 informed Bibin Scaria that his case was placed before the Advisory Board and that the said Board opined that there exists sufficient grounds for detention of the said person. The detention order was confirmed and Bibin Scaria was detained for a period of one year from the date of detention and the said order of confirmation of detention was served on the detenu on the date of confirmation itself under acknowledgment. (h) Through memoranda dated 5.1.2016 and 7.1.2016, the Deputy Secretary, CEIB, New Delhi informed Shinoy K. Mohandas that both his representations have been carefully examined and considered and that they have been rejected. The Deputy Secretary, CEIB, New D....
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.... He is alleged to have concealed, the gold brought from abroad, in the ferry bus inside the Airport which was later smuggled out by the airport staff. He allegedly transported the smuggled gold received from the airport staff and he along with Fazil K.B. met Bibin Scaria near airport to discuss about smuggling. He had phone contacts with Shinoy K. Mohandas. iii.Shinoy K. Mohandas coordinated the smuggling operations among airport staff and had recruited Bibin Scaria into the gang and they induced other staff to operate with them. Evidence of purchase of property worth Rs. 40 lakhs and deposits worth Rs. 24 lakhs was obtained. He smuggled approximately 400 kgs of gold through Airport for the syndicate and had also obtained remuneration to the tune of Rs. 70 lakhs. Material evidence showed that he had contacts with Salim Melathu Makkar, Fazil K.B. and Yasir Ibhu Muhammed. iv.Jabin K. Basheer was involved in smuggling 1500 kgs of gold for Noushad P.A. through Airport. The modus operandi was to have the smuggled in gold being carried by the carrier passengers into the toilet of the Immigration Hall, and to conceal the same in the air conditioning duct and thereafter being carried b....
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.... Scaria was involved in smuggling, abetting smuggling and transporting of gold. He worked under Shinoy K. Mohandas (another detenu) and smuggled 11 kgs of gold by himself and 64 kgs of gold with his colleagues and received Rs. 6 lakhs as remuneration for smuggling gold. Another detenu Salim along with Fazil K.B.(another detenu) met Bibin Scaria near Airport to discuss about smuggling. He received Rs. 90,000/- from the account of Fazil K.B. to his account and used his car and another car handed over to him by Fazil K.B. for transporting gold. 18.Having regard to the nature of the contentions and arguments on behalf of the different detenus, it is apposite to notice certain facts and factors relating to each of the detenus as discernible from the materials on record, including the statements, and on the basis of submission made during the course of hearing. These include the following: i.Noushad P.A. knows English and Malayalam and runs a money transfer business at Muvattupuzha in Ernakulam district. He studied up to the 10th Class. He is stated to be the kingpin of the smuggling operations which were carried through three different channels as already noted above. ii.Salim Mel....
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.... earliest opportunity of making a representation against the order. Sub-section (3) of Section 3 of the COFEPOSA Act provides that for the purpose of clause (5) of Article 22 of the Constitution of India, communication to a person detained in pursuance of a detention order, of the grounds on which the order has been made shall be made as soon as may be after the detention, but ordinarily not later than five days, and in exceptional circumstances and for reasons to be recorded in writing, not later than fifteen days, from the date of detention. That provision also prescribes the limits as to time within which such communication has to be made. 23.On the basis of the materials which have been admittedly communicated, what needs to be therefore examined, is as to whether the materials communicated included the grounds on which the detention order has been made and whether those materials would enable the detenu to make a representation, making of which is the legitimate right of the detenu in terms of Article 22(5). 24.It is argued on behalf of the detenus that the order of detention issued through the Joint Secretary to Government of India, who was specially empowered under Section....
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...., the reasons for being put under preventive detention under the COFEPOSA Act and that he has understood the same. The fact that the detenus are not illiterate and their knowledge of Malayalam and English languages, are matters which cannot be disputed in view of the language, contents and quality of the representations made by or on behalf of each of them. Those materials noticed along with the level of education that each of them have, clearly indicate that they have the ability to understand the contents of the detention order and the grounds of detention as also the contents of the materials served on them in English and Malayalam. A variation in the form in which translation is expressed does not vitiate the requirement to communicate the order and grounds of detention. See for support Devji Vallabhbhai Tandel v. Administrator of Goa, Daman & Diu and Another [(1982) 2 SCC 222]. Any defect in the order or its communication, including translations does not vitiate the order when the files, on our examination, bespeak due application of mind by the detaining authority and the availability and consideration of the materials relied on by the sponsoring authority. For further suppo....
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....tion of the materials by the court will be confined to the purpose of seeing whether the order of detention is passed on no material at all. Having examined the materials, we are satisfied that the order has been passed on materials on record. We are, therefore, not to go further to examine whether the materials were adequate for the satisfaction of the competent authority, which again need not be materials, which would be evidence, which ought to stand scrutiny of the court in a criminal trial. If the formalities prescribed by the Constitution and the COFEPOSA Act have been complied with, there would be no further examination by the Court, on an application seeking interference with preventive detention. In support of these principles, see Ramesh v. D.M. [AIR 1986 SC 315], State of Gujarat v. Adam [AIR 1981 SC 2005] and Abdulla Kunhi v. Union of India [(1991) 1 SCC 476]. 28.Having examined the original records, and the materials as were communicated to each of the detenus along with the detention orders and the grounds of detention, we are of the view that the orders of detention have been issued on the basis of materials which are not extraneous to the purpose of statutory provi....