TaxTMI 
TaxTMI 
TaxTMI 
2021 (10) TMI 545
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....OSA" for short,) with a view to prevent them from smuggling of goods/abetting the smuggling of goods and engaging in transporting or concealing or keeping smuggled goods in future. 2. Habeas Corpus Petition, WP(Crl) No.102 of 2021 has been filed by the mother of Sarith P.S. (hereinafter referred to as "detenu") who is under detention from 24-11-2020 pursuant to Ext. P1 order of detention. 3. Habeas Corpus Petition, WP(Crl.) No.152 of 2021 isfiled by the mother of Swapna Pabha Suresh (hereinafter referred to as "detenue") who is under detention from 11-10-2020 following Ext. P1 order of detention. 4. Based on specific intelligence that gold in huge quantity was being smuggled through diplomatic luggage, one consignment of cargo with diplomatic immunity in terms of Foreign Privileged Persons (Regulation of Customs Privileges) Rules, 1957 consigned from Dubai by Al Zatar Spices, Sharjah in the name of charge d' affairs of UAE Consulate was withheld for clearance on 5-7-2020 and subsequent examination of the said consignment resulted in the seizure of gold weighing 30244.90 grams having a value of Rs. 14,82,00,010. The Consulate Officers claimed ownership of those items declared....
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....under UAPA by Ext. P9 order on 10.08.2020. On 05.10.2020 the ACJM(EO), Ernakulam, granted default bail to the detenue in OR No.7 of 2020. But, the same could not be executed as the conditions imposed were not complied with. The preventive detention order was passed on 09.10.2020. The same was executed on 11.10.2020 and the detenue was served with the grounds of detention and the relied upon documents on 15.10.2020. On 11.11.2020 the detenue had submitted representations to the detaining Authority, Central Government and to the Advisory Board seeking revocation of the detention order. The detaining authority by communication dated 25-11-2020 intimated the rejection of the representation. The Director General, CEIB rejected the representation on 1112-2020. Pursuant to the report of the Advisory Board, the Central Government confirmed the detention order on 17.12.2020. A second set of representations dated 12.05.2021 was addressed to the detaining Authority and the Government seeking for revocation of the orders as well as for the temporary release of the detenue in view of the pandemic. The said representation was rejected by the detaining Authority on 28.05.2021 and by the Central G....
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.... (1989) 1 SCC 374: 1989 KHC 1063: Ayya alias Ayub v. State of U.P. And Another. iii) There has been suppression of material facts by the Sponsoring Authority from the Detaining Authority and the same has impaired the subjective satisfaction of the Detaining Authority. To support his contention, he relies on the judgments in (1) Sk. Nizamuddin v. State of West Bengal (1975 KHC 692) (2) Suresh Mahato v. District Magistrate, Burdwan and others (1975 KHC 716) (3) Ashadevi v. K. Shivaraj and Another (1979 KHC 479) (4) Union of India v. Ranu Bhandari (2008 KHC 7117) iv) The subjective satisfaction arrived at by the Detaining Authority to invoke the provisions of the COFEPOSA Act was not genuine as there was no compelling reason to make an order of detention since the detenue was already in judicial custody on the date of passing of the order. To buttress his contention, he relies on the decisions in (1) Raishad K.T. v. Union of India and Others [2021 (3) KHC 468] (2) Rivadeneyta Ricardo Agustin v. Government of the National Capital Territory of Delhi and Others (1994 KHC 930) (3) Amritlal and others v. Union Government through Secretary, Ministry of Finance and Others (2....
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....(2013 (4) KLT 626 (2) State of Tamiul Nadu v. Abdul Khader Batcha [(2009) 1 SCC 333]. 12. Sri. Manu also submits that there is no bar at all in passing a detention order even if the detenue is in judicial custody as the detaining authority was aware of the same and has also considered the fact that there was likelihood of the detenue being released on bail and in such circumstances, the detention orders are only to be sustained. He cited the following judgments in support of his contentions: 1) Rameshwar Shaw v. District Magistrate, Burdwan and Others (AIR 1964 SC 334) 2) Union of India v. Ankit Ashok Jalan (2019 (16) SCLE 682) 3) Union of India and Others v. Dimple Happy Dhakad (AIR 2019 SC 3428) 4) Abdul Sathat Ibrahim Manik v. Union of India (AIR 1991 SC 2261) 5) Noor Salman Makani v. Union of India (1994 1 SCC 381) 6) Sanjay Kumar Agarwal v. Union of India (1990 3 SCC 309) 7) Kamarunnissa and Others v. Union of India and Others [(1991) 1 SCC 128] 8) Vinod K. Chawla v. Union of India [(2006) 7 SCC 337] He argues that even if bail applications have been filed, detention orders can still be issued going by the principle stated in Senthamilaselvi v. State of Tam....
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....e proposition that the requirement is only to furnish those documents which are relied upon by the detaining Authority and which formed the basis for arriving at the subjective satisfaction. The narration about the cases or the passing references made in the course of narration of facts and which are not relied upon by the detaining authority while passing the order of detention need not be furnished to the detenue and he cannot complain of being prevented from making an effective representation. Resultantly, there cannot be any violation of Article 22 (5) of the Constitution of India. As a sequel, we hold that even if a request is made for supply of those documents which, as aforesaid did not determine the basis of detention, non-supply of the same cannot in any manner be faulted. In the instant case, in the detention order the authority had referred to the cases only to indicate that he is involved in two other cases. Those facts are not in any way relied on for arriving at the subjective satisfaction that led to the detention order. We also do not find any prejudice caused to the detenue on account of the failure to supply copies of the documents sought. We therefore, repel the ....
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....he fact that the detenue had not even applied for bail in OR No. 13/2020 registered by the Customs and SC No. 610/2020 registered by the Enforcement Directorate. 19. It is pertinent to note that, the detaining authority was not only aware that the detenue was in judicial custody but also noted the circumstances on the basis of which he was satisfied that the detenue was likely to be enlarged on bail and also that he would continue to engage in smuggling. Therefore, the detention was not ordered on the mere ground that he is likely to be released on bail but also on the ground that the detaining authority was satisfied the detenue was likely to indulge in the same activity if he was released on bail. It is trite that satisfaction under the law is subjective and it is not for the Court to test the adequacy of the material on which such satisfaction is reached. The fact that the detenue has not moved bail applications in two cases cannot mean that he is prevented from moving a bail application or that he will not file bail application in future. We also find force in the contention of the learned Standing Counsel for Customs that a strategy was adopted by all the accused not to seek ....
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....are perused, there are sufficient grounds for believing that the accusation made against the petitioner is prima facie true. When it is found so, section 43D of the UA(P) Act mandates that she is not entitled to be released on bail." 23. It is relevant to extract proviso to Section 43D(5) of the UAP Act:- "Provided that such accused person shall not be released on bail or on his own bond if the Court, on a perusal of the case diary or the report made under section 173 of the Code is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true." 24. We feel, having gone through Ext.P9 order, in a case about which the detaining authority was fully aware that the non-placing and non-consideration of the same assumes significance. The order, as stated above was passed on 10-082021, whereas the order of detention in the instant case is almost two months later on 9-10-2020. We cannot but hold that Ext. P9 was vital and relevant material, that had a bearing on the question to detain or not, and non-consideration of the said material vitiates the detention for non-application of mind. What weight Ext.P9 would carry if it was....
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....s eating into the vitals of the nation like a cancerous growth and eroding the economic stability of the country and when an order is made by the Court releasing a person detained under this Act, it is quite possible that the effect of the order may be to let loose on the society, a smuggler who might in all probability, resume his nefarious activities causing incalculable mischief and harm to the economy of the nation. But at the same time we cannot forget that the power of preventive detention is a draconian power justified only in the interest of public security and order and it is tolerated in a free society only as a necessary evil. The power to detain without trial is an extraordinary power constituting encroachment on personal liberty and it is the solemn duty of the Courts to ensure that this power is exercised strictly in accordance with the requirements of the Constitution and the law. The courts should always lean in favour of upholding personal liberty. For it is one of the most cherished values of mankind. Without it life would not be worth living. It is one of the pillars of free democratic society. Men have rightly laid down their lives at its altar in order to secur....