TaxTMI 
TaxTMI 
2021 (12) TMI 1116
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.... 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 "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, reve....
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....tion 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 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 arrivi....
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....at 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 ....
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....ing 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 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....
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....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....
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....n 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 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....