TaxTMI 
TaxTMI 
2020 (2) TMI 1597
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....nd affirming authority under the COFEPOSA Act. The other detenu, Adnan Khalid, is an operative of Faisal, who was caught at the Airport, though not red-handed, allegedly passing on the contraband, to a Customs official. The parties have various contentions, which are almost similar in nature. We refer to the detenu by their names and the official respondents as detaining authority and the Union of India, in the judgment. 2. We have heard Sri. M. Ajay on behalf of Faisal and Sri. P.A. Augustian on behalf of Adnan Khalid. Central Government Counsel Sri. S. Manu argues for the detaining authority and Sri. Jaishankar V. Nair, CGC for the Union of India and the 2nd respondent. 3. Sri. M. Ajay specifically put forth his grounds of challenge with reference to the memorandum. It is argued that there is clear failure to supply documents that were relied on in the detention order produced at Exhibit P2 in his writ petition and also those further documents essential for a proper consideration by the Advisory Board, as sought for in Exhibit P13. Exhibit P13 has been rejected curtly and without any grace, mistaking it as a representation, while it was a request for supply of documents. St....
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....sentation is made, it would run counter to the valuable remedy available to a detenu under Article 22 of the Constitution of India and render Section 11 of the COFEPOSA Act otiose. 6. In challenge of Exhibit P2, it is further argued that the subsequent material which normally ought to have been made available to the detaining authority had not been placed before it. Specific reference is made to Exhibit P2 detention order, wherein the mobile phone details were called for and the instrument subjected to an analysis by the C-DAC. The call details or the result of the analysis was never supplied to the detenu. There is no consideration made of such material by the detaining authority. It is further contended that the Jail Superintendent under whose custody both were under detention, refused the information sought for by Exhibit P15 and in doing so, acted under the dictates of the DRI who is the detaining authority. It is also pointed out that both the detaining and affirming authorities have their offices in the same room and a common Secretary who has communicated the rejection of representations by both the authorities and sworn to the affidavit on behalf of both of them. 7. I....
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....ecords (CDR) and Subscriber Detail Records (SDR). The various transactions could have been referred to in the detention order and relied on, only if the CDR and SDR received from the mobile operators were obtained by the sponsoring authority and the detaining authority. In the absence of supply of such documents obtained from the mobile operators, no reliance could have been placed on the same. The travel details of the various persons summoned on the basis of the deposition of Adnan Khalid and Francis C.X., the Havildar of Air Customs who was on leave on that particular day, could not have been obtained unless their Passports were summoned which the DRI did. The details of the Passports have not been supplied to the detenu along with the detention order or later even when they were separately sought for. 10. Sri. S. Manu arguing for the detaining authority at the outset contends that very clear copies of footage are available in the files and it is asserted, the same is supplied to both the detenu. Clear copies were also handed over to us across the Bar to evidence the same. It is argued that the depositions have evidentiary value under Section 108 and there was no allegation r....
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....14.08.2019 and within seven days, the second respondent rejected the representation on 21.08.2019. It is also pointed out that August 15 was a holiday and though 16th was a working day, again 17th and 18th were Saturday and Sunday. The office re-opened on 19th and on 21st the representation was disposed off. With respect to the representation to the 1st respondent on 14.08.2019, on 19.07.2019 comments were sought for from the sponsoring authority and on 23.08.2019 the Additional Commissioner supplied the same. On 06.09.2019 the representation was rejected. It is pointed out that there is no personal bias alleged against the sponsoring authority, detaining authority or the affirming authority and, hence, there was no requirement for separate counter affidavits. THE FINDINGS : 13. We shall refer to the decisions, wherever relevant, cited at the Bar by both parties in our judgment when dealing with the various grounds. 14. We are not convinced that the ground urged of the detaining and affirming authorities' orders being communicated by the very same Deputy Secretary as vitiating the detention order. The Deputy Secretary who is in charge of the files had merely communicat....
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....h is picked up by the ground staff or an official of the airport to smuggle the contraband through the customs frontiers. We cannot but observe that there should be a machinery in place to regularly check the Officials, who have free access beyond the Customs barriers. We leave it at that for the present and proceed to consider the subject detention. 17. Admittedly neither Francis nor Adnan Khalid revealed Faisal's name. The deposition of Adnan Khalid indicated the names of persons he had been in constant contact with, over the mobile phone, which was also extracted from the phone by himself, in presence of Customs officials. Many of them were summoned and some even detained later. As noticed, some of these persons summoned, in their deposition referred to Faisal, who was later summoned and who too deposed before the Customs officials on oath. Faisal admitted to his involvement, which promptly he retracted later. The alleged incident which led to the further proceedings occurred on 01.03.2019 and the detention order was passed on 22.05.2019. The detention order was executed on 30.05.2019 by arrest of both the detenu. The documents were given in five days, clearly within the ....
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....imself. Faisal's connection to the smuggling syndicate being established by the voluntary statements of carrier passengers, viz., Pratheesh Chirayil, Chirakkal Ibrahim Shamseer, Aslam Mytheen and Shabeer M.K. Paragraphs [liv] (3) to (7) refers to the specific statements made by these persons and also one Jinesh Pothodi, who styled Faisal as the kingpin of the syndicate. At paragraph [liv](8), the call data records of Faisal, who was in continuous contact with Adnan Khalid, Pratheesh. C. and Shaber M.K., have been referred to. At paragraph [liv](9) the depositions referred to in paragraphs [liv](1) to (7) and the call records in paragraph [liv](8) are stated to have established that Faisal is the kingpin of the smuggling racket based at Muvattupuzha. At paragraph [liv](10), the imprisonment of Faisal for nine months in 2014 for smuggling in Nepal, also relied on from the deposition under Section 108 has been referred to. At paragraph [liv](11), the show cause notice issued in the earlier instance when he was detained for preventive reasons has also been referred. In paragraph [lv], the evidence gathered from Francis C.X. and other persons, including Faisal, who were summoned and....
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....ocuments, based on which alone the detaining authority could have arrived at the satisfaction of the two detenus having been involved in a smuggling ring. 23. In deciding as to whether the detaining authority had supplied the documents based on which the specific grounds of detention were found, we have to first look at the manner in which such findings have been rendered. There is absolutely no doubt that the entire investigation, leading to the findings which resulted in the preventive detention of the two persons, arose from the single instance of seizure of contraband, coming to about 3 kilograms of gold; seized from the body of a Customs official on 01.03.2019. The crucial link between the Customs official and Adnan Khalid, one of the detenu who travelled into India in an Emirates flight coming from the Middle-East, is the video footage. The video footage according to the detaining authority establish the handing over by Adnan Khalid, the passenger, to Francis, the Customs official. It is later to that the seizure occurred. Adnan Khalid was accosted and the statements were recorded from both of them. It is pertinent that neither Adnan Khalid or Francis refers to Faisal. Adn....
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....dividuals or the frequent travels from Middle-East to India would not by itself reveal a smuggling ring having been in operation. We are unable to countenance such an argument. Coupled with the seizure and the depositions, especially of the persons caught at the Airport itself, immediately after the alleged handing over of the contraband had taken place; the frequent communications between certain individuals and the frequent travel from India to Middle-East and back, the periodicity as also the frequency of communication before and after the travel would supply sufficient material for the subjective satisfaction of an authority under the COFEPOSA Act to make an order of preventive detention. The vexing question is whether this has been satisfied but for the recitals in the order. 28. We first look at the video footage, which was the crucial link offered by the sponsoring authority between Adnan Khalid and Francis. Adnan Khalid, after his exiting from the aircraft, is said to have entered into a toilet before the Customs frontiers. He was followed into the toilet area by Francis, a Customs official, who was on leave on that particular day. Their depositions after they were appre....
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....in are unable to be identified. Even the photographs handed over to us by the respondents, which are more or less clear and is in sharp contrast with the images handed over to the detenu; only reveals silhouettes and not identifiable figures. The supply of the images of the video footage is inconsequential insofar as the effective opportunity to make a representation against the preventive detention. The detenu should have been supplied with the video footage itself and facility provided for viewing the same. 31. The next aspect we have to look into is the finding of the detaining authority that what has been stated in the depositions voluntarily made before the Customs authority have been corroborated by the call details and the travel details of the deponents which have been elaborately dealt with by the detaining authority in its order. We see from Exhibit P2 produced in both the writ petitions that the call details of the deponents have been elaborately noticed in a table, in the detaining authority's order, as supplied by the sponsoring authority. We see that Faisal and Adnan Khalid between themselves had made 128 calls between 4th January and 9th February, 2019. There ....
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....ing as an appellate authority. The Hon'ble Supreme Court held that action by way of preventive detention is largely based on suspicion and the Court cannot investigate as to whether the circumstances of suspicion exist warranting restrain of a person. We have to, however, notice the declaration of the Hon'ble Supreme Court in paragraph 4, which is to the following effect: "The court can only examine the grounds disclosed by the Government in order to see whether they are relevant to the object which the legislation has in view, that is, to prevent the detenu from engaging in smuggling activity. The said satisfaction is subjective in nature and such a satisfaction, if based on relevant grounds, cannot be stated to be invalid". The satisfaction arrived at in this case according to us, is not substantiated by the documents on record, which were supplied to the detenu. The need for supply of documents relied on and the necessity for the detaining authority to arrive at a subjective satisfaction of the need for a preventive detention on the basis of substantiating material against the proposed detenu, as supplied by the sponsoring authority are established principles....
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....In this context, we refer to the decision in Frances Coralie Mullin v. Administrator, UT of Delhi [(1981) 1 SCC 608], of which paragraph 11 is extracted hereunder: "(11) WE are therefore of the view that sub-clause (I) of clause 3(b) regulating the right of a detenu to have interview with a legal adviser of his choice is violative of Articles 14 and 21 and must be held to be unconstitutional and void. We think that it would be quite reasonable if a detenu were to be entitled to have interview with his legal adviser at any reasonable hour during the day after taking appointment from the Superintendent of the Jail, which appointment should be given by the Superintendent without any avoidable delay. We may add that the interview need not necessarily take place in the presence of a nominated officer of Customs/Central Excise/enforcement but if the presence of such officer can be conveniently secured at the time of the interview without involving any postponement of the interview, then such officer and if his presence cannot be so secured, then any other Jail official may, if thought necessary, watch the interview but not so as to be within hearing distance of the detenu and th....
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....eing to secure his freedom; the detenu would have something to submit before the Advisory Board which he would be averse to state before the officials, under whose detention, he will be returned after the hearing. We respect the concern of the Advisory Board and bow to it, insofar as the detenu and his lawyer, may have something confidential to pass on to the Advisory Board. While that procedure cannot at all be faulted, quite conscious of the fact that the Board comprises of three senior Judges of this Court, we find the procedure of, avoiding the presence of the detenu and his lawyer at the time of the Department being heard, to be in violation of the accepted procedures established in the case of preventive detention. 40. Section 8 of the COFEPOSA Act does not mandate even a hearing, unless it is thought necessary by the Board or the detenu desires so. On the detenu seeking a hearing, it is imperative. But there is no hearing contemplated of the Department. The Department's presence before the Advisory Board is only when the Board seeks any further information from the appropriate Government or through it. The Advisory Board, it is trite, is empowered to device its own pr....
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....d no one should be enabled to take shelter behind the excuse that such officers are not 'legal practitioners' or legal advisers. Regard must be had to the substance and not the form since, especially, in matters like the proceedings of Advisory Boards, whosoever assists or advises on facts or law must be deemed to be in the position of a legal adviser. We do hope that Advisory Boards will take care to ensure that the provisions of Article 14 are not violated in any manner in the proceedings before them.(sic)" 42. Section 8 empowers the Advisory Board to call for any information, as it may deem necessary, from or through the appropriate Government. Needless to say that such information, whether it be by way of documents or by oral clarifications has to be disclosed to the detenu. The detaining authority cannot place material or argue matters not evident from the records already supplied to the detenu. We are sure and do not for a moment assume, that the Advisory Board would permit any such arguments. But, to avoid such grounds being raised and to maintain transparency of and fairness in the procedure, it is imperative that, if the Advisory Board hears the detaining/sponso....