In WP(CRL.) NO. 109 OF 2022-KER HC- Requirement u/s 8 of COFEPOSA Act is reference to duly constituted Advisory Board; In such cases question of detenus being put to any prejudice does not normally arise: Kerala HC Justices A.K. Jayasankaran Nambiar & Mohammed Nias C.P. [03-06-2022]

Read Order: SANGEETH PAUL v. UNION OF INDIA AND ORS 

Mansimran Kaur

Ernakulam, June 11, 2022:  The Kerala High Court has held that non-supply of documents that were taken into consideration at the time of passing detention orders against detenus vitally affects the right of the detenus of effective representation  under Article 22(5) of the Constitution of India.

The Division Bench of Justice A.K. Jayasankaran Nambiar and Justice Mohammed Nias C.P. quashed the detention orders on the ground of non-supply  of the documents which would have led the detaining authority to reach to the conclusion about the previous smuggling activities which necessitated the present order of detention in question. The Bench was of the opinion that not furnishing the documents present in the detention order vitiated the right of the petitioners to make an effective representation. 

Specific, confidential information was received by the officers of the Directorate of Revenue Intelligence, Cochin that a smuggling syndicate, in connivance with a Gcard holder of Customs Broker was engaged in smuggling of gold from Dubai, in a concealed unaccompanied luggage imported through container Freight Station, Willington Island, Kochi.  The specific information conveyed that the gang had recruited one Althaf Moosan Mukri for whom unaccompanied baggage was sent from Jabal Ali Port of UAE, booked in the name of the said Althaf Moosan Mukri. It was conveyed that it contained a huge quantity of concealed gold and would be cleared in the guise of genuine unaccompanied baggage containing household items. 

Accordingly, the intelligence officers mounted surveillance in and around the port and the said Althaf Moosal Mukri arrived at CFS for clearing the baggage. He was intercepted and the unaccompanied baggage addressed to him was examined in the presence of Superintendent of Customs and two independent witnesses.

On a detailed examination, it was found that huge quantity of gold was concealed in the compressor of a refrigerator, brought as an unaccompanied luggage. It contained 126 pieces of gold bars and one cut piece valued at market price of about Rs. 7.16 crores. Apart from the passenger, the statements of one Mohammed Ali, Biju V. Joy and Abdulla S.S. were taken on April 20, 2021. 

Later, pursuant to the detention order passed on August 24, 2021, the detenus were detained at the Central Prison, Poojappura, Thiruvananthapuram and view of the same three petitions were filed by Mohammed Ali,  Abdulla.S.S. and  Biju V.Joy. As the prejudicial activities alleged against the detenus and the contentions against the orders of detention were almost similar so, all these petitions were heard together by the present Court. 

After considering the rival contentions of the parties, the Court opined that there was reliance made on the detention order wherein such documents were stated which would have led the detaining authority to reach to  the conclusion about the previous smuggling activities and which necessitated the present order of detention. Further the Court stated that the counsel of the petitioner was right in stating that detaining authority ought to have furnished the said materials as their right to make an effective representation was impaired. At this stage, reliance was placed on the Apex Court judgment in the case of Atma Ram Vaidya v. State of Bombay.

In as much as the documents sought have been relied upon in the detention orders, the same ought to have been furnished to the detenus when they requested for the same, the Court noted. It was held by the Bench that  the detention order was bad for the non-supply of these documents.Also, on  COPFEPOSA Act, the Bench said, “he requirement under Section 8 of the COFEPOSA Act in the background of the Constitutional provision is for a reference to an Advisory Board duly constituted…It has to be presumed, when an Advisory Board is constituted, comprising of high constitutional functionaries, that the case of the detenus will be considered with objectivity, fairness and competence, reassuring the Constitutional and statutory safeguards while expressing their opinion on the sufficiency of the cause of detention.”

Thus, the Bench quashed the orders of detention on the issue of non-supply and directed the detenus to be set at liberty provided they were not wanted in connection with any other case.