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2016 (3) TMI 1426 - HC - CustomsValidity of detention order - Smuggling - Gold - dutiable/contraband goods - profit sharing statements found from examination of laptop - HELD THAT - There was compliance of the requirement of Article 22(5) of the Constitution of India and Section 3(3) of the COFEPOSA Act, since the compact discs were supplied to the detenu on the date of his arrest and they were played in front of him within a period of fifteen days. There are no substance in the contention raised by the petitioner that the laptop as such should have been produced by the sponsoring authority before the detaining authority and that the subjective satisfaction arrived at by the detaining authority without perusing the entire contents in the laptop is vitiated. The laptop in question may contain several details unconnected with the case. The sponsoring authority has no duty to produce irrelevant materials before the detaining authority. The detaining authority is not required to refer to or rely upon irrelevant materials. Sometimes certain facts or materials may have to be referred to by the detaining authority - The requirement of Article 22(5) of the Constitution of India and Section 3(3) of the COFEPOSA Act would be satisfied if copies of the relied upon documents are furnished to the detenu. All the contents in the laptop were not produced by the sponsoring authority before the detaining authority since they were not necessary. The Court cannot sit in judgment over the discretion exercised by the sponsoring authority in respect of the same. It is stated in the grounds of detention that the laptop was seized from the possession of the petitioner. Section 138C of the Customs Act is in Chapter XVI under the heading 'offences and prosecutions' - In the present case, the document in question, namely Ext. P5, was made available before the detaining authority by the sponsoring authority. The proceeding before the detaining authority is not a proceeding under the Customs Act. The proceeding before the detaining authority is a proceeding under the COFEPOSA Act. Therefore, neither Section 65B of the Evidence Act nor Sections 138C of the Customs Act would be applicable to the proceedings before the detaining authority for the purpose of arriving at the subjective satisfaction and in passing an order of detention. There are no ground to hold that the order of detention against the petitioner is vitiated or the continued detention of the petitioner is illegal - petition dismissed.
Issues Involved:
1. Validity of the preventive detention order under COFEPOSA Act. 2. Compliance with Article 22(5) of the Constitution of India and Section 3(3) of COFEPOSA Act. 3. Production and reliance on the laptop and its contents. 4. Admissibility of the statement recorded under Section 108 of the Customs Act. 5. Certification of electronic evidence under Section 65B of the Indian Evidence Act. Issue-wise Detailed Analysis: 1. Validity of the preventive detention order under COFEPOSA Act: The petitioner, an Irish national, was detained under the COFEPOSA Act based on an order dated 03/09/2015. The detention was challenged on the grounds that the detaining authority did not have sufficient material to justify the preventive detention. The petitioner was found with ten gold bars weighing 10 kilograms at the airport, and his statements revealed his involvement in smuggling activities. The detaining authority relied on various pieces of evidence, including CCTV footage and statements recorded under Section 108 of the Customs Act. 2. Compliance with Article 22(5) of the Constitution of India and Section 3(3) of COFEPOSA Act: The petitioner argued that his right to make an effective representation was infringed because the CCTV footages provided in compact discs were not played before him until 12/09/2015, although they were supplied on 04/09/2015. The court noted that Article 22(5) and Section 3(3) require the grounds of detention and relied upon documents to be communicated to the detenu within a specified period. The court found that the compact discs were played within fifteen days, and the petitioner submitted his representation on 30/09/2015, indicating no prejudice was caused. Thus, there was compliance with the constitutional and statutory requirements. 3. Production and reliance on the laptop and its contents: The petitioner contended that the entire contents of his laptop should have been produced before the detaining authority and provided to him. The court held that only relevant documents relied upon by the detaining authority need to be produced and supplied. The laptop contained both relevant and irrelevant information, and only the relevant documents were considered. The court found no merit in the argument that the entire laptop should have been produced. 4. Admissibility of the statement recorded under Section 108 of the Customs Act: The petitioner argued that his statement dated 25/07/2015, recorded while in custody, was not admissible and was hit by Article 20(3) of the Constitution. The court referred to precedents, including Veera Ibrahim v. The State of Maharashtra, and held that a statement under Section 108 of the Customs Act is not hit by Article 20(3) as the petitioner was not an accused at the time of the statement. The court concluded that the statement was voluntary and admissible. 5. Certification of electronic evidence under Section 65B of the Indian Evidence Act: The petitioner argued that Ext. P5, a profit-sharing account taken from the laptop, was not certified under Section 65B(4) of the Indian Evidence Act. The court noted that the Evidence Act applies to judicial proceedings, while the proceedings under COFEPOSA are not judicial. Therefore, Section 65B(4) of the Evidence Act and Section 138C of the Customs Act were not applicable to the detaining authority's proceedings. The court held that the detaining authority could rely on the document without the certification required under Section 65B(4). Conclusion: The court found no grounds to hold that the order of detention was vitiated or that the continued detention was illegal. The writ petition was dismissed, upholding the preventive detention order under the COFEPOSA Act.
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