2020 (2) TMI 1597 - HC - Customs

Smuggling - contraband item - failure to supply documents that were relied on in the detention order - personal bias alleged against the sponsoring authority, detaining authority or the affirming authority - HELD THAT - The detenu is heard, without the presence of Department officials for reason of the detenu being in preventive custody, on the subjective satisfaction of the detaining authority. The entire attempt being 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 - 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 procedure as there is no lis to be adjudicated. 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. The subjective satisfaction should emanate from the order of detention and the documents relied on. The defect in procedure, which would vitiate an order of preventive detention, could be either the materials proffered being specious or the materials served on the detenu, being insufficient to establish the link to the smuggling activity alleged, which form the basis for preventive detention. In the instant case the very crucial video footage from which the entire case was generated was not supplied to the detenu. The corroborating facts, which could have led to a subjective satisfaction of a smuggling ring being in operation, as available from the call details and the travel details were not examined by the detaining authority. The detaining authority merely relied on the opinion of the sponsoring authority. The documents revealing the call details and the travel details were also not supplied to the detenu. The detenu in both the writ petitions shall be set at liberty forthwith, if their continued detention is not required in any other case - Petition allowed.

Issues Involved:
1. Challenge to the Detention Orders under COFEPOSA Act.
2. Non-supply of crucial documents and video footage.
3. Alleged non-application of mind by the detaining authority.
4. Right to make an effective representation under Article 22 of the Constitution.
5. Visitation rights and legal assistance for the detenu.
6. Procedural fairness in the Advisory Board hearings.

Detailed Analysis:

1. Challenge to the Detention Orders under COFEPOSA Act:
The petitioners, the wife of one detenu and the father of another, challenged the detention orders issued under the COFEPOSA Act. The detaining authority and the Union of India justified the detentions based on allegations of repeated smuggling activities. The court examined the grounds and evidence presented, including previous detentions and alleged smuggling operations.

2. Non-supply of Crucial Documents and Video Footage:
The court found that there was a failure to supply essential documents, including clear CCTV footage, which was crucial in establishing the seizure of contraband. The detaining authority provided only dark, undecipherable photocopies. The court emphasized that the detenu should have been provided with the video footage and facilities to view it to make an effective representation.

3. Alleged Non-application of Mind by the Detaining Authority:
The detaining authority was criticized for relying heavily on the sponsoring authority's opinion without independent application of mind. The court noted that the detaining authority must base its subjective satisfaction on the records available and not merely on conjectures. The court found that the detaining authority failed to independently verify call details and travel records, relying instead on the sponsoring authority's summary.

4. Right to Make an Effective Representation under Article 22 of the Constitution:
The court highlighted the detenu's right to make an effective representation under Article 22 of the Constitution. It was found that the detaining authority did not provide the detenu with the necessary documents to make such a representation. The court stressed the importance of procedural fairness and timely consideration of representations by the Advisory Board.

5. Visitation Rights and Legal Assistance for the Detenu:
The court addressed the issue of visitation rights and legal assistance, noting that lawyers should be allowed to meet with detenu without undue restrictions. The presence of DRI officials during such meetings was found to be prejudicial. The court mandated that such meetings should occur "within eye sight, but out of earshot" to ensure confidentiality and fairness.

6. Procedural Fairness in the Advisory Board Hearings:
The court examined the procedures followed by the Advisory Board and found them lacking in transparency and fairness. It was noted that the detenu and their lawyers were not present when the department was heard, which violated established procedures. The court emphasized that any information or arguments presented by the detaining authority should be disclosed to the detenu to maintain procedural fairness.

Findings:
The court concluded that the detaining authority failed to supply crucial documents, including video footage and call records, which were essential for the detenu to make an effective representation. The detaining authority's reliance on the sponsoring authority's opinion without independent verification indicated a lack of application of mind. The court also found procedural irregularities in the Advisory Board hearings and visitation rights for legal assistance. Consequently, the detention orders were set aside, and the detenu were ordered to be released forthwith if not required in any other case.

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