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2021 (6) TMI 1108 - HC - Indian LawsSeeking issuance of a writ in the nature of habeas corpus for the release of petitioner's brother - Smuggling - Gold - smuggling gold by concealing the same in diplomatic cargo which is not normally subjected to detailed customs examination - illegal detention - COFEPOSA Act - whether there was awareness in the mind of the detaining authority that detenu is in custody and he had reason to believe that detenu is likely to be released on bail and if so released, he would continue to indulge in prejudicial activities? - HELD THAT - The detaining authority was aware of the fact that the detenu was in judicial custody; that he is likely to be released on bail; and that if so released, he would engage in prejudicial activity - If the grounds of detention show that the detaining authority was alive to these facts, and was satisfied that there was a real likelihood of the detenu being released on bail, we will not substitute our satisfaction for that of the detaining authority for what the law requires is only the subjective satisfaction of the detaining authority. The next contention raised by the learned counsel for the petitioner is that the learned counsel for the detenu was not given an opportunity for hearing before the Advisory Board constituted under Section 8 of the COFEPOSA Act, 1974 - HELD THAT - Though the hearings before the board were concluded on 22.1.2021, it was only on 29.1.2021 that a request was received from the Advocate for the detenu enclosing a detailed representation on behalf of the detenu and requesting for a hearing. It is obvious that considering the time limit imposed under Section 8 of the COFEPOSA Act, 1974 the Board was not in a position to grant any further adjournment to accommodate any request of the detenu. It is also clear that the Advisory Board had also considered the representation dated 29.1.2021 despite the fact that the representation was received after the hearing was concluded on 22.1.2021 - The contention of the learned counsel for the petitioner that proceedings of the Advisory Board are vitiated on account of the failure to permit the detenu to be represented by an Advocate of his choice, cannot be accepted. - It can only be held that the opportunity extended to the detenu to be represented by a counsel was not availed by the detenu. The last and final contention of the learned counsel for the petitioner is that the Advisory Board which considered the case of the detenu under Section 8 of the COFEPOSA Act is not competent to consider the same - HELD THAT - On reading of the provisions of Art. 22 of the Constitution and the various provisions of the COFEPOSA leads to conclude that neither the Constitution nor the COFEPOSA Act require that in every case where the detention order is passed by the Central Government, its confirmation must be by an Advisory Board constituted by the Central Government under Section 8(a) of the COFEPOSA Act. Art. 22(4) of the Constitution of India only provides that no law providing for preventive detention shall authorise the detention of a person for a period longer than three months unless 'an Advisory Board' consisting of persons who are, or have been, or are qualified to be appointed as Judges of a High Court have reported before the expiration of the period of three months that there is, in its opinion, sufficient cause for such detention. Art. 22(4) was sought to be amended by the Constitution (44th Amendment) Act, 1978 by which, among other things, it was provided that the Advisory Board shall consist of a Chairman who has to be a serving Judge of the 'appropriate High Court' and further providing that 'appropriate High Court' means, in case of an order of detention made by the Government of India or an officer or authority subordinate to that Government, the High Court of Delhi and in case of an order of detention issued by the State Government, the High Court for that State. The provisions of Section 8(a) of the COFEPOSA Act provide for the constitution of Advisory Boards. Significantly, those provisions do not use the words 'appropriate Government'. Section 8(b), no doubt says that the reference to the Advisory Board shall be by the 'appropriate Government' and uses the words 'the Advisory Board'. Any significance cannot be given to the word 'the' before the words 'Advisory Board' to hold that the Advisory Board must be one constituted by the appropriate Government - The provisions of Art. 22(4) of the Constitution and Section 8 of the COFEPOSA only requires that the case of the detenu could be considered by an Advisory Board consisting of persons having the qualifications mentioned in Art. 22(4) and constituted by appropriate notification under Section 8 of the COFEPOSA Act. The Learned Counsel for the petitioner has no case that the Advisory Board which considered the case of the detenu has not been constituted under Section 8 of the COFEPOSA Act. At any rate, the detenu cannot be said to be prejudiced in any manner as his representation was duly considered by an Advisory Board comprising of such members as are recognised both by the unamended and amended provisions of Art. 22(4) of the Constitution. There is no merit in the contention of the learned counsel for the petitioner that only the Board constituted under the notification dated 17.3.2020 was competent to consider the case of the detenu - Petition dismissed.
Issues Involved:
1. Delay in issuing the detention order. 2. Non-supply of crucial documents to the detenu. 3. Validity of the detention order based on confessional statements. 4. Consideration of the detenu's judicial custody status. 5. Opportunity for legal representation before the Advisory Board. 6. Competence of the Advisory Board. Detailed Analysis: 1. Delay in Issuing the Detention Order: The petitioner contended that there was a delay of 4 months and 14 days in issuing the detention order, which severed the connection between the alleged prejudicial activity and the need for detention. The court, however, found that the investigation into the smuggling activities required reasonable time due to the complex nature of the case and the involvement of multiple individuals. Citing previous judgments, the court concluded that the delay was justified and did not invalidate the detention order. 2. Non-Supply of Crucial Documents to the Detenu: The petitioner argued that the detenu was not given certain documents, such as Whatsapp chats and past activity records, which impeded his ability to make an effective representation. The court held that the detenu is entitled to documents that the detaining authority relied upon to reach its subjective satisfaction. Since the Whatsapp chats and past activities were part of confessional statements under Section 108 of the Customs Act, which were not retracted, they constituted evidence. The court also found that the non-supply of CCTV footage, which was not relied upon in the grounds of detention, did not affect the detenu's rights. 3. Validity of the Detention Order Based on Confessional Statements: The petitioner claimed that the detention order was invalid as it was based solely on confessional statements. The court rejected this argument, stating that statements under Section 108 of the Customs Act are considered evidence, especially when not retracted. Therefore, the detention order based on these statements was valid. 4. Consideration of the Detenu's Judicial Custody Status: The petitioner contended that the detaining authority failed to properly consider the detenu's judicial custody under the Unlawful Activities Prevention Act, 1967. The court noted that the detaining authority was aware of the detenu's custody status and the likelihood of him being released on bail. The court emphasized that the law requires the detaining authority to be aware of the custody status and the potential for bail, which was satisfied in this case. 5. Opportunity for Legal Representation Before the Advisory Board: The petitioner argued that the detenu's counsel was not allowed to present arguments before the Advisory Board. The court examined the records and found that the detenu was given an opportunity to be represented by a lawyer, but his counsel was not present on the adjourned date. The Advisory Board also considered a subsequent representation from the detenu's counsel. Thus, the court held that the detenu was given a fair opportunity, which he did not fully utilize. 6. Competence of the Advisory Board: The petitioner claimed that the Advisory Board constituted under a notification dated 17.3.2020 was the only competent body to consider the case. The court examined the relevant constitutional and statutory provisions and concluded that the Advisory Board constituted within the state was competent to consider the case. The court found no merit in the argument that only the Central Government's Advisory Board could review the case, as the detenu's representation was duly considered by a qualified Advisory Board. Conclusion: The court dismissed the writ petition, finding no merit in the arguments presented by the petitioner. The detention order was upheld as valid and legally justified.
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