2021 (8) TMI 129 - HC - Customs

Illegal detention - Smuggling - Gold - sufficient reason for the continued detention of the detenu beyond the period of 11 weeks from the date of detention - constitution of Advisory Board - HELD THAT - 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 . We cannot, however, give any significance to the word the before the words Advisory Board to hold that the Advisory Board must be one constituted by the appropriate Government. We cannot read into Section 8 (a), the requirement that the reference must be to an Advisory Board constituted by the appropriate Government. Section 8 (b) uses the words appropriate Government only to indicate that the reference must be made by the appropriate Government as defined in Section 2 (a). The Parliament deliberately has not used the words appropriate Government in Section 8 (a) and we see no reason to read it in that manner. The Constitution as it stands today does not call for such an interpretation. It appears to us that 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. 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. Detention order issued while the detenu was already in judicial custody.
5. Denial of legal representation before the Advisory Board.
6. Competency of the Advisory Board that considered the case.

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 snapped the live link between the alleged prejudicial activity and the requirement of detention. The court held that considering the nature of the activity and the involvement of multiple persons, the investigation required reasonable time. The most proximate prejudicial activity was detected in June/July 2020, and the detention order was issued on 19.11.2020. The court referenced Waheeda Ashraf v. Union of India and concluded that the delay due to detailed investigation does not invalidate the detention order.

2. Non-Supply of Crucial Documents to the Detenu:
The petitioner argued that the detenu was not supplied with certain documents, including Whatsapp chats, documents related to past activities, and CCTV footage, affecting his right to make an effective representation. The court noted that the detenu is entitled only to documents relied upon in the grounds of detention. The Whatsapp chats and past activities were part of confessional statements recorded under Section 108 of the Customs Act, which were supplied to the detenu. The court found no bearing on the detenu's right due to the non-supply of CCTV footage, as it was not relied upon in the grounds of detention.

3. Validity of the Detention Order Based on Confessional Statements:
The petitioner contended 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 evidence, especially when not retracted. The court held that there is no law invalidating a detention order based on such statements.

4. Detention Order Issued While the Detenu was Already in Judicial Custody:
The petitioner argued that the detaining authority failed to consider that the detenu was in judicial custody under the Unlawful Activities Prevention Act, 1967, with no realistic chance of bail. The court noted that the detaining authority was aware of the detenu's custody and the likelihood of bail. The court referenced Kamarunnissa and Dimple Happy Dhakad cases, concluding that the detaining authority's subjective satisfaction regarding the necessity of preventive detention was sufficient.

5. Denial of Legal Representation Before the Advisory Board:
The petitioner claimed that the detenu's advocate was not allowed to address arguments before the Advisory Board. The court found that the detenu was given an opportunity to be represented by a counsel, which was not availed. The detenu was heard through video conferencing, and the representation by the advocate was considered despite being received after the hearing. The court held that the proceedings were not vitiated.

6. Competency of the Advisory Board that Considered the Case:
The petitioner argued that only the Advisory Board constituted under the notification dated 17.3.2020 was competent to consider the case. The court examined the provisions of Art.22 of the Constitution, Sections 2(a), 8(a), and 8(b) of the COFEPOSA Act, and the notification. The court held that neither the Constitution nor the COFEPOSA Act mandates that the Advisory Board must be constituted by the government issuing the detention order. The court found no merit in the petitioner's contention and upheld the competency of the Advisory Board that considered the case.

Conclusion:
The court dismissed the writ petition, finding no merit in the contentions raised by the petitioner. The detention order was upheld as valid and legally sustainable.

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