2021 (12) TMI 1116 - HC - Customs

Smuggling - Gold - validity of continued detention of the detenues - COFEPOSA - material on the basis which the detention order was passed are the statements recorded under Section 108 of the Customs Act - Corroboration of statements - HELD THAT - The facts and inferences from facts are drawn from the search and seizure and host of other facts mentioned in the grounds. Most of the facts are according to the detaining authority corroborated by the statements of those with whom the petitioners had dealings. We also note that the power under Section 108 of the Customs Act is intended to be exercised by a gazetted officer of the customs department. Section 108(3) enjoins on the person summoned by the officer to serve upon any subject to which he is summoned. He is not excused from speaking the truth on the premise that such statements could be used against him. This requirement is included in the previous or the purpose of including the officer to elicit from the person interrogated. In the instance case, there has been no retraction of the confession statements made under section 108 of the Customs act. In such circumstances, we find nothing wrong in the detaining authority relying on the statements made under Section 108 of the Customs Act as they furnish sufficient and adequate materials on the basis of which the detaining authority can form its opinion. There is no merit in the contention of the learned senior counsel that there has been factual misstatements made about the various voluntary statements given by the detenue under section 108 of the Customs Act, we hold that the same is not acceptable. The copies of the statements dated 14-7-2020 and 29-7-2020 of the detenue were made available by the learned counsel for the Customs. Having gone through the statements, it is not found that there is any factual misstatement recorded in the detention order about the confession statement under Section 108 of the Customs Act. Thus, we repel the said contention. The CCTV footage has no bearing on the decision to detain as it is not primarily based on the said footage. The whole purpose of supplying the copies of the documents relied on is to ensure that the right of the detenue to make a representation against the detention order is not hampered in any manner by the non-supply. In the instant case, no findings are arrived at on the basis of the CCTV footage, and thus, non-supply of the same cannot be of any avail to the petitioner. With regard to the contention that there is no likelihood that the detenues would be enlarged on bail also cannot be accepted as several accused in the connected cases had been granted bail. All that the detaining authority was obliged while passing the order of detention is to be aware of the fact that detenue is in jail and about the chance of detenue being enlarged on bail, that having been done no fault can be found. We therefore, reject this contention. The proceeding of the Advisory Board is different from the proceedings of the judicial or quasi-judicial proceedings, before which there is a lis to adjudicate upon. The Advisory Board cannot be asked to take up the mantle of becoming the legal practitioner for the detenue. The detenue was free to produce materials to question the detention made against him and the Advisory Board has no obligation to summon any person or to call for records over and above the files placed before it. The Advisory Board in the instance case has opined that it was necessary to continue the detention. We do not not think that the detenue has been denied the protection either under Article 21 or 22 of the Constitution of India. The detenue did get the opportunity for making an effective representation against his detention - the contention is rejected. Petition dismissed.

Summary

Issues Involved:
1. Legality of detention orders based on statements under Section 108 of the Customs Act.
2. Alleged factual misstatements in the detention orders.
3. Non-supply of CCTV footage.
4. Detention without direct seizure of gold.
5. Likelihood of the detenues being granted bail.
6. Advisory Board's duty to collect all materials under Section 8(c) of the COFEPOSA Act.

Detailed Analysis:

1. Legality of Detention Orders Based on Statements Under Section 108 of the Customs Act:
The petitioners argued that the detention orders were based solely on statements recorded under Section 108 of the Customs Act, which should not be used for COFEPOSA proceedings. They contended that the provisions of the Evidence Act are not applicable to COFEPOSA proceedings. The court, however, found that the proceedings under COFEPOSA are administrative in nature and not quasi-judicial. It cited precedents affirming that statements under Section 108 can be used for preventive detention as they are not subject to the same standards as criminal proceedings. The court concluded that the detention orders were validly based on these statements, which provided sufficient material for the detaining authority’s subjective satisfaction.

2. Alleged Factual Misstatements in the Detention Orders:
The petitioners claimed that the detention orders contained factual misstatements regarding the statements made under Section 108 of the Customs Act. The court reviewed the statements and found no factual misstatements. It held that the detention orders accurately reflected the contents of the statements, thereby rejecting this contention.

3. Non-Supply of CCTV Footage:
The petitioners argued that the non-supply of CCTV footage, which was mentioned in the detention order, was fatal to the legality of the detention. The court noted that the CCTV footage was not relied upon for arriving at the subjective satisfaction necessary for the detention order. Since the footage was not a primary basis for the decision, its non-supply did not hamper the detenues' right to make an effective representation. Thus, the court rejected this contention, distinguishing it from cases where CCTV footage was relied upon.

4. Detention Without Direct Seizure of Gold:
The petitioners contended that since no gold was directly seized from them, the detention under Section 3(1)(i) of the COFEPOSA Act was invalid. The court referred to the definition of 'smuggling' under Section 2(e) of the COFEPOSA Act, which includes abetting smuggling. It held that the involvement in the smuggling racket, as evidenced by the statements, was sufficient to justify the detention. The court rejected the argument that direct seizure was necessary for detention under the COFEPOSA Act.

5. Likelihood of the Detenues Being Granted Bail:
The petitioners argued that the detenues were unlikely to be granted bail, and this aspect was not properly considered by the detaining authority. The court noted that the detaining authority had considered the fact that the detenues were in jail and the possibility of them being released on bail. It pointed out that some accused in related cases had been granted bail. Therefore, the court found no fault in the detaining authority’s consideration of the likelihood of bail and rejected this contention.

6. Advisory Board's Duty to Collect All Materials Under Section 8(c) of the COFEPOSA Act:
The petitioners argued that the Advisory Board failed to collect all necessary materials and conduct a detailed inquiry. The court clarified that the role of the Advisory Board is to assess whether there is sufficient cause for detention, not to adjudicate guilt. It held that the Advisory Board is not required to summon additional records beyond what is presented unless requested by the detenue. The court found that the detenues had the opportunity to make representations and that the Advisory Board had properly reviewed the case. Thus, this contention was also rejected.

Conclusion:
The court concluded that the detaining authority acted in accordance with the statutory purpose of the COFEPOSA Act. There were no shortcomings or illegalities in the detention orders. Consequently, the writ petitions were dismissed.