REVOCATION OF EARLIER DETENTION ORDER DOES NOT IPSO FACTO BARS PASSING THE FRESH DETENTION ORDER AGAINST THE DETENU.

[Mr. M. GOVINDARAJAN]

The Supreme Court in ‘Union of India v. Anki Ashok Jalan’ = 2019 (11) TMI 1088 - SUPREME COURT has held that even if a person is in judicial custody, he can be put on detention provide there must be an application of mind by the detaining Authority. The Supreme Court laid down the following guidelines in this regard-

• The order of detention validly can be passed against a person in custody and for that purpose it is necessary that the grounds of detention must show whether the detaining authority was aware of the fact that the detenu was already in custody.
• The detaining authority must be further satisfied that the detenu is likely to be released from custody and the nature of activities of the detenu indicate that if he is released, he is likely to indulge in such prejudicial activities and therefore, it is necessary to detain him in order to prevent him from engaging in such activities.
• The satisfaction of the detaining authority that the detenu is already in custody and is likely to be released on bail and on being released he is likely to indulge in the same prejudicial activities with the subjective satisfaction of the detaining authority.

In ‘Mohammad Seddiq Yousufi v. Union of India’  = 2020 (2) TMI 383 - DELHI HIGH COURT, on the information received Mohammad Seddiq Yousufi, an Afghan National, was captured by the Air Intelligence Unit of Cochin International Airport Limited. The Unit identified a suspicious bag belonging to Mohammed Seddiq Yousufi who was travelling from Kochi to Dubai in Emirates flight. In the presence of witnesses one checked in bag was examined and found to contain foreign currencies which were concealed inside on sky blue colored electric rice cooker, one electric coil stove and six numbers of readymade shirts. It was found that Mohammed Seddiq Yousufi was carrying USD 14,18,650 and Saudi Riyals 8,99,500 mount to ₹ 10,94,05,047.50. In absence of any document to prove acquisition and possession of the said foreign currency, the same were seized of reasonable belief that those were liable for confiscation under provisions of Customs Act, 1962 read with the provisions of Foreign Exchange Management Act, 1999. The packing materials were also seized as the same liable for confiscation under section 119 of the Customs Act, 1962.

On his statement Mohammed Siddiq Yousufi deposed that the currency was given to him by one Barullah Khan, who has money exchange shop near Durga Mandi. On the receipt of the said currency he packed the same inside the bag along with the cloths. He was asked to hand over the same to a person at Dubai, who would contact him on reaching Dubai. He had met Barullah Khan 3 months when he sold smuggled cigarettes. Barullah Khan was introduced to him by a person Hamidullah who is a smuggler friend from Afghanistan. Mohammed Siddiq Yousufi was arrested on 14.06.2018 under section 104 of the Customs Act for having committed the offence punishable under section 135 of the Customs Act. He was remanded to judicial custody for 14 days and his arrest was communicated to Afghanistan Embassy.

Mohammed Siddiq Yousufi (‘detenu’) was given tourist visa and later he was granted business visa. Three mobile phones were seized from the detenu. On the analysis of the phone, some video clips indicated his earlier involvement in smuggling activities and his association with two suspects viz., Azmuddin Nazamuddin and Khair Mohammad Akhtai. On 17.03.2018 he was found travelling to Dubai and on arrival at Dubai, he was seen going in a car with Azmuddin Nazamuddin; another video clip showed detenu along with Azmuddin Nazamuddin in a room; another clip showed Azmuddin Nazamuddin was counting bundles of US dollar.

On 28.06.2018 the department was permitted to have custody of detenu for 2 days as per order by Additional Chief Judicial Magistrate (Economic Offence), Ernakulam. His statement was recorded. He was produced before Additional Chief Judicial Magistrate (Economic) Office, Ernakulam on 30.06.2018 and remanded to judicial custody. His bail application dated 16.07.2018 was rejected. The competent authority issued the detention order on 18.07.2018.

The Central Advisory Board heard the case of detenu on 21.09.2018. The detention order was revoked on the advice of Central Advisory Board since sufficient grounds for detention was not made out. The same was communicated to the detenu. However the detenu could not be released from prison as he was remanded by virtue of order passed by Additional Chief Judicial Magistrate (Economic Offence) Court, Ernakulam. The detenu was taken under section 108 of Customs Act on 22.09.2018 at Central prison. On scrutiny of his passport, it was noticed that the detenu had arrived at Delhi on 11 occasions since 05.12.2017 until 13.06.2018. Another photo captured from the mobile phone of the detenu an invoice was found pertaining to exchange of US Dollars and Saudi Arabian Riyals to UAE Dirham worth 36,97,093.25 by one Abdul Latif Jamshedi and purpose of exchange was show as buying gold. The invoice was issued by Orient Exchange Company. The said company was requested to furnish the details of foreign exchange transacted by the detenu through overseas branched. As per the details the detenu has purchased AED 36,97,970.50 on 17.03.2018 by selling USD 752920, Saudi Riyal 8,00,000 and sterling pound 30,000.

In the meantime the detenu was granted bail on certain conditions including surrender of his passport and that he shall not leave India without prior permission of the Court. A show cause notice dated 05.10.2018 had been issued to detenu under section 14 of the Customs Act, 1962 proposing confiscation of foreign currency valued at ₹ 10,94,05,047.50 under section 113(d), (e) and (h) of the Customs Act, 1962 read with the provisions of Foreign Exchange Management (Exports and Import of Currency) Regulations, 2015 and penalty to be imposed under Section 114 of the Customs Act. The detenu did not file reply to the said show cause notice. Considering the graveness of the offence the detenu was detained vide order dated 13.12.2018. The detenu was served with the detention order on 24.01.2019. The detenu made representation before the Central Advisory Board on 13.03.2019 which was rejected vide order dated 28.03.2019.

Against this order the detenu filed a writ petition before the High Court. The petitioner submitted the following before the High Court-

• No cause of action against the present detenu till date has arisen in presence of the earlier detention order dated 18.07.2018. The earlier detention order was revoked as no sufficient grounds for detention was made out before Central Advisory Board. The subsequent detention order dated 13.12.2018 was based on same facts and circumstances, therefore the same is bad in law.
• The facts of the earlier detention order and subsequent detention order is identical in nature, therefore, once the Central Advisory Board on earlier occasion did not find sufficient grounds to detain the detenu and the Government itself revoked the order under section 11(1) of COFEPOSA Act, the subsequent detention order dated 13.12.2018 is bad in law.
• The detenu was not given opportunity of being heard in person with the change of Advisory Board, the right of detenu under COFEPOSA Act has been jeopardized and his representation neither been forwarded/called for nor was considered by any authority.
• The passport of the detenu is already seized and is with the Customs Authority, therefore, detenu’s indulgence in any pre-judicial activities is no basis.

The Department submitted the following before the High Court-

• Before passing the detention order, investigation was carried out by the authorities and found the detenu being involved in various smuggling activities of foreign currency.
• The detenu was found involved on 11 occasions of the said activities.
• His involvement is based on cogent evidence, made available to the authorities and it is on the basis, the authorities after subjective satisfaction that detenu could be indulging in prejudicial smuggling activities etc., in near future passed said detention order and present writ is without merit.

The High Court heard the submissions put forth by the two parties. The High Court observed that in the statement the detenu deposed that he used to smuggle around 300 cartons of cigarettes from Dubai/Kabul on his arrivals has no reasonable explanation for his 11 visits other cigarette smuggling. The detenu’s visit only for smuggling cigarette does not appear to be true as expense for visits do not tally with profit he makes by smuggling 300 cartons of cigarettes. His visits to Dubai on business class tickets otherwise is not profitable to him unless he is involved in smuggling activities of foreign currency. The video footage of detenu’s arrival at Delhi, travelling details of detune and photographs of his friends point that he is a part of well organized racket which is engaged in smuggling of foreign currency in high magnitude.

The High Court held rejected the contentions of the detenu as they have lost their significances. The contention of the petitioner that representations have not been considered by the Advisory Board loses its significance as the petitioner himself mentioned that the representation was sent to Delhi whereas Advisory Board was in Kerala. Moreover on 28.03.2019 before the Advisory Board, the detenu along with his Counsel was present. Once the detenu himself along with his Counsel was present before the Advisory Board and Advisory Board concluded the proceedings without detenu raising any such objection before them, the subsequent plea of ineffective representation evidently is an afterthought and is not available to the detenu.

The High Court further held that the contention of the detenu that the impugned detention order is bad as passport of the detenu is already seized by the Customs Authority and the same in their possession, and as such, there is no opportunity/occasion available to the detenu to travel abroad or engage in prejudicial activities, is without merit.

In the instant case, the authorities after investigation and on evaluation of the evidence i.e.,

• His 11 visits between Delhi and Dubai as per his passport;
• Video clippings from detenu’s mobile showing his involvement in smuggling of foreign currency with the help of certain other persons;
• Materials produced by Orient Exchange Company showing declaration by detenu for his dealing in foreign exchange,

Was subjectively satisfied that the detenu is engaging himself in smuggling of foreign currency and if he is released on bail, there is every likelihood of his indulgence in prejudicial activities, therefore, it was necessary to detain him in order to prevent him from engaging in such activities.

The High Court found no merit in the present petition and dismissed the same.