2020 (2) TMI 383 - HC - Customs

Detention order - Section 3(1) of COFEPOSA Act - Smuggling - foreign currencies - baggage rules - detenue's statement is that he used to smuggle around 300 cartons of cigarettes from Dubai/Kabul on his arrivals - seizure of detenue's passport - HELD THAT - In the instant case, authorities after investigation and on evaluation of the evidences i.e. i. His 11 visits between Delhi and Dubai as per his passport; ii. Video clippings from detenu's mobile showing his involvement in smuggling of foreign currency with help of certain other persons; iii. Materials produced by Orient Exchange Company (LLC) showing declaration by detenu for his dealing in foreign exchange; was subjectively satisfied that 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. Petition dismissed - decided against petitioner.

Issues Involved:
1. Legality of the subsequent detention order dated 13.12.2018.
2. Whether the detention order was based on new facts or identical to the earlier revoked detention order.
3. Consideration of the detenu's representation by the Advisory Board.
4. Impact of the detenu's passport being seized on the validity of the detention order.

Issue-wise Detailed Analysis:

1. Legality of the subsequent detention order dated 13.12.2018:
The petitioner challenged the detention order under Section 226 of the Constitution of India, read with Section 482 of the Code of Criminal Procedure, 1973, seeking quashing of the detention order dated 13.12.2018 issued under Section 3(1) of the COFEPOSA Act. The petitioner argued that the order was bad in law as it did not provide any new cause of action and was based on the same facts and circumstances as the earlier revoked detention order. However, the court found that the subsequent detention order was based on fresh investigation and new evidence, including the detenu’s repeated travels and involvement in smuggling activities, which justified the issuance of the new detention order.

2. Whether the detention order was based on new facts or identical to the earlier revoked detention order:
The petitioner contended that the earlier detention order dated 18.07.2018 and the subsequent order dated 13.12.2018 were identical, and since the earlier order was revoked due to insufficient grounds, the new order was also bad in law. The court noted that the subsequent order was based on fresh investigations revealing the detenu’s involvement in smuggling activities on multiple occasions, which were not considered in the earlier order. Therefore, the new detention order was not identical and was justified based on new evidence.

3. Consideration of the detenu's representation by the Advisory Board:
The petitioner argued that his representation was not considered by the Advisory Board, thereby violating his rights under the COFEPOSA Act. The court found that the representation was sent to Delhi while the Advisory Board was in Kerala. Moreover, the detenu and his counsel were present during the hearing before the Advisory Board, and no objections were raised at that time. Thus, the court concluded that the claim of ineffective representation was an afterthought and not valid.

4. Impact of the detenu's passport being seized on the validity of the detention order:
The petitioner claimed that since his passport was seized by Customs Authorities, he could not engage in prejudicial activities, making the detention order unnecessary. The court referred to the Supreme Court’s guidelines in UOI v. Ankit Ashok Jalan, which allow for detention even if a person is in custody, provided the detaining authority is satisfied that the detenu is likely to be released and will engage in prejudicial activities. The court found that the authorities had sufficient evidence of the detenu’s involvement in smuggling activities and were justified in detaining him to prevent further prejudicial activities.

Conclusion:
The court dismissed the writ petition, finding no merit in the petitioner’s arguments. The subsequent detention order was based on fresh investigations and new evidence, the representation issue was an afterthought, and the seizure of the passport did not invalidate the detention order.

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