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TMI Blog2019 (1) TMI 1705X X X X Extracts X X X X X X X X Extracts X X X X ..... the Code of Criminal Procedure, 1973 essentially in the nature of writ of habeas corpus, has been initiated by the petitioner Mohammad Seddiq Yousufi (hereinafter referred to as the detenus ), seeking quashing and setting aside of the impugned detention order bearing F.NO. PD-12002/19/2010-COFEPOSA dated 13.12.2018 passed under Section 3(1) of the Conservation of Foreign Exchange Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as COFEPOSA Act ) issued against him. 2. The brief facts stated are that on 13.06.2018, the Air Intelligence Unit (AIU) of Cochin International Airport Ltd (CIAL), Nedumbassery received an information from CIAL screening staff, who were engaged in screening of checked-in baggage for departure, that they have identified a suspicious baggage. The baggage belonged to the detenu, Mohammad Seddiq Yousufi, an Afghan national. He was travelling from Kochi to Dubai in Emirates Flight No. EK 533. He was issued a boarding pass allocating seat No.11A alongwith checked-in baggage tag bearing No.EK28548. In presence of witnesses and detenu, one checked-in bag was examined and found to contain foreign currencies i.e. US Dollars and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tenu was given tourist visa and later he was issued business visa. Travel documents perused by department and materials collected indicate detenu purchased ticket on 05.06.2018 for travelling from Dubai to Delhi on 06.06.2018 and from Delhi to Dubai on 12.06.2018 on payment of USD 330 by cash. On 12.06.2018, ticket for Delhi to Dubai was upgraded to Business Class by paying USD 414. All ticketing is done by cash at Kabul through travel agency by name GSA Kabul Air India. 4. Three mobile phones were seized from detenu, on its analysis at CDAC, Thiruvananthapuram, some video clips indicated his earlier involvement in smuggling activities and his association with two suspects viz., Azmuddin Nazamuddin and Khair Mohammad Akhtari. On 17.03.2018, he was found travelling in AI 933 to Dubai and on arrival at Dubai, he was seen going in a car with Azmuddin Nazamuddin; another video clip showed detenu alongwith Azmuddin Nazamuddin in a room; another clip showed Azmuddin Nazamuddin was counting bundles of US Dollars. 5. On 28.06.2018, department was permitted to have custody of detenu for two days as per order by Additional Chief Judicial Magistrate (Economic Offence), Ernak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lhi on 17.03.2018 while travelling to Dubai by Air India Flight AI 933. Currency declarations issued by Dubai Customs would show detenu and his associates Khair Mohammed Akhtari and Abdul Latif Jamshedi had smuggled foreign currency from India. All of them shown their address at Dubai as 302, Abdullah Building. Declaration given by detenu to Dubai Customs on 17.03.2018 would show he was travelling from Delhi and he had declared foreign currency equivalent to AED 36,85,950.90/-. In order to unearth the modus operandi of organised smuggling of foreign currency and to identify key persons behind the racket, Commissioner of Customs, Cochin vide letter dated 12.11.2018 requested DRI, Delhi to further investigate the matter. In the meantime, on 01.10.2018, remand warrant was extended by ACJM (Economic Offence), Ernakulam till 14.10.2018. Detenu, however, was granted bail on 05.10.2018 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 124 of Customs Act, 1962 proposing confiscation of foreign currency valued at INR 10,94,05,047.50/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Ors. 1986 SCC Online Bom 342 and Ibrahim Bachu Bafan v. State of Gujarat Ors. (1985) 2 SCC 24. iii. 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 jeopardised and his representation neither been forwarded/called for nor was considered by any authority. He relied upon Smt. Gracy v. State of Kerala Anr. (1991) 2 SCC 1 and Pebam Ningol Mikol Devi v. State of Manipur Ors. (2010 9 SCC 618. iv. 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. He relied on Moulana Shamshunnisa Ors. v. Addl. Chief Secretary (2010) 15 SCC 72. 10. Ld. counsel on behalf of detenu, Mr. Shubhankar Jha has submitted that detention order dated 13.12.2018 is bad in Law as same does not give any cause of action to detain the detenu. The Ld. Counsel further submitted that no sufficient ground is found to detain the detenu vide confirmation order of Central Advisory Board dated 28.03.2019. Subsequent detention order is based on same facts and circumstances, theref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al at Delhi, travelling details of detenu, Azmuddin Nazmuddin and Khair Mohammad Akhtari and photographs of said persons, point that he is part of a well-organized racket which is engaged in smuggling of foreign currency in high magnitude. 15. The contention of the Ld. counsel for detenu that facts of earlier detention order dated 18.07.2018 and facts of present detention order dated 13.12.2018 is identical and same is without jurisdiction loses its significance as the instant detention order is based on fresh investigation carried out by the department which pertains to modus operandi of detenu's travel between Delhi and Dubai 11 times in six months i.e. from 05.12.2017 to 14.06.2018. Moreover, there is no finding whether facts in earlier detention order dated 18.07.2018 is identical to instant detention order, either party earlier had not approached the High Court under Article 226 of Constitution of India, therefore, revocation of earlier detention order does not ipso facto bars passing the fresh detention order against the detenu. It is apparent from page No. 49 of present petition filed by detenu that detention order passed against the present detenu is on the bas ..... X X X X Extracts X X X X X X X X Extracts X X X X
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