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TMI Blog2020 (6) TMI 598X X X X Extracts X X X X X X X X Extracts X X X X ..... ion passed by the first respondent herein vide Order No.PD- 12002/24/2019- COFEPOSA dated 11.10.2019 invoking the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. 2. According to the respondent, on 25.08.2019, the officers of the Airport Intelligence Unit (AIU), on suspicion, intercepted the petitioner herein who reached Chennai Airport from Malaysia by Air Asia Airlines Flight No. AK 11 at 07.40 hours. On questioning, the petitioner appeared to be nervous and was giving inconsistent version to the questions posed to her. On verification, it was revealed that the petitioner was holding a Malaysian Passport Number A36434097 issued on 05.10.2015 in Malaysia. The personal belongings of the petitioner - two number of hand baggage viz., one black colour shoulder bag and one purple colour stroller suitcase were examined in the presence of witnesses. On further examination of the black colour shoulder bag, three small purses were recovered. On opening the three purses, each purse contained a bundle wrapped up with adhesive tape. On opening the bundle, 12 numbers of yellow colour metallic cut bars totalling weighing 6478 grams were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... departure particulars of Ms. Ros Maszwin Bindi Abdul Kadir on earlier occasion to India etc., It was also ascertained that the petitioner frequently travelled from Malaysia to India. When the aforesaid material particulars were placed, the first respondent arrived at a subjective satisfaction that the petitioner indulged in fraudulent activities by way of smuggling of goods or abetting the smuggling of goods and engaged in transporting or concealing or keeping smuggled goods at the cost of the government revenue and national security with an intention to enrich herself. Therefore, the first respondent, invoking Section 3 (1) of the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities (COFEPOSA) Act, 1974 clamped the order of detention dated 11.10.2019 against the petitioner. Challenging the order dated 11.10.2019, the present Habeas Corpus Petition is filed. 4. Mr. N.R. Elango, learned Senior counsel appearing for the petitioner invited our attention to para No.v of the detention order dated 11.10.2019 and contended that in order to show that the detaining authority has arrived at a subjective satisfaction to clamp the order of detention, re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ights conferred on the detenue regarding the grounds of detention, and the right to make an effective representation, are rights which are to be zealously safeguard, as the subjective satisfaction arrived at by the detaining authority is not open for examination by the Court, unless it is found to be wholly unsupported by any material. The detaining authority, therefore, cannot on the basis of his own assessment as to which document to be furnished, and which should not be furnished, deny to the detenue the document which is necessary for the purpose of enabling the detenue to make an effective representation. 7. The continued detention of the detenue in this case, therefore, cannot be considered as a legal, after the deteneu's right to make an effective representation had been prejudiced by reason of non-supply of remand order which had been sought by the detenue and which had been wrongly refused to be supplied by the detaining authority. 5. By placing reliance on the aforementioned decision of this Court, the learned Senior counsel for the petitioner would contend that the fact that the detenue has been denied the copies of the remand is explicit inasmuch as it has no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Supreme Court as follows:- 33. This contention relates to the non-placing of the full text of the remand order of Sayed Arif Sayed Hanif before the detaining authority. A similar contention was raised before the High Court, but it was rejected. The remand Application No. 981 of 1990 dated September 28, 1990 was made in respect of the crew members. A copy of this remand application is annexed to the grounds of detention. At the foot of the remand application there is an endorsement to the effect that all the accused produced before the court were remanded in judicial custody till October 11, 1990. Though the full text of the remand order was not placed before the detaining authority, the substance of the same was placed. We are not in complete agreement with the High Court that non-placing of the remand order before the detaining authority has in no way affected either the subjective satisfaction of the authority or the detenu's right to make a detailed representation. 8. By relying on the aforesaid decision of the Honourable Supreme Court, the learned Standing counsel for the respondents would contend that nonhttp:// furnishing of the orders of remand will not vitiate t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vented her from submitting an effective representation to the detaining authority seeking revocation of the order of detention passed against her. The periodical extension of the order of remand must have disclosed the stage of the investigation, the materials relied against the petitioner for such extension, the other attendant circumstances which warrant the continuance of detention of the deteneu etc., Unless the order of remand is furnished to the petitioner, the petitioner will be made to grope in the dark as to what prompted the learned Judicial Magistrate to periodically extend her report and what are all the incriminating materials collected against her during the course of investigation when she was under incarceration. In fact, the decision relied on by the learned Senior counsel for the petitioner in Chinna Ponnu's case cited supra squarely apply to the facts of the case. 11. On the other hand, in the decision relied on by the learned Standing counsel for the respondents, the Honourable Supreme Court had an occasion to consider as to what would be the effect of the non-furnishing of the copy of the orders of remand for consideration of the detaining authority. I ..... X X X X Extracts X X X X X X X X Extracts X X X X
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