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TMI Blog2021 (8) TMI 129X X X X Extracts X X X X X X X X Extracts X X X X ..... Government only to indicate that the reference must be made by the appropriate Government as defined in Section 2 (a). The Parliament deliberately has not used the words appropriate Government in Section 8 (a) and we see no reason to read it in that manner. The Constitution as it stands today does not call for such an interpretation. It appears to us that the provisions of Art.22(4) of the Constitution and Section 8 of the COFEPOSA only requires that the case of the detenu could be considered by an Advisory Board consisting of persons having the qualifications mentioned in Art.22(4) and constituted by appropriate notification under Section 8 of the COFEPOSA Act. The Learned Counsel for the petitioner has no case that the Advisory Board which considered the case of the detenu has not been constituted under Section 8 of the COFEPOSA Act. There is no merit in the contention of the learned counsel for the petitioner that only the Board constituted under the notification dated 17.3.2020 was competent to consider the case of the detenu - Petition dismissed. - WP(CRL.) NO. 83 OF 2021 - - - Dated:- 9-6-2021 - HONOURABLE MR. JUSTICE A.K. JAYASANKARAN NAMBIAR AND HONOURABLE MR. JUS ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, but continued to be in custody on the allegation of having committed the offence under the Unlawful Activities Prevention Act, 1967. On being served with the grounds of detention (Ext.P2), the detenu preferred representations to the Government of India and to the detaining authority (through Exts.P5 and P6 respectively). These representations were rejected, by the Central Government through Ext.P7 dated 11.1.2021 and by the detaining authority through Ext.P8 dated 14.1.2021. 3. The Advisory Board constituted in terms of Section 8 of the COFEPOSA Act opined that there was sufficient reason for the continued detention of the detenu beyond the period of 11 weeks from the date of detention and accordingly Ext.P11 order was issued by the detaining authority. It is in the above circumstances, that the petitioner seeks a writ of habeas corpus for securing the release of the detenu from custody which is allegedly illegal. The petitioner also prays for certiorari to quash the order of detention. 4. We have heard Sri. P.A. Augustine, the learned counsel appearing for the petitioner, Sri. Jayasankar. V. Nair, the learned counsel for the Union of India, Sri. Manu.S., the learned St ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... custody at the time when Ext.P1 order of detention was passed, is clearly no reason to set aside the order of detention. He submits that the detaining authority was evidently informed of the fact that the detenu was in judicial custody. He would submit that, in the facts and circumstances of the case, there is absolutely no delay in passing the order of detention and therefore, that the order of detention cannot be faulted on the ground that it was passed nearly four months after the most proximate prejudicial activity alleged. He further submits that all necessary materials which led to the detaining authority forming his subjective satisfaction to issue an order of detention have been given to the detenu in order to enable him to make an effective representation and that the grounds of detention cannot be faulted for any failure to present the detenu with all the materials to enable him to make an effective representation. 7. The learned counsel for the Central Government submits with reference to letter No.PD-13004/01/2018-COFEPOSA issued by the Government of India, in the Department of Revenue that the Advisory Board which considered the case of the detenu was clearly compe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are mentioned in the statement of one Sarith P.S. in paragraph 1 (xxvii) of the grounds of detention. It is then contended that the alleged documents relating to the alleged past prejudicial activities mentioned in paragraph 1 (clx) of the grounds of detention were not supplied. It is also contended that certain CCTV footage which would prove the innocence of the detenu was not supplied, despite specific request. It is settled law that the detenu has the right to receive all documents which are relied upon in the grounds of detention and such other documents/materials to enable him to make an effective representation against the order of detention. We are of the opinion that it is not the law that the detenu can request any document that he wants. The documents requested must necessarily have some bearing to the grounds recorded by the detaining authority to reach its subjective satisfaction. Going through the grounds of detention, we notice that the Whatsapp chats and the alleged past prejudicial activities are recorded as part of confessional statements of the detenu and certain others who were allegedly involved in the matter. These statements were recorded under Section 108 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5) of the Constitution of India. If the materials referred to and relied upon are sufficient to reach a subjective satisfaction regarding the requirement of detention, no other material is required to be provided to the detenu. The right to make a representation must be based on the materials referred to, or relied upon, by the detaining authority to reach its subjective satisfaction. We, therefore, find that no right of the detenu has been affected by the failure to provide any CCTV footage to him. 10. The next contention of the learned counsel for the petitioner is that Ext.P1 detention order was passed entirely on the basis of confessional statements. This contention of the learned counsel for the petitioner does not appeal to us for the simple reason that there is no law that holds that an order of detention cannot be validly passed on the basis of confessional statements given under Section 108 of the Customs Act. We have already indicated in an earlier part of the judgment that statements under Section 108 of the Customs Act are themselves, evidence, especially when statements have not been retracted. We, therefore, reject the contention of the learned counsel for the peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nissa and others v. Union of India and others; AIR 1991 SC 1640 and the judgment in Union of India and others v. Dimple Happy Dhakad; (2019) 20 SCC 609 to substantiate their contentions. Our reading of Kamarunnissa (supra) and Dimple Happy Dhakad (supra), leads us to conclude that all that is required in law is an awareness in the mind of the detaining authority that the detenu, though in custody, may be released on bail and if so released, he would indulge in prejudicial activities. We deem it appropriate to refer to Paragraph 35 of Dimple Happy Dhakad (supra). It reads thus: - 38. In the light of the well-settled principles, we have to see, in the present case, whether there was awareness in the mind of the detaining authority that detenu is in custody and he had reason to believe that detenu is likely to be released on bail and if so released, he would continue to indulge in prejudicial activities. In the present case, the detention orders dated 17-5-2019 record the awareness of the detaining authority: i) that the detenu is in custody; ii) that the bail application filed by the detenus have been rejected by the Court. Of course, in the detention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mself was heard by the Board through video conferencing. Though the hearings before the board were concluded on 22.1.2021, it was only on 29.1.2021 that a request was received from the Advocate for the detenu enclosing a detailed representation on behalf of the detenu and requesting for a hearing. It is obvious that considering the time limit imposed under Section 8 0f the COFEPOSA Act, 1974 the Board was not in a position to grant any further adjournment to accommodate any request of the detenu. It is also clear that the Advisory Board had also considered the representation dated 29.1.2021 despite the fact that the representation was received after the hearing was concluded on 22.1.2021. We are, therefore, unable to accept the contention of the learned counsel for the petitioner that proceedings of the Advisory Board are vitiated on account of the failure to permit the detenu to be represented by an Advocate of his choice. We can only hold that the opportunity extended to the detenu to be represented by a counsel was not availed by the detenu. 17. The last and final contention of the learned counsel for the petitioner is that the Advisory Board which considered the case of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Delhi High Court as its Chairperson. A copy of the notification dated 17th March 2020 has been placed on record at page 178 of the writ petition paper book. The learned counsel submits (through his additional written submissions dated 31.5.2021) that the question as to whether the Advisory Board constituted in terms of the notification dated 17th March 2020 alone could consider the case of the detenu is a substantial question of law and since the matter involves the question of personal liberty we should not treat the aberration as a mere defect of procedure and refers to the judgments in Ram Manohar Lohia v. State of Bihar, (1966) 1 SCR 709, Tsering Dolkar v. Administrator, Union Territory of Delhi, (1987) 2 SCC 69, Hem Lall Bhandari v. State of Sikkim, (1987) 2 SCC 9 State of Punjab v. Sukhpal Singh, (1990) 1 SCC 35 in support of this contention. He submits that in the light of the definition of appropriate Government in Section 2 (a) of the COFEPOSA Act, the constitution of the Advisory Board under Section 8 (a) of the said Act must also be by the appropriate Government . He refers to the judgment of the Supreme Court in Canon India Pvt. Ltd v. Commissioner of Cu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or an officer or authority subordinate to that Government, the High Court of Delhi and in case of an order of detention issued by the State Government, the High Court for that State. The aforesaid amendment is contained in Section 3 of the Constitution (44th Amendment) Act, 1978. However Section 3 of the 44th amendment Act has not been notified. In order to understand the purpose and intent of the aforesaid amendment (though not notified) we have perused the Statement of Objects and Reasons for the Constitution (44th Amendment) Act, 1978. There the only reference in the Statement of Objects and Reasons for the Constitution (44th Amendment) Act, 1978 to the Amendment proposed in Article 22 of the Constitution is contained in the following words:- The Right to Liberty is further strengthened by the provision that a law for preventive detention cannot authorise, in any case, detention for a longer period than two months, unless an Advisory Board has reported that there is sufficient cause for such detention. An additional safe guard would be provided by the requirement that the Chairman of an Advisory Board shall be a serving Judge of the appropriate High Court and that the Board ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... propriate Government in Section 8 (a) and we see no reason to read it in that manner. The Constitution as it stands today does not call for such an interpretation. It appears to us that the provisions of Art.22(4) of the Constitution and Section 8 of the COFEPOSA only requires that the case of the detenu could be considered by an Advisory Board consisting of persons having the qualifications mentioned in Art.22(4) and constituted by appropriate notification under Section 8 of the COFEPOSA Act. The Learned Counsel for the petitioner has no case that the Advisory Board which considered the case of the detenu has not been constituted under Section 8 of the COFEPOSA Act. At any rate, the detenu cannot be said to be prejudiced in any manner as his representation was duly considered by an Advisory Board comprising of such members as are recognised both by the unamended and amended provisions of Art.22(4) of the Constitution. We, therefore, hold that there is no merit in the contention of the learned counsel for the petitioner that only the Board constituted under the notification dated 17.3.2020 was competent to consider the case of the detenu. No other point has been raised. In the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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