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TMI Blog2020 (2) TMI 1597X X X X Extracts X X X X X X X X Extracts X X X X ..... procedure as there is no lis to be adjudicated. Section 8 empowers the Advisory Board to call for any information, as it may deem necessary, from or through the appropriate Government. Needless to say that such information, whether it be by way of documents or by oral clarifications has to be disclosed to the detenu. The detaining authority cannot place material or argue matters not evident from the records already supplied to the detenu. The subjective satisfaction should emanate from the order of detention and the documents relied on. The defect in procedure, which would vitiate an order of preventive detention, could be either the materials proffered being specious or the materials served on the detenu, being insufficient to establish the link to the smuggling activity alleged, which form the basis for preventive detention. In the instant case the very crucial video footage from which the entire case was generated was not supplied to the detenu. The corroborating facts, which could have led to a subjective satisfaction of a smuggling ring being in operation, as available from the call details and the travel details were not examined by the detaining authority. The detaini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Exhibit P13. Exhibit P13 has been rejected curtly and without any grace, mistaking it as a representation, while it was a request for supply of documents. Stress is laid on non-supply of CCTV footage, which is the crucial link establishing the seizure of the contraband at the Airport, which gave rise to the summoning of Faisal and other persons and resulted in their preventive detention. It is urged that the CCTV footage ought to have been supplied and facilities provided to view it. Curiously, mere printouts which were undecipherable, were supplied along with the documents. The printouts of the footage purportedly showing Adnan Khalid and the officer of the Customs, who is alleged to have stealthily obtained the contraband from Adnan Khalid and hid it in his body, was a completely dark photo copy. 4. Reference is made to the documents supplied, which were handed over across the Bar, which also contains the original seal of the detaining authority. It is contended that a mere reading of the detention order would indicate that the detaining authority has completely gone by the surmises and conjectures made by the sponsoring authority and there is total absence of application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd a common Secretary who has communicated the rejection of representations by both the authorities and sworn to the affidavit on behalf of both of them. 7. In this context, both Counsel submitted that in the Jails within the State; Wednesday is fixed for visit of convicts by their family members. Even lawyers are permitted to have meeting with the convicts only on the said day and often the presence of a DRI official is insisted. Many a time the lawyer, who visits the jail on any other day in the week, has been turned away, either on the ground of Wednesday being the day specified or the absence of the DRI officials. This seriously prejudices the right of the detenu and often they are unable to make effective representations to the detaining and affirming authorities as also the Advisory Board. Their right to challenge the confirmation orders before this Court also is seriously hampered for reason of there being no effective communication permitted between the lawyer and the detenu. The presence of an officer of the DRI in close proximity, enables such officer to listen in, to the exchange between the lawyer and the detenu, which causes serious prejudice to the right of the det ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o handed over to us across the Bar to evidence the same. It is argued that the depositions have evidentiary value under Section 108 and there was no allegation raised before the Magistrate, before whom the detenu were produced after recording their arrest, as to any coercion having been made by the DRI officials. The depositions were voluntary in nature and supported by attendant circumstances. They were independently made by the detenu which, as is usual, were retracted from. There can be no weight attached to such casual retraction of statements made under oath before a public authority which also has a statutory validity. The depositions of various persons summoned read together also indicate a common thread justifying the assumption made by the DRI that there is a smuggling ring in operation. 11. Faisal, especially is pointed out as the kingpin, who was also earlier detained at which point he had been so detained after considerable passage of time. The instance of smuggling which led to the detaining order at that point of time had resulted in Faisal absconding from the country and only on his re-entry he was apprehended and detained. Faisal is said to be behind a racket and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s being communicated by the very same Deputy Secretary as vitiating the detention order. The Deputy Secretary who is in charge of the files had merely communicated the order of the detaining authority and the confirming authority and in such circumstance he had also sworn to the affidavit before this Court. Asgar Ali v. District Magistrate, Burdwan Ors. [(1974) 4 SCC 527] has categorically held that only if an allegation is made that the detaining authority was actuated by some personal bias against the detenu would there be a need of filing of an affidavit by the detaining authority itself. We do not see any such allegation having been raised in the writ petitions. 15. The detention arose from the seizure of contraband from the body of a Customs official, Francis C.X., while he was smuggling out about 3 kilograms of gold hid in between his legs held up by four briefs he was wearing; specifically three numbers of rectangular gold pieces wrapped in black insulation tape. The Customs official who was found with the contraband on his person, confessed that he received it from Adnan Khalid who arrived in Cochin by Emirates flight EK 530. Francis, who was taken to the Customs Arriv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was passed on 22.05.2019. The detention order was executed on 30.05.2019 by arrest of both the detenu. The documents were given in five days, clearly within the mandate of the COFEPOSA Act. 18. Exhibit P13, a request for documents, was made on 25.09.2019, before which representations were filed by Exhibit P5 dated 13.07.2019, to the Government of India and Exhibit P6 of even date, to the detaining authority. A further representation by Exhibit P7 was also made to the Advisory Board, which is dated 13.07.2019. The reference to Advisory Board was made by Exhibit P8 dated 19.07.2019. The Advisory Board was convened on 23.07.2019 and on their opinion/advise dated 01.08.2019, Exhibit P10 was issued by the Government of India confirming the order of detention. Later to that, by Exhibit P11 dated 21.08.2019 the representation to the detaining authority was rejected. By Exhibit P12 dated 06.09.2019 the affirming authority too rejected the representation. It is after this that Exhibit P13 request dated 25.09.2019 was submitted for supply of documents. 19. Going by the dates, we are quite sure in our mind that there could not have been a supply of such documents sought for, prior to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preventive reasons has also been referred. In paragraph [lv], the evidence gathered from Francis C.X. and other persons, including Faisal, who were summoned and who voluntarily gave the deposition and the video footage of Francis and Adnan Khalid were referred to. 21. Likewise, Exhibit P2 in W.P(Crl.) No. 378 of 2019 is the order passed against Adnan Khalid, which records the summary of the findings in paragraph [liv]. This refers to the statement of Adnan Khalid and Francis C.X. About the smuggling of gold bars on 01.03.2019 and also their deposition with respect to a similar activity employing the same modus operandi having been carried out by both of them on 25.01.2019. The voluntary statement of carrier passengers, viz., Ravichandran C., Jinesh Pothodi, Chirakkal Ibrahim Shamseer and Aslam Mytheen, have also been referred to, which termed Adnan Khalid as the main co-ordinator at Dubai for smuggling gold into India and smuggling out foreign currency concertedly; with Faisal as the kingpin of the racket. Paragraph [liv](iii) refers to Faisal's deposition that he was assisted by Adnan Khalid in gold smuggling and remuneration handed over for the same. Paragraph [liv](iv) s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccurred. Adnan Khalid was accosted and the statements were recorded from both of them. It is pertinent that neither Adnan Khalid or Francis refers to Faisal. Adnan Khalid refers to one Ashraf, who is stated to be a native of Muvattupuzha, Perumattam; who is said to have handed over the gold to the passenger at Dubai. There is no investigation carried out to identify the said Ashraf or apprehend him. 24. Then there are a number of persons referred to in the deposition of Adnan Khalid itself, whose numbers were extracted from his mobile phone, in the presence of the Customs officials. Their numbers along with their names and the dates on which such calls were made, is seen from the deposition itself. Pratheesh C., Jineth Pothodi, Ravichandran Chirayil and Chirakkal Ibrahim Shamseer are persons whose names are referred to in the deposition itself. Apparently they were also summoned and some of them spoke of Faisal. The persons revealed from the deposition of Adnan Khalid, in their subsequent deposition, spoke of certain other persons, who were also examined. Some of them also spoke of Faisal and Adnan Khalid. 25. It can be unequivocally declared that it is the seizure of contrab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... frontiers. He was followed into the toilet area by Francis, a Customs official, who was on leave on that particular day. Their depositions after they were apprehended, indicated that both these persons entered adjacent cubicles and on Adnan Khalid hearing a knocking on the door in a particular manner, handed over the gold bars to Francis in the adjacent toilet. They were also seen coming out from the toilet, after which Francis was first apprehended and then Adnan Khalid when he came for Customs clearance, as identified by Francis. The link between Adnan Khalid and Francis was offered by the video footage, which was not supplied to the detenu. 29. We see from the bulky file of documents, with the list of relied on documents, as supplied to the detenu, that it does not indicate supply of the video footage as such, in a CD. In this context, we have to notice the two judgments of this Court in S. Reshmi v. Union of India [2016 (3) KHC 20] and Hajira N.K. v. Union of India in W.P.(Crl.) No. 324 of 2019 dated 26.11.2019; in a similar situation wherein video footage was relied on by the detaining authority. Both the decisions were with respect to the very same incident. In S. Reshmi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upplied by the sponsoring authority. We see that Faisal and Adnan Khalid between themselves had made 128 calls between 4th January and 9th February, 2019. There have been calls between all the deponents, some solitary and below two digits; but, there are very frequent calls made between certain deponents. These have been related with the dates presumably on which the depositions revealed smuggling activity having been undertaken. This has also to be connected with the travel details, which details are available from the Passport and e-tickets, which were recovered from the deponents and also on summoning of call details. Looking at the relied on documents supplied to the detenu, we do not find the call details, i.e., the CDR and SDR details which were sought for by Exhibit P13, having been supplied to the detenu. The frequent mobile calls, that too proximate to the dates on which smuggling activities were revealed to have been carried out, was a crucial corroborating material which the detaining authority failed to supply to the detenu. The detaining authority also has not looked into the details and merely relied on the table of details, supplied by the sponsoring authority. The d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reventive detention on the basis of substantiating material against the proposed detenu, as supplied by the sponsoring authority are established principles; spoken of by the Hon'ble Supreme Court. We, hence, find the detention order to be bad and both the detenu are liable to be released forthwith. 34. Madan Lal Anand Ors. v. Union of India Ors. [(1990) 1 SCC 81] found that each of the grounds are severable and can be sustained independently and if any of the grounds for detention are sustainable, then there could be no interference caused to the order of detention, since such order of detention is deemed to have been made separately on each of such grounds. We have, however, found that none of the grounds as noticed by the detaining authority and specifically referred to by us herein above can be sustained in the absence of the connecting links. 35. We now have to dwell upon two important aspects pointed out by the petitioners. The first, visitation rights of a detenu with reference to a lawyer, enabling proper legal assistance. We specifically directed learned Government Pleader for the State of Kerala, Sri. K.A. Anas, to address us on this aspect. The learned Gover ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... secured, then any other Jail official may, if thought necessary, watch the interview but not so as to be within hearing distance of the detenu and the legal adviser . 37. There can be no insistence that visitation can be on a particular day nor can there be an insistence for the presence of an officer from the office of the DRI or any other sponsoring or detaining authority. The visitation rights of the lawyer though can be permitted to be carried out in the presence of an official from the office of the detaining/sponsoring authority or any other Jail official, they can only watch the interview but they should not be within hearing distance. We perfectly agree with what the learned Counsel Sri. M. Ajay submitted, as to the interview being mandated to be carried out 'within eye sight, but out of earshot', which shall be the guiding principle. 38. Before we part with the case, we also have to reckon with the submission made by the learned Counsel, with respect to Exhibit P8 reference made by the Government of India, to the Advisory Board and the recitals made therein. It is argued that materials not supplied to the detenu were placed before the Advisory Board. In Exhib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Board seeks any further information from the appropriate Government or through it. The Advisory Board, it is trite, is empowered to device its own procedure as there is no lis to be adjudicated. In (1989) 1 SCC 193 State of A.P. Vs. Balajangam Subbarajamma it was held that though the Board may adopt any procedure depending upon varying circumstances, it should satisfy procedural fairness. A three judge Bench in Kavita Vs. State of Maharashtra (1981) 3 SCC 558 held, where: ...a detenu makes a request for legal assistance, his request would have to be considered on its own merit in each individual case (sic). In Nandlal Bajaj v. State of Punjab [(1981) 4 SCC 327] the continued detention was set aside for reason of the Advisory Board having declined the request of legal representation to the detenu, while the department was allowed to be represented by a lawyer. 41. In A.K. Roy v. Union of India [(1982) 1 SCC 271], a Constitution Bench first grappled with the question of whether legal representation in preventive detention is mandatory. On a combined reading of clauses (1) and (3)(b) of Article 22, their Lordships lamented, it was difficult to hold by the application of abstract ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s being raised and to maintain transparency of and fairness in the procedure, it is imperative that, if the Advisory Board hears the detaining/sponsoring authority or their representatives, they should do so, in the presence of the detenu and his lawyer. 43. We also would caution the Department from making such casual statements in the reference to the Advisory Board, of parawise comments being followed with. This would impair the sanctity of the procedure before the Board; if it is so furnished without prior notice to the detenu. The detenu is in preventive detention and unable to converse with his lawyer at will. We refer to State of T.N. v. Senthilkumar [(1999) 2 SCC 646] where three additional documents were served on the detenu, which were conceded to have been placed before the Advisory Board and the Government. The complaint of the detenu was that the documents alone were served to him, without any information as to who furnished it and for what purpose. It was held that the confusion created in the mind of the detenu, by the mere service of the three documents, without even a covering letter disclosing the purpose for which it was served, vitiated the order. It was obser ..... X X X X Extracts X X X X X X X X Extracts X X X X
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