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TMI Blog2022 (6) TMI 326X X X X Extracts X X X X X X X X Extracts X X X X ..... imported through container Freight Station (CFS), Willington Island, Kochi. The specific information conveyed that the gang had recruited one Althaf Moosan Mukri for whom unaccompanied baggage was sent from Jabal Ali Port of UAE, booked in the name of the said Althaf Moosan Mukri. It was conveyed that it contained huge quantity of concealed gold and would be cleared on 20-4-2021, in the guise of genuine unaccompanied baggage containing household items. Accordingly, the intelligence officers mounted surveillance in and around the port Container Freight Station. While so, the said Althaf Moosal Mukri arrived at CFS at about 2 p.m. for clearing the baggage. He was intercepted and the unaccompanied baggage addressed to him was examined in the presence of Superintendent of Customs and two independent witnesses. The baggage declaration was signed by the proprietor of M/s. Mercantile and Marine Services which was the Clearing House Agency (CHA). The staff of the CHA, Mr. Biju v. Joy and two other representatives were present there. After identifying the baggage, the said Althaf was informed about the purpose of their visit and with his consent, items were checked. On a detailed examinatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng authority about the likelihood of the detenus to indulge in smuggling in further. The second contention is that certain documents requested for vide Ext.P12, which were needed for making an effective representation, were denied and the non-supply of those documents is fatal. The detenus also contend that even if the documents requested for Ext.P12 was not granted to them, they should have been forwarded to the Central Government and also to the Advisory Board so that they could have independently considered the request made therein and passed appropriate directions. It is alleged that the rejection of Ext.P12 representation by Ext.P13 exhibits sheer non-application of mind as it was not a representation seeking release of the detenus but only for supply of the documents. It is also argued that the detaining authority has failed to give sufficient reason for rejection of Ext.P12. It is argued that the reference of the case of the detenus was to an advisory board constituted as per Ext.P9, but reference was not answered by the said advisory board but instead by a Board having different composition and thus the confirmation of the detention order is illegal. It is also argued that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same. 8. Respondents 1 and 2 have filed a counter affidavit stating that the detaining authority had elaborated the active role of the petitioners in smuggling and that sensing the magnitude of the offence committed by the detenus and their likelihood to indulge in smuggling activity in future, the detaining authority had passed the orders of detention. The grounds of detention along with the relied upon documents were duly served on the detenus and that their voluntary statements also proved the previous instances of smuggling. It is also stated that the representation was duly considered and after a careful consideration of the facts and circumstances of the case, the nature of activity, the material collected, the potency and potentiality of the detenue to indulge in such activities in future all these were taken into account before passing the detention order. It is also stated that the law declared by the Supreme Court has also been followed by the detaining authority while arriving at the subjective satisfaction for passing the detention order. 9. After the interception of all the three detenues, statements under S. 108 of the Customs Act of Muhammed Ali were recorded on 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hawla v. Union of India [(2006) 7 SCC 337] Usha Agarwal v. Union of India (UOI) and others [(2007) 1 SCC 295] Thahira v. State of Kerala and others [(2014 Cri. L J 684] L.M.S.Ummu Saleema v. B.B.Gujaral and others [1981 KHC 636: (1981) 3 SCC 317] Radhakrishnan Prabhakaran v. The State of Tamil Nadu and others [2000 KHC 1427: (2000) 9 SCC 170: 2000 SCC (Cri) 1198] State of Tamil Nadu and others v. Abdulla Kadher Batchs and others [2009 KHC 4268 : (2009) 1 SCC 333) Syed farooq Mohammed v. Union of India (UOI) and others (1990 KHC 860 : (1990) 3 SCC 537] State of Punjab & ors v. Jagdev Singh Talwandi [(1984 KHC 594 : (1984) 1 SCC 596] Vakil Singh v. State of J & K [AIR 1974 SC 2337 , 2341] Har Jas Dev Singh v. State of Punjab [1974 (1) SCR 281], 288 : AIR 1973 SC 2469] 11. The medical examination of all the accused were conducted and produced before the magistrate court. The detenus Abdulla.S.S and Biju V. Joy were tested for Covid 19 and as per the then existing Covid guidelines, all the accused were produced before the magistrate court through video conferencing adhering to the court protocol, and as directed by the court they were admitted to the Covid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndency of prosecution is no bar to an order of preventive detention. An order of preventive detention is also not a bar to prosecution. 13. With respect to the contention that the detenus retracted the statements made under section 108 of the Customs Act, it has to be noted that the sponsoring authority had already issued the rebuttal statement and the detaining authority has considered the retraction as well as the rebuttal of the sponsoring authority in the grounds of detention which is done in the orders of detention in these cases. There is no further requirement on the part of the detaining authority as far as the retractions are concerned except to consider the confessional statements, the retraction and the rebuttals if any of the sponsoring authority. As a matter of fact, even after the retractions, fresh statement has been given on 29.7.2021 stating that all the previous statements were true wherein the previous acts of smuggling were also admitted. The contention on this count are also accordingly rejected. 14. The further contention on behalf of the detenus that though the bail of the accused was opposed by the magistrate court, the sponsoring authority had conceded to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -furnishing of which renders the detention order bad. The learned counsel for the respondents on the other hand contends that though there has been narration in the detention order about the screen shots/whatsapp, they had not been relied upon and hence there is no duty on them to give copies in electronic form to the detenus. 17. On a consdieration of the rival submission on this aspect, we notice that there has been reliance made in the detention order regarding the documents mentioned above which might have forced the detaining authority to reach the conclusion about the previous smuggling activities and which necessitated the present order of detention. Inspite of a specific request, as seen from Ext. P12 in the above cases, we find copies were not given. In as much as the contents of the above being relied upon and they have not been given despite asking for them, we feel there has been infraction of the right of the detenus to make an effective representation seeking release. 18. The learned counsel for the petitioner is right in stating that the detaining authority ought to have furnished the said materials as their right to make an effective representation has been impair ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the documents mentioned above to the detenus. The decisions relied on by the learned counsel for the respondent for the proposition that the documents sought for in the instant cases need not be granted cannot be accepted as the same are rendered on different sets of facts. In as much as the documents sought has been relied upon in the detention orders, the same ought to have been furnished to the detenus when they requested for the same. The learned counsel for the petitioners is also right in relying on the following judgments for canvassing the same position that the relevant electronic info to be provided in the same format: 1. 2016 (3) KHC - Reshmi v. Union of India 2. 2019 KHC 914 - Hajira N.K. v. Union of India 3. 2020 KHC 167 - Beevikunju v. Union of India 4. 2021 KHC 303 - Waheeda Ashraf v. Union of India In the light of the discussion above, we are convinced that the nonsupply has vitally affected the right of the detnus under Article 22(5) of the Constitution of India. We, accordingly, hold that the detention order is bad for the non-supply of these documents sought for in Ext. P12. 20. The learned counsel for the petitioner also argues that the confirmati ..... X X X X Extracts X X X X X X X X Extracts X X X X
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