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TMI Blog2021 (6) TMI 1108X X X X Extracts X X X X X X X X Extracts X X X X ..... ised by the learned counsel for the petitioner is that the learned counsel for the detenu was not given an opportunity for hearing before the Advisory Board constituted under Section 8 of the COFEPOSA Act, 1974 - HELD THAT:- 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 of 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 - 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, cannot be accepted. - It can only be held that the opportunity extended to the detenu to be represented by a counsel was not ava ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ualifications 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. 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 - A.K. Jayasankaran Nambiar and Gopinath P., JJ. For the Appellant: P.A. Augustian and Swathy E.S., Advs. For the Respondent: P. Vijayakumar, ASG of India, S. Manu, Senior CGC, Jaishankar V. Nair, CGC and K.A. Anas, Spl. Govt. Plader JUDGMENT Gopinath P., J. 1. This Writ Petition (Criminal) is at the instance of one Raishad K.T. praying inter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Standing Counsel appearing for the Customs Department and Sri. K.A. Anas, the learned Government Pleader. 5. The learned counsel for the petitioner contends that the entire procedure commencing from issuance of Ext.P1 order of detention to its confirmation following the report of the Advisory Board is vitiated in law and cannot be sustained. In the main, he contends that the detenu is to be set ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... annot 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 competent in the matter and that the petitioner cannot, on the basis of notification bearing No. GSR183(E) dated 17.3.2020, contend that only the Advisory Board constituted in terms of the aforesaid notification dated 17.3.2020 could have considered the issue. 8. The first contention raised by the learned counsel for the petitioner that there was a delay in issuing Ext.P1 detention order does not appeal to us ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the Customs Act. It is settled law that a statement recorded under Section 108 of the Customs Act is a piece of evidence, in view of the fact that sub-section (4) of Section 108 of Customs Act deems a proceeding under Section 108 of the Customs Act to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code. To our specific query as to whether any of these statements have been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 petitioner that, since the detention order is based only on confessional statements, the same must be found to be invalid. 11. The next contention of the learned counsel for the petitioner is that the fact of the detenu being under judicial custody based on charges under the Unlawful Activities Prevention Act, 1967 should have weighed with the detaining authority in determining whether it is necessary at all to issue a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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 orders, the detaining authority has not specifically recorded that the detenu is likely to be released . It cannot be said that the detaining authority has not applied its mind merely on the ground that in the detention orders, it is not expressly stated as to the detenu's likelihood of being released on bail and if so released, he is likely to indulge in the same prejudicial activities . But the detaining authority has clea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 detenu under Section 8 of the COFEPOSA Act is not competent to consider the same. According to him, the Central Government has through notification dated 17.3.2020 constituted an Advisory Board consisting of Hon'ble the Chief Justice of the Delhi High Court and two other Hon'ble Judges of that Court as the Advisory Board under Section 8(a) of the COFEPOSA Act. According to him, the detaining authority being the Centr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Customs in Civil Appeal No. 1827/2018 and Consolidated Coffee Ltd. v. Coffee Board Bangalore; (1980) 3 SCC 358 to essentially contend that the word 'the' just before the words 'Advisory Board' in Section 8(b) of the COFEPOSA Act is of significance as the requirement of the law is a reference to the Advisory Board, constituted by the 'appropriate Government', as defined ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stand 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 shall be constituted in accordance with the recommendations of the Chief Justice of that High Court . We have extracted the Statement of Objects and Reasons to the extent it is relevant only to emphasise that even the Amending Act was never intended to be for the purpose of clarifying or laying down that the Advisory Board which considers the case of the dete ..... X X X X Extracts X X X X X X X X Extracts X X X X
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