Sangeetha vs Union Of India

Mohammed Nias C.P.J

By this Habeas Corpus Petition filed by Sangeetha, the detention of her husband Sunil Kumar Mohanakumaran Thambi (hereinafter referred to as "the detenu"), under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 ("COFEPOSA" for short), is challenged.

The facts leading to the Writ Petition are as follows:-

Based on specific intelligence, Kumar Mohanakumaran Thambi, the another passenger who arrived two  persons   namely,  Sunil detenu  and  Sareena   Shaji, at   the   Thiruvananthapuram International Airport on 13-5-2019 from Dubai, transit via Muscat by Oman Airways Flight, were intercepted by the officers of DRI and subsequent search resulted in the recovery of 25 numbers of Gold Bars of 24 carat purity totally weighing 24.998 kgs. valued at Rs. 8,17,45,455/- from the two handbag which of Sri. Sunilkumar and a declaration receipt made before the Dubai Customs in respect of 24kgms. in the name of Smt. Sareena Shaji from her handbag. Detenu and Sareena Shaji were arrested on 14-5-2019 and arrayed as accused in DRI/CoZU/Tvm/6/2019 and was remanded to judicial custody, upon production before the Magistrate. Statements under Section 108 of the Customs Act were taken from both detenu and Sareena Shaji. The had complained of physical and mental torture to the Magistrate when they were produced as aforesaid. Later, this Court granted bail on conditions to the  detenu on 2-7-2019. It is submitted that the detenu had appeared before the DRI in compliance with the bail conditions on 30-09-2019 and 7-10-2019. The detention order was passed on 27-09-2019 and it was   executed only on 21-01-2021.   The Advisory Board in the case of the detenu met on 23-3-2021  in  which  the  detenu  and his lawyer  were heard and consequent to its decision the Central Government confirmed the order of detention on 13-4-2021.

Counter affidavits opposing the prayers in the writ petition has been filed by respondents 1,2 and 3 jointly  while  the 4th respondent had filed a separate counter affidavit.

Heard the learned counsel for the petitioner Sri. R.Anil, the learned Senior Standing Counsel for the Directorate of Revenue Intelligence Sri. Manu, the learned CGC Sri. Jayasankar V. Nair and the learned Government Pleader Sri. Anas K.A.

(1) The learned counsel for the petitioner submitted that the detenu had made a representation on 18-12-2019 itself against the order of detention, even before its execution and the same was not considered. (2) The representations dated 10-4-2021 was rejected by the 2nd respondent and the 3rd respondent without due application of mind. (3) It was submitted that Exts.P4 to P6 are the representations on behalf of the detenu on 2-3-2021 and 17-8-2019 in which there was a request to produce the CCTV visuals recorded by the camera inside the arrival terminal of the Trivandrum airport on 13-05-2019 from 7.00 hrs to 14.00 hrs. and the same was requested to be given to disprove the scene mahazar itself. It is their contention that Exts. P4 and P5 representations were not placed before the Advisory Board before it confirmed the order of detention by Ext. P7 order. It is also the argument of the learned counsel for the petitioner that the detenu had made specific complaint about the physical torture meted out to him to the Magistrate and this would indicate that statements taken under Section 108 of the Customs Act cannot be relied upon as the same was not voluntary. It is also the argument of the learned counsel for the petitioner that the sponsoring authority did not have any serious objection in granting bail to the petitioner and this the vital fact was not considered by the detaining authority and if it had been considered, the detaining authority probably would not have passed an order of detention. It is the further argument that the alleged incident recorded on 13-5-2019 and the order of detention was passed only on 27-09-2019, this coupled with the fact that the execution was must later, clearly shows that there is no live and proximate link between the alleged prejudicial activities and the order of detention. On these grounds the order of detention is sought to be quashed. He also relied on the judgments in Vinod K.Chawla v. Union of India and Others [AIR 2006 SC 2864:(2006) 7 SCC 337], Syed Farooq Mohammad v. Union of India and Another [(1990) 3 SCC 537], Bhawarlal Ganeshmalji v. State of Tamil Nadu and Another [(1979) 1 SCC 465, K.T.M.S. Abdul Cader and Others v. Union of India [AIR 1977 Madras 386], Kartarey and Others v. State of U.P. [AIR 1976 SC 76], Hare Ram Pandey v. State of Bihar and Others [2004 KHC 481], A. Showkath Ali v. Union of India and Others [2000 KHC 1324] and Ashraff v. State of Kerala [2001 KHC 585] in support of his contentions.

The learned counsel for the DRI Sri.S.Manu made the following submissions:--

(i) that the detenu in his statement under Section 108 of the Customs Act, had clearly confessed the association with his cousin one Prakash who in turn introduced the detenu to Vishnu who told the detenu about carrying gold from Dubai on return and earning good profits and that  he  also  met  Jithu, another  friend  of  Vishnu (ii) that either Vishnu or Jithu would send tickets to him through Whatsapp and that each time his job was to travel as escort and that the modus operandi was that one passenger would carry gold and travel in the same flight along with the detenu and on reaching at Thiruvananthapuram Air port, if they suspected any problem, gold will be handed over to him which he had to smuggle out, Vishnu used to give remuneration to the detenu and once at Dubai Airport. Jithu handed over 1Kg of gold along with a bill in his name, which was thereafter cleared through Customs at Dubai and subsequently taken delivery by another person travelling in the same flight. These statements were not retracted by the detenu at any point of time and as such the detaining Authority can take the same into consideration when he arrived at the subjective satisfaction required to pass an order of detention as the same was required to prevent further prejudicial activities. (iii) The learned counsel also argued that the investigations revealed that the smugglings indicated had smuggled about 705kgs of gold during the period from 19-10-2018 to 13-5-2019 including the seizure of 25 kilos of gold. He also contends that the detenu was granted bail on 02.07.2019 subject to certain conditions and as part of it, that the detenu had appeared at the DRI Office, Thiruvananthapuram on 30.09.2019 and 7.10.2019. Though the Kerala police executed the detention order on four other co-accused, the petitioner had absconded which necessitated an application for cancellation of the bail and the same was filed on 23-10-2019 and which was allowed as per order dated 20.11.2019 by this Court. Later, on 9.12.2019 the Economic Offence Court, Ernakulam issued a non-bailable arrest warrant against the detenu and efforts were made to locate his whereabouts. The order directing the detenu to surrender before the police was published in the official gazette on 24.01.2020. Report dated 01.10.2020 issued by the detaining Authority regarding initiation of proceedings under Section 7(1) (a) of the COFEPOSA Act was received on 19.10.2020 at DRI, Thiruvananthapuram and on 5.11.2020 a petition was moved before the Additional Chief Judicial Magistrate Court, Thiruvananthapuram, where the detenu resides with a request to initiate proceedings stipulated under section 7 of the COFEPSA Act. The detenu was finally detained on 21.01.2021 and the grounds of detention and the list of relied upon documents were served on 22.01.2021. Thus, it is the submission of the learned counsel that all efforts were made by the departments and thus no delay can be attributed between the passing of the detention order and its execution as the detenu had absconded and therefore, the detenu cannot be heard to contend the delay in execution as it was his own making. The learned counsel also argued that the representations were duly considered.

The learned counsel also argued that since the detenu was absconding and adopted tactics to evade service of the order, he is not entitled to raise a contention that there is delay in execution. For that purpose he relied on the following citations: 1) Vinod K. Chawla v. Union of India (2006) 7 SCC 337; Syed Farooq Mohammed v. Union of India (1990) 3 SCC 537. Hare Ram Pandey v. State of Bihar and Others (2004) KHC 481; Subgash Muljimal Gandi v. L.Himingaliana and Others (1994) 6 SCC 14.  The learned counsel also argued that here the delay in execution is not only explained but it is found to be the result of the refractory conduct of the detenu in evading arrest there is warrant to consider the link has not snapped but strengthened and cites the following judgment as well: (1) Bhavarlal Ganeshmaji v. State of Tamil Nadu and Other (1979) 1 SCC 465 : Absconder in the eye of law - It is sufficient if he hies himself to evade the process of law, even if he is hiding in his home (1) KTMS Abdul Cader and Others v. The Union of India (AIR) 1977 Mad. 386 (2) Kartarey and Others v. The State of Uttar Pradesh (1976) 1 SCC 172.

The learned counsel for the Central Government submitted that two representations dated 2-3-2021 was submitted by the detenu addressed to the Central Government as well as the detaining authority respectively and both of them were carefully examined and duly disposed of on 15-4-2021 and 10-3-2021 respectively and the same was communicated to the detenu through the jail authorities.

Learned counsel for the petitioner by way of reply submitted that admittedly, twice after the passing of the detention order the detenu had appeared before the DRI, Thiruvananthapuram and as such there was no question of describing him as an absconder. He relied on the judgment in A. Mohammed Farook v. Jt. Secy. to G.O.I and Others [2000 KHC 984], which according to him covers the issue. He also submits that the detaining authority cannot under the cover of the contention that it was the Kerala Police who was to execute the order and remain a mute spectator. The detaining authority was bound in terms of sections 4 and 7 of the COFEPOSA Act to take such measures to execute the order. As a matter of fact, according to the learned counsel, the detenu was evading to protect his liberty and not otherwise. He  also  submits  that  there  is  no  proclamation  or attachment and the delay in passing the order as well as its execution has frustrated the very object of a detention under the COFEPOSA Act.

It is also the contention of the learned counsel that the order cancelling the bail was not placed before the Advisory Board which would have showed that the bail was cancelled and there was no requirement of passing an order of detention as the ordinarily criminal law would suffice. He also relied on the judgment in 1984 KHC 858, a Full Bench of the Madras High Court to buttress his contention that a prolonged custody with the Customs would bring about a presumption that the statements under Section 108 of the Customs Act was not voluntary. Lastly, he argued that the non-consideration of Ext.P6 representation forwarded by the detaining Authority to the Central Government is fatal. He also submits that the very fact that he chose to file WP(C) No. 3970 of 2020 at the pre-detention stage shows that he was very much available at his local address, the entire case of the detenu absconding is baseless.

With respect to the contention that the visuals of 13-5-2019 was not supplied to the detenu, it has to be noted that the same is not relied upon in the detention order. The learned counsel for the Central Government submitted that neither the sponsoring authority nor the detaining authority was in possession of the CCTV footages of 13-05-2019, and the available CCTV footages pertaining to the dates prior to 13-5-2019 were retrieved for analysing the modus operandi by the smuggling and it was seen that one Radhakrishnan V. Superintendent of Customs, has clearing the handbaggages of identifying carrier passengers. It is also to be noted that going by the mahazar, which was duly acknowledged by the detenu on 13-5-2019 as well as the voluntary confession statements of the detenu and Smt. Sareena Shaji, it was not necessary for either the sponsoring authority or the detaining authority to consider the CCTV footages as a relevant material in as much as the same is not been relied upon in the detention order, there was no requirement of law to supply the same to the detenu. We, therefore, reject the contention of the non-supply of the CCTV footage.

With respect to the contention that a representation dated 18-12-2019 sent by the detenu, after the passing of the detention order but before execution, was not considered. We note that the non-consideration of the same cannot be a violation of Article 22(5) of the Constitution of India as it only provides for a  right of making a representation against an order of preventive detention when a person is detained in accordance with an order made under law providing for preventive detention. Thus, the contention of the petitioner that  the representation dated  18-12-2019 was not considered by the detaining authority and the Central Government and the non-placement of the same before the Advisory Board was fatal and cannot be accepted, we repel the same contention. We do not think that there was any shortcoming in consideration of the representation by the detenu and we repel the contention of the detenu in that regard.

In regard to the further contention of the learned counsel for the petitioners that the detaining authority had not considered the bail applications or the conditions imposed while granting bail and that there was no serious opposition to the grant of bail, we note that the High Court of Kerala granted bail to the detenu by order dated 2-7-2019 under strict conditions and that too only on the 50th day of the detenu being arrested. A counter affidavit was filed to the bail applications. The awareness of these are recorded by the detaining authority in the grounds of detention and it was thereafter that he arrived at the subjective satisfaction to pass order of detention considering the rule of the detenu in the smuggling activities. We do not find anything wrong or illegal on these aspects committed by the detaining authority regarding the said aspect. We reject the said contention on behalf of the detenu.

We also note that the detention order in the instant case has been issued against the detenu, not solely based on the seizure of 25 kgms. of gold on 13-05-2019 at Thiruvananthapuram International Airport but also on the basis of his role in the smuggling operations for the Syndicate during the period from 1-10-2018 to 13-5-2019 which was spoken on by the detenu in his statement under Section 108 of the Customs Act. We do not think that the subjective satisfaction arrived at by the detaining order is vitiated on any count while passing the detention order.

The learned counsel for the petitioner argued on the basis of 1984 KHC 858 that there was prolonged custody of the detenu by the Customs and thus the statement recorded must be taken as involuntary. In the instant case, the detenu was arrested on 14-5-2019 and was produced before the Magistrate. We do not think that the same was a delay long enough to vitiate the statements taken under Section 108 of the Customs Act. We also do not see any blanket proposition in that regard made in the judgment noted above.

The learned counsel for the petitioner, however, strenuously argued that the delay in passing the order of detention and, thereafter, in its execution is fatal in the instant case and the action of the detaining authority would clearly show that the very purpose for which the detention order is passed has been lost, thus making the detention order invalid. He also argued on the judgment of the Supreme Court reported in A. Mohammed Farook v. Jt. Secretary. to Government of India and Others 2000 KHC 894 (supra). It was a case where there was delay of 40 days in executing the detention order. Incidentally, even in that case, the detenu therein had appeared before the Magistrate in the very same case arising out of arrest. In the instant case, on two occasions 30-09-2019 and 7-10-2019, he had appeared before the DRI in compliance with the conditions of the bail order granted by the Court and this was after the passing of the detention order. Even, thereafter, the detenu had filed a Writ Petition questioning the detention at the pre-execution stage showing his residential address at Thiruvananthapuram.

We do not accept the contention on behalf of the DRI that the detenu had absconded in view of the above facts obtaining in the case. It is to be noticed that, there has been considerable delay after passing of the detention order on 27-09-1919, to take steps under Section 7 of the COFEPOSA Act. The explanation for the delay given in the counter affidavits cannot be treated as a proper explanation. It is to be noted that the order directing the petitioner to surrender before the police was published in the official gazette only on 24-1-2020 and the copy of the order in English directing the petitioner to surrender before the police in the official gazette was published in the Times of India Daily was only on 29-2-2020. Copy of the same in Malayalam was published only on 1-3-2020. The period between 24-3-2020 to 1-10-2020 has been explained as the delay due to the Covid 19 pandemic and including the nation wide lockdown. It was only on 1-10-2020 that a report was made for proceeding under Section 7 of the COFEPOSA Act and the petition was submitted before the Jurisdictional court requesting to initiate proceedings under Section 7 of the COFEPOSA Act was done only on 5-11-2020. The order could be executed only on 21-1-2021.

As stated earlier, we are not in a position to accept the explanation offered for the delay. It is pertinent to note that even after the passing of the detention order, the detenu had appeared before the DRI as part of the condition of the bail on 30-09-1919 and 7-10-2019, we find considerable force  in the argument of the learned counsel for the petitioner  that  going  by  the  principles  laid down  in A. Mohammed Farook v. Jt. Secy. To Government of India and Others [2000 KHC 984], it has to be held that the delay is fatal rendering the continued detention invalid. We also note that the detenu had filed a Writ Petition W.P. (C ) 3970 of 2020 at the pre-detention stage showing his residential address at Thiruvananthapuram. He has also signed the affidavit and the Writ Petition in both of which the local address is given. We cannot accept the contention on behalf of the 4th respondent DRI that the detenu was absconding and, therefore, he cannot take a contention about the delay in execution. Under these circumstances, the order of detention cannot be sustained since the live and proximate link between the grounds of detention and the purpose of detention is snapped on account of the undue and unreasonable delay in securing the detenu and detaining him. The judgments cited on behalf of the DRI which holds that the delay cannot be raised as a ground, therefore, are not applicable to the facts of the case. Added to the above, there is hardly any justifiable explanation for the delay atleast from 1-3-2020 to 21-1-2021. We, therefore, hold that the delay is fatal rendering the detention order illegal.

In the result, the detention order dated 27-09-2019 passed by the detaining authority is quashed and the detenu is ordered to be released forthwith, if he is not required in any other case.

W.P. (Crl.) 171 of 2021 is allowed.