Jaseela Shaji v Union of India and Others

W.P.(Crl.).No.1271/2023 -:1:- ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE ``` ``` & ``` ``` THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN ``` ``` MONDAY, THE 4[TH] DAY OF MARCH 2024 / 14TH PHALGUNA, 1945 ``` ``` WP(CRL.) NO. 1271 OF 2023 ``` ``` PETITIONER/S: ``` ``` MRS.JASEELA SHAJI, AGED 45 YEARS W/O.SHAJI A.K., APPICHERIL, NADACKAL P.O. ERATTUPETTA, KOTTAYAM, KERALA -, PIN - 686121 BY ADVS. P.MARTIN JOSE P.PRIJITH THOMAS P.KURUVILLA R.GITHESH AJAY BEN JOSE MANJUNATH MENON SACHIN JACOB AMBAT ANNA LINDA EDEN HARIKRISHNAN S. S.SREEKUMAR (SR.) ``` ## **`RESPONDENT/S:`** ``` 1THE UNION OF INDIA, REPRESENTED BY ITS SECRETARY, MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, CENTRAL ECONOMIC INTELLIGENCE BUREAU, 6TH FLOOR, B-WING, JANPATH BHAVAN, JANPATH, NEW DELHI -, PIN - 110001 ``` W.P.(Crl.).No.1271/2023 -:2:- - **`2 THE JOINT SECRETARY (COFEPOSA) GOVERNMENT OF INDIA, MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, CENTRAL ECONOMIC INTELLIGENCE BUREAU, 6TH FLOOR, B-WING JANPATH BHAVAN, JANPATH, NEW DELHI -, PIN - 110001`** - **`3 THE SUPERINTENDENT, CENTRAL PRISON, POOJAPURA, THIRUVANANTHAPURAM -, PIN - 695012`** - **`4 THE DEPUTY DIRECTOR, DIRECTORATE OF ENFORCEMENT, GOVERNMENT OF INDIA, KANOOS CASTLE, MULLASSERY CANAL ROAD, WEST COCHIN -, PIN - 682011 BY ADVS.`** ``` JAISHANKAR V.NAIR ``` ## **`N.S.DAYA SINDHU SHREE HARI ADVOCATE GENERAL OFFICE KERALA`** ``` ADDL.DIRECTOR GENERAL OF PROSECUTION(AG-11) ADDL. STATE PUBLIC PROSECUTOR(AG-28) ``` ``` THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 12/2/2024, THE COURT ON 4/3/2024 DELIVERED THE FOLLOWING: ``` W.P.(Crl.).No.1271/2023 -:3:- ``` A.MUHAMED MUSTAQUE & SHOBA ANNAMMA EAPEN, JJ. ``` ``` ------------------------------------------------ ``` ## **`W.P.(Crl).No.1271/2023`** ``` ------------------------------------------------ ``` ``` Dated this the 4[th] day of March, 2024 ``` ## **`J U D G M E N T`** ## **`A.Muhamed Mustaque, J.`** ``` This writ of habeas was filed by the wife of detenu. The detention order is passed under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, ``` ``` 1974 (for short, “COFEPOSA Act”). Though initially the detention order was not produced before this Court, subsequently, it was placed on record, and a specific challenge has been raised against the same. ``` W.P.(Crl.).No.1271/2023 -:4:- ``` 2.The detention order was passed pursuant to the search conducted in the residence of the detenu. Detenu is a fruit merchant. The search team found unaccounted Indian currency amounting to Rs.6,70,100/-, unaccounted gold in the form of biscuits weighing 110.35 grams and unaccounted silver weighing 1781.0 grams. These were seized under the Foreign Exchange Management Act, 1999. The detenu is suspected to be involved in illegal transactions of purchase and sale of foreign currencies. The detention authority relied on the statement given by Shri Suresh Babu, Smt.Preetha Pradeep and also the statement of the detenu. The grounds of detention order were served. Ext.P1 is the grounds of detention. The detention order is challenged on the grounds that the detenu was not served with vital documents and statements. Another ground canvassed was that the detenu had not given any voluntary statement, he is not conversant with English, and he was not given a Malayalam translation of others statements. It is alleged that the youngest daughter of the detenu was forced to write the statement under compulsion. ``` W.P.(Crl.).No.1271/2023 -:5:- ``` 3. The learned Senior Counsel for the petitioner while arguing the matter submitted that the statement of Preetha Pradeep was not furnished to the detenu. Therefore, it is argued that serving the detention order without furnishing the statement of the aforesaid person was of no use for him to make an effective representation as accorded to him under Article 22(5) of the Constitution before the Advisory Board. The learned Senior Counsel further argued that the detenu had studied only up to 10th standard and knows only his mother-tongue, Malayalam and that he was not given the Malayalam version of the grounds of detention. The learned Counsel particularly pointed out that the questionnaire was formulated in English, and answers were also recorded in English. It is submitted that all these were made by the search team and the detenu was forced to sign those statements for the purpose of the case. ``` ``` 4. The learned Central Government Counsel and the learned counsel appearing for the Directorate of Enforcement referred to the WhatsApp chats and statements recorded. It ``` W.P.(Crl.).No.1271/2023 -:6:- ``` was pointed out that the detenu was conversant in English, and he gave answers in Malayalam to the questions posed to him. Furthermore, he never demanded for the Malayalam version of the grounds of detention. It is further argued that though reference has been made to the statement of Preetha Pradeep and non-furnishing of the statement of the above person, it is not decisive in the matter, as all other materials are sufficient to justify the legality of the detention order. ``` ``` 5. The learned counsel for the petitioner placed reliance on the judgments of this Court in W.P.(Crl.)No.107/2022, dated 3/6/2022 and Waheedda Ashraf and Others v Union of India, [2021 KHC 303]. ``` ``` 6. The learned counsel for the Directorate of Enforcement referred to a large number of precedents of the Apex Court and this Court which are as follows: ``` W.P.(Crl.).No.1271/2023 -:7:- **==> picture [421 x 616] intentionally omitted <==** W.P.(Crl.).No.1271/2023 -:8:- ``` 7. Under Section 3 of the COFEPOSA Act, necessary power is vested with the authorities mentioned therein to prevent a person from acting in a prejudicial manner who is found to be engaged in conservation or augmentation of foreign exchange. The Court is entertaining judicial review to satisfy itself about the circumstances under which the preventive detention order has been passed. The detention authority may rely on many facts and materials to have a subjective satisfaction as to the requirement to pass a detention order. The Court should not overemphasize the materials collected as to proof of facts in a criminal case to prove the commission of offence. There are two vital aspects; first, whether the materials collected are sufficient to subserve the objectives of the detention order and; the second, whether the personal liberty of the person concerned has been sufficiently safeguarded by adhering to the procedure established by law. ``` ``` 8. In this case, all the materials collected sufficiently warrant the invocation of the procedure under ``` W.P.(Crl.).No.1271/2023 -:9:- ``` Section 3 of the COFEPOSA Act. It is to be noted that search was conducted and unaccounted gold coins and biscuits were recovered from the residence of the detenu. The WhatsApp chat of the detenu indicates his involvement in foreign exchange. The statement of Suresh Babu also indicates that detenu is a foreign currency dealer. It is not a single act, but the entire materials collected and statements of the detenu as well as Suresh Babu would go to show that the detenu has engaged in foreign currency unauthorisedly for many years. Therefore, in the circumstances as above, the authority would be justified in passing the detention order. ``` ``` 9. In regard to the non adherence of the procedures, the Constitution itself built a safeguard under Article 22(5). It is mandated by the Constitution that the authority making the order shall communicate it to the person concerned, the grounds on which the order has been made and afford an earliest opportunity to make a representation against the said order. It is to be noted that the case of the petitioner is that the statement of Preetha Pradeep was ``` W.P.(Crl.).No.1271/2023 -:10:- ``` recorded but was not furnished to the detenu. Therefore, non furnishing of the material statement relied upon by the detention authority has caused prejudice to the detenu. It is true that in the grounds provided in the detention order, reference has been made to the statement of Preetha Pradeep. The question is whether, after eschewing her statement, the detention order could have been passed or not. As we noted above, the WhatsApp chats, statement of Suresh Babu and statement of detenu are sufficient enough to pass the detention order. Therefore, merely for the reason that there was a failure to furnish the statement of Preetha Pradeep will not prejudice the detenu. It is appropriate to refer para.29 of the judgment of the Apex Court in Vakil Singh v. State of J&K [(1975) 3 SCC 545] which reads thus: ``` ``` 29. We have reproduced the particulars of the grounds of detention, in full, earlier in this judgment. Read as a whole they appear to be reasonably clear and self-sufficient to bring home to the detenue the knowledge of the grounds of his detention. The abbreviation F.I.U. occurs four times in these grounds, but each time in conjunction with PAK, and twice in association with the words “Pak Officers”. The collocation of words and the context in which F.I.U occurs makes its purport sufficiently intelligible. “Grounds” within ``` W.P.(Crl.).No.1271/2023 -:11:- ``` the contemplation of Section 8(1) of the Act means ‘materials’ on which the order of detention is primarily based. Apart from conclusions of facts, “grounds” have a factual constituent, also. They must contain the pith and substance of primary facts but not subsidiary facts or evidential details. This requirement as to the communication of all essential constituents of the grounds was complied with in the present case. The basic facts, as distinguished from factual details, were incorporated in the material communicated to the detenue. He was told the name of the notorious PAK agent and courier (Mian Reham resident of Jumbian) through whom he was supplying the information about the Indian Army. He was informed about the places in Pakistan which he was visiting. He was further told that in lieu of the supply of this information he had been receiving money from Pakistan. Nothing more was required to be intimated to enable him to make an effective representation. The facts which were not disclosed were not basic facts, and their non- disclosure did not affect the petitioner's right of making a representation. As recited in the communication under cover of which the grounds of detention were served on the detenue, those factual details were withheld by the detaining authority because in its opinion, their disclosure would have been against public interest. ``` ## `In` **`L.M.S. Ummu Saleema v. B.B. Gujaral [(1981) 3 SCC 317`** `],` ``` at para.5 it was held as follows: ``` ``` 5. … It is only failure to furnish copies of such documents as were relied upon by the detaining authority, making it difficult for the detenu to make an effective representation, that amounts to a violation of the fundamental rights guaranteed by Article 22(5). In our view it is unnecessary to furnish copies of documents to which casual or passing reference may be made in the ``` W.P.(Crl.).No.1271/2023 -:12:- ``` course of narration of facts and which are not relied upon by the detaining authority in making the order of detention. … ``` ``` We note that even without placing reliance on Preetha Pradeep’s statement, the detention order could have been completely sustained in this case. Therefore, there is no merit in this writ petition (crl.) and it is accordingly dismissed. ``` ## **`Sd/-`** ``` A.MUHAMED MUSTAQUE, JUDGE ``` Sd/- ``` SHOBA ANNAMMA EAPEN, JUDGE ``` ``` ms ``` W.P.(Crl.).No.1271/2023 -:13:- ## **`APPENDIX OF WP(CRL.) 1271/2023`** ``` PETITIONER EXHIBITS Exhibit P1TRUE COPY OF DETENTION ORDER NO.PD- 12003/03/2023-COFEPOSA DATED 31-08-2023 ISSUED BY THE 2ND RESPONDENT Exhibit P2TRUE COPY OF DOCUMENTS ALLEGED TO BE IN SUPPORT OF THE DETENTION ORDER IN A SPIRAL BOUND VOLUME HAVING PAGES 1 TO 98 RESPONDENT ANNEXURES Annexure R1(b)A true copy of the order of confirmation issued by the Central Government numbered as NO.PD-12003/03/2023-COFEPOSA dated 28-11-2023 Annexure R1(a)A true copy of the order of detention issued by the Detaining Authority Numbered as F. No. PD-12003/03/2023- COFEPOSA dated 31-08-2023 ``` ``` PETITIONER EXHIBITS Exhibit P1(a)TRUE COPY OF THE DETENTION ORDER NO.PD- 12003/03/2023-COFEPOSA DATED 31-08-2023 ISSUED BY THE 2ND RESPONDENT Exhibit P1(b)TRUE COPY OF THE DETENTION ORDER WAS CONFIRMED BY THE 1ST RESPONDENT AS PER ORDER DATED 28-11-2023 ```