Jeetha Agnes v. Union of India and Others

**C.R.** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** ## **&** **THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS WEDNESDAY, THE 27TH DAY OF MAY 2020 / 6TH JYAISHTA, 1942 WP(Crl.).No.68 OF 2020** ## **PETITIONER :** **JEETHA AGNES, AGED 44 YEARS, W/O. FRANCIS, CHALICHAN HOUSE, KANNAMALY P.O., KOCHI - 682 008. BY ADVS. SRI.C.RAJENDRAN SRI.B.K.GOPALAKRISHNAN** **RESPONDENTS :** **1 UNION OF INDIA, REPRESENTED BY THE SECRETARY TO GOVERNMENT OF INDIA, MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, NEW DELHI - 110 001. 2 THE JOINT SECRETARY TO GOVERNMENT OF INDIA, MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, 6TH FLOOR, B WING, JANPATH BHAVAN, JANPATH, NEW DELHI - 110 001. 3 THE SUPERINTENDENT, CENTRAL PRISON, POOJAPURA, THIRUVANANTHAPURAM - 695 012. 4 SENIOR INTELLIGENCE OFFICER, DIRECTORATE OF REVENUE INTELLIGENCE, COCHIN ZONAL UNIT, PALARIVATTOM, ERNAKULAM - 682 025.** **WP(Crl).No.68 OF 2020(S)** 2 **R1-2 BY ADV. SRI.N.S.DAYA SINDHU SHREE HARI R3 BY GOVERNMENT PLEADER SRI.K.E.ANAS R4 BY ADV. SRI.S.MANU** **THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 19-05-2020, THE COURT ON 27-05-2020 DELIVERED THE FOLLOWING:** **WP(Crl).No.68 OF 2020(S)** 3 ## **C.R.”** ## **JUDGMENT** Dated this the 27[th] day of May 2020 ## **Bechu Kurian Thomas, J.** The wife of a detenu seeks release of her husband, who is detained under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short, COFEPOSA Act). 2. The detenu is the Head Havildar of the Customs Department at the Cochin International Airport. Ext.P1 is the order of his detention dated 22.05.2019 which was executed on 30.05.2019. As per the grounds of detention served on the detenu, it is revealed that, information was received that smuggling of gold will take place on 01.03.2019 when an International passenger will attempt to take out the smuggled gold with the help of a Customs Official. On that information the Officers of the Directorate of Revenue Intelligence intercepted the detenu while he +was attempting to exit the International Airport at Cochin. Search of the body of the detenu revealed 2998.50 grams of gold hidden in between his **WP(Crl).No.68 OF 2020(S)** 4 legs within 4 undergarments which he was wearing. The three metal bars were wrapped in black insulation tape and kept in the undergarments. On interrogating him, the detenu is purported to have confessed that he had received the gold bars from one Adnan Khalid, who handed over the same from inside the toilet behind Belt No.1 at the arrival hall of Cochin International Airport. It was also confessed that there was a smuggling racket from whom he had already received money which was kept in his car, parked in the car park of the Airport. On the basis of the aforesaid confession, the Intelligence Officers seized even the currency notes amounting to Rs.1,75,000/- from his car parked in the Airport and registered in the detenu's name. The detenu gave a statement under S.108 of the Customs Act on 01.03.2019 in his own handwriting and again on 07.03.2019. Based on the above facts, Sponsoring Authority requested the 2[nd] respondent to issue a detention order. The 2[nd] respondent after considering the facts and circumstances, found it fit to issue the detention order on 22.05.2019. He concluded that there has been a modus operandi to smuggle gold through Cochin International Airport by involving various persons like passengers, operators and also the Customs Officials and that it was essential to detain **WP(Crl).No.68 OF 2020(S)** 5 Sri.Francis C.X., for a period of one year with a view to prevent him from indulging in further activities of smuggling or abetting smuggling in terms of Section 3(1) of the COFEPOSA Act. Pursuant to the order of detention, the detenu submitted a representation to the Advisory Board dated 23.07.2019 and based on the report of the Advisory Board, the Central Government confirmed the order of detention on 14.08.2019. The aforementioned detention order is under challenge in this petition under Article 226 of the Constitution of India. 3. We have heard Sri.C.Rajendran, the learned counsel for the Petitioner, Adv.Sri.Daya Sindhu Shree Hari, Central Government Counsel for respondents 1 & 2, Sri.K..Anas, the learned Public Prosecutor for the 3[rd] respondent and Adv.Sri.S. Manu, the learned counsel for the 4[th] respondent respectively. 4. Learned counsel for the petitioner, at the outset itself submitted that there was total non-application of mind while passing the detention order and also that the seizures were illegal, both of which have caused prejudice to the detenu. It was also submitted that out of the three persons, who were arrested in connection with the incident, orders of **WP(Crl).No.68 OF 2020(S)** 6 detention passed against two - Sri.Faizal and Sri.Adnan Khalid, were set aside by this Court as per the judgment dated 19.02.2020 in WP(Crl).Nos.377 & 378 of 2019. He submitted with due vehemence that the said orders of detention were set aside on the ground that the copy of the video footage relied upon by the detaining authority was not handed over to the detenu and that an identical situation exists in the instant case also. He submits that failure to give copy of the CCTV footage has caused prejudice to the detenu and the same could not have been used as a ground to order preventive detention. The learned counsel also pointed out that the finding that the detenu was part of a well organized smuggling syndicate was without any basis, especially in the absence of even a passport being available to the detenu and the restrictions on foreign travel for a Customs Official. He also referred to the definition of the word 'smuggling' and submitted that a case of smuggling is not made out legally against the detenu. It was also contended that in any event the search and seizure of gold was not proper. 5. The learned Standing Counsel for the respective respondents in their submissions contended that the orders of detention have been passed based on cogent materials and the **WP(Crl).No.68 OF 2020(S)** 7 detaining authority had clearly applied his mind to the facts and circumstances of the case. They urged this Court to appreciate the fact that various Customs Officials are getting involved in smuggling activities which do not augur well for the country as such. It was also submitted that what was sought to be used from the video footage as against the detenu was not the video but the image which contained the timings of entry and exit by the detenu to and from the toilet, copies of which were handed over to the detenu. The fact of recovery of the contraband gold from the body of the detenu, recovery of currency notes from his car, his inability to account for the gold, the manner it was hid on his body, the statements given under S.108 of the Customs Act, 1962 were all sufficient grounds to order preventive detention. It was further contended that even if the video footage was not given, the same was not material as that ground only linked the detenu with Adnan Khalid and it could be separated from the rest of the grounds. 6. We have considered the rival submissions and we find that there is no reason to interfere with the order of detention issued by the 2[nd] respondent. **WP(Crl).No.68 OF 2020(S)** 8 7. While considering this case, we bear in mind the principles laid down in **Union of India and Others v. Arvind Shergill and Another [2000 (7) SCC 601]** which reiterated that, while considering a challenge against an order of preventive detention, Court is not acting as an Appellate Authority, especially since preventive detention is largely based on suspicion and the Court cannot investigate as to whether the circumstances for suspicion exist warranting restraint of a person and also that the satisfaction of the detaining authority being subjective in nature, if the said satisfaction is based on relevant grounds, the Courts should not render the orders of detention invalid. 8. We also bear in mind the following relevant principles of law, as culled out from various decisions: a. The grounds of detention would not be complete without giving an opportunity to the detenue to make a representation against the detention. The representation will not be effective when some of the documents referred to or relied on are not provided and in such cases, the ground of detention cannot be said to be valid. (Refer to **M. Ahamedkutty v. Union of India and Another** (1990) 2 SCC 1), **Reshmi S. v. Union of India and Others** (2016 (3) KHC 20). b. If there are any documents, statements or other materials relied upon in the grounds of detention, they must also be communicated to the detenue because, being incorporated in the grounds of detention, they form part of the grounds, and the grounds furnished to the detenue cannot be **WP(Crl).No.68 OF 2020(S)** 9 complete without them. (Refer to **Icchu Devi Choraria (Smt) v. Union of India and Others** (1980) 4 SCC 531). c. Merely because copies of some of the documents have been supplied, it cannot be said that they are all relied upon documents. It is not sufficient to say that the detenue was not supplied with documents in time on demand, but it must be further be shown that non-supply has impaired the detenue’s right to make an effective and purposeful representation. (Refer to **Kamarunnissa v. Union of India and Another (** 1991) 1 SCC 128). 9. With the aforesaid principles in mind, when we appreciate the case, we find that one of the grounds of detention is certainly the video footage, which purports to have contained the images of the detenu entering and exiting the toilet near belt No. 1 of the arrival hall of the airport along with one Shamseer on 28-2-2019, and one Adnan Khalid on 1-3-2019. The existence of the Video footage is mentioned at more places than one in the grounds of detention What is mentioned in the grounds of detention is not “image of the video” but the “video footage”. One of the grounds of detention also mention the existence of the video footage as the reason for the detention. In such circumstances, we conclude that the video footage was a relevant document that ought to have been given to the detenu to enable him to make an effective representation. Failure to supply the said document has rendered the ground based on video footage as **WP(Crl).No.68 OF 2020(S)** 10 invalid and non-existent. 10. In the Judgment in W.P.(Crl.) Nos. 377 of 2019 and 378 of 2019, it was found that the video footage was an important document relied upon in the grounds of detention and to that extent we concur. 11. However, a perusal of the judgment in W.P.(Crl.) Nos.377 of 2019 and 378 of 2019 shows that, detention orders in those two cases were set aside on the ground that the only link to connect the said two persons with the Customs Official was the video footage. In the absence of the video footage, the link snapped. Video footage in those two cases was the main ground, while other grounds in those two cases were only species of the main ground. 12. The situation as against the detenu in this case is completely different. The detenu here is a Customs Official. He had no reason to be present on 01.03.2019 at the Airport as he was on leave. He was caught red handed with gold, hidden in his briefs, that too a large quantity as 2998.500 grams which he could not account for. The statement given under Section 108 of the Customs Act, 1962 indicates prior similar activities. On the basis of the statement given by him, currency notes were seized from his car parked in the Airport parking area **WP(Crl).No.68 OF 2020(S)** 11 which, going by his statement was the remuneration received for the illegal act. The aforesaid is sufficient to distinguish this case from W.P.(Crl).Nos.377 & 378 of 2019. In the instant case the video footage of handing over the gold bar inside the gents' toilet near Belt No.1 was not the only ground which indicated the indulgence of the detenu in smuggling activity. The video footage was only one of the grounds in the detention order. There were other grounds also in the detention order which led the detaining authority to issue the detention order. 13. In this context, it is relevant to refer to Section 5A of the COFEPOSA Act. ## **[5A. Grounds of detention severable** .- Where a person has been detained in pursuance of an order of detention under sub-section (1) of section 3 which has been made on two or more grounds, such order of detention shall be deemed to have been made separately on each of such grounds and accordingly- (a) such order shall not be deemed to be invalid or inoperative merely because one or some of the grounds is or are- (i) vague, (ii) non-existent, (iii) not relevant, **WP(Crl).No.68 OF 2020(S)** 12 (iv) not connected or not proximately connected with such person, or (v) invalid for any other reason whatsoever, and it is not, therefore, possible to hold that the Government or officer making such order would have been satisfied as provided in sub-section (1) of section 3 with reference to the remaining ground or grounds and made the order of detention; (b) the Government or officer making the order of detention shall be deemed to have made the order of detention under the said sub-section (1) after being satisfied as provided in that sub-section with reference to the remaining grounds or grounds]. 14. Section 5A was introduced to sustain orders of detention, if they are based on several grounds which are clearly independent of each other. The detention order can survive even if one or few of the grounds are found to be legally unsustainable or non-existent. The principle of segregation of grounds is incorporated by Section 5A. 15. In **Gautam Jain v. Union of India (UOI) and Ors. [(2017) 3 SCC 133]** , relying upon **Madan Lal Anand and Ors. v. Union of India (UOI) and Ors. [(1990) 1 SCC 81]** , **Vashisht Narain Karwaria v. State of UP and Anr. [(1990) 2 SCC 629]** & **D.Anuradha v. Jt. Secretary and** **WP(Crl).No.68 OF 2020(S)** 13 **Ors. [(2006) 5 SCC 142]** , it was held that if even excluding the inadmissible ground, the order of detention can be justified then inadmissibility of one ground would not be a reason to interfere with the order of detention. 16. As a matter of fact, the very purpose of bringing in an amendment as Section 5A was considered by the Supreme Court in **Prakash Chandra Mehta v. Commissioner and Secretary, Government of Kerala and Ors. [(1985) (Supp) SCC 144]** . 17. After referring to the statements, objects and reasons of the Amending Act, it was stated that the society must be protected from the social menace of smuggling by immobilizing the persons by detention of those engaged in such operations and to disrupt the machinery established for furthering smuggling and foreign exchange manipulations. Preventive detention, unlike punitive detention, is to protect the society by preventing the wrong being repeated. Customs Officials who are expected to man the prevention of smuggling, when found to be indulging in such acts, the detaining officer is certainly justified with the materials available to be subjectively satisfied that he should be detained as a means of **WP(Crl).No.68 OF 2020(S)** 14 prevention. 18. Viewed in the above perspective, we find that though the copy of the video footage was not given to the detenu and the said ground of detention has become nonexistent and invalid, the same would not warrant the detention order to be set aside. Dehors the said ground, we find the detention order to be valid. 19. Though the learned counsel attempted to assail the order of detention on the ground that there was nothing to indicate smuggling activity by the detenu by referring to the definition of the word ‘smuggling’ as defined in section 2(39) of the Customs Act, 1962 read with section 2(e) of the COFEPOSA Act, we are not impressed with the same. The jurisdiction under Article 226 of the Constitution of India is not one in the nature of an appellate remedy. The satisfaction required for the purpose of ordering preventive detention is not an objective satisfaction but a subjective one. It is based on inferences drawn from several factors. The seizure of gold from the body of the detenu, inability to account for the huge quantity of gold, the presence of the detenu, who is a customs officer, at the airport on a day on which he was on leave, **WP(Crl).No.68 OF 2020(S)** 15 seizure of a large sum of currency note from his car, statement given under section 108 of the Customs Act, 1962 are all the factors that led to the formation of the subjective satisfaction of the detaining authority. The conclusion is certainly not impossible to arrive at. 20. The contention as regards the illegal search and seizure of the gold and the currency notes are also of no avail. Other than a formal contention, the petitioner could not specifically point out as to the specific nature of illegality that could be attributed to the search and seizure carried out. Apart from the above, the pleadings in the writ petition also do not reveal any specific grounds attacking the search and seizure made. As a matter of fact, we are not called upon nor empowered to look into the legality of search and seizure, in this jurisdiction. In such circumstances, we do not find any reason to impute illegality to the search and seizure made. 21. Involvement of Customs officers in smuggling activities is certainly to be deprecated. Such officials shall also not permit themselves to be in a situation shrouded in suspicion. Such officers, who must be acting as guardians to prevent smuggling or abetment of smuggling, cannot under **WP(Crl).No.68 OF 2020(S)** 16 any circumstances be even suspected to be part of any activity that has a tendency to erode into the foundations of the economic condition of the country. The economic status of a country is the foundation stone for its internal security, stability and the defence of the country. Conserving the economic status of the country by preventing smuggling is extremely essential as otherwise it will have a deleterious effect on the national economy and thereby even affecting the security of the country. In such circumstances, the detention ordered in the instant case, as a means of preventive measure, is certainly justifiable and do not warrant any interference. 22. Before concluding, we mention that the observations mentioned in this judgment were made purely for the purpose of deciding this petition under Article 226. We shall not, under any circumstances whatsoever, be understood to have held that all the accusations raised in this case have been proved. We have not appreciated the evidence, nor are we expected to do so in these proceedings. We have taken note of the aspects mentioned in this judgment, solely for the purpose of referring to the materials available based on which subjective satisfaction was arrived at. **WP(Crl).No.68 OF 2020(S)** 17 In view of the above we find no reasons to interfere with the order of detention and we dismiss the writ petition and in the circumstances of the case, without costs. Sd/- ## **C.T.RAVIKUMAR, JUDGE** Sd/- **BECHU KURIAN THOMAS, JUDGE** RKM **WP(Crl).No.68 OF 2020(S)** 18 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1** **THE TRUE COPY OF THE DETENTION ORDER SERVED ON THE DETENTION DATED 22.5.2019** **EXHIBIT P2 THE TRUE COPY OF THE GROUNDS OF THE DETENTION ORDER SERVED ON THE DETENU DATED 22.5.2015.** **EXHIBIT P3 THE TRUE COPY OF THE MAHAZAR PREPARED INSIDE THE AIR PORT DT. 1.3.2019. EXHIBIT P4 TRUE COPY OF THE ARREST MEMO DATED 1.3.2019** - **EXHIBIT P5 A TRUE COPY OF THE DEMONSTRATION MAHAZAR DATED 1/3/19.** - **EXHIBIT P6 A TRUE PHOTOCOPY OF THE NOTICE DATED 1.3.2019.** - **EXHIBIT P7 A TRUE PHOTOCOPY OF THE CONFESSIONAL STATEMENT.** - **EXHIBIT P8 A TRUE PHOTOCOPY OF THE PRINT OUT OF C C T V FOOTAGS SERVICE ON TE DETENUE.** - **EXHIBIT P9 A TRUE PHOTOCOPY OF REPRESENTATION DATED 22.05.2019.** - **EXHIBIT P10 A TRUE PHOTOCOPY OF THE REPRESENTATION BEFORE THE COFEPOSA ADVISORY BOARD DATED 23.7.2019.** **EXHIBIT P11 A TRUE PHOTOCOPY OF THE CONFIRMATION OF DETENTION ORDER DATED 14.8.2019.**