Dismissed

Ayisha Shinas v. Union of India

Kerala HC9 Oct 2020WP(Crl.)/98/2020

Case brief

AI extract

What is this about?

The Kerala HC dismissed a writ petition challenging an order of preventive detention under the COFEPOSA Act. The court held that there is no obligation to forward an Advisory Board representation to the Government and dismissed challenges regarding delay and the detenu's bail status.

What did the court decide?

The writ petition is dismissed; the petitioner is not entitled to any relief.

Ayisha Shinas Vs Union of India — Constitutional and Fundamental Rights | Kerala HC (2020)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR

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THE HONOURABLE MR. JUSTICE K.HARIPAL

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FRIDAY, THE 09TH DAY OF OCTOBER 2020 / 17TH ASWINA, 1942

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WP(Crl.).No.98 OF 2020

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PETITIONER/S:

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AYISHA SHINAS AGED 31 YEARS W/O.MOHAMMED SHINAS A, RESIDING AT ASHRAF MANZIL, PH WARD, ALAPPUZHA, NORTH S O, ALAPPUZHA-688 007.

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BY ADV. SRI.P.A.AUGUSTIAN

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RESPONDENT/S:

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1 UNION OF INDIA REPRESENTED BY DIRECTOR GENERAL, CENTRAL ECONOMIC INTELLIGENCE BUREAU, 6TH FLOOR, 'B' WING, JANPATH BHAWAN, JANPATH NEW DELHI-110 001.

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2 THE JOINT SECRETARY (COFEPOSA), GOVERNMENT OF INDIA, DEPARTMENT OF REVENUE, MINISTRY OF FINANCE, 6TH FLOOR, 'B' WING, JANPATH BHAWAN, JANPATH, NEW DELHI-110 001.

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3 SUPERINTENDENT OF CENTRAL PRISON POOJAPURA, THIRUVANANTHAPURAM-695 001.

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4 THE SENIOR INTELLIGENCE OFFICER DIRECTORATE OF REVENUE INTELLIGENCE, TRIVANDRUM-695 001.

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R1-2 BY ADV. SHRI.P.VIJAYAKUMAR, ASG OF INDIA R1-2 BY SRI.SUVIN R.MENON, CGC R3 BY SRI.K.A. ANAS, GOVT. PLEADER R4 BY SRI.S.MANU, CGC, DIRECTORATE OF REVENUE INTELLIGENCE KERALA REGIONAL UNIT

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THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 2409-2020, THE COURT ON 09-10-2020 DELIVERED THE FOLLOWING:

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C.R.

JUDGMENT

Haripal, J.

This is a petition filed under Article 226 of the Constitution of India, seeking to issue a writ of habeas corpus or any other writ in the nature thereof, order or direction quashing Ext.P1 order passed by the 2^nd respondent against the detenu Sri.Mohammed Shinas, under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, hereinafter referred to as 'the Act'. Petitioner is the wife of the said Mohammed Shinas, who is undergoing preventive detention in Central Prison, Thiruvananthapuram under the 3^rd respondent. Pursuant to Ext.P1 he was arrested on 06.11.2019 and the order of detention stands confirmed and specified for a period of one year.

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Now the admitted facts can be stated first. Detenu Mohammed Shinas was working as Lead Assistant in AISATS, which is the ground handling unit of the Air India in International Airport,

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Thiruvananthapuram, from 2015 onwards. The incident that led to the initiation of the proceedings had taken place on 11.04.2019 in the early hours. At that time he was on duty. Going by the records, that day two passengers, who had arrived by Air India flight from Abu Dhabi, were carrying smuggled gold. The precise allegation against the detenu is that, as a staffer of the AISATS, he facilitated the smooth transport of the gold, nearly 5.6 kgs, from two passengers by name Kannan and Ibrahim Mansoor. According to the respondents, the modus operandi was like this: The detenu had connection with various gangs of smugglers. He had prior knowledge about the passage of the above two passengers, by Air India Flight IX 538, who had landed in the International Airport that day. As per the understanding, intimations were given to the detenu over whatsapp, even by way of sending the photographs of the carriers. Accordingly, the detenu made preparations for receiving smuggled gold at the ferry bus, that was intended to transport passengers from the aircraft to the arrival hall and, inside the ferry bus, smuggled gold carried by both the passengers were clandestinely obtained by the detenu and kept in the secret pockets of his pants. On the basis of intelligence report, the trap was arranged

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and, in the presence of independent witnesses, the DRI officials oversaw the transaction and both the passengers and the detenu were caught red-handed and the gold items, i.e. 2099.310 grams of 18 gold bars passed by passenger Kannan and 3537.460 grams of gold in the form of 30 gold bars and 2 gold coins carried by passenger Ibrahim Mansoor, were received by the detenu, inside the ferry bus. Altogether 5636.770 grams were received by the detenu from these two passengers, which were caught by the DRI officials and recovered from the possession of the detenu and thus the proceeding was initiated.

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So the common case is that, after recording the statements of the detenu as well as other persons including the two passengers under Section 108 of the Customs Act, a case was registered and the detenu was arrested and remanded to judicial custody; he was in custody during the period from 13.04.2019 to 06.06.2019. Thereafter, he was released on bail on strict conditions imposed by the Additional Chief Judicial Magistrate (Economic Offences), Ernakulam. The Ext.P1 order under Section 3(1) of the Act was issued by the second respondent on 31.10.2019. Accordingly, the detenu was arrested on

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06.11.2019 and since then is undergoing preventive detention. The matter was referred to the Advisory Board as provided under Section 8(b) of the Act. The Board, after considering all the materials placed before it, formed an opinion that there are sufficient causes for the detention of the detenu and on that basis, by Ext.P6 order dated 23.01.2020, the order of detention was confirmed by the 2^nd respondent. It has been stated that he is liable to be detained for a period of one year from the date of detention i.e., from 06.11.2019. The petition was filed by the wife of the detenu in that background.

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The writ petition was filed on 23.03.2020. On notice, the respondents entered appearance and filed their respective counter affidavits. We heard the learned counsel for the petitioner and the learned counsel representing the Assistant Solicitor General of India and also the learned Central Government Counsel for the respondents as well as the learned Government Pleader for the third respondent. We also perused the records made available before Court.

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The petitioner has taken numerous contentions challenging the vires of the Ext.P1 order passed by the 2^nd respondent. According to

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Sri. Augustine, the learned counsel for the petitioner, there is absolutely no reason for the detention of the petitioner and that the Ext.P1 is bad in law, calling for immediate intervention by this Court; he prayed for immediate release of the detenu from detention. The learned counsel for the respondents vehemently opposed the application and defended the Ext.P1 and Ext.P6 orders and contended that the orders do not warrant interference and therefore, prayed for dismissing the writ petition.

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We shall consider the contentions of the parties separately. Even though all possible contentions were raised by the petitioner, the learned counsel has highlighted the following grounds in support of his prayer. First and foremost contention of the learned counsel is that the detention is bad in law since Ext.P5 representation addressed to the Advisory Board was not forwarded to the Government for necessary action; that Ext.P6 order was passed without considering the representation and, therefore, on that ground alone the detenu is liable to be released from detention.

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In support of the contention, the learned counsel has placed

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reliance on the decision reported in Gracy v. State of Kerala (AIR 1991 SC 1090) . Opposing the argument, the learned counsel for the respondents placed reliance on the decision reported in R. Keshava v. M.B. Prakash and others [2001 (2) SCC 145] .

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After hearing counsel on both sides and also going through the authorities on the subject, we have no doubt in mind that such an argument raised by the learned counsel for the petitioner has no basis at all. In fact it is the scheme of the Constitution and the Act that a person under preventive detention has three options challenging the detention. He can file a representation to the Central or the State Government, as the case may be, to the detaining authority and to the Advisory Board constituted under Section 8 of the Act. The scope and ambit of jurisdiction of these authorities are clearly distinct and different. All the three authorities should consider the representations independently and make their own decisions.

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After Golam Biswas v. Union of India Others [(2015) 16 SCC 177] , which stands clarified by Ankit Ashok Jalan v. Union of

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India and others [AIR 2020 SC 1936] , it is certain that a detaining

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authority has to consider the representation independently, irrespective of the question whether representations have been given to the Advisory Board or the Central Government. In other words, detaining authority need not wait for the opinion formed by the Advisory Board regarding the correctness or otherwise of the order of detention. On the other hand, the realm of function of the Advisory Board is independent and distinct. The Advisory Board has to consider the sufficiency or otherwise of the grounds of detention on the basis of materials produced before it and form an opinion and send it for consideration to the appropriate Government. If the Advisory Board finds that sufficient grounds are not made out, that opinion is absolutely binding on the Government and the Government has no other option to make a re-look into the opinion and to continue the detention of the person. In such a case, the detenu has to be released forthwith, on getting the opinion of the Advisory Board. On the other hand, on getting the opinion of the Advisory Board, that there are sufficient reasons for the continued detention, that cannot be said to be binding on the appropriate Government. In that case, the appropriate Government can make its own evaluation and assessment and can take a view as to

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whether the detenu should be allowed to continue under the preventive detention order. Ext.P6 suggests that on receipt of the opinion in favour of the department, the Government decided to continue his detention for a period of one year from the date of execution of Ext.P1.

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Here, the argument of the learned counsel, that the representation given to the Advisory Board ought to have been forwarded to the Government, cannot be accepted, for reasons more than one. Firstly, as stated earlier, the jurisdiction and authority of various authorities under the Act and also under the scheme of Article 22(5) of the Constitution are different. Secondly, it is the admitted case of the petitioner that even after receipt of all the materials, the grounds of detention, relied upon documents etc., the detenu did not make any representation, either to the detaining authority or to the Central Government. In other words, he had addressed a representation, the Ext.P5, only to the Advisory Board. Here, the moot question is whether the Advisory Board has any obligation to forward the representation to the Government. Having regard to the circumstances, our answer is in the negative.

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The decisions relied on by the learned counsel for the respondents, i.e., R. Keshava v. M.B. Prakash and others [(2001) 2 SCC 145] or [AIR 2001 SC 301] and Union of India and Another v. Sneha Khemka and another [(2004) 2 SCC 570] squarely cover the field and give a complete answer to the question. From the above, it is quite evident that the decision in Gracy 's case (supra) has not been approved by the Hon'ble Supreme Court as a binding precedent. It has been rendered on its own facts and also stands clarified by the decision in Sneha Khemka 's case (supra).

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The Supreme Court has also clarified that it is equally well settled that the constitutional right to make a representation includes the right to obtain proper consideration thereof by the authority to whom it is made.

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In Union of India v. Sneha Khemka , the question raised by the learned counsel for the petitioner was specifically considered by the Hon'ble Supreme Court in paragraph 18. The Court posed the question whether a representation before one authority must also be considered by other authorities. The Apex Court answered the question

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in the negative and said that there is no such obligation cast on other authorities to consider a representation which is not addressed to it.

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In this connection, in Keshava 's case, it has been succinctly held that in the absence of constitutional or statutory provisions, the Advisory Board is under no obligation to forward the whole of the record of its proceedings to the Government. In the facts of this case, it is also apposite to quote paragraph 17 of the judgment:-

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“17. We are satisfied that the detenu in this case was apprised of his right to make representation to the appropriate government/authorities against his order of detention as mandated in Article 22(5) of the Constitution. Despite knowledge, the detenu did not avail of the opportunity. Instead of making a representation to the appropriate government or the confirming authority, the detenu chose to address a representation to the Advisory Board alone even without a request to send its copy to the concerned authorities under the Act. In the absence of representation or the knowledge of the representation having been made by the detenu, the appropriate government was justified in confirming the order of detention on perusal of record and documents excluding the representation made by the detenu to the Advisory Board. For this alleged failure of the appropriate government, the order of detention of the appropriate government is neither rendered unconstitutional nor illegal.”

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In Keshava's case (supra), a three-Judge Bench of the Hon'ble Supreme Court has not approved the dictum in Gracy 's case. From these authorities it is quite clear that each authority, as pointed out earlier, is required to apply its mind on materials placed on record and pass orders either rejecting or allowing the representation and such a representation should be disposed of under the constitutional scheme.

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To sum up this point, the detenu did not make any representation to the Central Government. On the other hand, he had sent a representation to the Advisory Board alone and, in the light of the above discussion, it can be held that the Advisory Board has absolutely no obligation to forward the representation to the Government. In such a setting, after considering the opinion formed by the Advisory Board, the 2^nd respondent confirmed the order of detention and passed the Ext.P6 order. Therefore, on this score, the order of detention cannot be interfered with.

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As the second ground, the learned counsel for the petitioner argued that there is inordinate delay in issuing the Ext.P1 order and consequently live-link stands snapped and that also is a vital ground for

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interference with the order of detention. According to the learned counsel, even though the last prejudicial activity had taken place on 11.04.2019, the petitioner was arrested immediately thereafter and was in judicial custody till 06.06.2019. But the Ext. P1 order was passed on 31.10.2019, nearly seven months after the incident on 11.04.2019 and there was no explanation for the long delay, that on that ground also the detenu is entitled to be released from the custody. He also pointed out that the detenu stands removed from his employment and criminal proceedings are proposed to be initiated against him. He was released on bail and after that, was terminated from service. The Ext.P1 order was passed without considering these vital aspects. Similarly, his propensity to involve himself in such anti-social activities in future also has not been considered. Relying on Ext.P2 grounds of detention, the learned counsel submitted that the order was passed on the assumption that he is still in service, but that is proved incorrect. For that reason, the alleged subjective satisfaction arrived at by the detaining authority is to be doubted. He also relied on the decisions of the Hon'ble Supreme Court in Vimal Asok Dhakne v. State of Maharashtra (Crl. Appeal No. 163/2012), Saeed Zakir Hussain Malik v. State of Maharashtra

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[AIR 2012 SC 3235] and Rajinder Arora v. Union of India [2006 (205) ELT 3 (SC)] .

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But the records produced by the parties do not suggest that such an argument of the petitioner can be upheld by this Court. It is the specific case of the respondents that even though the detenu was caught after the incident on 11.04.2019, subsequent investigations and enquiries revealed that he was privy to large number of such illegal activities and that it was not a single or isolated instance. It is the specific case of the respondents that from September 2018 onwards he had associated himself with such activities. He had connections with four such gangs who were actively involved in smuggling activities. Going by Ext.P2, the respondents have collected materials to the effect that he had associated himself in smuggling 49.137 kgs of gold by four gangs during the period from September 2018 to April 2019. Similarly, it is also alleged that he had tried to rope in two lady staff members, who were his colleagues, to involve themselves in similar activities in smuggling of foreign currency, which they had declined. The allegation that he was privy to smuggling of 49.137 kgs of gold is raised on the

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basis of materials collected by the Investigating Officer. They had summoned numerous witnesses, on the basis of the materials found out from the mobile phones. They had to collect and collate whatsapp chats, images, call details, tower location analysis, travel details of the detenu, carriers and their associates, other documentary evidence as well as oral evidence of witnesses and found that he was having active involvement with four gangs of smugglers. It is also alleged that whenever one gang remained dormant, the detenu used to call and persuade them to revive their activities, so that he could give sufficient support for the smuggling of goods through the Airport. It is also important to point out that as a staff member of the ground handling unit of the Air India, he had free access to every nook and corner of the Airport, he was conversant with all relevant matters and thus he knew how to operate matters in most clandestine manner. That means, taking advantage of his position as an insider, he aided and abetted anti-social elements and facilitated easy smuggling of items through the Airport.

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At this point of time, especially in the present jurisdiction, this Court is not expected to delve into the correctness or otherwise of

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these allegations. But, suffice to say that, from the materials made available by the respondents it is clear that they had reasons to suspect the involvement of the detenu in various illegal activities and that was how he was arrested immediately after the incident on 11.04.2019.

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Again, as indicated earlier, the alleged activities of the detenu had spread over a period over seven months ranging from September 2018 to April 2019 for which the Investigating Officer had to go through various materials, had to summon and examine witnesses and had to go through wide range of materials retrieved from electronic documents etc. Therefore, it cannot be thought that all these time-consuming tasks could be done within a short period of time. In our opinion, there is only natural delay and there is justification for taking so much time in launching the proceedings under the Act.

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Every delay in such an instance cannot be held fatal to the detaining authority. It is the settled proposition of law, as held by the Hon'ble Supreme Court in T.A. Abdul Rahman v. State of Kerala and others [AIR 1990 SC 225] , the question whether the prejudicial activities of a person necessitating to pass an order of detention is

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proximate to the time when the order is made or the live-link between the prejudicial activities and the purpose of detention is snapped depends on the facts and circumstances of each case. The Court said that, no hard and fast rule can be precisely formulated that would be applicable under all circumstances and no exhaustive guidelines can be laid down in that behalf; it follows that the test of proximity is not a rigid or mechanical test by merely counting number of months between the offending acts and the order of detention. The Court cautioned that, when there is undue delay, it has to be scrutinised whether the detaining authority has satisfactorily examined such a delay and afforded tenable and reasonable explanation as to why such a delay has occasioned. Moreover, the delay in launching the preventive detention and the delay in processing the representation given under Article 22(5) of the Constitution have to be considered separately. Here, as noticed earlier, there are materials to suggest that detenu had aided and abetted various gangs who were smuggling gold through the Airport. He had close association with four gangs of anti-socials. Everything was done by him for consideration. Search conducted in his house, immediately after the incident on 11.04.2019, showed that he had kept about Rs. 2.38 lakhs in

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a secret place beneath his cot. The impugned order was passed after considering all relevant aspects, by the second respondent. Thus the delay highlighted by the learned counsel cannot be taken seriously as it stands explained.

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Then the learned counsel for the petitioner complained that Ext.P6 order was passed behind the back of the detenu since he was not provided with all the documents and opportunity was not provided to him to make representation against his detention. We have already pointed out that the detenu had made a representation to the Advisory Board and had chosen not to give any representation to the detaining authority or to the Government. Whatever it may be, the learned counsel submitted that item Nos.215 and 216 of the relied upon documents, which are whatsapp chats, CD-ROM, etc., that it cannot be believed that the detenu could watch the contents of these documents while undergoing detention in jail. According to him, there was no facility in the jail to look into the contents of these documents, that too in a very small time frame. But it is a fact that the detenu is a graduate. Exts.R1(b)/R4(a) is the copy of the acknowledgment dated 08.11.2019,

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which clearly indicates that all the files in the said CD-ROM were gone through by him, that he understood the contents of the CD-ROM. It has also been stated that thereafter the said CD-ROM was handed over to him and he acknowledged every document and confirmed the contents of both the CD-ROMs. Such an acknowledgement was given in the own handwriting of the detenu. After having made such an acknowledgement, one cannot be heard to say that he was not supplied with documents, etc. Therefore, such an argument at this juncture is the outcome of an afterthought and is only to be rejected.

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Then the learned counsel submitted that the detenu was released on bail imposing stringent conditions by the Additional Chief Judicial Magistrate, that having regard to the conditions he is not in a position to move out of the country and then his propensity to indulge in such cases in future stands foreclosed; but the order of detention was passed without considering such an important aspect. On the other hand, the learned counsel for the respondents placed reliance on the decisions reported in Smt.Kusum Chandrakant Khaushe v. L. Hmlingliana and others (AIR 1993 SC 401) and Wasi Uddin Ahmed

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v. The District Magistrate, Aligarh, U.P. and others (AIR 1981 SC

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2166) and said that these are separate proceedings and that will not foreclose the possibility of the detenu indulging in such cases in future.

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As adverted to earlier, the detaining authority had collected numerous instances in which the detenu had facilitated illegal transport of large quantity of gold to the country, which must have caused substantial loss to the exchequer. His antecedents would sugget that he was party to various such instances during the period he worked as a staff in the Airport for the Air India. Various incriminating materials were also collected from him. Therefore, in spite of the fact that he was released on bail on imposing conditions or that his contractual employment stands terminated, that will not absolve the detaining authority from initiating action against him under the Act. It has also come out that he had wide range of contacts in the Airport and its surroundings. He had rapport with a wide network of gang of smugglers both in India and abroad. He had also tried to persuade his colleagues into the smuggling activities and, in such a situation, the fact that he was terminated from service alone is not a ground and it is for

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the detaining authority to decide, having regard to the facts of the case, whether preventive detention was warranted or not. Having considered the materials made available before us, we are not in a position to say that the above proceeding is superfluous and unwarranted.

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Similarly, after conducting detailed enquiry, it came out that,

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that was not an isolated act committed by the detenu. From the incriminating materials collected by the detaining authority it has been revealed that he was indulging in such activities at least from September 2018. He had wide range of connections with numerous gangs of smugglers. It is the settled proposition of law that whether there can be detention on a solitary instance would depend upon the facts and circumstances of each case, on the magnitude of the case and other attendant factors. That means, having noticed the involvement of the detenu in numerous instances of anti-social activities, the detaining authority cannot be faulted for invoking the provisions of the Act, without resting on the bail conditions or the fact that he stood retrenched from service.

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The learned counsel was also very much sceptical about the

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subjective satisfaction arrived at by the detaining authority. According to the learned counsel, the entire case has been built upon retracted statements of the detenu; it cannot be believed that he could indulge in numerous such instances of smuggling without being noticed by his official superiors. Grounds for preventive detention have been based on presumptions and guess work. Some statements were obtained from him by manhandling and exerting pressure and coercion. According to him, the Ext.P1 was passed without application of mind, that the order of detention and grounds of detention are contradictory.

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The learned counsel for the respondents disputed these arguments. According to them, there are overwhelming materials to find the involvement of the detenu in large number of smuggling activities, that the Ext.P1 was passed appreciating all the materials on correct perspective.

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We are conscious of the fact that while exercising powers of judicial review under Article 226 of the Constitution, we cannot consider the challenge to an order of detention as if sitting in an appeal, appreciating or re-appreciating the material evidence. As held by the Hon'ble Supreme Court, in Gurdev Singh v. Union of India [(2002) 1

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SCC 545] whether the detention order suffers from non-application of mind by the detaining authority is not a matter to be examined according to any straight-jacket formula or set principles. It depends on the facts and circumstances of the case, the nature of the activities alleged against the detenu, the materials collected in support of such allegations, the propensity and potentiality of the detenu in indulging in such activities. The Act does not lay down any such parameters for arriving at the subjective satisfaction by the detaining authority. Keeping in view the purpose for which the enactment is made and the purpose it is intended to achieve, the Parliament in its wisdom, has not laid down any such standards for the detaining authority to decide whether an order of detention should be passed against a person and the matter is left to the subjective satisfaction of the competent authority. With these words of caution in mind we have rushed through the allegations and materials listed against the detenu and we have no hesitation in holding that the order under challenge was passed after carefully considering all the relevant matters in proper perspective.

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On a collocation of the entire facts and circumstances of this case, we are of the considered opinion that the order of detention does not

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warrant interference under Article 226 of the Constitution. The petitioner

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is not entitled to get any relief and thus the writ petition is dismissed. No

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costs.

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Sd/-

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C.T. RAVIKUMAR JUDGE

Sd/- K.HARIPAL

JUDGE

okb/dcs/05.10.2020

//True copy// P.S. to Judge

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1	TRUE COPY OF THE 10-2019.	DETENTION ORDER DATED 31-
EXHIBIT P2	TRUE COPY OF THE LIST OF DOCUMENTS	GROUNDS OF APPEAL AND THE RELIED UPON.
EXHIBIT P3	TRUE COPY OF THE	STATEMENT DATED 27/8/2019.
EXHIBIT P4	TRUE COPY OF THE	REPLY DATED 27/8/2019.
EXHIBIT P5	TRUE COPY OF THE 7/1/2020 MADE TO COFEPOSA ADVISORY	REPRESENTATION DATED THE HONOURABLE CHAIRMAN OF BOARD.
EXHIBIT P6	TRUE COPY OF THE	ORDER DATED 23/1/2020.

Ayisha Shinas v. Union of India

Case brief

What is this about?

What did the court decide?

Ayisha Shinas v. Union of India

Case brief

What is this about?

What did the court decide?

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