Normal Rules Of Criminal Jurisprudence Not Applicable To COFEPOSA: Kerala HC Upholds Preventive Detention Of Accused In Gold Smuggling Case

Update: 2021-09-25 04:51 GMT

While directing continued preventive detention of two accused in the gold smuggling case, the Kerala High Court held that the normal rules of criminal jurisprudence or provisions of the Evidence Act will not be attracted while invoking provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities (COFEPOSA) Act, 1974.A Division Bench of Justice A.K...

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While directing continued preventive detention of two accused in the gold smuggling case, the Kerala High Court held that the normal rules of criminal jurisprudence or provisions of the Evidence Act will not be attracted while invoking provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities (COFEPOSA) Act, 1974.

A Division Bench of Justice A.K Jayasankaran Nambiar and Justice Mohammed Nias C.P held that applying the principles of the Evidence Act is foreign to the jurisdiction exercised under the COFEPOSA Act while directing preventive detention since one is punitive in nature while the other is preventive.

"There cannot be a parallel between prosecution in a court of law and a detention order under the COFEPOSA Act. None of the normal rules of criminal jurisprudence or the provisions of the Evidence Act are attracted while invoking the provisions of the COFEPOSA Act." 

On such grounds, the Court dismissed the petitions seeking to quash the detention of two accused in the gold smuggling case, namely, Mohammed Shafi and Jalal under COFEPOSA.

The Bench added,

"No embargo can be placed on the material which a detaining authority under COFEPOSA may consider and no artificial restriction can be placed on the so-called analogy of the sections of the Evidence Act to restrict the material which the administrative authority exercising statutory powers of detention may consider."

The Court found that the detaining authority had acted entirely in accordance with the statutory purpose set out in Section 3 of the COFEPOSA Act while issuing the detention orders.

"We are not in a position to conclude, that there has been a shortcoming, let alone any illegality while passing the detention orders in the instant case. In the light of our findings as above, the writ petitions fail, and they are accordingly dismissed."

Factual Background:

In July 2020, pursuant to investigations conducted by various agencies into money laundering, illegal financial transactions and massive gold smuggling through diplomatic channels, one consignment was intercepted at the Thiruvananthapuram Airport containing 30.245 kg of gold valued at ₹14.82 crores.

Subsequent investigations and statements recorded from various persons, such as Swapna Suresh, Sarith PS, Shafi and Jalal, under Section 108 of the Customs Act led to the detention of several accused persons.

Thereafter, under the power conferred under Section 3(1)(i) of the COFEPOSA Act, by orders dated November 19, 2020, the Joint Secretary, Ministry of Finance, directed that petitioners be detained with a view to preventing them from smuggling.

The wives of the petitioners thereby moved the Court seeking the release of their husbands and quash the detention orders.

Contentions Raised:

Senior Advocate S Sreekumar and Advocate Nireesh Mathew appearing for the petitioners put forth the following arguments:

(a) The detention order was passed merely based on the statements recorded under Section 108 of the Customs Act and these statements cannot be relied on under the COFEPOSA Act but only for proceeding under the Customs Act;

(b) The provisions of the Evidence Act are not applicable to COFEPOSA proceedings and thus the statements above referred cannot be relied upon at all;

(c) Even if the allegations set out in the detention order are correct, it is only a case where the accused had only invested amounts that cannot attract any of the provisions under Section 3(1) of the COFEPOSA Act;

(d) As per section 8(c) of the COFEPOSA Act, the Advisory Board is responsible to call for the entire details and documents before ascertaining that preventive detention was necessary. This was not done and therefore, the detention order was violative of Articles 21 and 22 of the Constitution.

Standing Counsel for the Customs Department S Manu and Central Government Counsels Jayasankar V Nair and Suvin R Menon, responded on behalf of the respondents:

(a)The accused were involved in gold smuggling from 2017 to 2020 which maker their continued preventive detention necessary;

(b) The reliance on the statements taken under Section 108 is fully justified and apart from the said statements, there were a chain of occurrences that led to the detaining authority arriving at the subjective satisfaction required for passing the detention order;

(c) The very nature of the proceedings under the COFEPOSA Act are administrative in nature and not quasi-judicial and that the application of the provisions of the Evidence Act is excluded.

Key Findings:

The Bench declared that it was of the firm view that the contentions raised on behalf of the accused cannot be accepted on the following grounds:

(a) Parralels cannot be drawn:

As per the decisions in Khudiram Das v. The State of West Bengal and Suman & Ors. v. State of Tamil Nadu & Ors, parallels cannot be drawn between prosecution in a court of law and a detention order under the COFEPOSA Act.

One is a punitive action whereas the other is a preventive act. In one case a person is punished on proof of his guilt on a standard of proof beyond reasonable doubt whereas in preventive detention a man is prevented from doing something which is necessary for reasons mentioned in Section 3 of the COFEPOSA Act to prevent.

(b) No statutory bar

The Court noted that no constitutional or statutory bar disabled the detaining authority from considering the fact that the proposed detenue made a confession under Section 108 of the Customs Act;

(c) Advisory Board not obligated

The Advisory Board cannot be asked to take up the mantle of becoming the legal practitioner for the accused. It has no obligation to summon any person or to call for records over and above the files placed before it;

Both the petitions were thereby dismissed by the Court. .

Several other accused have also approached the Court challenging their continued detention under the Unlawful Activities Prevention Act.

Case Title: Jamseena v. Union of India and Ors

Click Here To Read The Order


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