Supreme Court Issues Notice On Centre's Challenge To Kerala HC Judgement Which Quashed Preventive Detention Under COFEPOSA Act

The Supreme Court on Thursday issued notice in a special leave petition filed by the Union of India challenging a Kerala High Court judgment which quashed the preventive detention orders passed against two person under Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA) was quashed. A Bench comprising of Justices DY Chandrachud and Indu Malhotra heard Additional-Solicitor General KM Natraj who submitted that the Kerala High Court had exceeded its jurisdiction under Article 226 by substituting the subjective satisfaction of the Detaining Authority with its own wisdom. Accordingly, the Supreme Court proceeded to issue notice in the special leave petition Union of India vs Beevikunju and others. By the judgment delivered on February 19, 2020, a division bench of Justices K Vinod Chandran and V G Arun of the High Court had quashed the detention of Adnan Khalid and Faisal PA who were held for alleged gold smuggling. The case pertains to the detention which arose from the seizure of contraband from the body of a Customs official, while he was smuggling out about 3 kilograms of gold hidden between his legs and held up by four briefs that he was wearing. The official, on being caught, confessed that he had received the contraband from one of the accused, Adnan Khalid. Statements recorded from Khalid and the official revealed a ring operating within the Airport. The Kerala High Court then noted that an earlier case, relating to the second accused, Faisal, consisted of a different modus operandi being employed, with an active involvement of a Customs official. The High Court, after taking into consideration the submissions of the Counsels and the material placed before it, stated that there was a requirement of a connecting link insofar as the finding with respect to a smuggling ring in which Faisal was the kingpin and Khalid was the main co-ordinator, other than the depositions alone, despite having evidentiary value under Section 108 of COFEPOSA. The Court further noted that video footage that was relied upon by the Detaining Authority in both the detaining orders for Khalid and Faisal should have been supplied to the detenu with the facility provided for viewing the same. Additionally, other crucial corroborating material and documents looking into for arriving at the satisfaction of the Detaining Authority were also not supplied. Referring to the case of Arvind Shergill (2000), the Kerala High Court observed that the Court had the power to examine the grounds in the detention order to see whether they were relevant to the objective of the legislation, and if the subjective satisfaction of the authority was based on relevant grounds. In the instant case, the High Court found that the satisfaction arrived at was not substantiated by the documents on record which had been supplied to the detenu. "The need for supply of documents relied on and the necessity for the detaining authority to arrive at a subjective satisfaction of the need for a preventive detention on the basis of substantiating material against the proposed detenu, as supplied by the sponsoring authority are established principles; spoken of by the Hon'ble Supreme Court. We, hence, find the detention order to be bad and both the detenu are liable to be released fortwith". A stern observation was also made by the High Court on the lack of grasp of the relevant law by the Detaining Authorities and the casual manner in which the detention orders are passed. Noting that preventive detention matters consisted of technicalities, the Court stated that "strict adherence, hence is called for and we find very many of the detaining authorities not being properly educated on the law regarding the subjective satisfaction to be entered in ordering preventive detention.""Though distinguished from an objective satisfaction, a subjective satisfaction also has to be on substantiating materials, which are also to be supplied to the detenu. Otherwise the orders will be vitiated for non-supply of the relevant documents relied on or as in this case there being no application of mind". On that note, the Kerala High Court had allowed the habeas petitions petitions of the detenu and ordered for their expeditious release.Click Here To Download Order[Read Order] Read the Kerala HC judgment here

Supreme Court Issues Notice On Centre's Challenge To Kerala HC Judgement Which Quashed Preventive Detention Under COFEPOSA Act

Radhika Roy

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