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Detenu cannot challenge detention order citing non-supply of documents if he is unable to prove prejudice: Kerala High Court

The judgment was delivered on a Habeas Corpus petition seeking production of detenu, one, Abdul Raoof who was detained under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA Act).

The plea said so as to set him free and declare his Detention Order, as well as Confirmation Order, as unconstitutional, illegal, and unsustainable in law.

By way of background, unaccompanied baggage of a passenger Althaf Moosan Mukri, was checked by Customs authorities on April 20, 2021 and a compressor of a refrigerator and contraband gold weighing 14763.300 grams valued at around ₹7 lakh were seized.

Based on the statement of the passenger, the father-in-law of the detenue, the brother of the detenu, and the Customs G Card holder were summoned the same day and their statements were recorded under Section 108 of the Customs Act, 1962.

The Directorate of Revenue Intelligence (DRI) recorded further statements from them in which they reiterated their earlier statements and gave further evidence from which complicity of the detenu was established

As per their statements, the detenu Raoof, who was residing in Dubai, was running a cargo handling and forwarding business and was scouting passengers who had unaccompanied cargo to be sent to India. The contraband gold concealed in the compressors of refrigerator of the detenu was thus sent along with his unaccompanied baggage which was cleared in Cochin by one of the accused persons and the baggage was received by another accused, the father-in-law of the detenu.

They also admitted that apart from the detenu, the other three accused persons had also invested money to procure the contraband gold and after selling the contraband gold, money would be sent back to the detenu through hawala channels.

In May 2021, the three accused persons were granted bail by the Session Court.

On March 5, 2022, the detenue was arrested under the COFEPOSA Act and was taken to the Central Prison, Poojappura where he is under detention.

The matter was later heard by the Advisory Board under Section 8(b) of the COFEPOSA Act.

The detenu addressed representations to the Advisory Board informing it about the withholding of information and documents he requested and requested for adjournment of the hearing till he gets the requisite information and documents.

However, the Advisory Board took the view that there were sufficient reasons for the continued detention of the detenu and, therefore, confirmed the detention order under Section 8(f) of the COFEPOSA Act.

This prompted the detenue to move the High Court.

It was argued that the right of the detenu to make representation before the detaining authority and the government was scuttled due to non-supply of materials/documents demanded by the detenu.

Consequently, he was denied his right guaranteed under Articles 14, 21 and 22(5) of the Constitution of India.

The respondents filed a counter affidavit denying the allegations and contended that every document which is relevant has been considered by the detaining authority and subjective satisfaction was arrived at on the basis of necessary and sufficient materials.

They further contended that the detenue didn’t provide sufficient material to establish any prejudice caused to him due to non-supply of the requested documents.

The Court after elaborately going through various precedents, found substance in the arguments of the respondents.

It, therefore, dismissed the petition on the ground that a detenu cannot assail his detention order on the ground of non-supply of documents if he is unable to prove prejudice due to that.

The petitioner was represented by advocates M Ajay and VP Prasad.

The respondents were represented by advocates Suvin R Menon, S Manu, and KA Anas

Source: Barandbench

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