[Kerala Gold Smuggling] Evidence Act not applicable to preventive detention under COFEPOSA: Kerala High Court

The Kerala High Court on Thursday held that none of the normal rules of criminal jurisprudence or the provisions of the Evidence Act are attracted while invoking the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities (COFEPOSA) Act, 1974 while directing preventive detention of an individual (Jamseena v. Union of India and Ors.)..A Division Bench of Justices AK Jayasankaran Nambiar and Mohammed Nias CP held that applying the principles of the Evidence Act is foreign to the jurisdiction exercised under the COFEPOSA Act while directing preventive detention."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," the Court held. It further said that parallels cannot be drawn between prosecution in a court of law and a detention order under the COFEPOSA Act as one is punitive in nature while the other is preventive.Hence, 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, therefore, dismissed the petitions that sought to quash the continued detention under COFEPOSA of Mohammed Shafi and Jalal, two of the accused in the Kerala gold smuggling case of 2020.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," the judgment stated.Factual BackgroundIn 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, in exercise of power under Section 3(1)(i) of the COFEPOSA Act, by orders dated November 19, 2020, the Joint Secretary, Ministry of Finance, directed that one Jalal AM and Mohammed Shafi P be detained with a view to prevent them from smuggling..The wives of the Shafi and Jalal then approached the High Court to secure the release of their husbands and quash the detention orders. .The petitioners were represented by Senior Advocate S Sreekumar, Advocate Nireesh Mathew. The respondents were represented by Standing Counsel for the Customs Department S Manu and Central Government Counsels Jayasankar V Nair and Suvin R Menon..Contentions of the petitioners- The only material on the basis which the detention order was passed are 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; - The provisions of the Evidence Act are not applicable to COFEPOSA proceedings and thus the statements above referred cannot be relied upon at all;- Even if the allegations set out in the detention order are correct, it is only a case where the accused had only invested amounts which cannot attract any of the provisions under Section 3(1) of the COFEPOSA Act;- As per section 8(c) of the COFEPOSA Act, the Advisory Board is duty bound 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..Opposing Arguments - The accused were involved in gold smuggling from 2017 to 2020 which maker their continued preventive detention necessary; - The reliance on the statements taken under Section 108 is fully justified and apart from the said statements, there were a chain of occurrences which led to the detaining authority arriving at the subjective satisfaction required for passing the detention order;- 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 are excluded..Having considered the rival contentions, 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:.- As per the judgement of the Supreme Court in Khudiram Das v. The State of West Bengal and the judgement of the Madras High Court in Suman and Ors. v. State of Tamil Nadu and 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.- No constitutional or statutory bar disables the detaining authority from considering the fact that the proposed detenue made a confession under Section 108 of the Customs Act; - The term 'smuggling' as defined under Section 2(e) of the Act has the same meaning as in Section 2(39) of the Customs Act, 1962, which, when read with Section 111 of that Act, is wide enough to include and make liable not only the actual smuggler but also persons abetting the smuggling of contraband goods as well as all persons dealing with such goods, etc; - 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; - The accused have not been denied the protection either under Article 21 or 22 as they did get the opportunity for making an effective representation against his detention.The Court therefore dismissed both petitions.The mother of Swapna Suresh, one of the prime accused in the same crime has also approached the Kerala High Court challenging Suresh's continued preventive detention. Suresh is apparently the only woman under COFEPOSA preventive detention in Kerala .Several of the other accused have also approached the Kerala High Court challenging their detention under the Unlawful Activities Prevention Act. .[Read Judgement]