[Kerala Gold Smuggling] Preventive detention of Swapna Suresh under COFEPOSA quashed by Kerala High Court

The Kerala High Court on Friday quashed the continued preventive detention of gold smuggling accused, Swapna Suresh under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA)..A Division Bench of Justices AK Jayasankaran Nambiar and Mohammed Nias CP allowed the plea as it observed that the order of the Special National Investigation Agency (NIA) Court rejecting Suresh's application for bail for offences under the Unlawful Activities Prevention Act (UAPA) had not been placed before the detaining authority for consideration.."We cannot but hold that order was vital and relevant material, that had a bearing on the question to detain or not, and non-consideration of the said material vitiates the detention for non-application of mind...The rejection of the bail application by the Special Court considering the UAPA case, together with the fact that no fresh bail application had been filed by the detenue till the date of the detention order ought to have engaged the attention of the detaining authority, who ought to have given reasons as to why, despite the above facts, he felts that a detention under the COFEPOSA Act was necessary", the Court said..The Court stated that, regardless of whether said facts would have altered the decision of the detaining authority, if a material fact is excluded from consideration, there would be a failure of application of mind which would, in turn, invalidate the detention order."We quite see that the detaining authority might very well have come to the same conclusion even after considering the same, but in the facts of the case, the omission to consider the same is fatal," the Court held. .The Court. therefore, allowed the plea even though Suresh's preventive detention would conclude in a few days."Though we are conscious of the fact that the period of detention would come to an end in a couple of days, since it is our constitutionally entrusted duty to safeguard the rule of law, more so, in a matter involving personal liberty which is sacrosanct and protected under Article 21 of the Constitution of India, we have no choice but to hold the detention to be bad in the eye of law," the judgment stated..The petition, filed through Advocate Sooraj T Elenjickal, had challenged the preventive detention order on the grounds that it is illegal, arbitrary and vitiated by improper application of mind.Elenjickal contended that the order whereby Suresh's application for bail in the NIA case was rejected by the special Court was not placed by the before the Detaining Authority and therefore,the court was not aware of this material fact. He pointed out that Suresh has not retracted to the statements made under Section 108 of the Customs Act, and it was her statement which helped to unearth the entire smuggling activities and her role was very minimal compared to the other accused persons..Senior Central Government Counsel(CGC) S Manu, CGC Daya Sindhu Sreehari and Government Pleader Anas KA appeared for the respondents in the matter . .The Court found that it had to accept the contention that since the the order whereby Suresh's application for bail in the UAPA case was rejected by the Special NIA Court was not placed by the before the detaining authority, "the detention order will be vitiated on the ground of non-application of mind if a piece of evidence that is relevant, though not binding, had not been considered at all"..Therefore, the Court allowed the plea and set aside the detention order. .In July 2020, as a result of investigations conducted by various agencies into money laundering, illegal financial transactions and gold smuggling through diplomatic channels, suspected offenders including Suresh, were arrested and interrogated in Kerala..Suresh was remanded to custody on July 12, 2020.The case is still being probed by the Enforcement Directorate (ED), NIA and the Customs department.Suresh had moved the Kerala High Court for bail in the case registered against her by NIA as well which will be heard by the Court on October 22, 2021. .Suresh was separately also placed under preventive detention in exercise of powers under COFEPOSA which has been quashed by the Court today..Suresh will, however, continue to remain in jail since she is in custody in the NIA case. .[Read Judgment]