JUDGMENT : Mohammed Nias C.P., J. In exercise of power under Section 3(1)(i) of the Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, 1974 ('COFEPOSA' for short), by orders dated 19-11-2020, the Joint Secretary, Ministry of Finance, directed that one Jalal A.M. and Mohammed Shafi P. be detained with a view to prevent them from smuggling. 2. Habeas Corpus Petition, WP(Crl) No.70 of 2021 has been filed by Sajmi, W/o. Jalal A.M. (hereinafter referred to as “detenue”) who is under detention from 25-11-2020 under the order aforesaid. The grounds of the detention were supplied to the detenue on 28-11-2020 3. Habeaus Corpus Petition, WP(Crl.) No.118 of 2021 is filed by Jamseena, W/o. Mohammed Shafi.P. (hereinafter referred to as “detenue”) who is under detention from 26-11-2020 under the order aforesaid. The grounds of the detention were supplied to the detenue on 28-11-2020. 4. Since in both cases, the detention orders arise from a similar set of allegations, they were heard together. 5. On the basis of the information received by the Customs department that gold in huge quantities was being smuggled in India through diplomatic luggage, one consignment of cargo with diplomatic immunity was intercepted at the Thiruvananthapuram Air Cargo Complex on 5-07-2020, which led to the recovery of gold weighing 30.245 kg valued at Rs. 14.82 crores concealed inside various electronic and other gadgets. Subsequent investigations and statements recorded from various persons under Section 108 of the Customs Act, revealed that certain staff of the UAE consulate at Thiruvananthapuram were involved in a racket of smuggling gold by concealing the same in the diplomatic cargo taking advantage of the diplomatic immunity that existed. 6. The statements recorded as aforesaid also revealed that the persons involved in the racket had regularly smuggling gold during the period from 15-7-2017 to 27-6-2020 and had altogether smuggled 136 kilograms of gold in 21 consignments during the said period. On the evaluation of the entire materials, the 2nd respondent passed the detention orders. The detenue in WP(Crl) No.70 of 2021 was arrested by the Customs on 14-7-2020 in which he got statutory bail on 24-09-2020. But he continued to be in the custody on the allegation of having committed offences under the Unlawful Activities Prevention Act, 1967. 7. On the evaluation of the entire materials, the 2nd respondent passed the detention orders. The detenue in WP(Crl) No.70 of 2021 was arrested by the Customs on 14-7-2020 in which he got statutory bail on 24-09-2020. But he continued to be in the custody on the allegation of having committed offences under the Unlawful Activities Prevention Act, 1967. 7. As submitted earlier, the detention orders were dated 19-11-2020 and the same was executed on 24-11-2020 with respect to the detenue in WP(Crl) No.70 of 2021 and he was sent to Central Jail, Poojapura, Thiruvananthapuram. On 28-11-2020, the grounds of detention including the relied upon documents were served on him and he preferred representations to the detaining authority, the Government of India as well as to the Advisory Board which are marked in the Writ Petition (Crl.) No.70 of 2021 as Exts. P2, P3 and P4. Ext. P2 representation was received on 30-12-2020 and Ext.P3 representation was received on 29-12-2020. Ext.P3 representation was disposed of on 6-1-2021 while Ext. P2 was disposed of on 12-2-2021. 8. As regards the detenue in WP(Crl) No.118 of 2021, the detention order was dated, 19-11-2020 and the same was executed on 24-11-2020 and the detenue was sent to Central Jail, Poojapura, Thiruvananthapuram. On 28-11-2020, the grounds of detention including the relied upon documents were served on the detenue. On being served with the grounds of detention, the detenue preferred representations to the detaining authority, Government of India as well as to the Advisory Board which is marked in the Writ Petition as Exts. P2. Ext. P2 representation was received on 30-12-2020, which was disposed of on 12-2-2021. 9. The Advisory Board, constituted in terms of Section 8 of the COFEPOSA Act, opined that there was sufficient reason of the continued detention of the detenues and accordingly, the opinion of the Advisory Board confirming the detention order was passed on 11-2-2021. 10. Under these circumstances, the petitioners seek a Writ of Habeas Corpus for securing their release with a further prayer to quash the detention order dated 19-11-2020. 11. Heard learned Senior Advocate Sri. S. Sreekumar for the petitioner in WP(Crl) No.70 of 2021, learned counsel Sri. Nireesh Mathew for the petitioner in WP(Crl.) No.118 of 2021, Sri. Manu S., the learned Standing Counsel appearing for the Customs Department, Sri. Jayasankar V. Nair and Sri. 11. Heard learned Senior Advocate Sri. S. Sreekumar for the petitioner in WP(Crl) No.70 of 2021, learned counsel Sri. Nireesh Mathew for the petitioner in WP(Crl.) No.118 of 2021, Sri. Manu S., the learned Standing Counsel appearing for the Customs Department, Sri. Jayasankar V. Nair and Sri. Suvin R. Menon, the learned counsel for the government of India and the learned Government Pleader for the State of Kerala. 12. Sri. S. Sreekumar, learned Senior Counsel made the following submissions (1) That the only material on the basis which the detention order was passed are the statements recorded under Section 108 of the Customs Act on 14-7-2020 and 29-7-2020 and that they cannot be relied on under the COFEPOSA Act but only for proceeding under the Customs Act. (2) That even the statements allegedly made under Section 108 have been falsely misstated in the detention order vitiating the subjective satisfaction arrived at by the detaining authority. (3) That the material for arriving at the subjective satisfaction being completely illegal and inadmissible, the fact that there has not been any retraction of the confession statements made under Section 108 cannot in any manner be relevant in as much as the statements under Sec. 108 of the Customs Act cannot be used for passing an order of detention under the COFEPOSA Act. He would also argue that the provisions of the Evidence Act are not applicable to COFEPOSA proceedings and thus the statements above referred cannot be relied upon at all. In that view of the matter, it is his further submission that the detention order is completely violative of Articles 21 and 22 of the Constitution and thus prayed for allowing the Habeaus Corpus Petition. (4) The learned Sr. counsel also submitted that the non-supply of CCTV footage, which is relied upon by the detaining authority is fatal and cuts at the root of the detention order. (5) He also submits that gold was never seized from the detenue and as such, there is no direct involvement and therefore, detention order made under Section 3(1)(i) cannot stand the test of law. (6) The learned counsel also submits that the detenue was in jail when the detention order was passed and the chance of getting bail for the offences alleged against him was very bleak and remote and this aspect is not seen considered by the detaining authority in the correct perspective. (6) The learned counsel also submits that the detenue was in jail when the detention order was passed and the chance of getting bail for the offences alleged against him was very bleak and remote and this aspect is not seen considered by the detaining authority in the correct perspective. Learned counsel cites the judgment in Edwin Andrew Minihan v. Union of India [ 2016 (3) KHC 88 ] and Beevikunju K.A. and Another v. Union of India and Others ( 2020 KHC 167 ) in support of his contentions. Thus, learned senior counsel contended that for the above reason, the detention order is invalid in law being violative of Articles 21 and 22 of the Constitution of India and has to be quashed. 13. Learned counsel for the petitioner in WP(CRl) No.118 of 2021, apart from adopting the contentions raised on behalf of the petitioner in WP(Crl) No.70 of 2021 raised the following contentions: The first contention was that even if the allegations set out in the detention order are correct, it is only a case where the detenue had only invested amounts which cannot attract any of the provisions under Section 3(1) of the COFEPOSA Act. He also submits that apart from the statements made under Section 108 of the Customs Act, there has been no other material which the detaining authority considered to hold that the detenue is to be detained to prevent any further act of smuggling. Learned counsel also argues that in the representation given to the respondents, he had retracted the statements made under section 108 of the Customs Act. It is his further contentions that there has been a total non-application of mind by the Advisory Board while opining that there is a need for continued detention. He stresses his argument on section 8(c) of the COFEPOSA Act to say that the Advisory Board was under a duty, even if not asked for by the detenue, to call for the entire details and documents concerning the detention order and that not having been done, the writ petition must be allowed. He also contends that likelihood of getting bail was very remote in the case where the offences of UAPA were alleged and therefore, there was no need to pass an order of detentions and he was already in jail. 14. He also contends that likelihood of getting bail was very remote in the case where the offences of UAPA were alleged and therefore, there was no need to pass an order of detentions and he was already in jail. 14. Learned counsel for the respondents opposing the contentions of the petitioner argued that there were several instances where the detenues had in the past indulged in smuggling and the same is clearly admitted by them in the statements made before the Customs authority. Therefore, unless the detenues were detained by orders of preventive detention, they would further indulge in the act of smuggling. 15. Learned counsel for the Customs Sri. Manu countering the arguments made on behalf of the detenues submitted that the reliance on the statements taken under Section 108, which stands on a high pedestal, is fully justified and that apart from the said statements, there was chain of occurrences which led to the detaining authority arriving at the subjection satisfaction requisite for passing the detention order. Reliance placed by the detaining authority are on materials which are completely lawful and as such prayed for rejecting the contentions of the detenue on that count. He further submits that 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. To fortify his submissions, the learned counsel cites following judgments in Kudhiram Das v. State of West Bengal and Others ( AIR 1975 SC 550 ), Narendra Purushotam Umrao v. B.B. Gujral and Others ( AIR 1979 SC 420 ) AIR 1968 Madras 218, Anthony alias Sandy John Nigero v. S. Ramamurthi Commissioner of Police for Greater Bombay and others 1993 Crl.L.J. 3259] as well as the judgment of this Hon'ble Court reported in 2016 (2) KLJ 186. 16. He further submits that that the fact that the detenues were in jail was considered by the detaining authority. The contention of the petitioner that there is no chance to be released on bail cannot be countenanced as some of the accused in the very same case were granted bail. 16. He further submits that that the fact that the detenues were in jail was considered by the detaining authority. The contention of the petitioner that there is no chance to be released on bail cannot be countenanced as some of the accused in the very same case were granted bail. Lastly, the learned counsel submitted that on a similar matter arising from the same set of facts, the Habeas Corpus filed on behalf of a detenue, raising almost similar contentions, was dismissed by this Court vide judgment reported in Raishad v. Union of India [ 2021 (3) KLT 799 ] and thus prayed for dismissal of the Writ Petition. 17. Having considered the rival contention, we are of the firm view that the contentions raised on behalf of the detenues cannot be accepted for the reasons to be stated hereunder. 18. In respect to the first contention of the learned counsel for the petitioners, relying on the judgment reported in Edwin Andrew Minihan v. Union of India and Ors. [ 2016 (2) KLJ 686 ], that the statements under Section 108 of the Customs Act cannot be used for passing detention under the provisions of the COFEPOSA Act, it has to be noticed that the said decision will not help the petitioners in any manner as it held that the proceedings under the COFEPOSA Act are not proceeding before a court and therefore, section 65 (b) (4) of the Indian Evidence Act will not apply and on that basis, it was held that neither Section 65 B of the Evidence Act nor sections 138 C of the Customs Act would be applicable to the proceedings of a detaining authority for passing an order of detention. We find nothing in support of the petitioner in the said decision as according to us the ratio in the said case holds otherwise. 19. We also notice that the Hon'ble Supreme Court in the decision in Khudiram Das v. The State of West Bengal [ AIR 1975 SC 550 ) has clearly held that the power of detention is not a quasi-judicial power. 19. We also notice that the Hon'ble Supreme Court in the decision in Khudiram Das v. The State of West Bengal [ AIR 1975 SC 550 ) has clearly held that the power of detention is not a quasi-judicial power. It is further held that while passing the detention order, on the basis of material which the detaining authority considers relevant having regard to the past conduct judged in the light of the surrounding circumstances and other relevant materials and arrives at the conclusion that the detenue is likely to act in a prejudicial manner as contemplated in any of sub-clauses (i), (ii) and (iii) of Clause (1) of Sub-section (1) of Section 3, and if so, whether it is necessary to detain him with a view to preventing him from so acting. These are not matters susceptible of objective determination and they could not be intended to be judged by objective standards. These are essentially matters which have to be administratively determined for the purpose of taking administrative action. 20. The Hon'ble High Court of Madras in the decision reported in Suman and Ors. v. State of Tamil Nadu and Ors. (AIR 1986 Madras 318) has also held that the proceedings under the COFEPOSA Act are neither judicial or quasi-judicial character, nor are they of a criminal or a quasi-criminal character. The jurisdiction to detain by way of preventive detention is a jurisdiction of suspicion and not based on proof of any offence or act beyond all reasonable doubt. There cannot be a parallel 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. Applying the principles of the Evidence Act is foreign to the jurisdiction exercised under the COFEPOSA Act to make an order of preventive detention. In short, 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. Applying the principles of the Evidence Act is foreign to the jurisdiction exercised under the COFEPOSA Act to make an order of preventive detention. In short, 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. No embargo can be placed on the material which a detaining authority 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. No constitutional or statutory bar disables the detaining authority from considering the fact that the proposed detenue has made a confession under Section 108 of the Customs Act. Even if the detenue had retracted the confession statements, the same does not take away the power of the detaining authority to still pass an order of detention as the only requirement then would be to consider both the confession statements along with the retraction. What weight is to be attached to the confession statements in the light of the other materials is a matter exclusively for the detaining authority to determine. Thus, in short, it is clear that the bar which is placed with regard to the consideration of evidence against an accused in the course of the criminal trial is clearly inapplicable while considering the materials for the purpose of detention. The provisions of the Evidence Act do not regulate the consideration of a material that is put before the detaining authority for consideration in order to decide whether it would pass an order of detention. We have no doubt that the detention orders can be passed upon the confession statements recorded under Section 108 of the Customs Act from the detenues, wherein the detenues admit their involvement in the previous incidents of smuggling. In fact, in the above cases, the detention is not based solely on the confession statements. The facts and inferences from facts are drawn from the search and seizure and host of other facts mentioned in the grounds. Most of the facts are according to the detaining authority corroborated by the statements of those with whom the petitioners had dealings. We also note that the power under Section 108 of the Customs Act is intended to be exercised by a gazetted officer of the customs department. Most of the facts are according to the detaining authority corroborated by the statements of those with whom the petitioners had dealings. We also note that the power under Section 108 of the Customs Act is intended to be exercised by a gazetted officer of the customs department. Section 108(3) enjoins on the person summoned by the officer to serve upon any subject to which he is summoned. He is not excused from speaking the truth on the premise that such statements could be used against him. This requirement is included in the previous or the purpose of including the officer to elicit from the person interrogated. In the instance case, there has been no retraction of the confession statements made under section 108 of the Customs act. In such circumstances, we find nothing wrong in the detaining authority relying on the statements made under Section 108 of the Customs Act as they furnish sufficient and adequate materials on the basis of which the detaining authority can form its opinion. 21. We are also in respectful agreement with the judgment of the Hon'ble High Court of Bombay reported in Anthony v. Rammurthi and Ors. (1993 CriLJ 3259) that detention is based not on fact proved as per Evidence Act or Cr.P.C, but on the subjective satisfaction of the detaining authority. 22. There is no merit in the contention of the learned senior counsel that there has been factual misstatements made about the various voluntary statements given by the detenue under section 108 of the Customs Act, we hold that the same is not acceptable. The copies of the statements dated 14-7-2020 and 29-7-2020 of the detenue were made available by the learned counsel for the Customs. Having gone through the statements we do not think that there is any factual misstatement recorded in the detention order about the confession statement under Section 108 of the Customs Act. Thus, we repel the said contention. 23. With respect to the contention that the CCTV footage mentioned in the detention order has not been supplied, we notice that though there is a narration about the CCTV footage in the detention order since they have not been relied upon for arriving at the subjective satisfaction, the footage need not be furnished to the detenue. 23. With respect to the contention that the CCTV footage mentioned in the detention order has not been supplied, we notice that though there is a narration about the CCTV footage in the detention order since they have not been relied upon for arriving at the subjective satisfaction, the footage need not be furnished to the detenue. In other words, the CCTV footage has no bearing on the decision to detain as it is not primarily based on the said footage. The whole purpose of supplying the copies of the documents relied on is to ensure that the right of the detenue to make a representation against the detention order is not hampered in any manner by the non-supply. In the instant case, no findings are arrived at on the basis of the CCTV footage, and thus, we hold that a non-supply of the same cannot be of any avail to the petitioner. We also hold that the judgment cited by the learned counsel for the petitioner in Beevikunju K.A. and Another v. Union of India and Others ( 2020 KHC 167 ) for the proposition that non-supply of CCTV footage is fatal is also clearly distinguishable as in that case it was held that CCTV footage was indeed relied on by the detaining authority to arrive at the subjective satisfaction. No conclusion has been arrived at by the detaining authority on the basis of CCTV footage and thus we reject the said contention on the non-supply of the same. 24. We are also guided by the principles laid down by the Hon'ble Supreme Court in Narendra Purushotam Umroa and Ors. v. B.B. Gujral and Ors. [ (1979) 2 SCC 639] to hold against the contention on behalf of the detenue that there was no seizure of gold from him and therefore it cannot be said that he has smuggled gold and at best the ground could have been under Clause (iv) sub-section (1) of Section 3 of the COFEPOSA Act and not under Section 3(1)(i) of the said Act. 25. 25. 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. We do not agree with the contention on behalf of the detenues in this regard and the same is rejected. 26. It is worthy to add here that there is some element of suspicion, anticipation and speculation inherent in exercise of power while ordering detention. 27. With regard to the contention that there is no likelihood that the detenues would be enlarged on bail also cannot be accepted as several accused in the connected cases had been granted bail. All that the detaining authority was obliged while passing the order of detention is to be aware of the fact that detenue is in jail and about the chance of detenue being enlarged on bail, that having been done no fault can be found. We therefore, reject this contention. 28. With respect to the contention on behalf of the detenue in WP(Crl.) No.118 of 2021 based on Section 8(c) of the COFEPOSA Act that the Advisory Board was enjoined to collect all materials and to conduct a detailed enquiry, even if the detenue did not ask for the same. We cannot accept the said contention and at the outset it is to be stated that in the proceedings before the Advisory Board, the question for consideration is not whether the detenue is guilty of any charge but whether there is any sufficient cause for the detention of the person concerned. The detentions, it must be remembered, are based not on facts proved either by applying by test of preponderance of probabilities or of reasonable doubt. The detention is based on the subjective satisfaction of the detaining authority, which finds it necessary to detain a person in order to prevent him from acting in the manner prejudicial to certain stated objects. The proceeding of the Advisory Board is different from the proceedings of the judicial or quasi-judicial proceedings, before which there is a lis to adjudicate upon. The Advisory Board cannot be asked to take up the mantle of becoming the legal practitioner for the detenue. The proceeding of the Advisory Board is different from the proceedings of the judicial or quasi-judicial proceedings, before which there is a lis to adjudicate upon. The Advisory Board cannot be asked to take up the mantle of becoming the legal practitioner for the detenue. The detenue was free to produce materials to question the detention made against him and the Advisory Board has no obligation to summon any person or to call for records over and above the files placed before it. The Advisory Board in the instance case has opined that it was necessary to continue the detention. We do not not think that the detenue has been denied the protection either under Article 21 or 22 of the Constitution of India. The detenue did get the opportunity for making an effective representation against his detention. We, therefore, reject the said contention. 29. In WP(Crl.) No.118 of 2021 the detenue has not made any request before the Advisory Board seeking for any documents and we hold so after perusing the proceedings of the Advisory Board. The contention of the detenue in this regard is only to be rejected. 30. It won't be out of place to reproduce a passage from the case of Prakash Chandra Mehta v. Commissioner and Secretary, Government of Kerala, 1986 CriLJ 786 : “There is no rule of law that commonsense should be put in cold storage while considering constitutional provisions for safeguards against misuse of powers by authorities though these constitutional provisions should be strictly construed ….. Court is not the place where one can sell all tales'. 31. The detaining authority had acted entirely in accordance with the statutory purpose set out in Section 3 of the COFEPOSA Act while passing the impugned orders of detention. 32. 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.