2014 (2) TMI 489 - HC - Customs

Court upholds COFEPOSA preventive detention orders, rejects challenges. Detention justified to prevent smuggling activities.

The court upheld the preventive detention orders issued under COFEPOSA, rejecting challenges related to allegations against the detenus, non-placement of ... Order under COFEPOSA - smuggling of gold - passport was already in the custody of the Authorities - it is contended that there was no possibility of the detenu travelling abroad and indulging in smuggling activities - Held that:- For abetting smuggling activities, it is not necessary for the detenu to travel abroad. Therefore, this contention has no merit. Delay in passing the orders of detention - Held that:- delay by itself is not fatal - The total generated documents were running into 807 pages. Considering the nature of prejudicial activities alleged and the propensity of the detenu in both the cases in hand, it is not possible to conclude that the livelink was snapped due to time gap between the date of the alleged prejudicial activities and the orders of detention. - , it is not possible to accept that the live link was snapped due to delay. Moreover, in the reply, the Detaining Authority has explained the delay. Grounds of detention - Held that:- The Detaining Authority has set out in the grounds the contents of these statements which were not retracted. They give a vivid account of the active participation of Sandeep and Jayant in the smuggling of gold for considerably long time. There is a seizure of a bag containing 5.804 kg of jewellery and gold bars which were made on 10th/11th August 2012. Hence, sufficiency of material before the Detaining Authority cannot be disputed. Therefore, in the facts of the cases in hand, the orders of detention are not vitiated on account of nonplacement of retraction of statements of Sandeep. The Writ Petitions are rejected - Decided against the appellant. Issues Involved:1. Challenge to preventive detention orders under COFEPOSA.2. Allegations against the detenus.3. Non-placement of retraction statements before the Detaining Authority.4. Non-consideration of the seizure of the passport.5. Delay in passing the order of detention.6. Non-placement of the reply to the show cause notice.7. Variance in the subjective satisfaction recorded in the detention orders and grounds of detention.8. Non-placement of the bail order before the Detaining Authority.Detailed Analysis:1. Challenge to Preventive Detention Orders under COFEPOSA:The petitions challenge the preventive detention orders dated 22nd August 2013, issued under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA). The orders aimed to prevent the detenus from abetting the smuggling of goods in the future.2. Allegations Against the Detenus:The grounds of detention allege that specific intelligence was received about smuggling activities involving gold brought from Dubai. The detenu Jayant was accused of purchasing gold in Dubai and handing it over to carriers, while Sandeep was alleged to be the kingpin and financier of the smuggling syndicate. Statements under Section 108 of the Customs Act, 1962, were recorded from multiple individuals, including the detenus, implicating them in the smuggling activities.3. Non-placement of Retraction Statements Before the Detaining Authority:The petitioners argued that the retraction statements of the detenu Sandeep were not placed before the Detaining Authority, which is a crucial document. However, the court held that non-placement of retraction statements does not vitiate the detention orders, especially since the Detaining Authority relied on multiple other statements that were not retracted.4. Non-consideration of the Seizure of the Passport:In Writ Petition No.3436 of 2013, it was argued that the Detaining Authority did not consider the seizure of Jayant's passport, which indicated non-application of mind. The court found this contention without merit, as the detention orders were passed to prevent abetting smuggling activities, which do not require the detenu to travel abroad.5. Delay in Passing the Order of Detention:The petitioners contended that there was a gross delay in passing the detention orders, which snapped the live link between the prejudicial activities and the detention necessity. The court examined the timeline and explanations provided by the Detaining Authority and found the delay justified. The court concluded that the live link was not snapped due to the nature of activities and the propensity of the detenus to continue smuggling.6. Non-placement of the Reply to the Show Cause Notice:In Writ Petition No.3499 of 2013, it was argued that the reply to the show cause notice submitted by Sandeep was not placed before the Detaining Authority. The court held that the reply was not a vital document and its non-placement did not affect the subjective satisfaction of the Detaining Authority.7. Variance in the Subjective Satisfaction Recorded in the Detention Orders and Grounds of Detention:The petitioners argued that there was a variance between the satisfaction recorded in the grounds and the orders of detention, indicating non-application of mind. The court found no such variance that would vitiate the detention orders, as the grounds clearly indicated the necessity of preventing the detenus from abetting smuggling activities.8. Non-placement of the Bail Order Before the Detaining Authority:It was argued that the order granting bail to Sandeep was not placed before the Detaining Authority. The court found that the detention order was passed one year after the bail and was based on clause (ii) of Section 3(1) of COFEPOSA, making the non-placement of the bail order non-fatal to the detention order.Conclusion:The court rejected the petitions, finding no merit in the arguments presented. The orders of preventive detention were upheld, and the rule in both petitions was discharged without costs.