2024 (9) TMI 258 - HC - Customs

Detention order under COFEPOSA for gold smuggling upheld despite typographical error in consideration

Sarfaraz Alam Versus Union of India and Ors.

The HC dismissed a writ petition challenging a detention order under COFEPOSA for gold smuggling. The court found that the detention order dated September ... Scope of review - Detention order - Smuggling - Gold of foreign origin - non-application of mind in the detention order - HELD THAT:- Radhakrishnan Prabhakaran [2000 (2) TMI 825 - SUPREME COURT] has dealt with the scope of judicial review of an order of detention passed under the provisions of the COFEPOSA. It has held that, it is not for the Court to substitute the satisfaction but scrutinise the order to ascertain whether the detaining authority had really arrived at the satisfaction that the detenu has to be preventively detained in public interest. It has also observed that, all documents mentioned in the order need not be supplied. It has clarified that, copies of only such of those documents as have been relied upon by the detaining authority for reaching the satisfaction that preventive detention of the detenu is necessary shall be supplied to the detenu. Paul Manickam and another [2003 (10) TMI 61 - SUPREME COURT] has observed that, appropriate government is enjoyed with an obligation to accord the detenu the earliest opportunity to make a representation and to consider such representation speedily. The representation is to be considered in its right perspective keeping in view the fact that the detention of the detenu is based on subjective satisfaction of the authority concerned. Hemlata Kantilal Shah [1981 (10) TMI 172 - SUPREME COURT] has held that, when an order of detention together with the grounds of detention is served on a detenu, the detenu is not entitled to know which part or parts of the grounds was or were taken into consideration and which not. Abdullah Kadher Batcha and another[2008 (11) TMI 695 - SUPREME COURT] has held that, it is the duty of the Court to see whether the non-supply of any document is in any way prejudicial to the case of the detenu on not. It has held that, primarily, copies which form the ground for detention are to be supplied and non-supply thereof could prejudice the detenu. However, documents which are merely referred to for the purpose of narration of facts in that sense cannot be termed to be documents without the supply of which the detenu is prejudiced. The representation made by the detenu had been considered and dealt with within a reasonable period of time. Typographical error appearing in the consideration order has been highlighted as a material error vitiating the decision. In the facts and circumstances of the present case, the original file had been produced pursuant to the order of the Court. The consideration order of the representation does contain a bona fide typographical error and the same cannot be said to prejudicially affects the detenu. The order of detention dated September 5, 2023 cannot be said to be suffering from the vice of nonapplication of mind. Materials had been taken into consideration for passing the order of detention. Substantial materials such as statements recorded under Section 108 of the Customs Act, 1962, seizure of incriminating materials, recovery of gold, Indian and foreign currencies incriminating the detenu and making out a case for an order of detention passed under the COFEPOSA, exist which allows a plausible view of an order of detention to be passed under the provisions of the COFEPOSA - Materials which have been produced before us establish a live link between the detenu and the order of detention passed against him. As has been noted above, gold of foreign origin, Indian and foreign currencies, amongst others, have been seized on statements under Section 108 of the Customs Act, 1962 being recorded. Such statements have also incriminated the detenu. There is no merit in the present writ petition - Petition dismissed. Issues Involved:1. Validity of the detention order dated September 3, 2023, and September 11, 2023.2. Consideration of representations made on behalf of the detenu.3. Alleged non-application of mind in the detention order dated September 5, 2023.4. Connection between the detenu and the crime alleged.5. Procedural adherence and typographical errors in official documents.Issue-wise Detailed Analysis:1. Validity of the detention order dated September 3, 2023, and September 11, 2023:The petitioner challenged the detention orders, arguing that the authorities did not consider all representations made on behalf of the detenu and took extraneous materials into consideration. The court found that the detention orders were based on substantial materials, including statements recorded under Section 108 of the Customs Act, 1962, and the seizure of incriminating materials. The court held that the detention orders were valid and did not suffer from non-application of mind.2. Consideration of representations made on behalf of the detenu:The petitioner argued that the authorities failed to consider all representations made on behalf of the detenu. The court referred to the principles laid down in Ankit Ashok Jalan, emphasizing the need for expeditious and independent consideration of the detenu's representation. The court found that the representation made by the detenu was considered and dealt with within a reasonable period. The court also noted that the typographical error in the consideration order did not prejudicially affect the detenu.3. Alleged non-application of mind in the detention order dated September 5, 2023:The petitioner contended that the detention order dated September 5, 2023, suffered from non-application of mind. The court examined the materials considered for passing the detention order, including statements recorded under Section 108 of the Customs Act, 1962, and the seizure of gold and currencies. The court concluded that the detention order did not suffer from non-application of mind, as substantial materials supported the decision.4. Connection between the detenu and the crime alleged:The petitioner argued that there was no live link between the detenu and the crime alleged. The court referred to the evidence, including the statements of four intercepted persons and the detenu's own statements, which implicated the detenu in the smuggling activities. The court found that there was a live link between the detenu and the order of detention, as the evidence established the detenu's involvement in smuggling gold from Dubai.5. Procedural adherence and typographical errors in official documents:The petitioner highlighted a typographical error in the consideration order, arguing that it vitiated the decision. The court examined the original file and found that the typographical error was bona fide and did not prejudicially affect the detenu. The court also noted that the procedural requirements, including the supply of material documents to the detenu, were adhered to.Conclusion:The court dismissed the writ petition, finding no merit in the arguments presented by the petitioner. The detention orders were upheld as valid, and the procedural requirements were found to be met. The court emphasized that the substantial materials and evidence established a live link between the detenu and the crime alleged, justifying the detention under the COFEPOSA.WPA (H) 53 of 2024 is dismissed without any orders to cost.