Preventive detention order quashed for gold smuggling under Customs Act Sections 132, 135(1)(a), 135(1)(b) - detention authority failed to apply mind

Delhi HC quashed preventive detention order for gold smuggling under Customs Act Sections 132, 135(1)(a) and 135(1)(b). Court held detention authority failed to apply mind when ordering detention while petitioner was already in judicial custody with no imminent possibility of release, as bail applications had been dismissed twice. Relying on Binod Singh v. District Magistrate, Dhanbad, court ruled preventive detention power should not be exercised when person is in custody without possibility of release. Detention order passed mechanically without due consideration, violating natural justice principles. Detention and confirmation orders set aside.

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Issues Involved:

1. Legality of the preventive detention order under the COFEPOSA Act.
2. Delay in passing and executing the detention order.
3. Non-application of mind by the Detaining Authority.
4. Delay in consideration of the representation made by the Petitioner.
5. Relevance of the Petitioner's custody status and repeated bail rejections.

Issue-wise Detailed Analysis:

1. Legality of the Preventive Detention Order under the COFEPOSA Act:

The Petitioner challenged the preventive detention order dated 12th April 2024, issued under Section 3(1) of the COFEPOSA Act, arguing that it was unnecessary since he was already in custody. The Court examined whether the preventive detention was justified given the Petitioner's repeated involvement in smuggling activities. The Detaining Authority justified the detention, stating that despite the Petitioner being in judicial custody, there was a possibility of his release, which could lead to continued involvement in smuggling activities. However, the Court found that the Detaining Authority's assertion lacked material basis, as the Petitioner's bail applications had been repeatedly rejected, indicating no imminent release.

2. Delay in Passing and Executing the Detention Order:

The Petitioner argued that the detention order was passed with substantial delay, as the incident occurred on 11th January 2024, and the order was issued on 12th April 2024, breaking the link between the alleged prejudicial activities and the need for detention. The Court noted this delay but focused more on the lack of evidence supporting the likelihood of the Petitioner's release from custody, which was a critical factor in assessing the necessity of preventive detention.

3. Non-application of Mind by the Detaining Authority:

The Court scrutinized whether the Detaining Authority applied its mind in issuing the detention order. It found that the Detaining Authority failed to demonstrate "subjective satisfaction" regarding the likelihood of the Petitioner's release, which is a prerequisite for justifying preventive detention. The Court cited precedents emphasizing that a mere assertion of potential release without cogent material is insufficient for such detention orders.

4. Delay in Consideration of the Representation Made by the Petitioner:

The Petitioner contended that there was an undue delay in considering his representation against the detention order, violating Article 22(5) of the Constitution. Although the Court acknowledged this argument, it did not delve deeply into this issue, given that the primary ground for quashing the detention order was the lack of evidence regarding the Petitioner's potential release from custody.

5. Relevance of the Petitioner's Custody Status and Repeated Bail Rejections:

The Court highlighted that the Petitioner's repeated bail rejections by multiple judicial forums, including the High Court, demonstrated that he was unlikely to be released soon. This fact undermined the Detaining Authority's rationale for preventive detention, which was predicated on the assumption of possible release and subsequent engagement in smuggling activities. The Court emphasized that preventive detention should not be used when the individual is already in custody, and there is no imminent prospect of release.

Conclusion:

The Court concluded that the detention order was issued without due application of mind and lacked justification, given the Petitioner's custody status and unsuccessful bail attempts. Consequently, the detention order dated 12th April 2024 and its confirmation were set aside. The Court refrained from addressing the delay in representation consideration, as the primary issue of non-application of mind was sufficient to quash the detention order. The judgment underscored the necessity for detaining authorities to substantiate their decisions with concrete evidence, particularly when the detenu is already in custody.

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