2025 (2) TMI 754 - HC - Customs

Preventive detention under COFEPOSA upheld despite existing custody for same gold smuggling offense

Kunal Kishore Versus The Union Of India, The Joint Secretary, Govt. Of India, Ministry of Finance Department Of Revenue, Central Economic Intelligence New Delhi, The Under Secretary, Govt. Of India, Ministry of Finance, Department Of Revenue, New Delhi, The Additional Director General, Directorate Revenue Intelligence (DRI), Lucknow, The Deputy Director, DRI, Patna, The Superintendent Of Police, Patna.

Kunal Kishore Versus The Union Of India, The Joint Secretary, Govt. Of India, Ministry of Finance Department Of Revenue, Central Economic Intelligence New ... ISSUES PRESENTED and CONSIDEREDThe primary issues considered in this judgment are:Whether the preventive detention order under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA Act) against the petitioner was justified given the circumstances, including the petitioner's existing custody due to criminal charges.Whether the subjective satisfaction of the detaining authority was valid and if the procedural requirements and safeguards were followed in issuing the detention order.Whether the delay in communication of the detention order to the petitioner invalidated the detention.Whether the petitioner's rights were violated due to the preventive detention order being issued during the pendency of a criminal prosecution.ISSUE-WISE DETAILED ANALYSIS1. Justification of Preventive Detention under COFEPOSA ActThe legal framework under the COFEPOSA Act allows for preventive detention to prevent activities detrimental to the economic security of the country. The Court considered the intelligence inputs and the petitioner's voluntary statement admitting involvement in smuggling activities. The Court noted that the petitioner had not retracted his statement under Section 108 of the Customs Act, which was pivotal in establishing his involvement.The Court referenced the Supreme Court's decision in Haradhan Saha v. State of W.B., which allows preventive detention even if a person is already facing criminal prosecution, provided the detaining authority's satisfaction is based on the likelihood of future prejudicial activities.2. Subjective Satisfaction and Procedural ComplianceThe Court examined whether the detaining authority's satisfaction was based on relevant and sufficient materials. The detaining authority's decision was supported by intelligence reports and the petitioner's own admissions, indicating a propensity to engage in smuggling activities. The Court found that the procedural requirements, including informing the petitioner of his rights and considering his representations, were adhered to.In Ameena Begum v. State of Telangana, the Supreme Court emphasized the need for the detaining authority to act independently and base its satisfaction on rationally probative materials. The Court found that these standards were met in the present case.3. Delay in Communication of Detention OrderThe petitioner argued that the delay in communicating the detention order invalidated it. The Court clarified that the detention order was executed on 11.03.2024, shortly after its issuance on 06.03.2024, and the petitioner was informed of his rights. The communication of the order's confirmation by the Central Government on 29.05.2024 did not constitute a delay in the execution of the detention order itself.4. Preventive Detention During Criminal ProsecutionThe petitioner contended that preventive detention was unnecessary given the ongoing criminal prosecution. The Court, referencing Haradhan Saha, noted that preventive detention serves a different purpose than criminal prosecution, focusing on preventing future activities rather than punishing past ones. The Court emphasized that the detaining authority's satisfaction about the petitioner's future conduct justified the detention.SIGNIFICANT HOLDINGSThe Court upheld the detention order, emphasizing the preventive nature of the COFEPOSA Act and the adequacy of the detaining authority's subjective satisfaction. The Court concluded that:'The object of detention under the detention law is not to punish, but to prevent the commission of certain offences.''The subjective satisfaction of the detaining authority does not vitiate, as has been contended by the petitioner.''The respondent detaining authority has followed all the constitutional, statutory and procedural requirements as well as safeguards.'The petition was dismissed, affirming the legality of the detention order under the COFEPOSA Act and the procedural correctness of its execution and confirmation.