2025 (3) TMI 1360 - HC - Customs

Detention order under COFEPOSA Act upheld for gold smuggling despite bail in criminal case

Mohammad Hassan Versus The Union of India, The Joint Secretary, Gov. of India, Ministry of Finance Deptt. of Revenue Central Economic Intelligence Bureau COFEPOSA, The Deputy Secretary, Gov. of India, Ministry of Finance Deptt. of Revenue, The Additional Director General, DRI, Lucknow, The Directorate of Revenue Intelligence, Patna, The Informant Intelligence Officer, Patna, The State of Bihar.

Patna HC dismissed a petition challenging detention order under COFEPOSA Act for gold smuggling from Myanmar to Gaya. Despite petitioner's bail in related ... Challenge to detention order under COFEPOSA Act - smuggling of foreign origin gold from Yangoon (Myanmar) to Gaya - it is the main contention of the petitioner that even though he has been released on bail by the High Court in connection with the aforesaid criminal complaint for the same incident, because of the impugned order of detention under the provisions of the COFEPOSA Act, he is continuing in detention for no purpose, which is illegal and arbitrary - HELD THAT:- The object of detention under the detention law is not to punish, but to prevent the commission of certain offences. Further, in the recent decision rendered by the Hon’ble Supreme Court in the case of Ameena Begum [2024 (1) TMI 4 - SUPREME COURT], it has been specifically held by the Hon’ble Supreme Court that a constitutional court, when called upon to test the legality of orders of preventive detention, would be entitled to examine certain aspects referred in paragraph 28.1. to 28.10 of the said decision. In the case of Saraswathi Seshagiri [1982 (3) TMI 252 - SUPREME COURT], the Hon’ble Supreme Court has observed that the concerned detenue tried to export Indian Currency to the tune of Rupees 2,88,900.00 to a foreign country in a planned and pre-meditated manner by clever concealment of it in several parts of his baggage and, therefore, the Hon’ble Supreme Court observed that the detaining authority was justified in coming to the conclusion that he might repeat his illegal act in future also. His past act in the circumstances might be an index of his future conduct. Thereafter, the Hon’ble Supreme Court observed that the authority may prosecute the offender for an isolated act or acts of an offence for violation of any criminal law, but if it is satisfied that the offender has a tendency to go on violating such laws, then there will be no bar for the State to detain him under a Preventive Detention Act. What is required is that the detaining authority is to satisfy the Court that it had in mind the question whether prosecution of the offender was possible and sufficient in the circumstances of the case. It has been further observed that in some cases of international smuggling where it may not be possible to collect all necessary evidence without unreasonable delay and expenditure to prove the guilt of the offender beyond reasonable doubt, the past conduct or antecedent history of a person can appropriately be taken into account while passing the detention order. In the case of Rekha [2011 (4) TMI 1217 - SUPREME COURT], the Hon’ble Supreme Court has observed that if the ordinary law of the land (the Penal Code and other penal statutes) can deal with a situation, recourse to a preventive detention law will be illegal. Another contention raised by the petitioner is that there was a delay in service of the order of detention by contending that the detention order has been passed on 06.03.2024, which was communicated to him on 29.05.2024. However, the aforesaid contention is also misconceived. From the records, it transpires that the order of detention was passed on 06.03.2024, which was duly executed on the petitioner on 11.03.2024. Though the petitioner was made aware of his right to represent, he did not avail the same by making representation to the detaining authority and the Central Government and when the case of the petitioner was referred to the Advisory Board on 10.04.2024, he filed his defence statement there and the Advisory Board, after conducting the proceedings on 29.04.2024 and 13.05.2024, gave its opinion and opined that the detention of the petitioner is justified - it cannot be said that the order of detention dated 06.03.2024 was communicated to the petitioner on 29.05.2024. Hence, the said contention is misconceived. Conclusion - In the present case, the respondent detaining authority has followed all the constitutional, statutory and procedural requirements as well as safeguards. The subjective satisfaction of the detaining authority does not vitiate, as has been contended by the petitioner. Therefore, when the detaining authority after satisfying itself subjectively after considering all the relevant material, passed the impugned order of detention, the same cannot be interfered with while exercising power under Article 226 of the Constitution of India. Petition dismissed. ISSUES PRESENTED and CONSIDEREDThe Court considered several core legal questions, including:Whether the detention order under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA Act) was justified, given the petitioner's release on bail in a related criminal case.Whether the petitioner's detention was based on sufficient evidence and whether his rights under the Constitution were violated.Whether the procedural requirements and safeguards under the COFEPOSA Act and the Constitution were adhered to by the detaining authority.Whether the petitioner's statement under Section 108 of the Customs Act was voluntary or coerced.Whether the past conduct of the petitioner justified the preventive detention order.ISSUE-WISE DETAILED ANALYSISDetention Order JustificationThe relevant legal framework includes the COFEPOSA Act, which allows preventive detention to prevent smuggling activities. The Court examined whether the detention was preventive rather than punitive, focusing on preventing future offences rather than punishing past ones. The Court referred to precedents such as Haradhan Saha v. State of W.B., which clarified that preventive detention could be justified even if the person is already facing criminal prosecution.The Court found that the detaining authority's satisfaction was based on relevant materials, including the petitioner's alleged involvement in a smuggling syndicate. The Court emphasized that preventive detention is not a punishment but a measure to prevent future offences.Evidence and Procedural ComplianceThe petitioner argued that the detention was based on insufficient evidence, particularly the coerced statement under Section 108 of the Customs Act. The Court noted that the petitioner did not retract his statement, and the detaining authority considered it voluntary. The Court also reviewed whether the procedural safeguards, such as informing the petitioner of his rights and timely execution of the detention order, were followed. The Court concluded that the procedural requirements were met, as the detention order was executed promptly, and the petitioner was informed of his rights.Past Conduct and Future RiskThe Court evaluated whether the petitioner's past conduct justified the preventive detention. The detaining authority relied on the petitioner's involvement in smuggling activities as evidenced by his statement and the intelligence report. The Court referred to Saraswathi Seshagiri v. State of Kerala, which supports considering past conduct as an indicator of future risk. The Court found that the detaining authority was justified in its assessment of the potential future risk posed by the petitioner.Voluntariness of the Petitioner's StatementThe petitioner claimed his statement was coerced. However, the Court noted that the petitioner did not retract his statement, and there was no evidence to support the claim of coercion. The Court emphasized that the statement was recorded under Section 108 of the Customs Act, which is admissible in preventive detention cases.SIGNIFICANT HOLDINGSThe Court upheld the detention order, emphasizing the preventive nature of the COFEPOSA Act. The Court stated, 'The object of detention under the detention law is not to punish, but to prevent the commission of certain offences.' The Court concluded that the detaining authority's subjective satisfaction was based on sufficient material and was not vitiated.The Court reiterated that preventive detention is justified even if the person is already facing criminal charges, as the two proceedings serve different purposes. The Court highlighted that the procedural safeguards were adhered to, and the petitioner's rights were not violated.In conclusion, the Court dismissed the petition, affirming the legality of the detention order under the COFEPOSA Act. The decision underscored the balance between individual liberty and the need to prevent activities detrimental to the economic security of the country.