2019 (12) TMI 630

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....s been challenged. At the outset, it is apt to notice that Article 22 of the Constitution of India, which is one of the fundamental right, deals with the aforesaid subject. Sub Articles 5, 6 and 7 of Article 22 enables the Government to make law providing for preventive detention. In accordance with the aforesaid enabling power, the Union of India has enacted the COFEPOSA. Section 3 of the COFEPOSA enables the competent authority to pass an order of preventive detention, which is extracted as under:- "3. Power to make orders detaining certain persons. (1) The Central Government or the State Government or any officer of the Central Government, not below the rank of a Joint Secretary to that Government, specially empowere....

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....n days, forward to the Central Government a report in respect of the order. (3) For the purposes of clause (5) of Article 22 of the Constitution, the communication to a person detained in pursuance of a detention order of the grounds on which the order has been made shall be made as soon as may be after the detention, but ordinarily not later than five days, and in exceptional circumstances and for reasons to be recorded in writing not later than fifteen days, from the date of detention." This Court has heard learned counsel for the parties at length and with their able assistance gone through the paper book. Learned counsel appearing for the petitioner has submitted that husband of the petitioner was picked up from the hotel and ther....

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....und that husband of petitioner has failed to explain construction and source of funding of Restaurant-cum- Hotel i.e. 'No Escape'. It has also been noticed that son of the petitioner was also apprehended with forign currency. Further, it has also been noticed that petitioner is the brain behind the entire network and it is on his instruction, the other persons were smuggling of the gold. It has been noticed that 4 kgm gold has been smuggled in the same manner. The detaining authority has also recovered a bill of export which prima facie establishes that the consignment of 1 KG gold from Dubai Airport issued in the name of son of the petitioner. This Court under Article 226 of the Constitution of India has a power of judicial review. The ....

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....y, it may be noticed that preventive detention is not for the purpose of recovery. The detaining authority has considered the material available to it and thereafter, passed the order. Even statement of the husband of petitioner has also been recorded, which is admissible under Section 108 of the Customs Act, 1962. From the reading of the order, the competent authority found from examination of material available that husband of the petitioner has a general habit and propensity to indulge in fraudulent activities by way of smuggling of goods, abetting of the smuggling of goods, engaging in transporting or concealing or keeping smuggled goods and harbouring persons engaged in smuggling at the cost of government revenue. From the reading o....