TaxTMI 
TaxTMI 
2024 (11) TMI 70
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....der or direction in the nature of certiorari to quash the detention order bearing F.No. PD-12001/13/2024-COFEPOSA dated 09.05.2024 passed under Section 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA Act, 1974), by the Respondent No. 2; and (c) Pass such other order or further order or orders as this Hon'ble Court may deem fit and proper under the circumstances of the case." 2. The present petition seeks quashing of the preventive Detention Order bearing F.No. PD-12001/13/2024-COFEPOSA dated 09th May, 2024 passed under Section 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (in short 'COFEPOSA Act'), by the Joint Secretary (COFEPOSA) i.e., Respondent No. 2, thereby ordering the detention of Mr. Sameer Haroon Marchant alias Afzal Haroon Batatawala (in short 'Detenu') who is the husband of the Petitioner. 3. The impugned Detention Order for the sake of completeness is being reproduced as under:- "To, (i) Shri Sameer Haroon Marchant alias Afzal Haroon Batatawala S/o Shri Haroon Batatawala, Rio Flat No. 1401, B wing, Hollywood Kanakia, Yari Road, ....
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....38 grams had been brought to the shop premises for sale by Shri Mohammad Rafique Razvi alias Arif and Shri Mahendra Jain on 05.03.2024, and one gold bar with foreign marking weighing 1000 grams was brought for sale by Shri Shailesh of M/s Pravin Jewellers on 05.03.2024. It was further informed that the rest of the gold (6 gold bars weighing 409.97 grams with Indian markings, 757.540 grams gold which includes 3 crude gold kadas and assorted cut pieces of gold bars without markings, 5 gold bars with foreign markings weighing 500.07 grams and one gold coin and 05 gold bars of different sizes with foreign markings weighing 327.69 grams) weighing 1995.270 grams belong to their employer i.e. Mahi Bhai and Brijesh alias Birju and were meant for trading purposes. Further, in respect of the cash amount of Rs. 1,80,15,600/-, it was informed by Shri Ummed Singh and Shri Mahipal Vyas that the said cash is the sale proceeds of the smuggled gold already sold by them in the local market on a cash basis without any invoices/bills. iii) Thereafter, at the request of DRI officers, the government approved gold assayer assayed all the gold recovered from the said premises and issued 03 valuat....
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....ari Road Versova, Shri Sameer Haroon Marchant alias Afzal Haroon Batatawala i.e you, slightly opened the door and on seeing the DRI officers immediately shut the door and prevented the DRI officers from entering the premises. After some time, the officers of DRI managed to enter the premises and observed that the house was in complete disarray. It appeared that the cupboards had been emptied and various items were lying in the rooms. It, therefore, became apparent that Shri Sameer Haroon Marchant alias Afzal Haroon Batatawala i.e you, had tried to destroy the evidence. An amount of Rs. 60,40,000/- and 4,600 UK Pounds were recovered under panchnama dated 05.03.2024 and subsequently seized vide seizure memo dated 06.03.2024 as sale proceeds of smuggled gold. v) The other team of DRI officers was sent to the residential premises of Shri Mohammad Rafique Razvi alias Aarif located at 149, Haroon Manzil, B Block, 4th floor, Room No. 10, Immamwada Road, Mumbai-400003. During the search of the residential premises of Shri Aarif, 3772.38 grams of smuggled gold was recovered under panchnama dated 05.03.2024, the government approved gold assayer assayed all the gold recovered from th....
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.... Sameer Haroon Marchant i.e you on 04.03.2024; that on 04.03.2024 itself, he had sold approximately 04 kg worth of smuggled gold to Shri Mahi Bhai and Shri Brijesh alias Birju; that he obtained an additional 6.5 kilograms of foreign-marked smuggled gold from Shri Sameer Haroon Marchant i.e. you increasing the total quantity of smuggled gold with him to approximately 11-11.5 kg; that out of this total, he sold 7711.38 grams to Shri Mahi Bhai and Shri Brijesh alias Birju, and the remaining gold was stored at his residence. Further, on being asked about the sale proceeds of 04 Kg of smuggled gold, he stated that the same was transferred by Mahi Bhai through hawala; that he received a total of 11-11.5 kgs of smuggled gold from Shri Sameer Haroon Marchant i.e you for selling the same in the local market; that he had gone to sell approximately 7.7 kg of smuggled gold to Shri Mahi Bhai and Shri Brijesh alias Birju at his shop; that 3772 38 grams of smuggled gold recovered from his residence which constitutes the remaining portion of the 11-11.5 kg that he received from Shri Sameer Haroon Marchant alias Afzal Haroon Batatawala i.e you, that he received a call from Afzal i.e. you at around ....
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....ission of Rs. 2,000 per Kg for each sale; that you started sending smuggled gold to Aarif on a regular basis which included foreign-marked gold bars, cut pieces of foreign-marked gold bars, melted gold bars etc. and used to send 2-3 Kg of smuggled gold to Shri Mohammad Rafique Razvi alias Aarif at a gap of every 2-3 days; that with regards to the modus operandi, you informed that a person named Amzad, residing in Dubai, is responsible for sending the smuggled gold from Dubai to India through carriers mainly in the form of bars and sticks; that upon their arrival at Mumbai International Airport, Amzad provides you with the details of the carrier through WhatsApp; that accordingly, based on this information, you would arrange a meeting at a pre-determined secure location; that subsequently, you and your wife Ms. Joyi Kitty Joseph would handle the disposal of the smuggled gold in the local market through Aarif; that occasionally, as per your or your wife's instructions, the smuggled gold was also directly delivered to Aarif; that you received and delivered 8.5 kilograms of smuggled gold to Shri Aarif on 04.03.2024, and an additional 6.5 kilograms on 05.03.2024; that the cash and t....
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....lored metal bars out of the window of the bedroom facing Sai Nagar, CHS; that you also threw your car keys from the window of another bedroom; that regarding the number of mobile phones thrown away, he was uncertain, but he observed two or three mobile phones; that the individuals at the door continued to ring the doorbell, and it took Mr. Sameer Haroon Marchant i.e you 5-7 minutes to open the door; that it was only upon opening of the door that he realized the individuals outside were officers of the DRI. xii) Further statement of Shri Sameer Haroon Marchant/Afzal Haroon Batatawala alias Afzal i.e. you was recorded on 07.03.2024 under Section 108 of the Customs Act, 1962, wherein you, inter alia, admitted all three mobile phones viz. blue-coloured Samsung phone, grey-coloured Samsung phone and Samsung Fold phone recovered under panchanama dated 06.03.2024, belong to you; that you use the blue-coloured Samsung phone to communicate with Amjad, your counterpart in Dubai, who sends gold through his carriers for smuggling the same into India; that the grey-coloured Samsung phone is used to communicate with Mr. Mohammad Rafique Razvi @ Aarif and Samsung Fold phone to communicat....
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....m him to keep it in the safe custody in the society. Thereafter, she took the phones and 01 gold bar found in the society with other committee members to keep it in safe custody. xiv) Statement of Ms. Anisah Zainab Rizvi was recorded on 07.03.2024 under Section 108 of the Customs Act, 1962, wherein she, inter alia, at around 6 pm, when she was taking round in the building, she saw crowd and the treasurer (Ayesha), who found three phones in the society premise; that at around 6-6:30 pm, while taking round in the society she found 01 gold bar and kept it in her bag and took it to her home; that she called the treasurer at around 9-9:30 pm, to hand it over to her but it could not be done; that in the morning, when she again tried the treasurer phone at 11-11:30 am, to hand it over, it was found that the treasurer has gone to the hospital, then at around 2-2:30 pm she went to her friend Mrs. Reshma Saheer Kasmani's place, who lives in a nearby society called John Rose and asked her to keep the gold bar so that they can hand it over to the treasurer, when the treasurer returns as she has no male person living in her house. xv) Statement of Ms. Reshma Zaheer Kashmi ....
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....corded on 07.03.2024 under Section 108 of the Customs Act, 1962 wherein he, inter alia, admitted that he was asked by Ms. Joyi Kitty Joseph to keep the two almirahs at his place due to certain urgency. xix) The statement of Ms. Joyi Kitty Joseph was recorded on 06.03.2024 under Section 108 of the Customs Act, 1962 wherein she, inter alia, stated that three months back Shri Mohammad Rafique Razvi alias Aarif approached her for a potential job; that she asked Sameer Haroon Marchant i.e. you to help him and then you offered him (Aarif) to take up the task involving the sale of smuggled gold bars for a commission of Rs. 2000 per kilogram; that the commission is paid by her or you to Aarif in cash only so that no money trail is left behind; that on being asked about Amzad, she stated that Sameer Haroon Marchant i.e. you deal with Amzad; that cash recovered from your residence are the sale proceeds of the smuggled gold, as you are actively engaged in gold smuggling and all the cash brought to home by you is related to the sale proceeds of gold smuggling activity: that on being questioned about shifting of almirahs from her farm house, she stated that after the search was conduct....
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....y, Shri Pathan opened the door of the said premises, and a search was confucted which led to further recovery of Indian Currency of Rs. 1,01,87,100/-, foreign currency of 3800 UK Pounds, 940 US Dollars and 10 silver bars/bullion weighing 9528.9 grams valued at Rs. 7,17,526/-. The said items were recovered under panchnama dated 08.03.2024. Valuation certificate for the same was issued by the govt. approved valuer on 11.03.2024. The said cash and silver bars were seized under seizure memo dated 19.03.2024. xxii) Shri Sameer Haroon Marchant i.e. you along with five other members of the syndicate were arrested under the provisions of Section 104 (1) of the Customs Act, 1962 on 06.03.2024 for various offences punishable under Section 135 of the Customs Act, 1962, vide arrest memo dated 06.03.2024. Shri Sameer Haroon Marchant i.e. you, Smt. Joyi Kitty Joseph and Shri Mohammad Rafique Noor Mohammad Razvi alisa Arif were given one day DRI custody till 07.03.2024 Thereafter, on 07.03.2024, they were produced before the Hon'ble Additional Chief Metropolitan Magistrate (ACMM), 19th Court, Esplanade, Mumbai during which they have retracted their statements. Subsequently, a rebutta....
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....acts emerged: a) SIM was having phone no. 9076367869. b) Phone is Samsung Galaxy Z Fold, Model No. SM-P936B, IMEI-350383130192012, IMEI2- 353800710192010. c) From 01.01.2024 to 05.03.2024, 19 calls have been exchanged between you and Mohammad Rafique Razvi alias Aarif (9967869264) and on 05.03.2024 at 12:19 pm you contacted Aarif. d) You were browsing the flight booking websites and the flights tracking website regularly. In this regard, a Certificate dated 07.03.2024 from Cyber Forensic Laboratory, Mumbai under Section 65 B(4)(C) of the Evidence Act 1872 has been obtained. xxiv) The subscriber detail report (SDR) of the SIM used in one of the mobile phones having no. 9076367869 shows that it is registered in the name of Shri Sameer Haroon Marchant i.e. you and you have accepted the same in your statement dated 19.04.2024. Call Detail Report (CDR) of the other two phones having phone nos. 9820221356 and 7045771998 reveals that both the mobile phones were used in the vicinity of the residential addresses of Sameer Haroon Marchant ie you, and thus it appears that the devices belong to you. All the three number 9820221356, 70457719....
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.... Role/Status 1 NCB/ AZU/CR-05/2003 Smuggling of Methaqualone powder at Narsanda. Afzal Batatawala i.e you were financing the Methaqualone production and dealing in Mandrax tablets. Arrested vide Arrest Memo dated 13.05.2004. The supplementary complaint was filed in addition to the actual complaint dated 29.03.2004. The changes were confirmed by the NDPS Fast Track Court vide judgment dated 28.09.2007 and the appeal filed by you have been rejected by the Gujarat HC vide order dated 17.08.2012. An appeal was filed by you in the Supreme Court, and you were granted bail in September 2013 after spending over 9 years in jail. 2 DRI/M ZUIIR U/INT-62/2017 Smuggling of foreign NT-62/2017 marked gold bars weighing 3995 grams valued at 1,06,09,741/-at CSI Airport, Mumbai on 12.05.2017. Shri Sameer Haroon Marchant alias Afzal Haroon Batatawala i.e you hatched a conspiracy to smuggle gold into India. He was the kingpin of the syndicate. An SCN vide F. No. DRI/MZU/IRU/INT-62/2017 was issued on 01.11.2017 which was confirmed by OIO ADC/AK/ ADJN/52412018-19 dated 31.03.2019. xxviii) Smt. Joyi Kitty Joseph in her statement dated 06.03.2024, stated that Shri Sameer....
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.... for confiscation under the provisions of Customs Act, 1962. 5. It is evident that you i.e. Shri Sameer Haroon Marchant alias Afzal Haroon Batatawala have innate propensity to devise ways and means to smuggle foreign origin gold into India and to defraud the Government of its revenue. You i.e. Shri Sameer Haroon Marchant alias Afzal Haroon Batatawala with the aid of your trusted associates are running a well-organized smuggling network & have established efficient mechanism in smuggling, concealing, possessing, transporting, carrying and/or dealing in the substantial quantities of foreign origin gold. You i.e. Shri Sameer Haroon Marchant alias Afzal Haroon Batatawala habitually and actively indulged yourself in the prejudicial activities, and your engagement is of the nature that brings out your propensity to indulge in gold smuggling in future also. 6. I am satisfied that, as evidenced and discussed in the foregoing paras, Shri Sameer Haroon Marchant alias Afzal Haroon Batatawala i.e. you have shown a general habit and propensity to indulge in fraudulent activities by way of smuggling goods, abetting the smuggling of goods, engaging in transporting or concealing ....
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.... be launched against you i.e. Shri Sameer Haroon Marchant alias Afzal Haroon Batatawala and adjudication proceedings are also likely to be initiated soon, which are however punitive in nature and independent of the preventive detention provided under the COFEPOSA Act, 1974. However, considering your i.e. Shri Sameer Haroon Marchant alias Afzal Haroon Batatawala's high propensity to indulge in the prejudicial activities, I am satisfied that in the meantime you should be immobilized by detention under COFEPOSA Act, 1974 with a view to prevent you from smuggling goods, abetting the smuggling of goods, engaging in transporting or concealing or keeping smuggled goods, and dealing in smuggled goods, in future. 10. Having regard to the chronological sequence of events in this case, the time required to scan the proposal along with the voluminous relied upon documents (RUDs), the time required to procure additional information, the time required to apply my mind to arrive at the subjective satisfaction and to formulate the Grounds of Detention, I am satisfied that the nexus between the dates of incident and the passing of this Detention Order as well as object of your detentio....
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....her, various vital documents including the application for cancellation of bail bearing Misc. Appl. No. 949 of 2024 in RA No. 191/2024 filed by the Sponsoring Authority/Respondent No. 3 before the ld. Sessions Court challenging the bail granted to Detenu on 16th April, 2024, was not placed before the Detaining Authority, despite the same being filed on 3rd May 2024 prior to the passing of the impugned Detention Order. Further, other important documents such as papers pertaining to the earlier complaint of 2004, judicial orders dated 28.09.2007, 17.08.2012 and/or order passed by the Hon'ble Supreme Court etc. have not been placed on record. 5. It is argued that the apprehensions which are expressed in the impugned Detention Order are in fact on the same grounds on which the bail granted to the Detenu was opposed by the Sponsoring Authority/Respondent Authority before the ld. ACMM. It is submitted that, in fact, the bail order dated 16th April, 2024 considers the various grounds raised by the Sponsoring Authority/Respondent No. 3 for not granting of bail to the Detenu and the ld. Trial Court having considered the same has imposed various conditions in the bail order itself. Refere....
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....n conditions to prevent him from engaging in smuggling activity. Therefore considering all these circumstances and already the seized currency and other goods were with the respondent it is just and proper to* enlarge him bail on certain conditions. Therefore I pass following order:- ORDER 1. Application is allowed. 2. Accused be released on bail on his executing PR. Bond Rs.1,00,000/- (Rs One lakh only) with one or more sureties in amount. 3. He be provisionally released on his furnishing cash bail Rs.1,00,000/- (Rs. One Lakh only) in lieu of surety for 02 (two) months. 4. He shall not influence and tamper with the prosecution witnesses and evidence. He shall co-operate for further investigation of the case. 5. He is directed to remain present before the respondent for further 15 working days from the date of release from the jail in between 11:00 am to 02:00 pm, thereafter on every 1st and 15th Month if Holiday is not there and if Holiday falls on 1 and 15 on next working day in between 11:00 am to 02:00 pm and also as and when called by respondent in connection with investigation of this offence under written intimation, till....
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.... is argued that in the earlier prejudicial activity which has been considered in the impugned Detention Order i.e., Case No. NCB/AZU/CR-05/2013, the Detenu was convicted under the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short 'NDPS Act') on 28 September 2007, and has served 9 years of sentence and the appeal being Crl.A. No. 000344/ 2013 is pending before the Hon'ble Supreme Court. The same would not constitute material for passing the impugned Detention Order as the same was immaterial. It is also argued that the arrest of the Detenu in 2017 in File No. DRI/MZU/IRU/INT-62/2017 under the Customs Act, 1962 also would not constitute relevant material as no prosecution had commenced under the said Act after the arrest. On these grounds, the counsel for the Petitioner submits that the Detenu deserves to be released. 9. Ld. Counsel for the Petitioner also submitted that the impugned Detention Order is vague and there is no clarity as to under which sub-clause of Section 3 of the COFEPOSA Act, the impugned Detention Order was passed. It was also argued that in the impugned Detention Order all the possibilities as mentioned in the COFEPOSA Act, 1974 have been mentioned....
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....ALF OF RESPONDENT NO. 1 AND 2 12. Dr. B. Ramaswamy, ld. CGSC for Respondent No. 1 and Respondent No. 2, i.e., Union of India and Joint Secretary (COFEPOSA), respectively, submitted that firstly, the Petitioner's husband, i.e., Detenu in the present case is a habitual offender and he is a smuggler having local and international links. Reference is made to the Impugned Detention Order to argue that for the past 20 years he has been continuously involved in smuggling activities and illegal circulation of large quantum of black money in the economy. He further submitted that a plain reading of the impugned Detention Order would show the modus operandi adopted by the Detenu whereby large quantities of gold and cash were recovered from the places which were raided by the Sponsoring Authority on 5th March, 2024. 13. It is submitted that pursuant to the raid being conducted, statement of persons found at the said places had been recorded which reflect that there is a clear link to the Detenu. It is also submitted that the Detenu is involved in overseas smuggling and even if the Detenu is released for a short period he would be able to re-activate his entire network involved in the sm....
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....ntion Order impermissible, as the Detaining Authority's powers are discretionary and intended to address emergent situations. 17. Reference is made to the recent decision of the Supreme Court in Ameena Begum v. State of Telangana & Ors., 2023 SCC OnLine SC 1106; 2023 INSC 788, [Ref. Para 15] where the Court holds clearly that detention orders could be passed in anticipation or suspicion. Under such circumstances, it is ld. Counsel's submission that in the present case, the anticipation is that the Detenu would engage in smuggling and he would also indulge in illegal activities through the Petitioner and other third parties, who are connected to him. 18. It is submitted that there is a direct link between the Detenu's activities and the impugned Detention Order, and the said link is still not broken. Lastly, it is submitted that the Detenu and his wife i.e., the Petitioner did not cooperate in the investigation. 19. Reference is also placed on the decision of the Kerala High Court in Jamseena v. Union of India & Ors., 2021 SCC OnLine Ker 3572 [Ref. Pg. 20, Para 20) to argue that the proceedings for preventive detention under COFEPOSA Act cannot be equated with those in a Co....
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....t merely national but also has international elements involved. Detenu is stated to have a consistent criminal record. It is argued that the investigation which has been completed in respect of a particular seizure may not have any relevance as the impugned Detention Order is preventive in nature. 22. Ld. Counsel submits that the question that is relevant for the Court in such a case is whether the Detenu is likely to indulge in crime once again or not. The facts stated in the show cause notice would clearly establish that the network allegedly established by the Detenu for smuggling activity is vast, it is argued that thus there is a clear propensity of the Detenu being involved again in illegal and unlawful activities upon his release. Finally, it is submitted that the Maharashtra State Board has already confirmed the detention of the Detenu. 23. Further, reliance is placed by the ld. Counsel for Respondents No. 1 and 2 upon the following decisions: i) State of Maharashtra & Ors. v. Bhaurao Punjabrao Gawande, (2008) 3 SCC 613 ii) Ashok Kumar v. Delhi Administration & Ors., (1982) 2 SCC 403 iii) Union of India & Anr. v. Dimple Happy Dhakad, (2019) ....
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....of past cases does not solely rely on time scale, but rather their relevance and bearing on the Detenu's likelihood of engaging in similar activities in the future. 27. It is further argued that the Detenu, despite not having a passport for 20 years, has been the mastermind of a gold smuggling syndicate and a key member of a syndicate involved in drug trafficking. The conditions of the bail such as surrender of passport (which he does not even possess) are not sufficient to prevent the Detenu from engaging in prejudicial activities. Further, despite getting a bail in the NDPS case in the year 2013 and the gold smuggling case in the year 2017, the Detenu still managed to indulge in smuggling activities. Evidently, his claim that bail conditions are sufficient to hold him back from engaging in smuggling activities cannot be given any weightage due to the aforesaid reasons. Further, all evidence suggests that the Detenu had wilfully thrown away his mobile phones and 2 gold bars when the DRI officers went for a search operation at his residence on 05th March, 2024. Therefore, it can be said that the Detenu has a tendency of tampering with the evidence and trying to mislead the inves....
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....he Detenu was released on bail in 2013 in Case No. NCB/AZU/CR-05/2003, he had changed his name to Sameer Haroon Merchant. However, insofar as the other names which are mentioned in the judgment of the Bombay High Court, namely, Rahim Haroon Manoria is concerned, the Detenu had not changed his name, however, the Detenu tried to travel on a ticket of Rahim Haroon Manoria which had been supplied by some travel agent only for taking the benefit of free tickets of airlines. 32. Ld. Counsel for the Petitioner highlights the fact that even in the bail application filed on behalf of Detenu in R.A. 191 of 2024 before the ld. ACMM, the proper three names of the Detenu have been disclosed and there has been no intention to suppress any particular fact. 33. The core submission of ld. Counsel for the Petitioner is that if the alternative law of the land is sufficient to address the grievance of the Detaining Authority, preventive detention ought not to be invoked. He further submitted that the provisions of the Customs Act, 1964 have also been amended and there are sufficient measures under the said law that can be taken even in respect of smuggling or evasion of duty which is the basis o....
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....f Respondent No. 3 can be suitably addressed by imposing conditions. Accordingly, it is submitted, that conditions had been imposed on the Detenu by ld. ACMM which is sufficient to ensure that the Detenu would not engage in any other further illegal activities and therefore, the impugned Detention Order ought not to have been passed. 37. It was also the submission on behalf of ld. counsel for the Petitioner that the Sponsoring Authority/Respondent No. 3 had moved an application for cancellation of bail before the ld. Sessions Court on 3rd May, 2024, which was not placed before the Detaining Authority and therefore, the impugned Detention Order also suffers from the vice of non-supply of vital documents. It was further submitted that the said documents ought to have been placed before the Detaining Authority before it passed the impugned Detention Order dated 9th May, 2024 as the same would have effected the decision of the Detaining Authority in one way or the other. 38. The impugned Detention Order is further challenged on the ground that there is no live-link between the impugned Detention Order and the alleged pre-judicial activity of the Detenu. It was submitted that the ....
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....5 gms valued at Rs.1,06,09,741/- at CSI Airport, Mumbai on 12th May, 2017. D) After being released on bail by the Hon'ble Supreme Court in September, 2013, the Detenu officially changed his name from Afzal Haroon Batatawala to Sameer Haroon Merchant. The Detenu was arrested on 06th March, 2024 and was released on bail by the ld. ACMM on 26th April, 2024. The impugned Detention Order was passed on 09th May, 2024 and served on the Detenu on 14th May, 2024. 40. There is no dispute with regard to the legal principle, as argued by learned counsel for the Petitioner, that if the ordinary law of the land is sufficient then recourse to preventive detention should not ordinarily be resorted to. However, it is also a settled principle of law that the order of preventive detention can be passed even where the Detenu is facing prosecution under the ordinary law of land. Each case would depend on its own facts and circumstances and upon the subjective satisfaction of the Detaining Authority. In the present case it has been strenuously argued that the Detenu was arrested on 06th March, 2024 and was granted bail by the ld. ACMM on 26th April, 2024 and the fact that the order granting ....
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....order or to the security of State or corroding financial base provides grounds for satisfaction for a reasonable prognostication of possible future manifestations of similar propensities on the part of the offender. This jurisdiction has at times been even called a jurisdiction of suspicion. The compulsions of the very preservation of the values of freedom of democratic society and of social order might compel a curtailment of individual liberty. "To lose our country by a scrupulous adherence to the written law", said Thomas Jefferson "would be to lose the law itself, with life, liberty and all those who are enjoying with us, thus absurdly sacrificing the end to the needs." This, no doubt, is the theoretical jurisdictional justification for the law enabling preventive detention. But the actual manner of administration of the law of preventive detention is of utmost importance. The law has to be justified by striking the right balance between individual liberty on the one hand and the needs of an orderly society on the other. *** *** *** 15. In case of preventive detention no offence is proved, nor any charge is formulated and the justification of such detention is....
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....ial, it is the impact and effect of the act which is determinative. The High Court's conclusions in this regard are therefore not sustainable." (emphasis supplied) 41. Similarly, in G. Reddeiah v. Govt. of A. P., (2012) 2 SCC 389, Hon'ble Supreme Court held as under:- "11. The essential concept of preventive detention is that the detention of a person is not to punish him for something he has done but to prevent him from doing it. Even, as early as in 1975, a Constitution Bench of this Court considered the procedures to be followed in view of Articles 19 and 21 of the Constitution. In Haradhan Saha v. State of W.B. [(1975) 3 SCC 198 : 1974 SCC (Cri) 816] a Constitution Bench of this Court, on going through the order of preventive detention under the Maintenance of Internal Security Act, 1971 laid down various principles which are as follows : (SCC p. 209, para 34) "34. ... First, merely because a detenu is liable to be tried in a criminal court for the commission of a criminal offence or to be proceeded against for preventing him from committing offences dealt with in Chapter VIII of the Code of Criminal Procedure would not by itself debar the Gove....
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....g the order. If the detaining authority is reasonably satisfied with cogent materials that there is likelihood of his release and in view of his antecedent activities which are proximate in point of time, he must be detained in order to prevent him from indulging in such prejudicial activities, the detention order can be validly made. Where the detention order in respect of a person already in custody does not indicate that the detenu was likely to be released on bail, the order would be vitiated.... The point was gone into detail in Kamarunnissa v. Union of India [(1991) 1 SCC 128: 1991 SCC (Cri) 88]. The principles were set out as follows: even in the case of a person in custody, a detention order can be validly passed: (1) if the authority passing the order is aware of the fact that he is actually in custody: (2) if he has a reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his release on bail, and (b) that on being released, he would in all probability indulge in prejudicial activities; and (3) if it is felt essential to detain him to prevent him from so doing. If an order i....
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....y the Sponsoring Authority on 12th April, 2024, the Detenu was granted bail vide order dated 16th April, 2024 passed by the ld. ACMM, the Sponsoring Authority/Respondent No. 3 sent an updated proposal on 30th April, 2024 to the Detaining Authority placing the said bail order on record as well as its intention to move for cancellation of bail. The aforesaid sequence of dates and events clearly show that the Sponsoring Authority/Respondent No. 3 sent a proposal for detention soon after the Detenu having preferred an application for bail. Looking at the facts of the present case and the voluminous record relied by the Detaining Authority, the nexus between the date of the incident and the passing of the impugned Detention Order cannot said to be delayed or having no live-link. 44. Presuming, purely for the sake of argument, that previous two cases being in 2013 and 2017 should not have been relied upon, even then it is a settled legal proposition that a person can be detained on a single incident. The Hon'ble Supreme Court in Kirti Kumar Nirula v. State of Maharashtra, (2005) 9 SCC 65, observed an held as under:- "9. While considering the first argument of the learned coun....
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....in similar activities of smuggling currency in future also. In this regard, it is seen from the material placed on record that the detenu had a work permit to work in UAE but on enquiry it was found that he was neither working in UAE nor was a regular resident of UAE. From the material placed before the detaining authority, it is noticed that this detenu had travelled abroad a number of times and also he had made it a practice to travel between Delhi-Bombay-Ahmedabad in a particular manner, that is, he would take a domestic flight of Indian Airlines from Delhi to Bombay and in Bombay he would change over to an international flight which touches Ahmedabad on the way. It is also seen from the records that in almost all these flights the co-detenu Tilak Raj Sharma used to be a co-passenger. This detenu had taken 16 such flights during a short period of time and it is during one such flight he was arrested, as stated above. Thus on the facts and circumstances of this case, we are in agreement with the finding of the High Court that the material placed before the detaining authority coupled with the fact of arrest and seizure of the foreign currency which is handed over by the detenu to....
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....e the detaining authority it does not amount to suppression of relevant material. The question of non-application of mind and satisfaction being impaired does not arise as long as the detaining authority was aware of the fact that the detenu was in actual custody. (4) Accordingly the non-supply of the copies of bail application or the order refusing bail to the detenu cannot affect the detenu's right of being afforded a reasonable opportunity guaranteed under Article 22 (5) when it is clear that the authority has not relied or referred to the same. (5) When the detaining authority has merely referred to them in the narration of events and has not relied upon them, failure to supply bail application and order refusing bail will not cause any prejudice to the detenu in making an effective representation. Only when the detaining authority has not only referred to but also relied upon them in arriving at the necessary satisfaction then failure to supply these documents, may, in certain cases depending upon the facts and circumstances amount to violation of Article 22 (5) of the Constitution of India. Whether in a given case the detaining authority has casually or ....
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.... and repeated manner for the acts of smuggling. Investigation done by the officers of DRI, Mumbai clearly establishes your continued propensity and inclination to indulge in the acts of smuggling in a planned manner and that unless prevented, you i.e. Shri Sameer Haroon Marchant alias Afzal Haroon Batatawala will continue to do so. Further considering the nature and gravity of offence, and the organized way you i.e. Shri Sameer Haroon Marchant alias Afzal Haroon Batatawala have engaged yourself in such prejudicial activities, your role therein, and your high potentiality & propensity to indulge in such prejudicial activities in future, I am satisfied that there is an immediate need to prevent you from smuggling goods. Hence, you i.e. Shri Sameer Haroon Marchant alias Afzal Haroon Batatawala ought to be detained under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 with a view to preventing you from smuggling goods, abetting smuggling of goods, engaging in transporting or concealing or keeping smuggled goods, and dealing in smuggled goods, in terms of Section 3 (1) of the COFEPOSA Act, 1974. (emphasis supplied) 47.3 A perusal of the ....