TaxTMI 
TaxTMI 
2024 (12) TMI 1372
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....sent Petitioner arrived at Jaipur on 11th January, 2024 upon travelling from Sharjah to Jaipur by Air Arabia. On the basis of suspicious behavior of the Petitioner, a personal search was conducted by Customs officers and a notice was served upon the Petitioner under Section 102 of the Customs Act, 1962 (in short, 'Customs Act'). During the said search, certain metal was recovered from the sandals worn by the Petitioner. Upon investigation by a valuer, the said metal was found to be gold with 99.50 purity, weighing 2466.00 grams and valued at Rs. 1,57,82,400/- (Rs. One Crore Fifty-Seven Lakhs Eighty-Two Thousand Four Hundred only) as per valuer's Report No. 02/CUST/Jan/2324 dated 11th April, 2024. ii. Thereafter statement of the Petitioner was recorded under Section 108 of the Customs Act, and he revealed that he has been involved in the business of marble and granite and that he regularly visits Sharjah and this was the first instance when he tried to smuggle gold in order to avoid customs duty. iii. The Petitioner in his statement also disclosed that he had bought this gold from a shop named "YASS GOLD" based in Dubai. Upon further enquiry, the Petitioner reveale....
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....A), Rajasthan High Court for consideration. ix. It is pertinent to note that the Petitioner had filed a representation before the said Advisory Board, however, the same was rejected. Subsequently, upon submission of the report by the Advisory Board, Central Government invoked powers conferred under Section 8(f) of the COFEPOSA Act and confirmed the detention of the Petitioner on 18th June, 2024. 3. The facts with respect to the present case have been discussed in detail by the Detaining Authority/Respondent No.2 in the impugned detention order and the same are reproduced as under: - "i. Shri Pradeep Kumar Nehra S/o Shri Harphool Singh Nehra, R/o F-71, Industrial Area, Jaipur Road, Sikar, Rajasthan having Passport No. Z5413210 and Z3079231 i.e. you arrived from Sharjah to Jaipur by Air Arabia Flight No. G-9-435 on 11.01.2024 at about 03:30 hrs. When you approached the X-ray gate, customs officers asked you whether you had any dutiable goods with you, in reply to which you denied carrying any such goods. You had filed a Nil declaration under Section 77 of the Customs Act, 1962. Based on suspicious behaviour, Customs officers decided to conduct personal search of ....
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.... stated that you keep visiting Sharjah and for the first time you had brought the gold hidden in sandals with the intention of not paying the customs duty. This gold which was in the form of paste metal belongs to you only. You yourself bought this gold in the form of paste metal from a shop by the name of YASS GOLD which is in Dubai. Mustafa, a 42 years old resident of Hyderabad who is involved in the work of smuggling and lives in Sharjah told you about this shop. Mustafa used to take money from Shri Pradeep Kumar Nehra i.e. you and make profit by smuggling gold and gave some part of the profit back to Shri Pradeep Kumar Nehra i.e. you. You stated that Mustafa has sent gold through Hyderabad airport in India about five times and submitted that you do not know who brought the gold to Hyderabad airport because Mustafa used to do all that work. You further told that the work of receiving gold at Hyderabad airport is done by a person namely Shri Vishal Sawant (mobile No. 7889195285) aged about 42 years whom you have never met. Shri Pradeep Kumar Nehra i.e. you told that you were coming to Sikar to attend a meeting on sports matter when Mustafa told you that the person who was suppose....
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....d Shri Mustafa used to arrange people/carriers of gold smuggling who used to smuggle gold in various forms e.g. concealed in Iron, in paste form in shoes and sprayed as a powder in undergarments etc. Shri Vishal used to melt/extract said smuggled gold and sell it from his shop. The details of delivery of said smuggled gold was with Sh. Mustafa only. For the payment of the gold you used to contact Sh. Vishal and he sent the money through Hawala transactions. Shri Pradeep Kumar Nehra i.e. you further admitted that Sh. Mustafa used to share the passport copies of the gold carriers and Sh. Nehra i.e. you used to book/process their tickets and visa yourself the payment of which was adjusted in the profit with Sh. Mustafa. You stated that you were not aware who this gold (which was smuggled to Hyderabad) was delivered to. Upon perusal of your various chats showing methods of concealment of gold in photos/videos you stated that these methods of gold concealment for smuggling were shared with you by the employees of Yass Gold i.e. Shri Sahib, Mama, Sachin, Sabu. vi. Shri Pradeep Kumar Nehra i.e. you was arrested on 12.01.2024 under Section 104 of the Customs Act, 1962 in contraven....
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....ed with said statement. ix. Shri Pradeep Kumar Nehra i.e. you were again produced before the Hon'ble Economic Offence Court, Jaipur on dated 16.01.2024 with request of 2 days' remand. The Hon'ble Court again accorded remand of Shri Pradeep Kumar Nehra i.e. you for one day to Customs till dated 17.01.2024. x. During statement dated 17.01.2024, Shri Nehra i.e. you were shown your travel history wherein between 05.09.2023 to 29.12.2023 (i.e. approximately 3-4 months), you had travelled between India and UAE 32 times to and from various locations including Mumbai, Goa, Indore, Ahmedabad, Delhi, Jaipur. Embark and disembark locations in these trips were often different and your trips were in a very short span of time. You were shown your chat with Sh. Vishal dated 24.10.2023 wherein the details of five transactions in August, 2023 were there which showed 2995.560 g, 3000.820 g, 2995.450 g, 2995.350 g, 1996.670g which you admitted was related to gold smuggling. You were also shown a chat dated 01.05.23 which you agreed indicated smuggling of 2895.84 g gold which you had sent to Hyderabad. xi. Shri Pradeep Kumar Nehra i.e. you were again produced bef....
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....d exchange of gold and selling of gold Jewellery at his shop Nayan Gold. Owner of Nayan gold is Shri Vinod Panwar and he comes to shop once in 15-20 days. Shri Vishal Abaso Sawant looks after all the work of the shop. On being shown the picture of Shri Pradeep Kumar Nehra i.e. you, he identified the person in picture as Shri Pradeep Kumar Nehra i.e. you and told that Sh. Nehra i.e. you came to his shop himself 5-6 times in the years 2022 and 2023 and put his dated signature on pictures. He admitted that in last two years, Shri Pradeep Kumar Nehra i.e. you have sent the gold around 25-30 times to his shop through you or some person sent by you and the payment of the gold has been sent by him through hawala to Sharjah. xvi. Statement of Shri Vishal Abaso Sawant was recorded on 07.02.2024, wherein he, inter-alia, stated that various audio notes retrieved from the iphone of Shri Pardeep Kumar Nehra i.e. you have been heard by him and confirmed that these notes are related to smuggling of gold and payment of gold through hawala. Various slips of due amount have been interchanged between Shri Vishal and Shri Pradeep Kumar Nehra i.e. you and Shri Vishal has confirmed that these a....
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....1,99,75,340/-, Rs. 1,50,00,000/- and Rs. 24,00,000/- to Shri Pradeep Kumar Nehra i.e. you through Hawala and the said payments were related to smuggling of Gold. There is a video of opening an Iron, which Shri Vishal confirmed that the gold has been sent by Shri Pradeep Kumar Nehra i.e. you concealed in that iron xxii. In his statement dated 24.02.2024, Shri Vishal Abaso Sawant confirmed that Shri Pradeep Kumar Nehra i.e.. you has smuggled around 25-26 Kilograms of Gold during the month of November and December 2023 and handed over to him in Hyderabad. xxiii. Second bail application filed by Shri Pradeep Kumar Nehra ie, you before the Hon'ble Economic Offences court was rejected by Hon'ble Court dated 14.03.2024. Another Second Bail application was filed by Shri Pradeep Kumar Nehra i.e. you before Honourable District and Sessions Court, Jaipur District. Honourable ADJ III, District and Sessions Court, Jaipur District denied bail on 18.03.2024. Aggrieved by the order of Hon'ble ADJ Court, Shri Pradeep Kumar Nehra i.e. you have filed second bail application before the Hon'ble Rajasthan High Court and bail application was rejected by the Hon'ble R....
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....y be made by the detenu. 8. Reliance was placed upon the following decisions by the learned Counsel for the Petitioner: - (i) Aslam Ahmed Zahire Ahmed Shaik v. Union of India and Ors. (1989) 3 SCC 277: 1989 SCC OnLine SC 33; (ii) Rama Dhondu Borade v. V.K. Saraf, Commissioner of Police & Ors. (1989) 3 SCC 173: 1989 SCC OnLine SC 205; (iii) Rajammal v. State of Tamil Nadu & Anr. (1999) 1 SCC 417: 1998 SCC OnLine SC 1023; (iv) Rattan Singh and Another v. State of Punjab and Others (1981) 4 SCC 481: AIR 1982 SC 1; to argue that the delay in passing the detention order ought to be explained by the Sponsoring Authority almost on a day-to-day basis, in order to justify the passing of the detention order. It was further submitted that the Hon'ble Supreme Court has repeatedly held that treating the representation in a callous or a negligent manner would render the detention order illegal. 9. Secondly, it is submitted that the repeated rejection of the bail applications of the Petitioner, ought to have been sufficient for the Central Government not to confirm the impugned detention order as the sole ground of propensity to repeat the offence is r....
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....by Respondent No. 2 on 19th July, 2024. Comments of the Sponsoring Authority were called for on the same day by Respondent No. 2 and immediately upon receiving the comments from the Sponsoring Authority on 31st July, 2024, the representation made by the Petitioner was considered and rejected on the very next day, i.e., 01st August, 2024 by Respondent No.2. Hence, it can be said that the matter was considered in an expeditious manner. Insofar as the delay of forwarding the representation by the Jail Authorities is concerned, it is argued that it is for the Jail Superintendent/Respondent No.3 to explain as to why the representation was forwarded in a delayed manner. ANALYSIS AND FINDINGS 13. Heard learned Counsels for the parties and perused the records. Non-application of mind by the Detaining Authority 14. For the purposes of the present petition, the following dates are relevant: - 12^th January, 2024 The Petitioner was arrested 22^nd January, 2024 First bail application before the learned Economic Offence Court was rejected. 24th January, 2024 First application before the learned Sessions Court was rejected. 09^th February 2024 Application for ....
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.... rejected by Hon'ble Courts. I am satisfied that retractions of statement filed by you are nothing but an afterthought and devoid of merits. 9. I am aware that you i.e. Shri Pradeep Kumar Nehra are in judicial custody at present. However, there is a possibility of your release from judicial custody and if you are released on bail, you are likely to continue to indulge in the prejudicial activities and therefore there is a need to issue a Detention Order against you under the COFEPOSA Act, 1974 with a view to prevent you from smuggling of gold in future. 10. I am aware that prosecution under Section 135 of the Customs Act, 1962 has been launched against you i.e. Shri Pradeep Kumar Nehra 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 Shri Pradeep Kumar Nehra's i.e. your high propensity to indulge in the prejudicial activities, I am satisfied that in the meantime you should be immobilised by detention under the COFEPOSA Act, 1974 with a view to prevent you from smuggling goods, abetting the smuggling....
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....ve the detention order while he was in custody was not properly considered by the detaining authority in the light of the relevant factors. At least the records of the case do not indicate that. If that is the position, then however disreputable the antecedents of a person might have been, without consideration of all the aforesaid relevant factors, the detenu could not have been put into preventive custody. Therefore, though the order of preventive detention when it was passed was not invalid and on relevant considerations, the service of the order was not on proper consideration. 8. It may be mentioned that in the petition it is nowhere stated that the detenu has since been released or that the prospect of his imminent release was properly and with seriousness considered by the detaining authority." 18. The Hon'ble Supreme Court in N. Meera Rani v. Government of Tamil Nadu and Another (1989) 4 SCC 418, has observed and held as under: - "11. The contents of the detention order and its accompanying annexure clearly show that the detaining authority was aware and conscious of the fact that the detenu was already in custody in connection with the Bank dacoity at ....
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....hed on the facts of the particular case and the observations made in each of them have to be read in the context in which they were made. None of the observations made in any subsequent case can be construed at variance with the principle indicated in Rameshwar Shaw case [AIR 1964 SC 334: (1964) 4 SCR 921 : (1964) 1 Cri LJ 257] for the obvious reason that all subsequent decisions were by Benches comprising of lesser number of Judges. We have dealt with this matter at some length because an attempt has been made for some time to construe some of the recent decisions as modifying the principle enunciated by the Constitution Bench in Rameshwar Shaw case [AIR 1964 SC 334 : (1964) 4 SCR 921 : (1964) 1 Cri LJ 257] . 22. We may summarise and reiterate the settled principle. Subsisting custody of the detenu by itself does not invalidate an order of his preventive detention and the decision must depend on the facts of the particular case; preventive detention being necessary to prevent the detenu from acting in any manner prejudicial to the security of the State or to the maintenance of public order etc. Ordinarily it is not needed when the detenu is already in custody; the detaini....
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....ved on 03rd April, 2024 when his second application for bail was rejected by the Hon'ble Rajasthan High Court. In these circumstances, it was incumbent upon the detaining authority to demonstrate "subjective satisfaction" with regard to the possibility of Petitioner being likely to be released on bail. A mere statement to that effect cannot satisfy the test as laid down in the judicial precedents cited above. The allegations against the Petitioner are no doubt serious, for which he is facing prosecution. However, the fact that his repetitive efforts to secure bail had been unsuccessful till the High Court demonstrates that he was not likely to be released on bail when the impugned order of detention was being passed. 21. The Courts would normally hesitate to substitute the "subjective satisfaction" with its own opinion and interfere with the order of detention, however, such satisfaction should be after proper application of mind. In case, the Court finds the same being passed on account of non-application of mind, then the same can be set aside by this Court while exercising its power under Article 226 of the Constitution of India. 22. The Hon'ble Supreme Court in Ameena Beg....
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.... **** **** **** **** 22. On a conspectus of the decisions referred to above and other decisions on preventive detention, we may observe here that the argument commonly advanced on behalf of detaining authorities in the early days of the Constitution was that the Court's enquiry ought to be confined to whether there is an order of detention or not and the moment such an order, good on its face, is produced, all enquiry into good faith, sufficiency of the reasons or the legality or illegality of the action comes to an end. However, with passage of time, and expansion and development of law, it is no longer the law that a preventive detention action, howsoever lawful it might appear on its face, cannot be invalidated by the constitutional courts. This is so, as at present, there is no administrative order affecting rights of the subjects that can legitimately claim to be impregnably guarded by a protective shield, which judicial scrutiny cannot penetrate. 23. Apart from the aforesaid decisions, multiple decisions have been rendered by this Court over the years which provide suitable guidance to us to complete the present exercise; however, we wish to conclude thi....
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....an alleged commission of offence which a court is seized of and, thus, the conduct of the accused complained of, is yet to be found blameworthy; on the contrary, since it relates to an anticipated offence based on past conduct, the detenu could well feel that he is at the receiving end of a subjective satisfaction of the executive despite he not being proved to be on the wrong side of the law on any previous occasion. If someone loses his liberty and lands up in prison not having a semblance of a chance to resist or protest, the very circumstance of being put behind bars for such period as specified in the order of detention based on an anticipation that an offence is likely to be committed by him seems to be an aspect which does not sync with the norms and ethos of our very own Constitution and the decisions of this Court in which the concept of "life" has been explained in such a manner that "life" has been infused in the letters of Article 21 (see Common Cause v. Union of India [Common Cause v. Union of India, (1999) 6 SCC 667 : 1999 SCC (Cri) 1196]). Nonetheless, so long clause (3) of Article 22 of the Constitution itself authorises detention as a preventive measure, there can ....