TaxTMI 
TaxTMI 
2025 (2) TMI 754
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....yer in the main writ petition to the extent that "to quash the Letter No. F.No. PH-12001/08/2-24 COFEPOSA dated 06.03.2024 and 29.05.2024, whereby and whereunder the detention order has been passed by the respondent authorities and consequentially release the petitioner." 2. Permission is accorded. 3. I.A. No. 01 of 2024 accordingly stands allowed. Re: Cr.W.J.C. No. 1309 of 2024: - The present petition has been filed under Articles 226 and 227 of the Constitution of India in which the petitioner has challenged the order dated 06.03.2024 passed by the respondent detaining authority under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short 'COFEPOSA Act'). The petitioner has also challenged the communication dated 29.05.2024 issued by the concerned respondent authority by which the Central Government has confirmed the order of detention passed by the detaining authority. The petitioner has prayed that both the impugned orders be quashed and set aside. FACTUAL MATRIX: 2. The factual matrix of the present case is as under: - 2.1. A confidential information was received by one Abhishek Kamal to the effec....
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....nmar International flight. He used to convey the said information to Arun Kumar and Pappu Kumar, who, it is further alleged, used to collect the foreign origin gold from the Marshals in the flight as per directions of Md. Salim. Kunal Kishore (the petitioner) used to receive the foreign origin gold from Arun Kumar and deliver the same to Md. Hassan. It is also alleged that the said recovery of 124000 US Dollars was his commission out of the sale proceeds of the smuggled foreign origin gold. 2.3. It further transpires that thereafter, the petitioner was arrested and thereafter he was in custody and at that time the respondent detaining authority passed order of detention dated 06.03.2024, while exercising powers conferred under Section 3(1) of the COFEPOSA Act. Copy of the said order is produced on record with Interlocutory Application. The order of detention was executed on 11.03.2024 and the grounds of detention along with the documents were served upon the petitioner on 11.03.2024. 2.4. It further reveals that the case of the petitioner was referred to the Advisory Board (COFEPOSA), Patna High Court, Patna on 10.04.2024 in terms of the provisions contained in Section 8(b) o....
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....ion of the petitioner. It is further submitted that on the basis of the so-called confessional statement of the petitioner recorded by the Customs Officers, he has been implicated. 4.1. It is contended that there is no antecedent of the petitioner and there was no apprehension on the part of the detaining authorities that the petitioner will continue with similar type of activity in future and, therefore, order of preventive detention passed by the respondent authorities is not tenable in law. 4.2. It is also contended that when the order of detention was passed, the petitioner was already in jail custody in connection with the complaint filed by the Customs Authorities against him. It was always open for the respondent authorities to oppose the bail application, if any, filed by the petitioner. However, when the petitioner was in jail custody, there was no apprehension on the part of the respondent authorities that the petitioner will indulge into similar type of activities, if he is released on bail. It is, therefore, contended that the subjective satisfaction of the detaining authorities has been vitiated. 4.3. Learned senior counsel also submitted that there is a delay....
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....ions and disposed of the same which was communicated to the petitioner on 25.04.2024. 5.5. It is further submitted that the Advisory Board considered the matter on 29.04.2024 and 13.05.2024 and opined that detention of the petitioner is justified. The said opinion of the Advisory Board has been considered by the Central Government and thereafter the Central Government has also confirmed the impugned detention order as conveyed to the petitioner vide order dated 29.05.2024. The Central Government also considered the representation dated 04.04.2024 addressed by the petitioner and disposed of the same on 25.04.2024, which was duly conveyed to the detenue/petitioner. 5.6. Learned ASG, therefore, contended that the respondent authorities have strictly complied with the procedural aspects within the stipulated time and the procedural formalities have been adhered to strictly in the present case. 5.7. Learned ASG has placed reliance upon the following decisions of the Hon'ble Supreme Court : - (1) Naresh Kumar Goyal v. Union of India, reported in (2005) 8 SCC 276; (2) State of Maharashtra v. Bhaurao Punjabrao Gawande, reported in (2008) 3 SCC 613; (3) H....
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....or each kg. of foreign origin gold smuggled out of Gaya International Airport. 6.2. The respondent authorities filed the criminal complaint under the provisions of the Customs Act and proceedings for confiscation has also been initiated against the petitioner. The petitioner was arrested pursuant to the criminal complaint filed against him. 6.3. Now, it is the main contention of the petitioner that as he was in custody in connection with the aforesaid criminal complaint for the same incident, it was not open for the respondent authorities to pass the impugned order of detention under the provisions of the COFEPOSA Act. It is also contended on behalf of the petitioner that it was also open for the respondents to oppose the bail application and there was no apprehension on the part of the respondent authorities that the petitioner will indulge into similar type of activities if he is released on bail and, therefore, subjective satisfaction of the detaining authority is vitiated. 6.4. At this stage, we would like to refer the decisions upon which reliance has been placed by the learned Advocates appearing for the parties. 6.5. In the case of Ayya (supra), the Hon'ble Supre....
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...., where, as here, there are other grounds, the reference by the detaining authority to the prospects of grant of bail could be no more than an emphasis on the imminence of the recurrence of the offensive activities of the detenue. Even a single instance of activity tending to harm "public order" might, in the circumstances of its commission, reasonably supply justification for the satisfaction as to a legitimate apprehension of a future repetition of similar activity to the detriment of "public order". Likewise, without merit, is the contention as to the impermissibility of an order of detention being made against a person already in judicial custody. Even if a prosecution against a person fails or bail is granted an order of detention could be passed drawing the satisfaction therefor from the facts and circumstances involved in the criminal proceedings. An offender might secure an acquittal by intimidating witnesses. It all depends upon the circumstances of each case. But it is necessary for the detaining authority to resist the temptation to prefer and substitute, as a matter of course, the easy expedience of a preventive detention to the more cumbersome one of punitive detention....
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....as subsequently released on bail by the High Court could not have been foretold. As matters in fact stood when the order of detention was passed, the "normal" rule of release on bail had not been followed by the courts and it could not have been relied on by the detaining authority to be satisfied that the appellant would be released on bail. (See in this context Ramesh Yadav v. District Magistrate [(1985) 4 SCC 232 : 1985 SCC (Cri) 514 : AIR 1986 SC 315], AIR at p. 316.) 14. Assuming that by some method of prescience the detaining authority foresaw the order of bail which was granted to the appellant on his sixth application, the question still remained, would the appellant again resort to smuggling goods into the country? It was not the detaining authority's case that the appellant was a diehard smuggler. In fact in the impugned detention order, the detaining authority noted that: "Though Shri Deepak Dhembla, the proprietor of M/s B.D. Denim had denied any association in that case, yet from the statement of Shri Rajesh Gulati i.e. you, it is clearly evident that Shri Dhembla was the brain behind the smuggling of mobile phones through your help and he was arr....
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....rder is based on the requisite satisfaction, albeit subjective, of the detaining authority, for, the absence of such satisfaction as to the existence of a matter of fact or law, upon which validity of the exercise of the power is predicated, would be the sine qua non for the exercise of the power not being satisfied; 28.2. In reaching such requisite satisfaction, the detaining authority has applied its mind to all relevant circumstances and the same is not based on material extraneous to the scope and purpose of the statute; 28.3. Power has been exercised for achieving the purpose for which it has been conferred, or exercised for an improper purpose, not authorised by the statute, and is therefore ultra vires; 28.4. The detaining authority has acted independently or under the dictation of another body; 28.5. The detaining authority, by reason of self-created rules of policy or in any other manner not authorised by the governing statute, has disabled itself from applying its mind to the facts of each individual case; 28.6. The satisfaction of the detaining authority rests on materials which are of rationally probative value, and the detai....
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....solated 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 in order to disable him to repeat such offences. 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. In some cases of prosecution it may not be possible to bring home the culprit to book as in case of a professional bully, a murderer or a dacoit, as witnesses do not come forward to depose against him out of fear, or in case of international smuggling 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 in making a detention order. It is indeed largely from prior events showing tendencies or inclinations of a person that an inference can be drawn whether he is likely in the future to act in a manner pr....
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....serve individual liberty and personal freedom on the one hand and security and safety of the country and interest of the society on the other hand. Security of State, maintenance of public order and services essential to the community, prevention of smuggling and black marketing activities, etc. demand effective safeguards in the larger interests of sustenance of a peaceful democratic way of life. 37. In considering and interpreting preventive detention laws, courts ought to show greatest concern and solitude in upholding and safeguarding the fundamental right of liberty of the citizen, however, without forgetting the historical background in which the necessity-an unhappy necessity-was felt by the makers of the Constitution in incorporating provisions of preventive detention in the Constitution itself. While no doubt it is the duty of the court to safeguard against any encroachment on the life and liberty of individuals, at the same time the authorities who have the responsibility to discharge the functions vested in them under the law of the country should not be impeded or interfered with without justification (vide A.K. Roy v. Union of India [(1982) 1 SCC 271 : 1982 SC....
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.... 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 6.14. In the case of Saraswathi Seshagiri (supra), 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....
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....nch of the Hon'ble Supreme Court in the year 1975 has observed in paragraphs 19, 32 and 34, as observed hereinabove, that an order of detention may or may not relate to an offence, it is not a parallel proceeding. It does not overlap with prosecution even if it relies on certain facts for which prosecution may be launched or may have been launched. An order of preventive detention may be made before or during prosecution. Further, an order of preventive detention may be made with or without prosecution and in anticipation or after discharge or even acquittal. Further, pendency of prosecution is no bar to an order of preventive detention. Further, it has been specifically held by the Constitution Bench of the Hon'ble Supreme Court that merely because a detenue is liable to be tried in a criminal court for the commission of a criminal offence would not by itself debar the Government from taking action for his detention. Further, where the Police arrests a person and later on enlarges him on bail and initiates steps for prosecuting him under the Cr.P.C. and even lodges an FIR may be no bar against the detaining authority issuing an order under the preventive detention. Further, where ....