TaxTMI 
TaxTMI 
2025 (3) TMI 1360
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....ged 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. The petitioner has stated that, as per the case of the prosecution, specific intelligence input was received that a syndicate was involved in the smuggling of foreign origin gold from Yangoon (Myanmar) to Gaya through Gaya International Airport with active involvement of Marshals deputed in the flight as well as the flight handling executive working at Gaya International Airport. As per the said intelligence input, a consignment of foreign origin gold has been planned to be smuggled on 13.12.2023 via two Myanmar International Flights UB-7001 and 8M-601 coming to Gaya from Yangoon. It is alle....
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....against the petitioner. It is also stated that the Advisory Board considered the case of the petitioner and thereafter, on the basis of the report given by the Advisory Board and after considering the relevant material, the Central Government confirmed the order of detention, which was communicated by the Deputy Secretary, Government of India (respondent No. 3) by communication dated 29.05.2024, whereas, in fact, the petitioner was detained on 11.03.2024. 2.7. It is also stated by the petitioner that the petitioner preferred Cr. Misc. No. 18604 of 2024 with a prayer that he may be released on bail in connection with the criminal complaint filed by the concerned respondent authorities under the provisions of Section 135 of the Customs Act. The High Court vide order dated 20.08.2024 passed an order in favour of the petitioner, whereby he was directed to be released on bail. 3. We have heard Mr. Shri Prakash Tiwari, learned counsel for the petitioner and Dr. K.N. Singh, learned Additional Solicitor General of India assisted by Mr. Alok Kumar, learned counsel for the respondent Union of India. SUBMISSIONS ON BEHALF OF THE PETITIONER: - 4. Learned counsel for the petitioner ....
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....etitioner that the defence reply submitted by the petitioner before the State Advisory Board was not dealt with properly. 4.6. Lastly, learned counsel submitted that the impugned order of detention is absolutely in colourable exercise of powers by the concerned authorities since the provisions of the COFEPOSA Act is supposed to be applied only against the professional offenders. However, the petitioner is having no antecedent and now he has been released on bail by the High Court in connection with the criminal case filed against him. 4.7. Learned counsel, therefore, urged that the impugned order of detention be quashed and set aside. 4.8. Learned counsel has placed reliance upon the following decisions of the Hon'ble Supreme Court: - (I) Ayya v. State of U.P., reported in (1989) 1 SCC 374. (II) Rajesh Gulati v. Govt. of NCT of Delhi, reported in (2002) 7 SCC 129. (III) Rekha v. State of T.N., reported in (2011) 5 SCC 244 and (IV) Ameena Begum v. State of Telangana, reported in (2023) 9 SCC 587. 4.9. He has also placed reliance on the decision of the Hon'ble Supreme Court in the case of Noor Aga vs. State of Punjab and another [Cri. A....
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....ctly complied with the procedural aspects within the stipulated time and the procedural formalities have been adhered to strictly in the present case. 5.6. 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) Haradhan Saha v. State of W.B., reported in (1975) 3 SCC 198; (4) Ameena Begum v. State of Telangana, reported in (2023) 9 SCC 587. 5.7. It is, therefore, urged that the present petition being devoid of any merit, the same be dismissed. DISCUSSION AND REASONINGS: - 6. Having heard learned counsel for the parties and having gone through the materials placed on record, it would emerge that the respondent detaining authority has passed an order of detention dated 06.03.2024 against the present petitioner. It further transpires that the said order of detention was executed on 11.03.2024 along with the ground of detention and the documents upon which reliance has been placed by the respondent detaining authority. It would emerge from th....
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....y on the one hand and the needs of an orderly society on the other. But the realities of executive excesses in the actual enforcement of the law have put the courts on the alert, ever-ready to intervene and confine the power within strict limits of the law both substantive and procedural. The paradigms and value judgments of the maintenance of a right balance are not static but vary according as the "pressures of the day" and according as the intensity of the imperatives that justify both the need for and the extent of the curtailment of individual liberty. Adjustments and readjustments are constantly to be made and reviewed. No law is an end in itself. The "inn that shelters for the night is not journey's end and the law, like the traveller, must be ready for the morrow". 23. In the present case, we are not, however, impressed with the submission of Shri Garg that the detention was solely for the purpose of rendering nugatory the order of bail, the grant of which the detaining authority had then considered quite imminent. It is true that if the only ground or justification for the detention is the apprehension that the detenue was likely to be enlarged on bail, the detentio....
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....e taken that the liberty of a person is not jeopardised unless his case falls squarely within the four corners of the relevant law. The law of preventive detention should not be used merely to clip the wings of an accused who is involved in a criminal prosecution ... When a person is enlarged on bail by a competent criminal court, great caution should be exercised in scrutinising the validity of an order of preventive detention which is based on the very same charge which is to be tried by the criminal court." 6.5. In the case of Rajesh Gulati (supra), in paragraphs 12, 13 and 14, the Hon'ble Supreme Court has observed as under: - 12. It cannot be overemphasized that the object of detention under the Act is not to punish but to prevent the commission of certain offences. Section 3 (1) of the Act allows the detention of a person only if the appropriate detaining authority is satisfied that with a view to preventing such person from carrying on any of the offensive activities enumerated therein, it is necessary to detain such person. The satisfaction of the detaining authority is not a subjective one based on the detaining authority's emotions, beliefs or prejudices. ....
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.... is preventive not punitive. The truth of the matter, though, is that in substance a detention order of one year (or any other period) is a punishment of one year's imprisonment. What difference is it to the detenue. whether his imprisonment is called preventive or punitive? 29. Preventive detention is, by nature, repugnant to democratic ideas and an anathema to the rule of law. No such law exists in the USA and in England (except during war time). Since, however, Article 22(3)(b) of the Constitution of India permits preventive detention, we cannot hold it illegal but we must confine the power of preventive detention within very narrow limits, otherwise we will be taking away the great right to liberty guaranteed by Article 21 of the Constitution of India which was won after long, arduous and historic struggles. It follows, therefore, 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." 6.7. In the Case of Ameena Begum (supra), in paragraphs 26 and 28, the Hon'ble Supreme Court has observed as under: - "26. We, however, hasten to observe here that t....
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.... 28.8. The ground(s) for reaching the requisite satisfaction is/are such which an individual, with some degree of rationality and prudence, would consider as connected with the fact and relevant to the subject-matter of the inquiry in respect whereof the satisfaction is to be reached; 28.9. The grounds on which the order of preventive detention rests are not vague but are precise, pertinent and relevant which, with sufficient clarity, inform the detenue. the satisfaction for the detention, giving him the opportunity to make a suitable representation; and 28.10. The timelines, as provided under the law, have been strictly adhered to." 6.8. In the case of Saraswathi Seshagiri versus State of Kerala, reported in 1982 (e) PLJR-SC 25317, the Hon'ble Supreme Court has observed in paragraph 9, 10 and 11 as under:- "9. From the aforesaid observation it is evident that an inference in each case will depend on the nature of the act and the attendant circumstances. In the present case the 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....
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....of the authority making the order of detention; it is not for the court to question whether the grounds given in the order are sufficient or not for the subjective satisfaction of the authority." 6.9. In the Case of Haradhan Saha (supra), in paragraphs 19 and 26, the Hon'ble Supreme Court has observed as under: - "19. 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. The basis of detention is the satisfaction of the Executive of a reasonable probability of the likelihood of the detenue. acting in a manner similar to his past acts and preventing him by detention from doing the same. A criminal conviction on the other hand is for an act already done which can only be possible by a trial and legal evidence. There is no parallel between prosecution in a court of law and a detention order under the Act. One is a punitive action and the other is a preventive act. In one case a person is punished on proof of his guilt and the standard is proof beyond reasonable doubt whereas in preventive detention a man is prevented from doing something which it is necessary for reas....
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....supra), in paragraph 8, the Hon'ble Supreme Court has observed as under:- "8. It is trite law that an order of detention is not a curative or reformative or punitive action, but a preventive action, avowed object of which being to prevent the antisocial and subversive elements from imperilling the welfare of the country or the security of the nation or from disturbing the public tranquillity or from indulging in smuggling activities or from engaging in illicit traffic in narcotic drugs and psychotropic substances, etc. Preventive detention is devised to afford protection to society. The authorities on the subject have consistently taken the view that preventive detention is devised to afford protection to society. The object is not to punish a man for having done something but to intercept before he does it, and to prevent him from doing so. It, therefore, becomes imperative on the part of the detaining authority as well as the executing authority to be very vigilant and keep their eyes skinned but not to turn a blind eye in securing the detenue. and executing the detention order because any indifferent attitude on the part of the detaining authority or executing authority....
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....able 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. Further, prior events showing tendencies or inclinations of a person that an inference can be drawn that he is likely in the future to act in a manner prejudicial to the maintenance of supplies and services essential to the community or his act of violation of foreign exchange regulations and his smuggling activities are likely to have deleterious effect on the national economy, the Hon'ble Supreme Court further observed that when the legislature has made only the subjective satisfaction of the authority making the order of detention necessary, it is not for the court to question whether the grounds given in the order are sufficient or not for the subjective satisfaction of the authority. 6.14. In the case of Rekha (supra), 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. 6.15. However, at this stage, it is relevant t....
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....on indulging in activities which would jeopardize the security of the State or the public order. Further, the mere circumstance that a detention order is passed during the pendency of the prosecution would not vitiate the order. 6.17. Keeping in view the aforesaid principles laid down by the Hon'ble Supreme Court in various decisions, now, we would like to once again examine the contentions raised by learned senior counsel for the petitioner. The main contention of the petitioner is that criminal complaint has been lodged against him and in connection with the same he was already in custody when the impugned order of detention has been passed. Thus, there was no apprehension on the part of the detaining authority that petitioner will indulge into similar type of activity if he is released on bail. Thus, the subjective satisfaction of the detaining authority is vitiated. We are of the view that the aforesaid contention is misconceived in view of the decision rendered by the Hon'ble Supreme Court in the case of Haradhan Saha (supra) and observations made in paragraph 26 in the case of Ameena Begum (supra). 6.18. Whether the petitioner has been falsely implicated in the incident....