TaxTMI 
TaxTMI 
2025 (11) TMI 616
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....ers, they have been detained under the 'Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974' (for short "COFEPOSA"). 2. It has been pleaded by the petitioners that they are law abiding and peace-loving citizens, and that they have been detained in view of an opinion formed by the authorities that they had a vital role in smuggling of gold from other country, i.e. China. As per petitioners, in the grounds of detention, it has been claimed that on different occasions in the past around 200 kgs. of gold was brought to India through several residents of Ladhak, who are co-detenus in the present case, and that the petitioners were involved in selling of gold in local market of Delhi, and that there is propensity in selling of said gold in local market in future also. 3. While referring to the grounds of detention, it has been pleaded by the petitioners that the panchnama dated 12.09.2024 shows that respondent No. 3 conducted search at the residence of detenu No. 1, 4th floor, F-272, Mansarovar Garden, New Delhi, but no incriminating material was recovered, and thereafter, the petitioner No. 1 was arrested at New Delhi and was produced before the Court....
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.... No. 4, and that the respondent No. 3, vide order dated 06.11.2024, ordered the detention of petitioners under the COFEPOSA, while ignoring the fact that the petitioners were already in custody at the time of above mentioned order. However, it has been admitted by the petitioners that the above-mentioned detention order has later on been confirmed by the Joint Secretary, Government of India, Ministry of Finance, Department of Revenue, Central Economic Intelligence Bureau, COFEPOSA Wing, New Delhi. 7. While alleging that the detention order has been passed without any reasonable basis and also that the proper procedure, before passing the impugned order of detention, was not followed, the petitioners have claimed that a prejudice has been caused to them and their fundamental rights have been violated. The petitioners have alleged that the above-mentioned detention order is blatantly illegal, arbitrary, vindictive, and hence, the present petition for habeas corpus. 8. A detailed reply to the above-mentioned petition has been filed by the respondent No. 4. The respondent No. 4, while defending the detention order, has alleged that the writ petition preferred by the petitioners i....
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....orders to be nonest, is that the detention orders were passed at the time when the petitioners were already in judicial custody and their applications for bail were rejected by the Court of learned Judicial Magistrate. 13. As per learned counsel for the petitioners, once the bail application of the petitioners were already dismissed by the learned trial Court and the detaining authority, which passed the detention order, i.e. the respondent No. 3 had not recorded a satisfaction that there was any apprehension/likelihood of release of the petitioners on bail in near future, the detention order could not have been passed. 14. In support of her above-mentioned arguments, the learned counsel for the petitioners has referred to the principles of law laid down by the Hon'ble Supreme Court of India in the case of N. Meera Rani v. State of Tamil Nadu and Another (1989) 4 Supreme Court Cases 418. In the abovementioned case, the husband of appellant, who was already in custody in connection with a bank dacoity case, was served with detention order wherein the detaining authority recorded its satisfaction that the detenu's preventive detention was necessary to prevent him from indulging....
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....led to provide an opportunity to the petitioners to file a representation and consider the same. In this regard, the learned counsel for the petitioners has referred to the principles of law laid down by the Hon'ble Supreme Court of India in the case of Icchu Devi Choraria v. Union of India and Others (1980)4 Supreme Court Cases 531 wherein the Hon'ble Supreme Court of India has observed that the detaining authority is duty bound to consider the detenue's representation without unreasonable delay. According to Hon'ble Supreme Court of India, the failure of the detaining authority in its duty in itself is sufficient to vitiate the detention order. 20. The observations made by the Hon'ble Supreme Court of India in the case of Binod Singh v. District Magistrate, Dhanbad, Bihar and Others (1986) Supreme Court Cases 416 have also been referred by learned counsel for the petitioners, wherein the Hon'ble Supreme Court of India held the detention to be illegal on the ground that the detention order was an outcome of non-application of mind to the relevant factors as it was not considered that the detenu was already in jail at the time of service of order. 21. In addition to above the....
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.... respondents. The learned counsel for the respondents at the threshold have raised the question of territorial jurisdiction of this Court to entertain and decide the above-mentioned petition . It has been argued by learned counsel for the respondents that the factual matrix of the present case makes it abundantly clear that the involvement of petitioners in the activities of smuggling of gold came into light when two persons were intercepted by the Indo-Tibetan Border Police at Indo-Tibet border, who were trying to smuggle 108 kgs. of gold from China to India. As per learned counsel for the respondents, the above-mentioned recovery led to filing of case under the 1962 Act and when the above said two persons were interrogated they spilled the beans and revealed the entire syndicate involved in the activities of illegal import & trading of gold. According to learned counsel for the respondents, in view of above-mentioned disclosure, the petitioners who were residing at Delhi and involved in the activities of purchase of illegally smuggled gold, and sale of the same, were detained. It has been clarified by learned counsel for the respondents that the investigation was entrusted to the....
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....be the need to order preventive detention of a person already in jail. But in such a situation the detaining authority must disclose awareness of the fact that the person against whom an order of preventive detention is being made is to the knowledge of the authority already in jail and yet for compelling reasons a preventive detention order needs to be made." 29. The learned counsel for the respondents have further argued that in the present case, the entire procedure as prescribed under the law and various judicial pronouncements has been scrupulously followed by the respondent No. 3 before passing the detention order on merit, and that the above-mentioned detention order has been duly affirmed by the Board and therefore, on merit also, there is no scope for indulgence or interference in the detention order. 30. The record has been perused carefully. 31. As far as the first point of determination is concerned, the relevant law has already been laid down in various judicial pronouncements. 32. In the case of Arun Mahajan (supra), this High Court observed that if any part of cause of cause of action does not arise within the territorial jurisdiction of this High Court, ....
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....ndia in the case of Lt. Col. Khajoor Singh v. Union of India 1961 AIR (SC) 532 has ruled that the High Court can hear a petition only when infringement of right occurs within its territory. As per Hon'ble Supreme Court of India the High Court has jurisdiction only when the violation of individual's right takes place in its jurisdiction. 39. Similar view has been taken by the Hon'ble Supreme Court of India in the case of State of Rajashan and Others v. M/s Swaika Properties and Another 1985(3) SCC 217, wherein it has been propounded that the location where the cause of action arises, not just where notification is received, determines which High Court can hear a writ petition challenging a government action. 39. In the light of above-mentioned legal proposition, if the factual matrix of the present case is analyzed it transpires that in the detention order it has been clearly recorded that on 09.07.2024, 108 Kgs of foreign origin gold was recovered near Sirigaple in Eastern Ladakh by patrolling party of 21" Battalion ITBP, while being smuggled from China on mules by two porters namely Tenzin Dhargyal and Tsering Chamba who were detained by the ITBP. The smuggled gold was later....