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TaxTMI 
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2025 (12) TMI 1491
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....74 ("COFEPOSA Act" for short), as illegal. 2. We have heard Shri. Kiran S. Javali, learned senior counsel as instructed by Shri. Chandrashekara K, learned Advocate appearing for the petitioner, Shri. Kuloor Arvind Kamath, learned Additional Solicitor General of India, along with Shri Shanthi Bhushan H, learned Deputy Solicitor General of India appearing for Respondents No. 1 and 2 and Shri Thejesh P, learned High Court Government Pleader, appearing for Respondent No. 3. 3. The facts of the case are as follows:- Smt. Harshavardini Ranya, the detenue herein was intercepted on 03.03.2025 at the Green Channel of the Kempegowda International Airport, Bengaluru while attempting to leave the Airport after arrival from Dubai without making any declaration. A personal search revealed that she was attempting to smuggle 17 foreign-marked gold bars weighing approximately 14,213.050 grams of foreign origin gold brought from Dubai into India. A voluntary statement was recorded on 04.03.2025. Thereafter, a search was conducted at her residence and cash of Rs. 2,67,00,000/- and jewellary worth Rs. 2,06,00,000/- along with two customs declarations were seized. Further, voluntary stat....
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....rted in (1981) 2 SCC 427; * Kamala K Khushalani v. State of Maharashtra. Kamla K reported in (1981) 2 SCC 748; * Kirit Kumar Chaman Lal Kundaliya v. Union of India and others reported in (1981) 2 SCC 436; * Mehrunissa v. State of Maharashtra reported in (1982) 2 SCC 709; * Thahira Haris and others v. Government of Karnataka and others reported in (2009) 11 SCC 438; * Rushikesh Tanaji Bhoite v. State of Maharashtra and others reported in (2012) 2 SCC 72; * Zakir Khan V/s. Union of India and others reported in 2022 SCC Online Del 1284; * Smitha Gireesh v. Union of India and Others, reported in 2016 SCC OnLine Del 3697; * Hajira N.K. v. Union of India and Others, by Order dated 26.11.2019 passed in WP (Crl.) No. 324 of 2019; * S. Reshmi v. Union of India and Others by Order dated 28.01.2016 passed in WP (Crl.) No. 386 of 2015; and * Shaikh Mohammed Rizwan v. UOI and Another, reported in 2017 SCC OnLine Del 7887. II. The order of detention is vitiated as pages no. 1010 and 1011 being in Kannada language has not been read and understood, affecting the legality of the order of detention. Th....
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.... these contentions the following decisions are relied on:- * N.Meera Rani v.Govt of Tamil Nadu and another reported in (1989) 4 SCC 418 and * Kamarunnissa v. Union of India reported in (1991) 1 SCC 128. V. The order of detention is vitiated as no subjective satisfaction has been recorded to the effect that the passport of the detenue was in court custody and there was no prospect for the detenue to indulge in smuggling in future. The following decisions are relied on:- * Dharmendra Suganchand Chelawat and Another v. Union of India and Others, reported in (1990) 1 SCC 746; * Rekha v. State of Tamil Nadu, reported in (2011) 5 SCC 244; * Huidrom Konungjao Singh v. State of Manipur and Others, reported in (2012) 7 SCC 181; * Rajesh Gulati v. Govt. of NCT of Delhi and Another, reported in (2002) 7 SCC 129; * Gimik Piotr v. State of Tamil Nadu and Others, reported in (2010) 1 SCC 609; * Moulana Shamshunnisa and Others v. Additional Chief Secretary and Others, reported in (2010) 15 SCC 72; * Ameena Begum v. State of Telangana and Others, reported in (2023) 9 SCC 587; * Kashmira v. State of K....
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....ma, reported in (1989) 1 SCC 193. 7. In response to the grounds raised by the petitioner, the learned ASGI raises the following contentions:- The material gathered during investigation demonstrates the existence of a well-orchestrated, commercially motivated, transnational smuggling syndicate operated by the detenues over a sustained period. The detaining authority carefully examined the voluminous material, including statements recorded under Section 108 of the Customs Act, 1962 ("Customs Act" for short) documents seized from the residences and business premises, forensic extraction of mobile phones, and statements of various facilitators who enabled the syndicate. On this basis, the authority recorded its subjective satisfaction that the detenues possess both the propensity and the potentiality to continue engaging in prejudicial smuggling activities unless preventively detained. 8. Section 1(2) of the Customs Act states that the Act extends to the whole of India and extends even to offences committed outside its territory. In the present case, a significant part of the planning, procurement and documentation was carried out in the foreign jurisdiction of Dubai. Se....
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....17 and 19: With reference to these Paras, save and except what are matters of facts and record, each and every contention is denied. In this regard, it is submitted that at the time of serving the ground of detention together with the relied upon documents to the detenu on 27.04.2025, the detenu was shown all the contents of the pen drive on a Laptop and upon her satisfaction, the detenu gave her written acknowledgement to this effect. The entire proceedings were witnessed by a lady officer of the prison and the acknowledgement given by the detenu of having seen and verifying the contents of the pen drive has been duly attested by the lady officer. It is further submitted that the rules of the prison do not allow handing over of any electronic devices to the inmates of the prison. After seeing and watching the contents of the pen drive to her satisfaction, the detenu made a request to the Sponsoring Authority on the same day i.e. on 27.04.2025 to contact Shri Shashwath S. Prakash, the Advocate of the detenu to deliver the said pen drive. Accordingly, the Sponsoring Authority made efforts to hand over the said pen drive to Shri Shashwath S. Prakash, the Advocate an....
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....of the said pen drive to her satisfaction, the sponsoring authority made sincere efforts as per the instructions of the detenu to hand over the pen drive to the persons designated by her. A copy of the acknowledgement in this regard given by the detenu along with the efforts made to serve the Pen Drive are collectively placed at Annexure R-1. Hence, all the requirements to serve all the relied upon documents along with the pen drive have been duly complied with and no prejudice has been caused to the detenu in this regard." x x x x x II. On the ground relating to the non supply of Kannada translations, it is contended that the Kannada pages No. 1010 and 1011 of relied upon documents related to an unrelated bail petition, was used only as backing sheets and were not relied upon. In Jaseela Shaji v. Union of India reported in (2024) 9 SCC 53, the Apex Court held that the documents must be supplied only if relied upon and casual references do not mandate supply. Since the said Kannada pages were not relied upon while passing the detention order, no prejudice is caused to the petitioner in making an effective representation against the order. III. In response to the truncated doc....
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....uture. The Apex Court has consistently held that this assessment includes the propensity, potentiality, and likelihood of the detenues engaging in smuggling or its allied acts. The Court's jurisdiction is limited to examining whether relevant material existed and whether the decision was based on that material and it cannot substitute its own opinion for the satisfaction of the detaining authority. The petitioner's attempt to challenge the merits of the detaining authority's assessment is contrary to settled legal principles. Once the subjective satisfaction is formed on the basis of relevant material, the Court cannot be drawn into second-guessing that satisfaction or substitute its own opinion for that of the detaining authority. The learned ASGI submitted that the court cannot go into correctness or otherwise of facts stated or allegations levelled in the grounds of detention. Permissible grounds of the challenge include:- i) order is not made by competent authority; ii) condition precedent for exercise of power does not exist; iii) subjective satisfaction arrived at by detained authority is irrational; iv) order is mala fide; ....
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....t their enterprise does not require their personal movement abroad. The arrangements in Dubai, the use of carriers, coded communication, the Hawala link, and the disposal mechanism in India all demonstrate that the syndicate can function even without any of them travelling internationally. Relevant portion from the Statement of Objections addressing the specific ground reads as follows: "31. Re: Para 26 & 27: With reference to these Paras, save and except what are matters of facts and record, each and every contention is denied. In this regard, it is humbly submitted that there are sufficient grounds against the detenu with regard to her potentiality and propensity of inter-alia concealing and keeping the smuggled goods for which passport is not required. Paras 1(xlvi), 2, 6 and 7 of the Grounds of Detention read together provide the subject satisfaction of the detaining authority. It has been clearly elaborated in the Grounds of Detention that the detenu is the kingpin of a smuggling network and has the resources to orchestrate and execute smuggling activities even without traveling abroad. The detenue's involvement is not limited to physical smuggling but extends to pla....
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....India If Bail already granted before passing of Detention Order, it should reflect why Bail conditions are not sufficient for preventing detenue from further indulgence in smuggling activities. 6. Ankit Ashok Jalan v. Union of India Four basic principles of Consideration of representation by Appropriate Authority: opportunity of representation; consideration of representation by Appropriate Authority is independent of action by Advisory board; timely consideration of representation; & exercise of opinion & judgment by Appropriate government before forwarding the case to Advisory Borad. 7. Kamleshkumar Ishwardas Patel v. Union of India Failure to inform the right to representation causes denial of the right u/ Art 22. 8. Shabana Abdulla v. Union of India WhatsApp chats of Four accused were relied upon but were not furnished to them. Writ filed by three accused was allowed by High Court but dismissed the Petitioner's Writ. It was reversed by Supreme Court 9. Vihaan Kumar v. State of Haryana, Prabhir Purkhyastha v. State of Haryana, and Pankaj Bansal v. Union of India Relates to arrest and communication of grounds of arrest under Preven....
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....se, we are of the opinion that the contents of the pen drive having been clearly shown to the detenue, the fact that the person designated by her to accept the pen drive, refused to do so, cannot be relied on by the petitioner to contend that the order of detention was vitiated. 16. In the peculiar facts and circumstances of the instant case, we are of the clear opinion and the contention that the pen drive was not served on the detenue cannot be a reason to invalidate the order of detention. 17. The next serious ground urged is that pages No. 1010 and 1011 of the materials supporting the detention being in Kannada language and the detenue being unable to read Kannada, the order of detention was vitiated on that count also. However, the objections clearly show that the writing in Kannada language related to an unrelated bail petition and the said pages were used only as backing sheets in the relied on documents by mistake and were not relied upon at all. 18. That specific statement in the Statement of Objections regarding the provision of translated documents reads as follows:- "40. x x x x x It is humbly submitted that the bail application vide Crl. Misc. No. 259....
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....not part of the relied upon materials at all. Further, with regard to the contention that pages No. 1077 and 1099 of the relied on documents were furnished in a truncated form. We notice that the truncation was only due to a faulty Photostat copy and that the relied upon documents have been served in their full form along with the detention order to the detenue. The said ground also therefore cannot be relied on. 21. Further, the order of detention specifically records that the detenue is suffering imprisonment and that her applications for bail have been rejected. However, the detention order also records that there is every possibility of the detenue being released on bail and that the detention of the passport of the detenue in Court custody would not be sufficient in the nature of the offences committed by her to deter her from committing similar offences of smuggling in the future as well. Further, the contention that she has not been informed of her right to submit the representations is also incorrect since the order of detention specifically contains such information. Further, the contention that the detenue has a right to be represented by Legal Counsel is also absolute....