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2026 (4) TMI 1014
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....ct, 1974 (for short, 'COFEPOSA Act'), are before us praying that the detenus - Smt. Harshavardhini Ranya in SLP (Criminal) No. 24/2026 and Shri Sahil Sarkariya Jain in SLP (Civil) No. 1484/2026 be set at liberty. 2. Heard Mr. Amol B. Karande and Mr. T. Chezhiyan, learned counsel appearing on behalf of the petitioner - Priyanka Sarkariya in SLP (Civil) No. 1484/2026 and Mr. R. Basant, learned Senior Counsel appearing on behalf of the petitioner - H.P. Rohini in SLP (Criminal) No. 24/2026 and the learned Additional Solicitor General of India ('ASG') appearing on behalf of the respondents. We have also perused the records and relevant documents necessary for the adjudication of the present Special Leave Petitions. FACTUAL BACKGROUND 3. It is the specific case of the respondents that the detenu - Shri Sahil Sarkariya Jain had facilitated the disposal of consignments of foreign-marked gold bars on four different occasions between 14.11.2024 and 14.02.2025, along with the other detenu - Smt. Harshavardhini Ranya. 4. Specific intelligence was received by the Department of Revenue Intelligence ('DRI'), Bengaluru Zonal Unit that one female passenger bearing an Indian Passport wa....
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....t. Harshavardhini Ranya made a representation to the Joint Secretary, COFEPOSA, Government of India on 05.05.2025, the detenue - Shri Sahil Sarkariya Jain did not make any representation to the concerned authorities throughout, except for the one which was made after the disposal of the writ petition by the High Court vide one of the impugned judgments. 9. On 08.05.2025, the detenu - Smt. Harshavardhini Ranya made a further representation to the Government of India, CEIB. Further, on 09.05.2025, she made a representation before the Chairman of the Advisory Board seeking legal assistance to be represented during the proceedings before it. 10. The representations made by the detenue - Smt. Harshvardhini Ranya were duly considered by the Detaining Authority and the Government of India, CEIB and the rejection was, accordingly, communicated as well by way of the memoranda dated 13.05.2025 and 14.05.2025, respectively. However, the communications for both the rejections have been sent by the same officer, who is neither the Detaining Authority nor the Central Government. In other words, the decision to reject was made by the competent authorities, but the communications on the repr....
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....of the Court. vi. The Detention Order is vitiated inasmuch as the detenu - Smt. Harshavardhini Ranya was not apprised of her right of being assisted by a friend in the proceedings before the Advisory Board, neither in the grounds of detention nor in the communication from the Advisory Board itself. Further, the Detention Order is vitiated inasmuch as the Advisory Board has not considered the representation of the detenu dated 09.05.2025, seeking permission to be represented by a legal practitioner in the proceedings before the Advisory Board. 13. The petitioner - Priyanka Sarkariya, in SLP (Civil) No. 1484/2026, who is a cousin of the detenu - Shri Sahil Sarkariya Jain raised the following contentions before the High Court: i. There is no material to connect the detenu - Shri Sahil Sarkariya Jain to the incident dated 03.03.2025, as there is no evidence to show the involvement of the detenu in the seizure of the foreign marked gold bars made at the airport, or in any other financial transactions, except for the ones admitted by him that took place between November, 2024 to February, 2025. ii. The relied upon documents were not supplied to the detenu fo....
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....P (Criminal) No. 24/2026 and Mr. Amol B. Karande and Mr. T. Chezhiyan, learned counsel appearing for the petitioner in SLP (Civil) No. 1484/2026 have raised some additional grounds laying particular emphasis on them, as against the grounds raised before the High Court. SUBMISSIONS ON BEHALF OF THE PETITIONERS 15. We shall cumulatively narrate the submissions made before us by the learned Senior Counsel and the learned counsel appearing on behalf of the detenus. It is submitted by the learned counsel appearing for the petitioner in SLP (Civil) No. 1484/2026, that the Detention Order passed on the basis of the alleged recovery of the foreign-marked gold bars is not connected to the detenu - Shri Sahil Sarkariya Jain. There is neither a live-link, nor is the same proximate. Copies of the relied upon documents which were sought for, have not been furnished to the detenu. The representation to the Central Government, though made after the passing of the impugned order by the High Court, has not been considered. Further, merely supplying the pen drive to a third party would not tantamount to proper service in favour of the detenu. There is no substantial material to arrive at the c....
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....5) 4 SCC 51. vi. Venmathi Selvam (Mrs) v. State of T.N. and Another, (1998) 5 SCC 510. vii. Harshala Santosh Patil v. State of Maharashtra and Others, (2006) 12 SCC 211 viii. Ankit Ashok Jalan v. Union of India and Others, (2020) 16 SCC 127 ix. Rama Dhondu Borade v. V.K. Saraf, Commissioner of Police and Others, (1989) 3 SCC 173 x. Icchu Devi Choraria (Smt) v. Union of India and Others, (1980) 4 SCC 531. xi. Smitha Gireesh v. Union of India & Ors., 2016 SCC OnLine Del 3697 SUBMISSIONS ON BEHALF OF THE RESPONDENTS 18. Learned ASG made the following submissions on behalf of the respondents: The High Court, while adjudicating the writ petitions, has considered all the contentions raised by the petitioners in extenso. Therefore, in the absence of any illegality, there is no need for any interference. The representations made by the detenu - Smt. Harshavardhini Ranya have been duly considered and decisions thereof have been communicated. The fact remains that one of the representations made by the detenu - Shri Sahil Sarkariya Jain, after the disposal of the writ petition, was made to the incorrect authority. It is onl....
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.... for preventive detention." (emphasis supplied) Section 8(c) & (e) of the COFEPOSA Act "8. Advisory Boards.-For the purposes of sub-clause (a) of clause (4), and sub-clause (c) of clause (7), of Article 22 of the Constitution,- xxx xxx xxx (c) the Advisory Board to which a reference is made under clause (b) shall after considering the reference and the materials placed before it and after calling for such further information as it may deem necessary from the appropriate Government or from any person called for the purpose through the appropriate Government or from the person concerned, and if in any particular case, it considers it essential so to do or if the person concerned desires to be heard in person, after hearing him in person, prepare its report specifying in a separate paragraph thereof its opinion as to whether or not there is sufficient cause for the detention of the person concerned and submit the same within eleven weeks from the date of detention of the person concerned; xxx xxx xxx (e) a person against whom an order of detention has been made under this Act shall not be entitled to appear by any legal pr....
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....re make it clear that if the detaining authority or the government takes the aid of a legal practitioner or a legal adviser before the Advisory Board, the detenu must be allowed the facility of appearing before the Board through a legal practitioner. We are informed that officers of the government in the concerned departments often appear before the Board and assist it with a view to justifying the detention orders. If that be so, we must clarify that the Boards should not permit the authorities to do indirectly what they cannot do directly; and no one should be enabled to take shelter behind the excuse that such officers are not "legal practitioners" or legal advisers. Regard must be had to the substance and not the form since, especially, in matters like the proceedings of Advisory Boards, whosoever assists or advises on facts or law must be deemed to be in the position of a legal adviser. We do hope that Advisory Boards will take care to ensure that the provisions of Article 14 are not violated in any manner in the proceedings before them. Serving or retired Judges of the High Court will have no difficulty in understanding this position. Those who are merely "qualified to be app....
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....to examining the legality of detention. This Court has consistently shown great anxiety for personal liberty and refused to throw out a petition merely on the ground that it does not disclose a prima facie case invalidating the order of detention. Whenever a petition for a writ of habeas corpus has come up before this Court, it has almost invariably issued a rule calling upon the detaining authority to justify the detention. This Court has on many occasions pointed out that when a rule is issued, it is incumbent on the detaining authority to satisfy the court that the detention of the petitioner is legal and in conformity with the mandatory provisions of the law authorising such detention: vide Niranjan Singh v. State of Madhya Pradesh [(1972) 2 SCC 542 : 1972 SCC (Cri) 880 : AIR 1972 SC 2215] ; Shaikh Hanif, Gudma Majhi & Kamal Saha v. State of West Bengal [(1974) 3 SCR 258; (1974) 1 SCC 637 : 1974 SCC (Cri) 292] and Dulal Roy v. District Magistrate, Burdwan [(1975) 1 SCC 837 : 1975 SCC (Cri) 329 : (1975) 3 SCR 186]. It has also been insisted by this Court that, in answer to this rule, the detaining authority must place all the relevant facts before the court which would show that....
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.... 27. Reliance has also been placed by the learned Senior Counsel on the judgment passed by the Division Bench of the High Court of Delhi in Smitha Gireesh vs Union of India & Ors, 2016 SCC OnLine Del 3697, wherein, the following views have been expressed: "58. It is a settled law when clause (5) of Article 22 and sub-section 3 of Section 3 of COFEPOSA Act provide that the grounds of detention should be communicated to the detenue within five or fifteen days, as the case may be, what is meant is that the grounds of detention in their entirety must be furnished to the detenue. If there are any documents, statements or other material relied upon in the grounds of detention, they must also be communicated to the detenue, because being incorporated in the grounds of detention, as they form part of the grounds and the grounds furnished to the detenue cannot be said to be complete without them. It would not therefore be sufficient to communicate to the detenue a bare recital of the grounds of detention, but copies of the documents, statements and other materials relied upon in the grounds of detention must also be furnished to the detenue within the prescribed time. The stand o....
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....ording the statement of the detenu therein, under Section 108 of the Customs Act. Secondly, display of the contents of the CDs was made to a co-accused, while it was denied to the detenu in the said case. 29. However, in the case at hand, the contents in the pen drive were displayed after the passing of the Detention Order and before making the representation before the respondent authorities. As stated above, the detenus did not renew their request for further display of the 90-minutes video footage pertaining to the interception incident at the Kempegowda International Airport, Bengaluru. Thus, the said decision of the High Court of Delhi also does not apply to the present case. FACTUAL ANALYSIS 30. Though submissions have been made that the representations of the detenu - Smt. Harshavardhini Ranya were disposed of by the incorrect authority, that too, representing two different statutory authorities, the said submission also falls to the ground, as the signatory of the two memoranda rejecting the representations, merely communicated the decisions made by each concerned authority, namely, the Detaining Authority and the Government of India. In other words, it was not the....