TaxTMI 
TaxTMI 
2025 (12) TMI 1829
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....oner and Shri. Kuloor Arvind Kamath, learned Additonal Solicitor General of India along with Shri. Shanthi Bhushan H, learned Deputy Solicitor General of India appearing for respondent No.1 and Shri. Thejesh P, learned High Court Government Pleader appearing for respondent No. 2. 3. The facts of the case are as follows :- Smt. Harshavardini Ranya, 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. Her 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 declaration were seized. Further, voluntary statements of Shri. Tarun Konduru Raju, who was implicated by the detenue and Shri. Sahil Sarkariya Jain, the detenue herein and several others were recorded. Based on these and other materials procured during the course of....
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....ore, the mechanical attribution that the detenue was a part of the Syndicate involved in smuggling of 99.1337 kilograms of gold is completely unsupported by any material. Even if the contentions are accepted, the detenue's role is limited to four transactions involving 49.6 kilograms of gold. Out of 31 alleged trips, the detenue is not connected with 27 trips and the sweeping reference to his involvement in all transaction is based simply on conjuncture and is vitiated by non-application of mind. It is further contended that the last transaction connecting the detenue as alleged by the respondents is on 14.02.2025 and there is no reason to justify the preventive detention of the detenue and there is no live and proximate link to the last incident on 14.02.2025 to justify the detention. 10. It is further submitted that although the detenue's bail was rejected on 15.04.2025, there was no material before the detaining authority to indicate any probable release on bail or otherwise or any real possibility of the detenue indulging in illegal activity if released. It is submitted that when a person is already in custody and no bail application is pending, there is no basis for....
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....ore the Sessions Court and later before this Court were also rejected or pending at the time the impugned detention order was issued. The detenue's own bail application was rejected on 15.04.2025. The detaining authority reasonably inferred that the detenue was likely to challenge the bail rejection before higher Courts and could obtain bail. 15. It is further contended that the detaining authority was aware of this likelihood of the detenue approaching appellate Courts for bail. Hence, the authority recorded the grounds of detention that though the detenue was in judicial custody and his bail application had been rejected; there existed a real possibility of his release and upon such release, a likelihood of him indulging in prejudicial activities relating to smuggling. Therefore, preventive detention under COFEPOSA Act was issued. It is further stated that the detenue did, in fact, challenge the bail rejection order before the Sessions Court, validating the detaining authority's assessment. 16. It is further submitted that a detention order against a person in custody is valid if (i) the authority is aware of the custody, (ii) there is reliable material indicating possi....
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....atements of co-accused on 03.03.2025 only because the gold was seized before it reached him for disposal, not because he was uninvolved. Further, it is contended that the detenue has acknowledged the receipt of the detention order dated 22.04.2025 along with all the relied upon materials has not filed any representation though he was perfectly aware of his chance to do so. 22. The learned ASGI appearing for the respondents places reliance on the following decisions: ● Ashadevi wife of Gopal Ghermal Mehta (Detenu) v K. Shivraj, Addl. Chief Secretary to the Govt. of Gujarat and Another, reported in (1979) 1 SCC 222; and ● Smt. Icchu Devi Choraria v. Union of India and Others, reported in (1980) 4 SCC 531. 23. We have considered the contentions advanced. We notice that the detention order was passed on 22.04.2025. The detention order, along with the grounds of detention was served on the detenue on 23.04.2025. He was specifically informed by the detaining authority of his opportunity to file his representation as follows: "12. Shri Sahil Sakariya Jain i.e., you have the right to represent against your detention to the Detaining Authority, t....
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....ive satisfaction requisite on the part of the detaining authority, the formation of which is a condition precedent to the passing of the detention order will get vitiated if material or vital facts which would have a bearing on the issue and would influence the mind of the detaining authority one way or the other are ignored or not considered by the detaining authority before issuing the detention order. x x x x x . The principle that could be clearly deduced from the above observations is that if material or vital facts which would influence the mind of the detaining authority one way or the other on the question whether or not to make the detention order, are not placed before or are not considered by the detaining authority it would vitiate its subjective satisfaction rendering the detention order illegal. After all the detaining authority must exercise due care and caution and act fairly and justly in exercising the power of detention and if taking into account matters extraneous to the scope and purpose of the statute vitiates the subjective satisfaction and renders the detention order invalid then failure to take into consideration the most material or vital facts likely to i....