reportable judgment dimple happy dhakad (1)
Signature Not Verified
Digi tally signed by MAHABIR SINGH Date: 2019. 07.18 15:12:56 IST
Reason:
REPORTABLE
IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1064 2019
(Arising out of SLP(Crl.) No.5459 of 2019)
- UNION OF INDIA
- JOINT SECRETARY (COFEPOSA),
GOVT. OF INDIA, MINISTRY OF FINANCE …Appellants
VERSUS
DIMPLE HAPPY DHAKAD …Respondent
WITH
CRIMINAL APPEAL NO. 1066 2019 (Arising out of SLP(Crl.) No.5408 of 2019)
CRIMINAL APPEAL NO. 1067 2019 (Arising out of SLP(Crl.) No.5460 of 2019)
CRIMINAL APPEAL NO. 1065 2019
(Arising out of SLP(Crl.) No.5396 of 2019)
JUDGM E NT
R. BANUMATHI, J.
Leave granted.
2. These appeals arise out of the judgment dated
25.06.2019 passed by the High Court of Judicature at Bombay
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in W.P. (Crl.) Nos.2843 and 2844 of 2019 in and by which the
High Court has quashed the detention orders dated 17.05.2019
passed against the detenues. The appellants-Union of India in
appeals arising out of SLP(Crl.) Nos.5459 and 5460 of 2019
have challenged the impugned judgment quashing the
detention orders. While quashing the detention orders, the High
Court has stayed the operation of its own order for a period of
one week to enable the appellants to approach the Supreme
Court. Being aggrieved by the stay, the detenues-respondents
have preferred appeals arising out of SLP(Crl.) Nos.5396 and
5408 of 2019 before this Court. All the appeals shall stand disposed of by this common judgment.
3. The facts giving rise to these appeals are that pursuant to
an investigation by the office of Directorate of Revenue
Intelligence in the matter of smuggling of foreign origin gold by
a syndicate of persons from UAE to India. On 28.03.2019
search and interception of two vehicles i.e. a Honda Activa
Scooter and a Honda City car was held. It was noticed that
there were two persons Abdul Ahad Zarodarwala and Shaikh
Abdul Ahad, employee of Zarodarwala. Search of the vehicles
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resulted in recovery of 75 kgs of gold in the form of five circular
discs valued at Rs.24.5 crores. Follow-up searches were
conducted in the offices and residential premises of the
connected persons resulted in further recovery of 110 kgs of
gold and currency amounting to Rs.1.81 crores. Shoeb
Zarodarwala, Abdul Ahad Zarodarwala and Shaikh Abdul Ahad
were summoned and their statements were recorded and they
are alleged to have made statement regarding receiving of
smuggled gold from respondent detenu-Nisar Pallathukadavil Aliyar.
4. Facts in SLP (Crl.) No. 5408 of 2018: Case of the
appellants is that the respondent-detenu Nisar Pallathukadavil
Aliyar is a full-time organised smuggler of large quantities of
gold and is the mastermind of the smuggling syndicate and has
been smuggling gold into India since 2016. It is stated that two
companies, viz. M/s. Al Ramz Metal Scrap Trading and M/s.
Blue Sea Metal FZE were floated and registered by the
appellant in the name of one Kalpesh Nanda for exporting
metal scrap to India which is alleged to cover cargo to smuggle
gold. It is alleged that detenue Nisar Aliyar ensured that the
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sale proceeds of the smuggled gold were siphoned off to Dubai
through hawala. It is alleged that Nisar Aliyar created a wide
network of people to look after the operations at every stage
and was smuggling gold into India since 2016 and is alleged to
have smuggled more than 3300 kgs of gold having
approximate value of Rs.1000 crores and is alleged to be a
mastermind of the smuggling syndicate. Detenu Nisar Aliyar
was arrested on 31.03.2019 for commission of offences
punishable under Section 135 of the Customs Act, 1962 and his statement was recorded.
5. Facts in SLP (Crl.) No. 5396 of 2019: Detenu-Happy
Arvindkumar Dhakad is a Director of Bullion Trading Firm and
is a jeweller. As per the appellants, investigations revealed that
the husband of the detenu Happy Dhakad was directly dealt
with Shoeb Zarodarwala and Jignesh Solanki who are his
relatives by buying gold from Nisar Aliyar. Detenu Happy
Dhakad is alleged to have abetted Nisar Aliyar in his illegal
activities of receiving and concealing smuggled gold and
disposing it off through his jewellery outlets and is said to have
played a vital role. It is alleged that through multiple jewellery
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outlets owned by him and his relatives, detenu-Happy Dhakad
disposed of the foreign origin smuggled gold easily. Follow up
searches were conducted at various offices and residential
premises of persons found connected with smuggling of gold. A
total quantity of 110 kgs of gold was recovered from these
premises. Thirty-one pieces of gold carrying a total weight of
20.4 kgs and 11.5 kgs of foreign marked gold bars totally
valued at Rs.10.21 crores, Rs. 28.53 lakhs cash and
unaccounted cash of Rs.28.53 lakhs and Rs.44.50 lakhs were
seized respectively from the office and residence of detenu
Happy Dhakad and he did not have any documents for his
possession of gold. In his statement recorded on 29.03.2019,
detenu Happy Dhakad is alleged to have accepted that 20.4
kgs of gold recovered from his premises was from the
smuggled gold supplied to him by appellant Nisar Aliyar and the
other 11.5 kgs of foreign marked gold was procured from other
sources. Detenu Happy Dhakad was arrested on 29.03.2019
for the offence punishable under Section 135 of the Customs Act, 1962 and was remanded to judicial custody.
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6. The Detaining Authority-Joint Secretary (COFEPOSA), on
being satisfied that the detenues have high propensity to
indulge in the prejudicial activities, with a view to prevent them
from smuggling and concealing smuggled gold in future,
passed the orders of detention dated 17.05.2019 under Section
3 of the Conservation of Foreign Exchange & Prevention of
Smuggling Activities Act, 1974 (COFEPOSA). The detention
orders and the grounds of detention were served on the
detenues on 18.05.2019. The copies of the relied upon
documents were served on the detenues on 21.05.2019 and 22.05.2019.
7. The detention orders dated 17.05.2019 was assailed by
the detenues by filing writ petitions before the High Court. The
High Court vide interim order dated 04.06.2019 directed the
appellant to consider the writ petitions as a representation of
the detenues. Accordingly, the representation was considered
and the same was rejected by the Joint Secretary
(COFEPOSA) who did not find any justification in modification of the detention orders.
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8. By the impugned order dated 25.06.2019, the High Court
quashed the detention orders by holding that there was no
application of mind by the Detaining Authority in passing the
detention orders. The High Court held that as per the principles
laid down in Kamarunnisa v. Union of India (1991) 1 SCC 128 ,
there was no application of mind indicating the satisfaction of
the detaining authority that there was imminent possibility of
detenues being released on bail. The High Court also held that
though the detention orders and grounds of detention were
served on the detenues on 18.05.2019, the detenues were not
served with the copies of relied upon documents and material
particulars along with the orders of detention and grounds of
detention and there was violation of Article 22(5) of the
Constitution of India and violation of Guideline No.21 of “Hand
Book on Compilation of Instructions on COFEPOSA matters ”.
The High Court did not accept the contention of the Department
that the preparation of copies of documents and bulk of records
did not enable the respondents to serve the relied upon
documents simultaneously with the orders of detention upon
the respondents. Holding that the preventive detention was in
7
violation of Articles 21 and 22(5) of the Constitution of India and
the Guidelines, the High Court quashed the detention orders
dated 17.05.2019. As pointed out earlier, the High Court,
however, stayed the operation of its own judgment for a period of one week which we have extended.
9. Mr. K.M. Natraj, learned Additional Solicitor-General
appearing for the appellant-Union of India has submitted that
the orders of detention and the grounds were served on the
detenues on 18.05.2019 and since the documents were
voluminous containing 2364 pages, the copies of which were
served on the detenues on 21.05.2019 and 22.05.2019
respectively is well within the time period stipulated in Section
3(3) of the COFEPOSA Act. While so, it was submitted that the
High Court was not right in quashing the detention orders on
the ground that the relied upon documents were not served
upon the detenues together with the detention orders and that
there was violation of Guideline No. 21 (Part A of Do’s) and
Guideline No. 9 (Part B of Don’ts) which is only a guideline to
the officers. The learned Additional Solicitor-General further
submitted that “Hand Book on compilation of instructions on
8
COFEPOSA matters from July 2001 to February, 2007” is only
in the nature of guidelines for the officers of the department in
dealing with COFEPOSA matters and the said guidelines itself
direct that care to be taken in communication/service of the
detention orders, grounds of detention and relied upon
documents and the statutory period of service laid down in the
COFEPOSA Act. The learned Additional Solicitor-General
further submitted that based on the materials placed before the
detaining authority, the detaining authority satisfied itself as to
the likelihood of the detenues being released on bail and while
so, the High Court erred in quashing the detention orders on
the ground that in the detention orders “ there was no finding
that there was real possibility of their being released on bail by
the Court”. The learned Additional Solicitor General urged that
the present case involves huge volume of gold systematically
smuggled into the country in the last three years and more than
3300 kgs of gold has been brought during the period from July
2018 to March 2019 and the detaining authority after
considering that the detenues have propensity to indulge in the
offence passed the detention orders and such subjective
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satisfaction of the detaining authority cannot be lightly interfered with by the Court.
10. Mr. Mukul Rohatgi, learned senior counsel appearing for
the detenues relied upon number of judgments and contended
that the grounds of detention and relied upon documents are to
be served on the detenues pari passu and in the instant case,
serving of the relied upon documents and grounds of detention
piecemeal deprives the detenues from making effective
representation. Taking us through the grounds of detention, the
learned senior counsel submitted that the detaining authority
has recorded its awareness only as to the custody of the
detenues and the dismissal of the bail application and the
satisfaction of the detaining authority as to the likelihood of the
detenues being released on bail is significantly absent and the
absence of such satisfaction vitiates the detention orders.
Reliance was placed upon Kamarunnisa and other judgments.
The learned senior counsel further submitted that it was not
possible for the detaining authority to pass all fifteen detention
orders in one day after perusal of 2364 pages of documents
describing role of each individual which clearly shows non-
10
application of mind by the detaining authority. Placing reliance
upon Rekha v. State of Tamil Nadu through Secretary to
Government and Another (2011) 5 SCC 244 , it was submitted
that in cases of preventive detention orders, procedural
requirements are the safeguards and non-compliance of the
procedural requirements vitiates the detention orders. It was
submitted that upon consideration, the High Court has rightly
quashed the detention orders that the detention order is an
infraction of Article 22(5) of the Constitution of India and non-
compliance of the Guidelines of “Hand Book on compilation of
instructions on COFEPOSA matters” and the impugned order warrants no interference.
11. We have carefully considered the rival submissions and
perused the impugned order and other materials on record.
We have also carefully gone through the various judgments
relied upon by both sides. The following points arise for consideration in these appeals:-
(i) Whether the orders of detention were vitiated on the ground that relied upon documents were not served along with the orders of detention and grounds of detention? Whether there was sufficient compliance
11
of the provisions of Article 22(5) of the Constitution of India and Section 3(3) of the COFEPOSA Act?
(ii) Whether the High Court was right in quashing the detention orders merely on the ground that the detaining authority has not expressly satisfied itself about the imminent possibility of the detenues being released on bail?
12. The present case relates to alleged smuggling of huge
volume of gold of more than 3300 kgs of gold camouflaging it
with brass metal scrap. Detenue Nisar Aliyar is stated to be the
mastermind and kingpin of the syndicate who along with others
smuggled gold from UAE to India. Detenu Happy Dhakad
abetted smuggling by receiving smuggled gold from Nisar
Aliyar and his group and disposing them off through jewellery
outlets run by him and his relatives. The respondents were
arrested for the offence punishable under Section 135 of the
Customs Act on 29.03.2019 and their statements were
recorded under Section 108 of the Customs Act. The orders of
detention were issued on 17.05.2019. The detention orders
along with grounds of detention were served on the detenues
on 18.05.2019. Since the documents were running into 2364
12
pages and there were fifteen detention orders passed against
various detenues, the compilation of documents was served on
detenues on 21.05.2019 and 22.05.2019 respectively. Section
3(3) of COFEPOSA Act states that “the detenue should be
communicated with the order of detention and the grounds as
soon as may be after detaining him but ordinarily not later than
five days……” According to the appellants, in the present case,
the orders of detention and the grounds were served on the
detenues on 18.05.2019. However, since the documents were
voluminous running about 2364 pages, the same was served
on the detenues on 21.05.2019 and 22.05.2019 respectively
which, of course, was within the time period stipulated under Section 3(3) of the Act.
13. In the detention orders dated 17.05.2019, though it was
expressly mentioned that the documents mentioned in the list
relied upon by the detaining authority are served upon the
detenues along with the detention orders, the relied upon
documents were served upon the detenues between
20.05.2019 and 22.05.2019. The High Court quashed the
detention orders dated 17.05.2019 on the ground that on
13
18.05.2019, the detention orders and the grounds of detention
were served on the detenues; but the relied upon documents
and other material particulars were not served upon the
detenues together with the grounds of detention. After
extracting the relevant portion of the detention orders, the High
Court held that though it was stated that the relied upon
documents were served upon the detenues along with the
detention orders, actually they were not served on the
detenues together with the detention orders and the grounds of
detention and while so, the appellants cannot have recourse to
Section 3(3) of the COFEPOSA Act, 1974. The relevant portion
of the detention orders where the detaining authority has stated
that the relied upon documents are being served upon the
detenues along with the grounds of detention reads as under:-
“9. While passing the Detention Order under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, I have relied upon the documents mentioned in the enclosed list, which are also being served to you along with the Grounds of Detention.
10. You i.e. Shri Happy Arvindkumar Dhakad have the right to represent against your detention to the Detaining Authority, to the Central Government as well as to the Advisory Board. If you wish to avail this right, you should send your representation
14
through the Jail Authorities where you are detained, in the manner indicated below…” [ underlining added]
14. Guideline No.21 of Do’s of “Do’s and Don’ts in handling
COFEPOSA matters”, stipulates that the grounds of detention
and relied upon documents must be invariably served together
on the detenu (including the copies translated into the language
known to and understood by the detenu, wherever necessary)
and these should be served as quickly as possible but within
the statutory time limit of five days from the date of his
detention. In Part-B dealing with Don’ts of “ Do’s and Don’ts in
handling COFEPOSA matters”, Guideline No.9 lays down that
the grounds of detention and relied upon documents should not
be given on different dates. For quashing it on the ground of
non-serving of the grounds of detention and relied upon
documents along with the detention orders, the High Court held
that there was violation of Guideline No.21 in Part-A dealing
with Do’s of “Do’s and Don’ts in handling COFEPOSA matters”,
and Guideline No.9 in Part-B dealing with the Don’ts of “ Do’s
and Don’ts in handling COFEPOSA matters”. Guideline No.21
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and Guideline No.9 dealing with “Do’s and Don’ts in handling COFEPOSA matters”, read as under:-
“Do’s and Don’ts in handling COFEPOSA matters
A. Do’s
………
21. The Grounds of detention and the relied upon documents
be invariably served together to the detenu (including the copies translated into the language known to and understood
by the detenu, wherever necessary) and these should be served as quickly as possible but within the statutory time limit of five days from the date of his detention.
B. Don’ts
……
9. Grounds of detention and relied upon documents should not be given on different dates.”
15. Contention of the learned senior counsel for the
respondents is that though the detention orders served upon
the detenues states that the relied upon documents mentioned
in the list are also being served upon the detenues along with
the grounds of detention, the relied upon documents were not
actually served upon the detenues and such non-application of
mind of the detaining authority vitiates the detention orders
apart from depriving the detenu from making effective
representation. The learned senior counsel further submitted
16
that there is clear breach of the guidelines containing Do’s and
Don’ts and the respondents were deprived of his right of
personal liberty without following the procedure established by
law. The learned senior counsel submitted that the High Court
relied upon its own judgments of co-ordinate Benches in
Criminal Writ Petition Nos.2/1996, 4/1996, 824/1995 and
690/1996 and rightly held that the relied upon documents were
not served together with the orders of detention and grounds of
detention on 18.05.2019 and hence, there is no question of the
appellants taking recourse to Section 3(3) of the COFEPOSA Act.
16. In support of his contention that the detention orders are
liable to be quashed on the ground that the documents and
materials forming basis of the detention orders had not been
supplied, the learned senior counsel for the respondents placed
reliance upon Virendra Singh v. State of Maharashtra (1981) 4
SCC 562 and Ana Carelina D’souza (Smt.) v. Union of India
and others AIR 1981 SC 1620 and number of other judgments.
It was submitted that the High Court rightly relied upon
Kamleshkumar Ishwardas Patel v. Union of India and others
17
(1995) 4 SCC 51 wherein the Supreme Court had observed
that while discharging the constitutional obligation to enforce
the fundamental rights of the people, more particularly, the right
to personal liberty, the gravity of the allegations cannot
influence the process and that to enforce the fundamental
rights of the people, more particularly, the right to personal
liberty, certain minimum procedural safeguards are required to be “zealously watched and enforced by the court”.
17. In Virendra Singh, the order of detention was passed on
09.10.1980 and the grounds of detention and other documents
and materials were supplied to the detenu on 01.11.1980 when
he was arrested; but without the documents and the materials
which were later served on 05.11.1980. The Supreme Court quashed the detention order and held as under:-
“1. …..Admittedly, the order of detention was passed on October
9, 1980 and the grounds were supplied to the detenu on November 1, 1980 when he was arrested but without the documents and materials which were supplied on November 5, 1980. The detenu made a representation on November 13, 1980 which was disposed of on December 13, 1980. In this case as the documents and the materials forming the basis of the order of detention had not been supplied to the detenu along with the order of detention when the same was served on him, the order
18
is rendered void as held by this Court in Icchu Devi Choraria v. Union of India (1980) 4 SCC 531 and in Shalini Soni v. Union of India (1980) 4 SCC 544. Moreover, the order of detention suffers from another infirmity, namely, that the representation made by the detenu was disposed of by the detaining authority more than a month after the representation was sent to it. No reasonable explanation for this delay has been given which violates the constitutional safeguards enshrined under Article 22(5) and makes the continued detention of the detenu void. For these reasons, therefore, we allow this petition and direct the detenu to be released forthwith.”
By a reading of the above that as there was a long gap
between the order of detention and the arrest and also
inordinate delay in considering and disposal of the
representation, the Supreme Court quashed the detention order.
18. In yet another decision relied upon by the learned counsel
for the respondents i.e. Ana Carelina D’souza, facts are not
clear. The detention order was quashed mainly on the ground
of non-supply of the relied upon documents along with the
grounds of detention. It is not known whether the statutory time
limit of five days was complied with or not. It has been held by
the Supreme Court in several cases that mere service of the
grounds of detention is not in compliance of the mandatory
19
provision of Article 22(5) of the Constitution of India unless the
grounds are accompanied with the documents which are
referred to are relied on the grounds of detention. In the
decisions relied upon by the learned senior counsel for the
respondents, the detention order was quashed in the facts and
circumstances of those cases viz. (i) that the relied upon
documents were served beyond the statutory mandate of five
days; and (ii) that there was inordinate delay in disposal of the
representation. The decisions relied upon by the learned
senior counsel for the respondents being in the factual context of respective cases are not applicable to the present case.
19. Section 3(3) of the Conservation of Foreign Exchange &
Prevention of Smuggling Activities Act, 1974 (COFEPOSA)
states that the detenu should be communicated with the order
of detention and the grounds ‘ as soon as may be ’ after
detaining him ‘but ordinarily not later than five days and in
exceptional cases and for reasons to be recorded in writing not
later than fifteen days from the date of detention. Sub-section
(3) of Section 3 of the COFEPOSA Act, 1974 reads as under:- “3. Power to make orders detaining certain persons.
……
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(3) For the purposes of clause (5) of Article 22 of the Constitution, the communication to a person detained in pursuance of a detention order of the grounds on which the order has been made shall be made as soon as may be after the detention, but ordinarily not later than five days, and in exceptional circumstances and for reasons to be recorded in writing, not later than fifteen days, from the date of detention .” [underlining added]
Section 3(3) of the COFEPOSA Act stipulates the statutory
period of five days to serve the grounds of detention and in
exceptional circumstances and for reasons to be recorded not
later than fifteen days from the date of detention. Section 3(3)
of the COFEPOSA Act thus allows a leeway of five days at
least for the grounds of detention and the documents relied
upon in the grounds to be served on the detenues. By the term
“as soon as may be…..” , the statute considers five days as a
reasonable time in normal circumstances to convey the
grounds of detention to the detenues. There is no statutory
obligation on the part of the detaining authority to serve the
relied upon documents on the very same day of the service of
the order of detention. In view of the time stipulated in Section
3(3) of COFEPOSA Act and the language used in Article 22(5)
21
of the Constitution of India “….earliest opportunity……”, non-
serving of copies of documents together with detention order cannot be a ground to quash the detention order.
20. In the case of Sophia Gulam Mohd. Bham v. State of
Maharashtra and Others (1999) 6 SCC 593 , the Supreme
Court has held that “the use of the words “as soon as may
be…..” indicate a positive action on the part of the detaining
authority in supplying the grounds of detention and that there
should not be any delay in supplying the grounds on which the
order of detention was based”. Likewise, it was held that “the
use of the terms “….earliest opportunity….” in Article 22(5) also
carry the same philosophy that there should not be any delay in
affording adequate opportunity to the detenu of making a
representation against the order of detention”. In Icchu Devi
Choraria v. Union of India and Others (1980) 4 SCC 531, the
Supreme Court held that “clause (5) of Article 22 and sub-
section (3) of Section 3 of the COFEPOSA Act provide that the
grounds of detention should be communicated to the detenu
within five or fifteen days, as the case may be”. The expression
“as soon as may be ” cannot be read in isolation from the
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phrase “but ordinarily not later than five days ”. [Vide Jasbir
Singh v. Lt. Governor, Delhi and another (1999) 4 SCC 228 ].
On a proper construction of clause (5) of Article 22 read with
Section 3(3) of the COFEPOSA Act, 1974, it is necessary that
documents and other materials relied upon in the grounds of
detention should be furnished to the detenu along with grounds
of detention or in any event not later than five days and in
exceptional circumstances and for reasons to be recorded in
writing not later than fifteen days from the date of detention.
21. In the present case, the detention orders and the grounds
of detention were served upon the detenues on 18.05.2019.
The relied upon documents were served upon them between
20.05.2019 and 22.05.2019 i.e. within five days from the date
of serving of detention orders i.e. 18.05.2019. As pointed out
earlier, Section 3(3) of COFEPOSA Act provides for the
statutory period of five days to serve the grounds of detention
and the relied upon documents. It was pointed out that the
relied upon documents were running into 2364 pages and
fifteen detention orders were passed against various detenues
and therefore, the compilation of the documents was served on
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the detenues on 21.05.2019. As rightly contended by the
learned Additional Solicitor-General, the preparation of copies
of voluminous documents was a time-consuming process and it
took time to serve the compilation of documents upon the
detenues and therefore, the orders would not be illegal.
Section 3(3) of COFEPOSA Act mandates to furnish the
documents within five days. Admittedly, the copies have been
furnished within the said period. The statutory requirement therefore has been complied with.
22. There is no statutory obligation on the part of the
detaining authority to serve the grounds of detention and relied
upon documents on the very same day; more so, when there is
nothing to show that the detaining authority was guilty of
inaction or negligence. The principle laid down by the Supreme
Court in Mehdi Mohamed Joudi v. State of Maharashtra and
others (1981) 2 SCC 358 that non-supply of documents and
material pari passu would vitiate the detention order must be
understood in the context of Section 3(3) of the COFEPOSA
Act. Serving of detention order, grounds of detention and
supply of documents must be contemporaneous as mandated
24
within the time limit of five days stipulated under Section 3(3) of
the COFEPOSA Act and Article 22(5) of the Constitution of India.
23. In Jasbir Singh v. Lt. Governor, Delhi and another (1999)
4 SCC 228, it was held that for computing the period of five
days, the date on which the detention order was served has to
be excluded. In the case in hand, therefore for computing the
period of five days, the date 18.05.2019 has to be excluded.
The grounds of detention and the relied upon documents have
been served upon the detenues from 20.05.2019 to 22.05.2019
which is well within the statutory period of five days and there is
no infraction of sub-section (3) of Section 3 of the COFEPOSA Act.
24. In the present case, the grounds of detention and relied
upon documents were served upon the detenues within five
days from 18.05.2019 – the date of detention orders i.e. on
21.05.2019 and 22.05.2019. The term pari passu has to be
read with the statutory provision of Section 3(3) of the
COFEPOSA Act which would mean that the grounds of
detention and relied upon documents are served within five
25
days and for reasons to be recorded within fifteen days with
explanation. Only when such rule is vitiated, it can be said that
they were not furnished together. The High Court erred in
quashing the detention orders on the ground that the
documents and the material were not supplied pari passu the detention orders.
25. The “Hand Book on Compilation of Instructions on
COFEPOSA matters” from July 2001 to February 2007 –
contain instructions of do’s and don’ts to be followed relating to
COFEPOSA matters. Referring to Guideline No.21 (Part A of
Don’s and Don’ts in handling COFEPOSA matters) and
Guideline No.9 (Part B of Don’s and Don’ts in handling
COFEPOSA matters), the High Court held that there is violation of the guidelines which would vitiate the detention orders.
26. The “Hand Book on Compilation of Instructions on
COFEPOSA matters” is only in the nature of guidelines for the
officers of the department in dealing with COFEPOSA matters.
The said guidelines direct that “care to be taken in
communication/service of detention order” and the grounds of
detention and relied upon documents should be served as
26
quickly as possible but within the statutory time limit of five
days from the date of detention order. The said guidelines were
fully complied with. Also, it is well-settled principle that any
executive instruction like the guidelines cannot curtail the
provisions of any statute or whittled down any provision of law.
27. The High Court quashed the detention orders on yet
another ground that the detaining authority has to record
grounds of detention indicating the reasons with the satisfaction
that there is imminent possibility of detenue’s release from the
custody and after release, such person is likely to continue to
indulge in the prejudicial activities and the detention orders
nowhere expressly mention the satisfaction of the detaining
authority as to the imminent possibility of the detenue’s release
on bail and continue to indulge in the prejudicial activities. The
High Court held that the tests laid down in Kamrunnissa are not
satisfied. The High Court held that mere role played by detenu
Nisar Aliyar in smuggling gold or role of another detenu Dimple
Happy Dhakad in aiding and abetting Nisar Aliyar in the illegal
activities of smuggling do not dispose with the necessity of
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recording satisfaction that there is no imminent possibility of the detenues being released on bail.
28. Drawing our attention to the grounds of detention, the
learned senior counsel for the respondents has submitted that
the detaining authority has recorded its awareness as to the
custody of the detenues and the dismissal of their bail
applications. It was submitted that the satisfaction of the
detaining authority as to the imminent possibility of the
detenues being released on bail is significantly absent which
vitiates the detention orders. Placing reliance upon
Kamrunnissa, it was submitted that when the detention orders
do not record the satisfaction of the detaining authority as to
the possibility of detenues being released on bail and if so
released, there is likelihood of their indulging in prejudicial
activities; and absence of finding as to the possibility of the
detenu being released on bail would vitiate the detention order
and the High Court rightly quashed the detention orders.
Placing reliance upon number of judgments, the learned senior
counsel submitted that the preventive detention order should
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not be passed merely to pre-empt or circumvent the enlargement on bail.
29. The learned Additional Solicitor-General has submitted
that the detaining authority was aware that the detenu was
already in custody up to 20.05.2019 which is clearly recorded in
the grounds of detention. Taking us through the grounds of
detention, the learned Additional Solicitor-General urged that
the detaining authority has succinctly brought out the role of the
detenu in the smuggling syndicate and thereafter recorded the
satisfaction as to detenu’s propensity and likelihood of his
indulging in the smuggling activity and the subjective
satisfaction of the detaining authority based upon the material
particulars cannot be interfered with by the court. In support of
his contention, the learned ASG placed reliance upon Vijay
Kumar v. Union of India and others (1988) 2 SCC 57 and other judgments.
30. It is well settled that the order of detention can be validly
passed against a person in custody and for that purpose, it is
necessary that the grounds of detention must show that the
detaining authority was aware of the fact that the detenu was
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already in custody. The detaining authority must be further
satisfied that the detenu is likely to be released from custody
and the nature of activities of the detenu indicate that if he is
released, he is likely to indulge in such prejudicial activities and
therefore, it is necessary to detain him in order to prevent him from engaging in such activities.
31. After reviewing all the decisions, the law on the point was
enunciated in Kamarunnisa v. Union of India and Another
(1991) 1 SCC 128 where the Supreme Court held as under:-
“13. From the catena of decisions referred to above it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him ( a) that there is a real possibility of his being released on bail, and ( b) that on being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher court. What this Court stated in the case of Ramesh Yadav (1985) 4 SCC 232 was that ordinarily a detention order should not be passed merely to pre-empt or circumvent enlargement on bail in cases which are essentially criminal in
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nature and can be dealt with under the ordinary law. It seems to
us well settled that even in a case where a person is in custody,
if the facts and circumstances of the case so demand, resort can
be had to the law of preventive detention. …….”
32. The same principle was reiterated in Union of India v.
Paul Manickam and Another (2003) 8 SCC 342 where the Supreme Court held as under:-
“14. …….. Where detention orders are passed in relation to persons who are already in jail under some other laws, the detaining authorities should apply their mind and show their awareness in this regard in the grounds of detention, the chances of release of such persons on bail. The necessity of keeping such persons in detention under the preventive detention laws has to be clearly indicated. Subsisting custody of the detenu by itself does not invalidate an order of his preventive detention, and the decision in this regard must depend on the facts of the particular case. Preventive detention being necessary to prevent the detenu from acting in any manner prejudicial to the security of the State or to the maintenance of public order or economic stability etc. ordinarily, it is not needed when the detenu is already in custody. The detaining authority must show its awareness to the fact of subsisting custody of the detenu and take that factor into account while making the order. If the detaining authority is reasonably satisfied with cogent materials that there is likelihood of his release and in view of his antecedent activities which are proximate in point of time, he must be detained in order to prevent him from indulging in such prejudicial activities, the detention order can be validly made. Where the detention order in respect of a person already in
31
custody does not indicate that the detenu was likely to be released on bail, the order would be vitiated. (See N. Meera Rani v. Govt. of T.N. (1989) 4 SCC 418 and Dharmendra Suganchand Chelawat v. Union of India (1990) 1 SCC 746 ) The point was gone into detail in Kamarunnissa v. Union of India (1991) 1 SCC 128. ……” [ underlining added]
33. Whether a person in jail can be detained under the
detention law has been the subject matter for consideration
before this Court time and again. In Huidrom Konungjao Singh
v. State of Manipur and Others (2012) 7 SCC 181 , the Supreme
Court referred to earlier decisions including Dharmendra
Suganchand Chelawat v. Union of India (1990) 1 SCC 746 and
reiterated that if the detaining authority is satisfied that taking
into account the nature of the antecedent activities of the
detenu, it is likely that after his release from custody he would
indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities.
34. In Veeramani v. State of T.N. (1994) 2 SCC 337 in para (6), the Supreme Court held as under:-
“6. From the catena of decisions of this Court it is clear that even
in the case of a person in custody, a detention order can validly
be passed if the authority passing the order is aware of the fact
that he is actually in custody; if he has reason to believe on the
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basis of the reliable material that there is a possibility of his being released on bail and that on being so released, the detenu would
in all probabilities indulge in prejudicial activities and if the authority passes an order after recording his satisfaction the same cannot be struck down.”
35. In the light of the well settled principles, we have to see, in
the present case, whether there was awareness in the mind of
the detaining authority that detenu is in custody and he had
reason to believe that detenu is likely to be released on bail
and if so released, he would continue to indulge in prejudicial
activities. In the present case, the detention orders dated
17.05.2019 record the awareness of the detaining authority:- (i)
that the detenu is in custody; (ii) that the bail application filed by
the detenues have been rejected by the Court. Of course, in
the detention orders, the detaining authority has not specifically
recorded that the “ detenu is likely to be released”. It cannot be
said that the detaining authority has not applied its mind merely
on the ground that in the detention orders, it is not expressly
stated as to the “detenue’s likelihood of being released on bail”
and “if so released, he is likely to indulge in the same
prejudicial activities”. But the detaining authority has clearly
33
recorded the antecedent of the detenues and its satisfaction
that detenues Happy Dhakad and Nisar Aliyar have the high propensity to commit such offences in future.
36. The satisfaction of the detaining authority that the detenu
is already in custody and he is likely to be released on bail and
on being released, he is likely to indulge in the same prejudicial
activities is the subjective satisfaction of the detaining authority.
In Senthamilselvi v. State of T.N. and Another (2006) 5 SCC
676, the Supreme Court held that the satisfaction of the
authority coming to the conclusion that there is likelihood of the
detenu being released on bail is the “subjective satisfaction”
based on the materials and normally the subjective satisfaction is not to be interfered with.
37. The satisfaction of the detaining authority that the detenu
may be released on bail cannot be ipse dixit of the detaining
authority. On the facts and circumstances of the present case,
the subjective satisfaction of the detaining authority that the
detenu is likely to be released on bail is based on the materials.
A reading of the grounds of detention clearly indicates that
detenu Nisar Aliyar has been indulging in smuggling gold and
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operating syndicate in coordination with others and habitually
committing the same unmindful of the revenue loss and the
impact on the economy of the nation. Likewise, the detention
order qua detenu Happy Dhakad refers to the role played by
him in receiving the gold and disposing of the foreign origin
smuggled gold through his multiple jewellery outlets and his
relatives. The High Court, in our view, erred in quashing the
detention orders merely on the ground that the detaining
authority has not expressly recorded the finding that there was
real possibility of the detenues being released on bail which is
in violation of the principles laid down in Kamarunnisa and
other judgments and Guidelines No.24. The order of the High
Court quashing the detention orders on those grounds cannot be sustained.
38. Guideline No.24 of (Part A of Do’s) stipulates that when
the detenu was in judicial custody, the detaining authority has
to record in the grounds of detention its awareness thereof and
then indicate the reasons for the satisfaction that there is
imminent possibility of his release from the custody and after
release such person is likely to continue to indulge in the same
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prejudicial activities. As discussed earlier, the detention order
shows the application of mind of the detaining authority based
on the materials available on record, facts and circumstances
of the case, nature of activities and the propensity of the detenues indulging in such activities.
39. After we have reserved the matter for judgment, the
learned senior counsel for the respondent-detenu has drawn
our attention to the detention order No.PD-12001/34/2019-
COFEPOSA dated 01.07.2019 passed against one Ashok
Kumar Jalan (Kolkata) under the COFEPOSA Act and
submitted that in the said detention order, the detaining
authority – Joint Secretary (COFEPOSA) has recorded the
satisfaction as to the likelihood of the detenu being released on
bail and in the present case, non-recording of such satisfaction
clearly indicates non-application of mind. The said detention
order dated 01.07.2019 has no relevance to the present case.
It does not strengthen the contention of the respondent as to
the non-application of mind of detaining authority, which
contention we have rejected for the reasons recorded supra.
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40. The learned senior counsel for detenues submitted that
personal liberty and compliance of procedural safeguards are
the prime consideration and since the procedural requirements
are not complied with violating the personal liberty of the
detenues, the High Court rightly quashed the detention orders
and the same cannot be interfered with. As discussed earlier, in
the case in hand, the procedural safeguards are complied with.
Insofar as the contention that the courts should lean in favour of
upholding the personal liberty, we are conscious that the
Constitution and the Supreme Court are very zealous of
upholding the personal liberty of an individual. But the liberty of
an individual has to be subordinated within reasonable bounds
to the good of the people. Order of detention is clearly a
preventive measure and devised to afford protection to the
society. When the preventive detention is aimed to protect the
safety and security of the nation, balance has to be struck
between liberty of an individual and the needs of the society.
41. Observing that the object of preventive detention is not to
punish a man for having done something but to intercept and to
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prevent him from doing so, in Naresh Kumar Goyal v. Union of India and others (2005) 8 SCC 276, it was held 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………”.
42. Considering the scope of preventive detention and
observing that it is aimed to protect the safety and interest of
the society, in State of Maharashtra and others v. Bhaurao
Punjabrao Gawande (2008) 3 SCC 613 , it was held as under:-
“36. Liberty of an individual has to be subordinated, within reasonable bounds, to the good of the people. The framers of the Constitution were conscious of the practical need of preventive detention with a view to striking a just and delicate balance between need and necessity to preserve individual liberty and personal freedom on the one hand and security and safety of the country and interest of the society on the other hand. Security of State, maintenance of public order and
38
services essential to the community, prevention of smuggling and blackmarketing activities, etc. demand effective safeguards in the larger interests of sustenance of a peaceful democratic way of life.
37. In considering and interpreting preventive detention laws, courts ought to show greatest concern and solitude in upholding and safeguarding the fundamental right of liberty of the citizen, however, without forgetting the historical background in which the necessity—an unhappy necessity—was felt by the makers of the Constitution in incorporating provisions of preventive detention in the Constitution itself. While no doubt it is the duty of the court to safeguard against any encroachment on the life and liberty of individuals, at the same time the authorities who have the responsibility to discharge the functions vested in them under the law of the country should not be impeded or interfered with without justification (vide A.K. Roy v. Union of India (1982) 1 SCC 271, Bhut Nath Mete v. State of W.B. (1974) 1 SCC 645, State of W.B. v. Ashok Dey (1972) 1 SCC 199 and ADM v. Shivakant Shukla (1976) 2 SCC 521).” [underlining added].
43. The court must be conscious that the satisfaction of the
detaining authority is “subjective” in nature and the court cannot
substitute its opinion for the subjective satisfaction of the
detaining authority and interfere with the order of detention. It
does not mean that the subjective satisfaction of the detaining
authority is immune from judicial reviewability. By various
decisions, the Supreme Court has carved out areas within
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which the validity of subjective satisfaction can be tested. In the
present case, huge volume of gold had been smuggled into the
country unabatedly for the last three years and about 3396 kgs
of the gold has been brought into India during the period from
July 2018 to March, 2019 camouflaging it with brass metal
scrap. The detaining authority recorded finding that this has
serious impact on the economy of the nation. Detaining
authority also satisfied that the detenues have propensity to
indulge in the same act of smuggling and passed the order of
preventive detention, which is a preventive measure. Based on
the documents and the materials placed before the detaining
authority and considering the individual role of the detenues,
the detaining authority satisfied itself as to the detenues’
continued propensity and their inclination to indulge in acts of
smuggling in a planned manner to the detriment of the
economic security of the country that there is a need to prevent
the detenues from smuggling goods. The High Court erred in
interfering with the satisfaction of the detaining authority and
the impugned judgment cannot be sustained and is liable to be set aside.
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44. In the result, the impugned judgment of the High Court
dated 25.06.2019 in W.P. (Crl.) Nos.2843 and 2844 of 2019
quashing the detention orders of the detenues viz. Happy
Arvindkumar Dhakad and Nisar Pallathukadavil Aliyar is set
aside and the appeals preferred by Union of India are allowed.
Consequently, the appeals preferred by the detenues shall stand dismissed.
…………………………..J. [R. BANUMATHI]
…………………………..J. [A.S. BOPANNA]
New Delhi;
July 18, 2019
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