2015 (6) TMI 815 - HC - Customs

Challenge of detention order - Charges of carrying Fake Indian Currency Notes (FICN) - Prohibition under the Customs Act - Confiscation under Section 111 of the Customs Act - Unexplained delay in passing of detention order - Held that - Firstly, we find merit in the submission of learned counsel for the petitioner that there was unexplained delay in passing of the detention order. The alleged seizure of FICN from the possession and custody of the petitioner took place on 20.05.2012. The apprehension of the respondent that the currency seized was counterfeit stood confirmed on 05.07.2012. A perusal of the GoD shows that investigation was completed on or before 21.08.2012 and the chargesheet was filed by the CBI. There is also merit in the petitioner s submission that there was no justification for passing the detention order on 12.12.2012 since the petitioner was already in custody in the CBI case; his two bail applications - one filed before the filing of the chargesheet and one thereafter, had been rejected and; no fresh bail application had been moved by the petitioner before the learned ACMM. Since the petitioner was already in JC, the respondent could not have arrived at its subjective satisfaction when the petitioner was likely to be released on bail, or that there was a possibility of the petitioner absconding and interfering in the investigation being conducted into the activities of the other members of the smuggling syndicate. The bail applications moved by the petitioner had been rejected by the Courts, and there was no material whatsoever to apprehend that he was likely to move a bail application or that there was imminent possibility of the prayer for bail being granted. The imminent possibility of the petitioner coming out on bail is merely the ipse dixit of the detaining authority unsupported by any material whatsoever. There was no cogent material before the detaining authority on the basis of which the detaining authority could be satisfied that the detenue was likely to be released on bail. The inference has to be drawn from the available material on record. In the absence of such material on record the mere ipse dixit of the detaining authority is not sufficient to sustain the order of detention. - Decided in favour of appellant.

Summary

Issues Involved:
1. Delay in passing the detention order.
2. Validity of detention order when the petitioner was already in custody.
3. Justification for the detention order based on the likelihood of the petitioner being released on bail.

Issue-wise Detailed Analysis:

1. Delay in Passing the Detention Order:
The petitioner argued that there was an undue delay of seven months in passing the detention order, which snapped the live link between the alleged prejudicial activities and the purpose of detention. The Court noted that the alleged seizure of Fake Indian Currency Notes (FICN) occurred on 20.05.2012, and the counterfeit nature of the notes was confirmed on 05.07.2012. The investigation was completed by 21.08.2012, and the chargesheet was filed. However, the detention order was passed only on 12.12.2012. The Court found that the delay was unexplained and unjustified, as no new material was gathered against the petitioner after the chargesheet was filed. The Court cited the Supreme Court's decision in T.D. Abdul Rahman v. State of Kerala, emphasizing that undue and unexplained delay in passing a detention order casts doubt on the genuineness of the detaining authority's satisfaction.

2. Validity of Detention Order When the Petitioner Was Already in Custody:
The petitioner was in custody when the detention order was passed, having been denied bail twice. The Court observed that the detaining authority must have cogent reasons to believe that the petitioner was likely to be released on bail, which was not the case here as no fresh bail application was pending. The Court referenced the Supreme Court's decisions in Binod Singh v. District Magistrate, Dhanbad, and Kamarunnissa v. Union of India, which held that preventive detention should not be exercised if the person is already in custody and there is no imminent possibility of release.

3. Justification for the Detention Order Based on the Likelihood of the Petitioner Being Released on Bail:
The detaining authority's apprehension that the petitioner might be released on bail was not supported by any material evidence. The Court noted that the petitioner's previous bail applications had been rejected, and no new application was pending. The Court cited the Supreme Court's decision in Rajesh Gulati v. GNCT of Delhi, which stated that the detaining authority must have reliable material to believe that there is a real possibility of the detainee being released on bail. The Court found that the detaining authority's belief was merely an ipse dixit, unsupported by any concrete evidence.

Conclusion:
The Court quashed the detention order dated 12.12.2012 and the confirming order dated 05.03.2013, finding that the detention order suffered from unexplained delay and lacked cogent reasons for its issuance when the petitioner was already in custody. The Court emphasized that preventive detention should be exercised with great circumspection and only in exceptional cases, ensuring that the detaining authority's satisfaction is genuine and based on reliable material.