2019 (1) TMI 1705 - HC - Customs

Smuggling - foreign currency - baggage rules - COFEPOSA Act - revocation of detention order - HELD THAT - In the instant case, authorities after investigation and on evaluation of the evidences was subjectively satisfied that detenu is engaging himself in smuggling of foreign currency and if he is released on bail, there is every likelihood of his indulgence in prejudicial activities, therefore, it was necessary to detain him in order to prevent him from engaging in such activities. There are no merits in the petition - petition dismissed.

Summary

Issues Involved:

1. Legality of the subsequent detention order dated 13.12.2018.
2. Alleged identical nature of facts in the earlier and subsequent detention orders.
3. Opportunity for the detenu to be heard by the Advisory Board.
4. Seizure of the detenu's passport and its implications on the detention order.

Detailed Analysis:

1. Legality of the Subsequent Detention Order Dated 13.12.2018:

The petitioner challenged the detention order dated 13.12.2018 under Section 3(1) of the COFEPOSA Act, seeking its quashing. The court noted that the detenu was earlier detained under a detention order dated 18.07.2018, which was revoked on 27.09.2018 as the Central Advisory Board found insufficient grounds for detention. However, subsequent investigations revealed the detenu’s involvement in organized smuggling activities, leading to the issuance of a new detention order. The court emphasized that the fresh detention order was based on new evidence and subjective satisfaction of the authorities, thus holding the order valid.

2. Alleged Identical Nature of Facts in the Earlier and Subsequent Detention Orders:

The petitioner argued that the facts of the earlier and subsequent detention orders were identical, rendering the latter unlawful. The court rejected this contention, stating that the subsequent detention order was based on fresh investigations and new evidence, including the detenu’s multiple visits between Delhi and Dubai, video clippings from his mobile, and materials from Orient Exchange Company (LLC). The court clarified that the revocation of the earlier detention order does not bar the issuance of a new order based on fresh evidence.

3. Opportunity for the Detenu to be Heard by the Advisory Board:

The petitioner claimed that his representation was not considered by the Advisory Board, violating his rights under the COFEPOSA Act. The court found this argument unconvincing, noting that the detenu and his counsel were present during the Advisory Board hearing on 28.03.2019. The court concluded that the detenu’s plea of ineffective representation was an afterthought, as no objections were raised during the hearing.

4. Seizure of the Detenu's Passport and Its Implications on the Detention Order:

The petitioner contended that since his passport was seized by the Customs Authority, there was no risk of him engaging in prejudicial activities, making the detention order unnecessary. The court dismissed this argument, referencing the Supreme Court’s guidelines in UOI v. Ankit Ashok Jalan, which allow detention orders even for individuals in custody if the detaining authority believes the individual is likely to be released and continue prejudicial activities. The court upheld the detention order, citing the detenu’s past activities and the likelihood of future smuggling if released.

Conclusion:

The court found no merit in the petitioner’s arguments and dismissed the writ petition, affirming the legality of the detention order dated 13.12.2018. The judgment emphasized the validity of the detention order based on fresh evidence and the detenu’s potential for future smuggling activities.