2018 (11) TMI 1887 - HC - Customs

Smuggling - actual detention was made after a long lapse of time of about two years - no live-link to detain the detenu as he has not been involved in any case subsequent to the passing of Ext.P1 detention order - contradictions in the detention order - improper communication of the order of detention - violation of the first facet of Article 22(5) of the Constitution of India - HELD THAT - The alleged transaction is not a business contract, which would be executed in accordance with a written agreement as per law, revealing the party's involvement in the smuggling activity. Smuggling of contraband is always done stealthily, without the real operators coming to the fore. They would always use gullible persons in impecunious condition to act as carriers for smuggling of Gold. There is absolutely no doubt that the person, who has been apprehended did not have any business, whatsoever, to fly frequently to UAE. It was only once that he was apprehended and his interrogation led to the involvement of the detenu indulging in abetting of smuggling Gold from UAE to India - The statements of all those witnesses would indicate the involvement of the detenu Faisal P.A. which has resulted in 113 KGs of Gold being smuggled into India not only by the detenu but also his brother Noushad P.A. based in Muvattupuzha, who was actively involved in recruiting persons as carriers of Gold. The said Noushad was involved in arranging the tickets for the carriers trough the aforementioned travel agency and was also proceeded against under COFEPOSA Act. An adjudication under the provisions of the Customs Act, 1962 as well as under the COFEPOSA Act does not require the standard of proof, which is normally required for the conviction of a person who stands on trial before a criminal court for whatever offence he has been charge-sheeted against. Adjudicatory process in a preventive detention is only a fact finding process by which the authorities need to be satisfied subjectively, that the person against whom the adjudication is initiated has been involved in actual smuggling or abetting in the smuggling of contraband. No proof beyond reasonable doubt is essential for the passing of an order of detention - argument of the learned Senior Counsel that the statements recorded by the Investigating Officers would only have the effect of statements recorded under Section 161 of the Code of Criminal Procedure and that an order of detention could not be made relying solely on such statements recorded by the investigating authorities as they are not substantive evidence and could only be used to contradict the witnesses in the course of trial cannot also be countenanced. We cannot discern a snapping of the livelink here, especially since the accused was absconding despite repeated summons. Petition dismissed.

Summary

Issues Involved:
1. Delay in the execution of the detention order.
2. Vagueness and lack of specific grounds in the detention order.
3. Contradictions in the detention order regarding the quantity of gold smuggled.
4. Improper communication of the detention order and violation of Article 22(5) of the Constitution of India.

Detailed Analysis:

1. Delay in the execution of the detention order:
The petitioner argued that the detention order was executed after a significant delay of over two years, which broke the live-link between the order and its purpose. The court noted that the detenu was elusive, and despite appearing at a Sub Registrar’s office, it did not conclusively prove his availability for apprehension. The court emphasized that the authorities had valid reasons for the delay, including the detenu's modus operandi of traveling through Nepal to avoid customs checks. The court cited previous judgments affirming that the live-link theory may not apply in cases involving international smuggling activities, thus rejecting the argument of undue delay.

2. Vagueness and lack of specific grounds in the detention order:
The petitioner contended that the detention grounds were vague and lacked specific evidence. The court reviewed the extensive details in Ext.P2, which included statements from various individuals and evidence linking the detenu to the smuggling network. The court highlighted that the COFEPOSA Act allows for detention based on subjective satisfaction of the authority, which was reasonably derived from the materials presented. The court found that the grounds were sufficiently detailed and specific, dismissing the claim of vagueness.

3. Contradictions in the detention order regarding the quantity of gold smuggled:
The petitioner pointed out inconsistencies in the detention order, which mentioned both 1900 KGs and 113 KGs of gold being smuggled. The court clarified that the larger figure was an estimate based on the network's activities, while the smaller figure referred to specific instances. The court emphasized that preventive detention does not require the same standard of proof as a criminal trial and that the subjective satisfaction of the detaining authority was justified based on the available evidence.

4. Improper communication of the detention order and violation of Article 22(5) of the Constitution of India:
The petitioner argued that the detenu was not given a proper opportunity to make a representation against the detention order, violating Article 22(5). The court noted that the detenu had absconded and was only apprehended later, making it difficult to serve the order promptly. The court found that the authorities had made reasonable efforts to communicate the order, and the delay was due to the detenu’s own actions. The court rejected the argument of improper communication and upheld the detention order.

Conclusion:
The court dismissed the writ petition, finding no merit in the arguments presented by the petitioner. The court upheld the detention order, stating that the authorities had acted within their powers under the COFEPOSA Act and that the detenu’s involvement in the smuggling network justified the preventive detention. The court emphasized the importance of subjective satisfaction in preventive detention cases and found that the live-link between the detenu’s activities and the detention order had not been broken.