2017 (6) TMI 35 - HC - Customs

Smuggling of Gold - validity of detention order - release of detenu on Bail - whether in the absence of the satisfaction of the detaining authority that there was an imminent possibility of grant of bail, detention order is vitiated? - Held that - there was material before authority upon which he was satisfied that the petitioner was likely to be released or that such release was imminent - the satisfaction of the Detaining Authority was based on the fact that there was a possibility of the petitioner s husband applying for bail again and not that there was an imminent likelihood of the petitioner s husband being released on bail, the subjective satisfaction of the Detaining Authority and the consequent detention order dated 10th October, 2016 are vitiated - petition allowed - decided in favor of petitioner.

Issues Involved:
1. Validity of the detention order under COFEPOSA Act.
2. Non-placement of vital documents before the Detaining Authority.
3. Timing and preparation of the grounds of detention.
4. Satisfaction of the Detaining Authority regarding the likelihood of bail.

Detailed Analysis:

1. Validity of the Detention Order under COFEPOSA Act:
The petitioner challenged the detention order dated 10th October 2016, issued under Section 3(1) of the COFEPOSA Act, against her husband. The order was based on the seizure of 9955.2 grams of gold from Sartaj, linked to the petitioner's husband, Narender Kumar Jain. The grounds of detention included statements from Sartaj and Narender Kumar Jain, detailing their involvement in smuggling gold from Burma and selling it in India.

2. Non-placement of Vital Documents Before the Detaining Authority:
The petitioner contended that vital documents, including voluntary statements of gold carriers and the bail rejection order dated 7th October 2016, were not placed before the Detaining Authority. The court noted that the orders in original, which included the voluntary statements, were supplied to the petitioner’s husband, thus the subjective satisfaction of the Detaining Authority was not vitiated on this ground. However, the bail rejection order was not available to the Detaining Authority, which did not affect the subjective satisfaction as per the precedent set in Abdul Sathar Ibrahim Manik vs. Union of India & Ors.

3. Timing and Preparation of the Grounds of Detention:
The petitioner argued that the grounds of detention were prepared after the detention order was served, suggesting an ante-dating of the documents. The court examined the original file and found that the grounds of detention were prepared before the detention order was passed on 10th October 2016. The court rejected the contention of ante-dating, stating that official duties can be performed on weekends.

4. Satisfaction of the Detaining Authority Regarding the Likelihood of Bail:
The petitioner claimed that the Detaining Authority did not establish an imminent possibility of the petitioner’s husband being granted bail. The court reviewed para-33 of the grounds of detention, which indicated a possibility of applying for bail again but did not express an imminent likelihood. Citing precedents from Rivadeneyta Ricardo Agustin vs. Government of The National Capital Territory of Delhi & Ors. and Umesh Bhatia vs. Union of India & Ors., the court concluded that the subjective satisfaction of the Detaining Authority was not properly established, thus vitiating the detention order.

Conclusion:
The court set aside the detention order dated 10th October 2016, due to the lack of imminent likelihood of bail being granted to the petitioner’s husband, Narender Kumar Jain. The court ordered his immediate release if not required in any other case, and the writ petition was disposed of.

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