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2019 (8) TMI 139 - SC - FEMAHawala transactions - Detention order - smuggling of foreign origin gold by a syndicate of persons from UAE to India - the sale proceeds of the smuggled gold were siphoned off to Dubai through hawala. - Offences punishable under Section 135 of the Customs Act, 1962. 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 of the provisions of Article 22(5) of the Constitution of India and Section 3(3) of the COFEPOSA Act? 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? HELD THAT - 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 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. 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 VERSUS STATE OF MANIPUR ORS. 2012 (5) TMI 732 - SUPREME COURT , the Supreme Court referred to earlier decisions including Dharmendra Suganchand Chelawat v. Union of India DHARMENDRA SUGANCHAND CHELAWAT VERSUS UNION OF INDIA 1990 (2) TMI 154 - SUPREME COURT 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. 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 - HELD THAT - 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 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 - 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. 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 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 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. 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 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. The appeals preferred by the detenues shall stand dismissed.
Issues Involved:
1. 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. 2. Whether there was sufficient compliance with the provisions of Article 22(5) of the Constitution of India and Section 3(3) of the COFEPOSA Act. 3. 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. Detailed Analysis: 1. Non-Service of Relied Upon Documents with Detention Orders: The High Court quashed the detention orders on the ground that the relied upon documents were not served along with the detention orders and grounds of detention. The Court noted that although the detention orders stated that the relied upon documents were being served, they were actually served between 20.05.2019 and 22.05.2019, not on 18.05.2019 when the detention orders were served. The High Court held this violated Guideline No. 21 and Guideline No. 9 of "Do's and Don’ts in handling COFEPOSA matters," which require that grounds of detention and relied upon documents must be served together. The Supreme Court, however, found that Section 3(3) of the COFEPOSA Act allows a statutory period of five days for serving the grounds of detention and relied upon documents. Since the documents were served within this period, the Court held that the statutory requirement was complied with, and the detention orders were not vitiated by the delay. 2. Compliance with Article 22(5) and Section 3(3) of COFEPOSA Act: The Supreme Court emphasized that Section 3(3) of the COFEPOSA Act stipulates a period of five days for serving the grounds of detention and relied upon documents, which was adhered to in this case. The Court noted that the term "as soon as may be" and "ordinarily not later than five days" in Article 22(5) and Section 3(3) respectively, imply that the grounds of detention and relied upon documents should be served within five days, which was done here. The Supreme Court referenced past judgments, including Sophia Gulam Mohd. Bham v. State of Maharashtra and Icchu Devi Choraria v. Union of India, to reinforce that the statutory period of five days is reasonable and must be adhered to, which was satisfied in this case. 3. Satisfaction of Imminent Possibility of Release on Bail: The High Court quashed the detention orders on the ground that the detaining authority did not expressly record its satisfaction about the imminent possibility of the detenues being released on bail. The Supreme Court, however, held that the satisfaction of the detaining authority is subjective and based on the materials available. The Court emphasized that the detaining authority had recorded the antecedents of the detenues and their high propensity to commit such offences in the future. The Supreme Court cited Kamarunnisa v. Union of India and Union of India v. Paul Manickam, which established that the detaining authority must be aware that the detenu is in custody and must believe there is a real possibility of their release on bail, and that upon release, they are likely to indulge in prejudicial activities. The Court found that the detaining authority had met these requirements. Conclusion: The Supreme Court set aside the High Court's judgment quashing the detention orders, holding that the statutory requirements under Section 3(3) of the COFEPOSA Act were complied with, and the detaining authority's satisfaction regarding the detenues' propensity to commit future offences was valid. The appeals by the Union of India were allowed, and the appeals by the detenues were dismissed.
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