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2020 (7) TMI 564 - HC - CustomsDetention order - Smuggling - carrying dutiable or prohibited goods - Gold - currency - Baggage Rules - COFEPOSA Act - HELD THAT - The subjective satisfaction requisite on the part of the Detaining Authority, the formation of which is a condition precedent to the passing of the Detention Order, gets vitiated only if material or vital documents, which could have a bearing on the issue and would influence the mind of the Detaining Authority, one way or the other, are not placed by the Sponsoring Authority before the Detaining Authority. The assertion of the Detenue that, the said Summons were not relied upon by the Sponsoring Authority or placed before the Detaining Authority does not vitiate the subjective satisfaction recorded by the Detaining Authority, since the same was not relevant for the formation of the subjective satisfaction of the Detaining Authority. Further, the Detenue s assertion that he was not even supplied with a copy of the said Summons is factually incorrect and does not further his case. Coming to the submission qua the Non-Recovery Panchnama , the Sponsoring Authority did not rely upon that document, since the search proceedings did not result in the recovery of any incriminating documents, other than some personal documents of the Detenue, such as PAN Card, Aadhaar Card and Driving License. Therefore, the Panchnama, cannot be said to be material, the non- placement of which would render the Detention Order illegal. In the present case, it is observed that huge volumes of gold had been smuggled into the country, illegally and unabatedly for the last five years and that about 8350 grams of gold has been brought into India during the period from November 2018 to May 2019 by the Detenue camouflaging the same as accessories of garments and buckle rings of bags. It is further observed that the Detaining Authority was justifiably satisfied, founded on the relevant material placed before it by the Sponsoring Authority, that the Detenue demonstrably has the propensity to indulge in the same acts of smuggling, if not prevented by way of the Detention Order from so doing - It is trite to state that the order of preventive detention is a preventive measure and that predicated on the admissible voluntary statements of the Detenue, which clearly bring out the role of the Detenue in the smuggling of Gold, as well as, other materials placed before the Detaining Authority, the subjective satisfaction of the Detaining Authority, recorded in the Detention Order qua the continued propensity and inclination of the Detenue to continue to indulge into acts of smuggling in a planned manner, to the detriment of the economic security of the country, cannot be faulted and does not warrant interference of this Court in exercising its extraordinary jurisdiction. The present writ petition is devoid of merit and the same is accordingly dismissed.
Issues Involved:
1. Validity of the Detention Order under COFEPOSA. 2. Subjective satisfaction of the Detaining Authority. 3. Non-placement of vital documents before the Detaining Authority. 4. Alleged procedural lapses and non-consideration of exonerating material. Detailed Analysis: 1. Validity of the Detention Order under COFEPOSA: The petitioner, wife of the Detenue, filed a writ petition under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973, seeking quashing of the Detention Order dated 19.07.2019 issued under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA). The Detention Order was passed by the Joint Secretary to the Government of India, directing the detention of the Detenue for his involvement in smuggling activities. 2. Subjective Satisfaction of the Detaining Authority: The Court emphasized that the subjective satisfaction of the Detaining Authority is a condition precedent for the passing of a Detention Order. The subjective satisfaction gets vitiated only if material or vital documents, which could influence the mind of the Detaining Authority, are not placed before it. The Court referred to the Supreme Court decisions in Dimple Happy Dhakad and Ankit Ashok Jalan, highlighting that the satisfaction of the Detaining Authority is "subjective" and cannot be substituted by the Court's opinion. 3. Non-placement of Vital Documents Before the Detaining Authority: The petitioner argued that the Sponsoring Authority did not place vital documents, including the Detenue’s 'Letter of Extrication' dated 03.07.2019, before the Detaining Authority, thereby vitiating the subjective satisfaction. The Court observed that the 'Letter of Extrication' was received by the Sponsoring Authority only on 20.07.2019, a day after the Detention Order was passed. Therefore, it could not have been placed before the Detaining Authority. The Court also noted that the assertion that the 'Letter of Extrication' could establish that the incriminatory statements were not in the Detenue's handwriting was not tenable and had been rejected by the Advisory Board. 4. Alleged Procedural Lapses and Non-consideration of Exonerating Material: The petitioner contended that the non-consideration of the 'Summons' and 'No-Recovery Panchnama' by the Detaining Authority vitiated the Detention Order. The Court found that the 'Summons' dated 30.06.2019 was duly received by the Detenue, who voluntarily went to the IGI Airport in compliance. The 'No-Recovery Panchnama' was not relied upon by the Sponsoring Authority as it did not result in the recovery of any incriminating documents. Therefore, the non-placement of these documents did not vitiate the subjective satisfaction of the Detaining Authority. Conclusion: The Court concluded that the Detaining Authority had passed a well-reasoned and legally sustainable Detention Order after considering all relevant facts and materials. The Court dismissed the writ petition, stating that the Detention Order was justified based on the Detenue's propensity to indulge in smuggling activities and the need to prevent him from continuing such activities. The Court emphasized the balance between individual liberty and the needs of society, particularly in cases involving national security and economic stability.
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