2020 (8) TMI 230 - HC - Customs

Prevention Detention Order - Smuggling of gold - conservation and augmentation of foreign exchange - time limitation - retraction of statements - burden to prove non-involvement - COFEPOSA Act - HELD THAT - The COFEPOSA Act, 1974 has been enacted for the purpose of preventive detention in certain cases for the purposes of conservation and augmentation of foreign exchange and prevention of smuggling activities and for matters connected therewith. As per the object of the Act, as there were violations of foreign exchange regulations and smuggling activities were having an increasingly deleterious effect on the national economy and thereby a serious adverse effect on the security of the State, to prevent such activities and for providing detention of persons concerned in any manner therewith by preventive detention, the Act has been enacted, which has come into force on 30.12.1974 - The importance of foreign exchange in the development of a country needs no emphasis. The conservation and augmentation of foreign exchange continued to be an important thing. All though, contravention of its provision is not regarded as a criminal offence yet it is an illegal activity jeopardizing the very economic fabric of the country. For violation of Foreign Exchange Regulation, penalty can be levied and its noncompliance results in civil imprisonment of the defaulter. But whole intent and idea of the COFEPOSA Act is to prevent violation of Foreign Exchange and Regulation of smuggling activities which have serious and deleterious effect on national economy and security. The power of prevention detention is a precautionary power exercised in reasonable anticipation. It may or may not relate to an offence. It is not a parallel proceeding. It does not co-relate to prosecution even if it relies on certain facts on which prosecution is launched or may have been launched. An order of preventive detention may be made before or during prosecution. The pendency of prosecution is no bar to an order of preventive detention. An order of preventive detention is also no barred to prosecution - The order of preventive detention is based on a reasonable prognosis of future behavior of a person, based on his past, in light of his surrounding circumstances. As per the provisions contained in subsection (2) of Section 3, if the Order is passed by the State Government or by an officer empowered by a State Government, it is their bounder duty to forward to the Central Government a report in respect of the order within 10 days - As per sub-section 3 of Section 3, to satisfy the purposes of clause (5) of Article 22 of the Constitution, the communication to a person detained in pursuance of a detention order of the grounds on which the order has been made, is required to be made as soon as, may be after the detention, but ordinarily not later than five days, and in exceptional circumstances and for reasons to be recorded in writing, not later than twenty days, from the date of detention - thus, the time frame work has been provided in Section 3 regarding communication of the grounds of detention of the person concerned i.e. detenue. It has also revealed from subsection 3 of Section 3 that the satisfaction of the authority is material one and the said satisfaction should be subjective satisfaction. The grounds of such detention may be as referred to above in (i) to (v). On conjoint reading of Section 3 with Section 5A it is crystal clear that the order of detention passed for more than two grounds and if one of the grounds is not applicable or vague or nonexistent or nonrelevant or not connected or any proximately connected with such person, such detention order cannot be declared as invalid detention order. If the detention order is valid for the purpose of any one of the grounds stated in clause (i) to (v) of subsection (1) of Section 3, then such order of detention, in the given facts and circumstances, can be treated as legal and valid - the provision of Section 8 provides for statutory obligation of the concerned appropriate Government to refer the detention order to the Advisory Board within five weeks from the date of detention of the person. At the same time, it is the duty of the Advisory Board to submit its report within eleven weeks from the date of detention of the person concerned. The detaining authority has properly applied his mind while passing individual detention order in respect of each of the petitioner. It is also crystal clear that necessary safeguards are followed by the detaining authority. All the points raised by the petitioner challenging the detention orders are devoid of merits. There is no legal infirmity in the detention orders passed against the present petitioners. This Court is of the considered view that the impugned detention orders are sustainable in the eyes of law and does not deserve to be set aside. Petition dismissed.

Summary

Issues Involved:
1. Application of Mind by Detaining Authority
2. Allegations of Abetting Smuggling
3. Grounds of Detention
4. Evidence of Involvement
5. Statements of Co-detenus
6. Seizure of Incriminating Materials
7. Sufficiency of Grounds for Detention
8. Rights of Detenus
9. Nature of Detention Orders
10. Proximity of Offence
11. Delay in Passing Detention Orders
12. Withholding of Documents
13. Retraction of Statements

Detailed Analysis:

1. Application of Mind by Detaining Authority:
The petitioners argued that the detention orders lacked proper application of mind and were based merely on the reproduction of various clauses of Section 3 of COFEPOSA. The court found that the detaining authority had considered voluminous documents and had reached subjective satisfaction before passing the detention orders.

2. Allegations of Abetting Smuggling:
The petitioners contended that the allegations of abetting smuggling were vague and did not fulfill the ingredients of abetment as defined under Section 107 of the IPC. The court held that the detaining authority had sufficient material indicating the petitioners' involvement in organizing the smuggling operations.

3. Grounds of Detention:
The petitioners argued that the grounds of detention were vague and independent of each other, making the detention orders invalid. The court found that the grounds of detention were specific and detailed, and the detaining authority had provided a clear rationale for the detention.

4. Evidence of Involvement:
The petitioners claimed there was no direct evidence of their involvement in the smuggling activities. The court noted that the detaining authority had relied on statements recorded under Section 108 of the Customs Act, which were admissible in evidence and supported the detention orders.

5. Statements of Co-detenus:
The petitioners argued that the detention orders were based on retracted statements of co-detenus, which were not credible. The court found that the detaining authority had considered the retractions but concluded that the initial statements were voluntary and credible.

6. Seizure of Incriminating Materials:
The petitioners contended that no incriminating materials were found during the searches. The court noted that various documents, email chats, and other materials were seized, which indicated the petitioners' involvement in smuggling activities.

7. Sufficiency of Grounds for Detention:
The petitioners argued that the grounds mentioned in the detention orders were not sufficient to justify preventive detention. The court held that the grounds of detention were adequate and supported by substantial evidence.

8. Rights of Detenus:
The petitioners claimed that their right to make an effective representation was violated due to delays in considering their representations. The court found that the representations were considered within a reasonable time, and there was no undue delay.

9. Nature of Detention Orders:
The petitioners argued that the detention orders were punitive rather than preventive in nature. The court held that the detention orders were preventive and aimed at preventing future smuggling activities.

10. Proximity of Offence:
The petitioners contended that there was no proximity between the alleged offences of 2014 and the detention orders passed in 2019. The court found that the detention orders were based on recent activities and were not solely reliant on past offences.

11. Delay in Passing Detention Orders:
The petitioners argued that there was an unexplained delay in passing the detention orders. The court noted that the delay was justified due to the complexity and scale of the investigation.

12. Withholding of Documents:
The petitioners claimed that important documents were withheld by the sponsoring authority. The court found that all relevant and material documents had been provided to the detenus, and there was no withholding of critical information.

13. Retraction of Statements:
The petitioners argued that the detention orders were based on retracted statements, which were not reliable. The court held that the detaining authority had considered the retractions and found the initial statements to be credible and voluntary.

Conclusion:
The court dismissed all three petitions, finding no merit in the arguments presented by the petitioners. The detention orders were upheld as legal and valid, with the court emphasizing the preventive nature of the orders and the substantial evidence supporting the detaining authority's decisions. The court also noted that the petitioners' rights were not violated, and the procedural safeguards were duly followed.