2024 (11) TMI 70 - HC - Customs

Validity of Detention Order under COFEPOSA Act, 1974 - as argued that no allegation has been made against the Detenu for absconding and violating the order dated 16th April, 2024. Also, it is important to note the fact that the Detenu does not have a passport for the past 20 years and, therefore, cannot be a flight risk. HELD THAT - Detaining Authority has clearly noted that the Detenu was released on bail on 16th April, 2024 on certain conditions. Detaining Authority was satisfied that on being released on bail there is every likelihood that the Detenu would engage himself in the alleged prejudicial activities in view of his propensity to do so and therefore the need to immobilize him by way of the present Detention Order. A perusal of the impugned Detention Order further reflects the fact that the said satisfaction was based on the Detenu running a well-organized smuggling network with aid of his associates and having well-established mechanism in dealing with foreign origin gold. Detenu was arrested on 06th March, 2024 and as per the record he moved a bail application on 1st April, 2024 and the proposal for detention was moved on 12th April, 2024 which is proximate in time. By way of additional affidavit filed by Respondent No. 3 it has come on record that after the proposal for the Detenu s detention was moved by the Sponsoring Authority on 12th April, 2024, the Detenu was granted bail vide order dated 16th April, 2024 passed by the ld. ACMM, the Sponsoring Authority/Respondent No. 3 sent an updated proposal on 30th April, 2024 to the Detaining Authority placing the said bail order on record as well as its intention to move for cancellation of bail. The aforesaid sequence of dates and events clearly show that the Sponsoring Authority/Respondent No. 3 sent a proposal for detention soon after the Detenu having preferred an application for bail. Looking at the facts of the present case and the voluminous record relied by the Detaining Authority, the nexus between the date of the incident and the passing of the impugned Detention Order cannot said to be delayed or having no live-link. Application seeking cancellation of bail was not placed before the Detaining Authority - As noted in the additional affidavit on behalf of Sponsoring Authority/Respondent No. 3, that in the updated proposal sent to the Detaining Authority on 30th April, 2024, the intention to challenge the order granting bail was mentioned; however, the actual application for cancellation of bail was filed only on 06th May, 2024 and since the impugned Detention Order was passed on 09th May, 2024, in the considered opinion of this Court, the same would not amount to non-supply of a vital document inasmuch as the same was not before the Detaining Authority. Further, filing for cancellation of bail would not vitiate the impugned Detention Order as same cannot be considered as an alternate to a Detention Order. The fact that the Sponsoring Authority can move for cancellation of bail cannot be a ground to quash the order of preventive detention as held in Abdul Sathar Ibrahim Manik v. Union of India 1991 (10) TMI 303 - SUPREME COURT In Jaseela Shaji 2024 (9) TMI 707 - SUPREME COURT relied upon by Petitioner, Hon ble Supreme Court noted that a document which was extensively relied upon by the Detaining Authority was not supplied to the Detenu which is not the case here. The impugned Detention Order was also challenged on the ground that the same is vague as there is no clarity as to under which sub-clause of Section 3 (1) of the COFEPOSA Act the said order was passed. It was contended that in the impugned Detention Order all the possibilities mentioned in the said provision have been referred to without exactly referring as to which particular sub-clause was the case of the Detenu covered under. In view of the aforesaid discussion and after going through the material on record reflecting the activity of the Detenu and also the fact that the procedure and statutory safeguards have been fully complied by the Detaining Authority, in the considered view of this Court the impugned order of detention dated 09th May, 2024 calls for no interference.

Issues Involved:

1. Legality of the Detention Order under COFEPOSA Act, 1974.
2. Adequacy of ordinary law to prevent alleged smuggling activities.
3. Consideration of past criminal cases in the Detention Order.
4. Non-supply of vital documents to the Detaining Authority.
5. Vagueness of the Detention Order under Section 3(1) of the COFEPOSA Act.

Detailed Analysis:

1. Legality of the Detention Order under COFEPOSA Act, 1974:

The Detention Order was challenged on the grounds that it was unnecessary as the Detenu was already under judicial custody and had been granted bail with conditions to prevent further illegal activities. The Court highlighted that preventive detention serves as an anticipatory measure distinct from punitive actions under ordinary law. It is based on the subjective satisfaction of the Detaining Authority regarding the likelihood of the Detenu engaging in prejudicial activities. The Court cited precedents to emphasize that preventive detention can be justified even when the Detenu is facing prosecution under ordinary law, provided there is a reasonable prognosis of future illegal activities.

2. Adequacy of Ordinary Law to Prevent Alleged Smuggling Activities:

The Petitioner argued that ordinary legal measures, such as the conditions imposed in the bail order, were sufficient to prevent the Detenu from engaging in smuggling activities. However, the Court noted that the Detaining Authority had considered the likelihood of the Detenu resuming illegal activities upon release, given his past conduct and the organized nature of the smuggling network. The Court found that the Detaining Authority's decision to issue the Detention Order was justified, as preventive detention aims to prevent future threats to public order and national security.

3. Consideration of Past Criminal Cases in the Detention Order:

The Detenu's past involvement in criminal activities, including a conviction under the NDPS Act and a case of gold smuggling in 2017, was cited in the Detention Order. The Petitioner contended that these past cases were irrelevant, as the Detenu had served his sentence and no prosecution was initiated in the 2017 case. The Court, however, emphasized that past conduct and antecedents are relevant in assessing the likelihood of future illegal activities. The Court reiterated that preventive detention can be based on a single incident if it indicates a propensity for future illegal conduct.

4. Non-supply of Vital Documents to the Detaining Authority:

The Petitioner argued that the application for cancellation of bail was not placed before the Detaining Authority, which constituted non-supply of vital documents. The Court found that the updated proposal sent to the Detaining Authority included the intention to challenge the bail order, and the actual application for cancellation of bail was filed after the Detention Order was issued. Therefore, the Court concluded that there was no suppression of relevant material, and the Detention Order was not vitiated by non-supply of documents.

5. Vagueness of the Detention Order under Section 3(1) of the COFEPOSA Act:

The Petitioner claimed that the Detention Order was vague, as it did not specify which sub-clause of Section 3(1) was violated. The Court noted that the Detention Order clearly outlined the grounds under sub-clauses (i), (ii), (iii), and (iv) of Section 3(1), without using "or" between the grounds, indicating that the Detaining Authority had applied its mind to the specific activities of the Detenu. The Court found no merit in the argument of vagueness, as the Detention Order sufficiently detailed the Detenu's involvement in smuggling activities.

Conclusion:

The Court concluded that the Detention Order was justified based on the Detenu's propensity for engaging in smuggling activities, the organized nature of the smuggling network, and the potential threat to national security. The procedural and statutory safeguards were duly complied with, and the Detention Order did not warrant interference. The petition was dismissed.

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