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2025 (2) TMI 754 - HC - CustomsChallenge to preventive detention order under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974 (COFEPOSA Act) - Smuggling of foreign gold from Yangoon (Myanmar) to Gaya through Gaya International Airport with the active involvement of Marshal deputed in the flight - petition was in custody in connection with the criminal complaint for the same incident - HELD THAT - The object of detention under the detention law is not to punish but to prevent the commission of certain offences. Further in the recent decision rendered by the Hon ble Supreme Court in the case of Ameena Begum 2024 (1) TMI 4 - SUPREME COURT it has been specifically held by the Hon ble Supreme Court that a constitutional court when called upon to test the legality of orders of preventive detention would be entitled to examine certain aspects referred in paragraph 28.1. to 28.10 of the said decision. In the case of Saraswathi Seshagiri 1982 (3) TMI 252 - SUPREME COURT the Hon ble Supreme Court has observed that the concerned detenue tried to export Indian Currency to the tune of Rupees 2, 88, 900.00 to a foreign country in a planned and pre-meditated manner by clever concealment of it in several parts of his baggage and therefore the Hon ble Supreme Court observed that the detaining authority was justified in coming to the conclusion that he might repeat his illegal act in future also. His past act in the circumstances might be an index of his future conduct. Thereafter the Hon ble Supreme Court observed that the authority may prosecute the offender for an isolated act or acts of an offence for violation of any criminal law but if it is satisfied that the offender has a tendency to go on violating such laws then there will be no bar for the State to detain him under a Preventive Detention Act. In the case of Rekha 2011 (4) TMI 1217 - SUPREME COURT the Hon ble Supreme Court has observed that if the ordinary law of the land (the Penal Code and other penal statutes) can deal with a situation recourse to a preventive detention law will be illegal. The main contention of the petitioner is that criminal complaint has been lodged against him and in connection with the same he was already in custody when the impugned order of detention has been passed. Thus there was no apprehension on the part of the detaining authority that petitioner will indulge into similar type of activity if he is released on bail. Thus the subjective satisfaction of the detaining authority is vitiated. The aforesaid contention is misconceived in view of the decision rendered by the Hon ble Supreme Court in the case of Haradhan Saha 1974 (8) TMI 104 - SUPREME COURT and observations made in paragraph 26 in the case of Ameena Begum. Delay in service of the order of detention by contending that the detention order has been passed on 06.03.2024 which was communicated to him on 29.05.2024 - HELD THAT - From the records it transpires that the order of detention was passed on 06.03.2024 which was duly executed on the petitioner on 11.03.2024. Thereafter the petitioner made representation on 04.04.2024 to the detaining authority and the Central Government which was received on 12.04.2024 and 15.04.2024 respectively which were duly considered by the concerned authorities and in the meantime the case of the petitioner was referred to the Advisory Board on 10.04.2024 and after conducting the proceedings on 29.04.2024 and 13.05.2024 the Advisory Board gave the opinion and opined that the detention of the petitioner is justified. The said opinion has been duly considered by the Central Government and thereafter the Central Government also confirmed the impugned detention order which was communicated by the Deputy Secretary of the Government of India vide order dated 29.05.2024. Therefore it cannot be said that the order of detention dated 06.03.2024 was communicated to the petitioner on 29.05.2024. Hence the said contention is misconceived. Conclusion - The respondent detaining authority has followed all the constitutional statutory and procedural requirements as well as safeguards. The subjective satisfaction of the detaining authority does not vitiate as has been contended by the petitioner. Therefore when the detaining authority after satisfying itself subjectively after considering all the relevant material passed the impugned order of detention the same cannot be interfered with while exercising power under Article 226 of the Constitution of India. Petition dismissed.
ISSUES PRESENTED and CONSIDERED
The primary issues considered in this judgment are:
ISSUE-WISE DETAILED ANALYSIS 1. Justification of Preventive Detention under COFEPOSA Act The legal framework under the COFEPOSA Act allows for preventive detention to prevent activities detrimental to the economic security of the country. The Court considered the intelligence inputs and the petitioner's voluntary statement admitting involvement in smuggling activities. The Court noted that the petitioner had not retracted his statement under Section 108 of the Customs Act, which was pivotal in establishing his involvement. The Court referenced the Supreme Court's decision in Haradhan Saha v. State of W.B., which allows preventive detention even if a person is already facing criminal prosecution, provided the detaining authority's satisfaction is based on the likelihood of future prejudicial activities. 2. Subjective Satisfaction and Procedural Compliance The Court examined whether the detaining authority's satisfaction was based on relevant and sufficient materials. The detaining authority's decision was supported by intelligence reports and the petitioner's own admissions, indicating a propensity to engage in smuggling activities. The Court found that the procedural requirements, including informing the petitioner of his rights and considering his representations, were adhered to. In Ameena Begum v. State of Telangana, the Supreme Court emphasized the need for the detaining authority to act independently and base its satisfaction on rationally probative materials. The Court found that these standards were met in the present case. 3. Delay in Communication of Detention Order The petitioner argued that the delay in communicating the detention order invalidated it. The Court clarified that the detention order was executed on 11.03.2024, shortly after its issuance on 06.03.2024, and the petitioner was informed of his rights. The communication of the order's confirmation by the Central Government on 29.05.2024 did not constitute a delay in the execution of the detention order itself. 4. Preventive Detention During Criminal Prosecution The petitioner contended that preventive detention was unnecessary given the ongoing criminal prosecution. The Court, referencing Haradhan Saha, noted that preventive detention serves a different purpose than criminal prosecution, focusing on preventing future activities rather than punishing past ones. The Court emphasized that the detaining authority's satisfaction about the petitioner's future conduct justified the detention. SIGNIFICANT HOLDINGS The Court upheld the detention order, emphasizing the preventive nature of the COFEPOSA Act and the adequacy of the detaining authority's subjective satisfaction. The Court concluded that:
The petition was dismissed, affirming the legality of the detention order under the COFEPOSA Act and the procedural correctness of its execution and confirmation.
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