2019 (12) TMI 630 - HC - Indian Laws

Release of detained person - Smuggling - Gold - possession of the item or not - power of Court of judicial review - admissibility of statement under Section 108 of the Customs Act, 1962. HELD THAT - It is apparent that husband of the petitioner was working at Sri Guru Ram Dass Ji International Airport, Amritsar as Assistant Manager (Fire Services). The detention order further records that from the statements recorded under Section 108 of the Customs Act, 1962, it has been found that husband of the petitioner had indulged in smuggling of the gold. For that purpose taking benefit of his position at the Airport, husband of the petitioner smuggled out the gold from the Airport in his own vehicle. The authority has also found that husband of petitioner has failed to explain construction and source of funding of Restaurant-cum- Hotel i.e. No Escape . The jurisdiction which this Court exercises in exercise of its power under Article 226, judicial review is limited. Against such orders, the High Court or the Supreme Court does not have power similar to appellate court. The normal rule is that when an isolated offence or isolated offences is/are committed, the accused is to be prosecuted. However, law of preventive detention enables the competent authority to detain a particular offender in order to disable/prevent him to repeat offences. As far as argument of learned counsel for the petitioner that the husband of the petitioner was picked up from the Hotel and there is no recovery, it may be noticed that preventive detention is not for the purpose of recovery. The detaining authority has considered the material available to it and thereafter, passed the order. Even statement of the husband of petitioner has also been recorded, which is admissible under Section 108 of the Customs Act, 1962. It is found from examination of material available that husband of the petitioner has a general habit and propensity to indulge in fraudulent activities by way of smuggling of goods, abetting of the smuggling of goods, engaging in transporting or concealing or keeping smuggled goods and harbouring persons engaged in smuggling at the cost of government revenue. From the reading of the order, it has further been noticed that husband of the petitioner not only manages and issues instructions for stay of the other offenders at Dubai but also ensures that they stay in his hotel i.e. 'No Escape'. Second submission of learned counsel is that once the husband of the petitioner has been placed under suspension then there is no use of continuing with the detention order - HELD THAT - No doubt, at the time when the detention order was passed, one of the consideration was that the petitioner is employed as Assistant Manager (Fire) at the Airport, however that was not the only ground on which order of detention was passed. The detaining authority has passed detailed order providing various grounds for detention. This Court does not find any ground to interfere within its limited jurisdiction of judicial review - Petition dismissed.

Summary

Issues:
Challenge to order under COFEPOSA - Preventive detention - Compliance with Article 22 of the Constitution of India - Judicial review - Grounds for detention - Discriminatory order.

Analysis:
The petitioner challenged the order of preventive detention passed under Section 3 of the COFEPOSA. The Court noted that Article 22 of the Constitution of India deals with preventive detention as a fundamental right. The COFEPOSA empowers the competent authority to detain individuals to prevent actions prejudicial to foreign exchange conservation or smuggling activities. The Court emphasized the limited scope of judicial review in such cases and the subjective satisfaction of the detaining authority. Compliance with Article 22(4) is crucial, and interference by the Court is minimal if procedural requirements are met.

The petitioner's counsel argued that the detention was unnecessary as the petitioner's husband was suspended and no recovery was made. However, the Court clarified that preventive detention is not for recovery purposes but to prevent future offenses based on available evidence. The detaining authority found the husband's involvement in smuggling activities, managing offenders, and fraudulent practices, justifying the detention order.

Regarding the argument that suspension rendered detention unnecessary, the Court found it unsubstantiated as multiple grounds supported the detention order beyond just employment status. The Court rejected the claim of discrimination, highlighting the subjective satisfaction of the detaining authority and the Advisory Board's opinion supporting the detention, confirmed by the Central Government.

Ultimately, the Court found no valid reason to interfere within its limited jurisdiction of judicial review and dismissed the writ petition challenging the preventive detention order. The judgment upheld the legality and procedural compliance of the detention order under COFEPOSA, emphasizing the authority's subjective satisfaction and the importance of preventive detention in specific cases to prevent future offenses.