2024 (12) TMI 1372 - HC - Customs

Seeking quashing of the preventive detention order - Smuggling of Gold - contravention of Sections 132, 135 (1) (a) and 135 (1) (b) of the Customs Act - substantial delay in the consideration of representation of the Petitioner - non-application of mind while passing the impugned detention order - violation of principles of natural justice. Non-application of mind by the Detaining Authority - HELD THAT - The observation made by the detaining authority to the extent that the Petitioner was likely to be released from judicial custody, is without any material. This is in view of the fact that the bail applications of the Petitioner had already been dismissed twice by the Hon ble Rajasthan High Court by that time, and admittedly, no other application seeking bail was pending at that time when the impugned order was passed. The Hon ble Supreme Court in Binod Singh v. District Magistrate, Dhanbad 1986 (9) TMI 387 - SUPREME COURT , while setting aside the detention order against the Petitioner therein, who was already in jail at the time of service of the detention order, has observed and held that 'If a man is in custody and there is no imminent possibility of his being released, the power of preventive detention should not be exercised. In the instant case when the actual order of detention was served upon the detenu, the detenu was in jail. There is no indication that this factor or the question that the said detenu might be released or that there was such a possibility of his release, was taken into consideration by the detaining authority properly and seriously before the service of the order. A bald statement is merely an ipse dixit of the officer. If there were cogent materials for thinking that the detenu might be released then these should have been made apparent.' In the present case, apart from the impugned detention order, even in the counter affidavit dated 17th September, 2024 filed on behalf of the Respondent Nos. 1 and 2, it has not been demonstrated that there was a possibility of the Petitioner being released from the judicial custody to justify the impugned order of detention. Substantial delay in the consideration of representation of the Petitioner - HELD THAT - This Court need not examine the ground of delay which had allegedly occurred in placing and considering the representation moved by the Petitioner on 06th July 2024. Conclusion - This Court is of the considered opinion that the impugned order of detention was passed mechanically without any due application of mind and is liable to be set aside. Accordingly, the present Petition is partly allowed and the impugned order of detention dated 12th April, 2024 and confirmation order dated 18th June 2024 are set aside. Petition disposed off.

Summary

Issues Involved:

1. Legality of the preventive detention order under the COFEPOSA Act.
2. Delay in passing and executing the detention order.
3. Non-application of mind by the Detaining Authority.
4. Delay in consideration of the representation made by the Petitioner.
5. Relevance of the Petitioner's custody status and repeated bail rejections.

Issue-wise Detailed Analysis:

1. Legality of the Preventive Detention Order under the COFEPOSA Act:

The Petitioner challenged the preventive detention order dated 12th April 2024, issued under Section 3(1) of the COFEPOSA Act, arguing that it was unnecessary since he was already in custody. The Court examined whether the preventive detention was justified given the Petitioner's repeated involvement in smuggling activities. The Detaining Authority justified the detention, stating that despite the Petitioner being in judicial custody, there was a possibility of his release, which could lead to continued involvement in smuggling activities. However, the Court found that the Detaining Authority's assertion lacked material basis, as the Petitioner's bail applications had been repeatedly rejected, indicating no imminent release.

2. Delay in Passing and Executing the Detention Order:

The Petitioner argued that the detention order was passed with substantial delay, as the incident occurred on 11th January 2024, and the order was issued on 12th April 2024, breaking the link between the alleged prejudicial activities and the need for detention. The Court noted this delay but focused more on the lack of evidence supporting the likelihood of the Petitioner's release from custody, which was a critical factor in assessing the necessity of preventive detention.

3. Non-application of Mind by the Detaining Authority:

The Court scrutinized whether the Detaining Authority applied its mind in issuing the detention order. It found that the Detaining Authority failed to demonstrate "subjective satisfaction" regarding the likelihood of the Petitioner's release, which is a prerequisite for justifying preventive detention. The Court cited precedents emphasizing that a mere assertion of potential release without cogent material is insufficient for such detention orders.

4. Delay in Consideration of the Representation Made by the Petitioner:

The Petitioner contended that there was an undue delay in considering his representation against the detention order, violating Article 22(5) of the Constitution. Although the Court acknowledged this argument, it did not delve deeply into this issue, given that the primary ground for quashing the detention order was the lack of evidence regarding the Petitioner's potential release from custody.

5. Relevance of the Petitioner's Custody Status and Repeated Bail Rejections:

The Court highlighted that the Petitioner's repeated bail rejections by multiple judicial forums, including the High Court, demonstrated that he was unlikely to be released soon. This fact undermined the Detaining Authority's rationale for preventive detention, which was predicated on the assumption of possible release and subsequent engagement in smuggling activities. The Court emphasized that preventive detention should not be used when the individual is already in custody, and there is no imminent prospect of release.

Conclusion:

The Court concluded that the detention order was issued without due application of mind and lacked justification, given the Petitioner's custody status and unsuccessful bail attempts. Consequently, the detention order dated 12th April 2024 and its confirmation were set aside. The Court refrained from addressing the delay in representation consideration, as the primary issue of non-application of mind was sufficient to quash the detention order. The judgment underscored the necessity for detaining authorities to substantiate their decisions with concrete evidence, particularly when the detenu is already in custody.