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TMI Blog2019 (8) TMI 139X X X X Extracts X X X X X X X X Extracts X X X X ..... Supreme Court. Being aggrieved by the stay, the detenues-respondents have preferred appeals arising out of SLP(Crl.) Nos.5396 and 5408 of 2019 before this Court. All the appeals shall stand disposed of by this common judgment. 3. The facts giving rise to these appeals are that pursuant to an investigation by the office of Directorate of Revenue Intelligence in the matter of smuggling of foreign origin gold by a syndicate of persons from UAE to India. On 28.03.2019 search and interception of two vehicles i.e. a Honda Activa Scooter and a Honda City car was held. It was noticed that there were two persons Abdul Ahad Zarodarwala and Shaikh Abdul Ahad, employee of Zarodarwala. Search of the vehicles resulted in recovery of 75 kgs of gold in the form of five circular discs valued at Rs. 24.5 crores. Follow-up searches were conducted in the offices and residential premises of the connected persons resulted in further recovery of 110 kgs of gold and currency amounting to Rs. 1.81 crores. Shoeb Zarodarwala, Abdul Ahad Zarodarwala and Shaikh Abdul Ahad were summoned and their statements were recorded and they are alleged to have made statement regarding receiving of smuggled gold from res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of detenu Happy Dhakad and he did not have any documents for his possession of gold. In his statement recorded on 29.03.2019, detenu Happy Dhakad is alleged to have accepted that 20.4 kgs of gold recovered from his premises was from the smuggled gold supplied to him by appellant Nisar Aliyar and the other 11.5 kgs of foreign marked gold was procured from other sources. Detenu Happy Dhakad was arrested on 29.03.2019 for the offence punishable under Section 135 of the Customs Act, 1962 and was remanded to judicial custody. 6. The Detaining Authority-Joint Secretary (COFEPOSA), on being satisfied that the detenues have high propensity to indulge in the prejudicial activities, with a view to prevent them from smuggling and concealing smuggled gold in future, passed the orders of detention dated 17.05.2019 under Section 3 of the Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, 1974 (COFEPOSA). The detention orders and the grounds of detention were served on the detenues on 18.05.2019. The copies of the relied upon documents were served on the detenues on 21.05.2019 and 22.05.2019. 7. The detention orders dated 17.05.2019 was assailed by the detenues by fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs on the ground that the relied upon documents were not served upon the detenues together with the detention orders and that there was violation of Guideline No. 21 (Part A of Do's) and Guideline No. 9 (Part B of Don'ts) which is only a guideline to the officers. The learned Additional Solicitor-General further submitted that "Hand Book on compilation of instructions on COFEPOSA matters from July 2001 to February, 2007" is only in the nature of guidelines for the officers of the department in dealing with COFEPOSA matters and the said guidelines itself direct that care to be taken in communication/service of the detention orders, grounds of detention and relied upon documents and the statutory period of service laid down in the COFEPOSA Act. The learned Additional Solicitor-General further submitted that based on the materials placed before the detaining authority, the detaining authority satisfied itself as to the likelihood of the detenues being released on bail and while so, the High Court erred in quashing the detention orders on the ground that in the detention orders "there was no finding that there was real possibility of their being released on bail by the Court". The lear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have also carefully gone through the various judgments relied upon by both sides. The following points arise for consideration in these appeals:- (i) Whether the orders of detention were vitiated on the ground that relied upon documents were not served along with the orders of detention and grounds of detention? Whether there was sufficient compliance of the provisions of Article 22(5) of the Constitution of India and Section 3(3) of the COFEPOSA Act? (ii) Whether the High Court was right in quashing the detention orders merely on the ground that the detaining authority has not expressly satisfied itself about the imminent possibility of the detenues being released on bail? 12. The present case relates to alleged smuggling of huge volume of gold of more than 3300 kgs of gold camouflaging it with brass metal scrap. Detenue Nisar Aliyar is stated to be the mastermind and kingpin of the syndicate who along with others smuggled gold from UAE to India. Detenu Happy Dhakad abetted smuggling by receiving smuggled gold from Nisar Aliyar and his group and disposing them off through jewellery outlets run by him and his relatives. The respondents were arrested for the offence punishab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge and Prevention of Smuggling Activities Act, 1974, I have relied upon the documents mentioned in the enclosed list, which are also being served to you along with the Grounds of Detention. 10. You i.e. Shri Happy Arvindkumar Dhakad have the right to represent against your detention to the Detaining Authority, to the Central Government as well as to the Advisory Board. If you wish to avail this right, you should send your representation through the Jail Authorities where you are detained, in the manner indicated below..." [underlining added] 14. Guideline No.21 of Do's of "Do's and Don'ts in handling COFEPOSA matters", stipulates that the grounds of detention and relied upon documents must be invariably served together on the detenu (including the copies translated into the language known to and understood by the detenu, wherever necessary) and these should be served as quickly as possible but within the statutory time limit of five days from the date of his detention. In Part-B dealing with Don'ts of "Do's and Don'ts in handling COFEPOSA matters", Guideline No.9 lays down that the grounds of detention and relied upon documents should not be given on different dates. For quash ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondents placed reliance upon Virendra Singh v. State of Maharashtra (1981) 4 SCC 562 and Ana Carelina D'souza (Smt.) v. Union of India and others AIR 1981 SC 1620 and number of other judgments. It was submitted that the High Court rightly relied upon Kamleshkumar Ishwardas Patel v. Union of India and others (1995) 4 SCC 51 wherein the Supreme Court had observed that while discharging the constitutional obligation to enforce the fundamental rights of the people, more particularly, the right to personal liberty, the gravity of the allegations cannot influence the process and that to enforce the fundamental rights of the people, more particularly, the right to personal liberty, certain minimum procedural safeguards are required to be "zealously watched and enforced by the court". 17. In Virendra Singh, the order of detention was passed on 09.10.1980 and the grounds of detention and other documents and materials were supplied to the detenu on 01.11.1980 when he was arrested; but without the documents and the materials which were later served on 05.11.1980. The Supreme Court quashed the detention order and held as under:- "1. .....Admittedly, the order of detention was passed o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earned senior counsel for the respondents being in the factual context of respective cases are not applicable to the present case. 19. Section 3(3) of the Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, 1974 (COFEPOSA) states that the detenu should be communicated with the order of detention and the grounds 'as soon as may be' after detaining him 'but ordinarily not later than five days and in exceptional cases and for reasons to be recorded in writing not later than fifteen days from the date of detention. Sub-section (3) of Section 3 of the COFEPOSA Act, 1974 reads as under:- "3. Power to make orders detaining certain persons. ...... 20 (1) + (2)........ (3) For 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 shall 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 fifteen days, from the date of detention." [underlining added] Section 3(3) of the COFEPOSA Act stipulates the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n any event not later than five days and in exceptional circumstances and for reasons to be recorded in writing not later than fifteen days from the date of detention. 21. In the present case, the detention orders and the grounds of detention were served upon the detenues on 18.05.2019. The relied upon documents were served upon them between 20.05.2019 and 22.05.2019 i.e. within five days from the date of serving of detention orders i.e. 18.05.2019. As pointed out earlier, Section 3(3) of COFEPOSA Act provides for the statutory period of five days to serve the grounds of detention and the relied upon documents. It was pointed out that the relied upon documents were running into 2364 pages and fifteen detention orders were passed against various detenues and therefore, the compilation of the documents was served on the detenues on 21.05.2019. As rightly contended by the learned Additional Solicitor-General, the preparation of copies of voluminous documents was a time-consuming process and it took time to serve the compilation of documents upon the detenues and therefore, the orders would not be illegal. Section 3(3) of COFEPOSA Act mandates to furnish the documents within five day ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g to Guideline No.21 (Part A of Don's and Don'ts in handling COFEPOSA matters) and Guideline No.9 (Part B of Don's and Don'ts in handling COFEPOSA matters), the High Court held that there is violation of the guidelines which would vitiate the detention orders. 26. The "Hand Book on Compilation of Instructions on COFEPOSA matters" is only in the nature of guidelines for the officers of the department in dealing with COFEPOSA matters. The said guidelines direct that "care to be taken in communication/service of detention order" and the grounds of detention and relied upon documents should be served as quickly as possible but within the statutory time limit of five days from the date of detention order. The said guidelines were fully complied with. Also, it is well-settled principle that any executive instruction like the guidelines cannot curtail the provisions of any statute or whittled down any provision of law. 27. The High Court quashed the detention orders on yet another ground that the detaining authority has to record grounds of detention indicating the reasons with the satisfaction that there is imminent possibility of detenue's release from the custody and after release, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ority based upon the material particulars cannot be interfered with by the court. In support of his contention, the learned ASG placed reliance upon Vijay Kumar v. Union of India and others (1988) 2 SCC 57 and other judgments. 30. It is well settled that the order of detention can be validly passed against a person in custody and for that purpose, it is necessary that the grounds of detention must show that the detaining authority was aware of the fact that the detenu was already in custody. The detaining authority must be further satisfied that the detenu is likely to be released from custody and the nature of activities of the detenu indicate that if he is released, he is likely to indulge in such prejudicial activities and therefore, it is necessary to detain him in order to prevent him from engaging in such activities. 31. After reviewing all the decisions, the law on the point was enunciated in Kamarunnisa v. Union of India and Another (1991) 1 SCC 128 where the Supreme Court held as under:- "13. From the catena of decisions referred to above it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... release and in view of his antecedent activities which are proximate in point of time, he must be detained in order to prevent him from indulging in such prejudicial activities, the detention order can be validly made. Where the detention order in respect of a person already in custody does not indicate that the detenu was likely to be released on bail, the order would be vitiated. (See N. Meera Rani v. Govt. of T.N. (1989) 4 SCC 418 and Dharmendra Suganchand Chelawat v. Union of India (1990) 1 SCC 746) The point was gone into detail in Kamarunnissa v. Union of India (1991) 1 SCC 128. ......" [underlining added] 33. Whether a person in jail can be detained under the detention law has been the subject matter for consideration before this Court time and again. In Huidrom Konungjao Singh v. State of Manipur and Others (2012) 7 SCC 181, the Supreme Court referred to earlier decisions including Dharmendra Suganchand Chelawat v. Union of India (1990) 1 SCC 746 and reiterated that if the detaining authority is satisfied that taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the detenu being released on bail is the "subjective satisfaction" based on the materials and normally the subjective satisfaction is not to be interfered with. 37. The satisfaction of the detaining authority that the detenu may be released on bail cannot be ipse dixit of the detaining authority. On the facts and circumstances of the present case, the subjective satisfaction of the detaining authority that the detenu is likely to be released on bail is based on the materials. A reading of the grounds of detention clearly indicates that detenu Nisar Aliyar has been indulging in smuggling gold and operating syndicate in coordination with others and habitually committing the same unmindful of the revenue loss and the impact on the economy of the nation. Likewise, the detention order qua detenu Happy Dhakad refers to the role played by him in receiving the gold and disposing of the foreign origin smuggled gold through his multiple jewellery outlets and his relatives. The High Court, in our view, erred in quashing the detention orders merely on the ground that the detaining authority has not expressly recorded the finding that there was real possibility of the detenues being released ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has to be subordinated within reasonable bounds to the good of the people. Order of detention is clearly a preventive measure and devised to afford protection to the society. When the preventive detention is aimed to protect the safety and security of the nation, balance has to be struck between liberty of an individual and the needs of the society. 41. Observing that the object of preventive detention is not to punish a man for having done something but to intercept and to prevent him from doing so, in Naresh Kumar Goyal v. Union of India and others (2005) 8 SCC 276, it was held as under:- "8. It is trite law that an order of detention is not a curative or reformative or punitive action, but a preventive action, avowed object of which being to prevent the antisocial and subversive elements from imperilling the welfare of the country or the security of the nation or from disturbing the public tranquillity or from indulging in smuggling activities or from engaging in illicit traffic in narcotic drugs and psychotropic substances, etc. Preventive detention is devised to afford protection to society. The authorities on the subject have consistently taken the view that preventive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is immune from judicial reviewability. By various decisions, the Supreme Court has carved out areas within which the validity of subjective satisfaction can be tested. In the present case, huge volume of gold had been smuggled into the country unabatedly for the last three years and about 3396 kgs of the gold has been brought into India during the period from July 2018 to March, 2019 camouflaging it with brass metal scrap. The detaining authority recorded finding that this has serious impact on the economy of the nation. Detaining authority also satisfied that the detenues have propensity to indulge in the same act of smuggling and passed the order of preventive detention, which is a preventive measure. Based on the documents and the materials placed before the detaining authority and considering the individual role of the detenues, the detaining authority satisfied itself as to the detenues' continued propensity and their inclination to indulge in acts of smuggling in a planned manner to the detriment of the economic security of the country that there is a need to prevent the detenues from smuggling goods. The High Court erred in interfering with the satisfaction of the detaining ..... X X X X Extracts X X X X X X X X Extracts X X X X
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