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TMI Blog2020 (8) TMI 230X X X X Extracts X X X X X X X X Extracts X X X X ..... provision is not regarded as a criminal offence yet it is an illegal activity jeopardizing the very economic fabric of the country. For violation of Foreign Exchange Regulation, penalty can be levied and its noncompliance results in civil imprisonment of the defaulter. But whole intent and idea of the COFEPOSA Act is to prevent violation of Foreign Exchange and Regulation of smuggling activities which have serious and deleterious effect on national economy and security. The power of prevention detention is a precautionary power exercised in reasonable anticipation. It may or may not relate to an offence. It is not a parallel proceeding. It does not co-relate to prosecution even if it relies on certain facts on which prosecution is launched or may have been launched. An order of preventive detention may be made before or during prosecution. The pendency of prosecution is no bar to an order of preventive detention. An order of preventive detention is also no barred to prosecution - The order of preventive detention is based on a reasonable prognosis of future behavior of a person, based on his past, in light of his surrounding circumstances. As per the provisions contained in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ention orders passed against the present petitioners. This Court is of the considered view that the impugned detention orders are sustainable in the eyes of law and does not deserve to be set aside. Petition dismissed. - R/SPECIAL CIVIL APPLICATION NO. 22512 of 2019 R/SPECIAL CIVIL APPLICATION NO. 23147 of 2019 R/SPECIAL CIVIL APPLICATION NO. 1713 of 2020 - - - Dated:- 21-7-2020 - HONOURABLE DR. JUSTICE A. P. THAKER MR S.H.SANJANWALA, Senior Advocate with MR DILIP L KANOJIYA(3691) FOR THE PETITIONER MR DEVANG VYAS, ASST.SOLICITOR GENERAL for MR NIRZAR S DESAI(2117) FOR THE RESPONDENT JUDGMENT 1. All the three petitions have been filed under Articles 14, 21, 22 226 of the Constitution of India against the Order of detention passed by the Authorities against the petitioner in respective petitions. 2. The Petitioner in Special Civil Application No. 22512 of 2019 namely Rutugna Arvindkumar Trivedi has challenged the order of detention dated 2.8.2019 bearing F No. PD12002/ 12/2019COFEPOSA on the various grounds averred in the petition. 2.1 Whereas the Petitioner in Special Civil Application No. 23147 of 2019 namely Lokesh Subhash Sharma has challeng ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bars i.e. gold bars (22 pieces each of 1 Kg and 25 pieces each of 100 grams), which was tested by a Government approved Valuer. 4.1 It is alleged that the said Mr. Jignesh Savaliya in his statement stated that the said gold bars were given to him by a passenger named Mr. Lokesh Sharma (Petitioner of SCA No. 23147 of 2019) at Aerobridge of Bay No. 32 and that he was supposed to hand over the said gold bars to Mr. Rutugna Arvindkumar Trivedi, petitioner herein, outside the Airport terminal. Mr. Savaliya has also allegedly informed that Mr. Lokesh Sharma had exited the Airport terminal and upon the instruction of the Officers of the Deputy Comissioner of Customs, Ahmedabad, Mr. Savaliya called Mr. Sharma at Gate No.5 where Mr. Lokesh Sharma was apprehended. 4.2 It is alleged that upon physical search of Mr. Sharma and examination of his baggage, nothing incriminating was found but during the checking of black coloured trolleybag carried by Mr. Lokesh Sharma, the business card of the present Petitioner was found and as per statement of Mr. Lokesh Sharma, nine brown coloured packets containing gold bards were handed over to him in the duty free area of Dubai Airport by the wife o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ansporting or concealing or keeping smuggled goods in future, is also not tenable as it would come into play once the goods are smuggled. (5) That there is no allegation that the detenue has done any overt act after the goods were smuggled because the goods have been seized on the Airport, which were not belonging to the present Petitioners. (6) There is no direct evidence of involvement of the petitioner in the said incident. (7) That the Petitioners are tried for involvement by the Authorities, on the basis of statements of codetenu, which statements are retracted by them on the earliest opportunity and were taken even in the bail application by the detenue. (8) No incriminating materials have been found during the search. (9) All the three grounds mentioned in the order of detention are not sufficient to pass any order of detention and the grounds of detention are also vitiated. (10) All the three grounds mentioned in order of detention are independent in itself and that the Order of detention is vague in nature. (11) The right of detenue to make effective representation has been made illusory and his representation has not been decided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2019. 6. The affidavit-in-reply filed on behalf of respondent Nos. 1 and 2 are also filed in the matter making identical averments. 7. The Petitioner has filed rejoinder affidavit in the matter denying the averments made by the respondent in their reply affidavits and he has stated that two other codetenu namely Mehul Rasiklal Bhimani has filed his petition before Hon'ble Delhi High Court wherein the Hon'ble Delhi High Court has set-aside the detention order which was based on the same set of facts and materials of this case as the Hon'ble Supreme Court in the case of Pramodgiri Goswami held that there was no nexus between event of March, 2013 and March, 2015. The Supreme Court has released the detenue by setting aside the order of the detaining authority. This judgment has been followed by Delhi High Court in Writ Petition filed by Mr. Mehul Bhimani. It is also stated that in view of this, the petitions may be allowed and they be set at liberty. 8. Heard Mr. S.H.Sanjanwala, learned Senior Counsel with Mr. Dilip Kanojiya, learned advocate for the petitioners, Mr. Devang Vyas, Assistant Solicitor General with Mr. Nirzar Desai, learned advocate for the Respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder of detention, it has been submitted that it is being done with a view to prevent him from smuggling gold; abetting the smuggling of goods; and dealing in smuggled goods otherwise then by engaging in transporting of concealing or keeping smuggled goods, in future. He has also submitted that as per the settled law, the Detaining Authority is bound to deliver its comments to the various clauses of Section 3 as to under which clause, the activity of the detenu would fall. Assailing the detention order, Mr. Sanjanwala, learned Sr. Counsel has also submitted that there is no explanation in the grounds of detention as to under what Clause of subsection (1) of Section (3) would fall. While inviting the attention of this Court to the affidavit of the respondent as well as the detention order, learned Sr. Counsel has submitted that as per the respondent, the entire racket has been orchestrated and masterminded by Shri Rutugna Trivedi and he coopted Shri Mehul Bhimani, Shri Jitendra Rokad and Shri Pramodgiri Premgiri Goswami and Shri Vipul Joshi as Financers. According to him, the whole case regarding conspirary of smuggling falls to the ground in view of the subsequent development that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned Sr. Counsel for the petitioner has submitted that the incident alleged is that of 4.6.2019 and the order of detention is passed on 2.8.2019 and there is no explanation in the grounds of detention regarding the delay, with the result that unexplained delay vitiates the continued detention of the detenu. While referring the affidavitsinreply of the respondent, learned Sr. Counsel has also submitted that the delay is also not explained in the said affidavit. 9.6 Mr. Sanjanwala, learned Sr. Counsel for the petitioner has also submitted that order of detention, is punitive in nature. Learned Sr. Counsel has also submitted that it is an admitted position that the present detenu Mr. Lokesh Sharma was in judicial cusotdy when the order of detention was passed and no cogent reasons are given why preventive detention was necessary. According to him, the impugned order is punitive in nature and not preventive detention as it clearly emerges from the fact that Mr. Lokesh Sharma and Divya Bhundia have been granted default bail. He has also submitted that the detention order was passed at the stage when there was no material with the authority to file chargesheet. Therefore, accordin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceived any communication from the Advisory Board. He has also contended that the petitioner has also made representation to the detaining authority on 16.9.2019 but he has not received any reply from the Detaining Authority. Learned Sr. Counsel has also referred to another representation dated 16.12.2019 made by the petitioner to the Joint Secretary, COFEPOSA and has submitted that it is yet not decided by the Authority and there is a delay on the part of the Authority, which vitiates the detention of the detenu. 9.12 While referring to the certain facts which are narrated in the detention order, wherein the Authority has considered the Email messages as well as Wechat messages and other documents, which have been taken into consideration by the detaining authority, are not provided to the detenu, which has resulted into breach of his Constitutional right. According to him, if such documets are not provided then there will be no proper observation of procedural safeguard in the eyes of laws as required under Section 3 of COFEPOSA and therefore, the order is vitiated. 9.13 On all these grounds, Mr. Sanjanwala, learned Sr. Counsel has submitted to allow the petitions and set-as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his statement and the Statement of Jignesh Savaliya, who have already retracted from their previous statement. Mr. Sanjanwala, learned Sr. Counsel has also relied on the following decisions: i. Munjal Showa Ltd v. Commissioner of Central Excise, Faridabad, reported in 2008 (227) E.L.T 330; ii. Shiv Kripa Ispat Pvt. Ltd v. Commissioner of Central Excise Customs, Nasik, reported in 2009 (235) E.L.T 623; iii Satya Narayan Subudhi v. Union of India, reported in AIR 1991 SC 1375. FURTHER SUBMISSION IN RELATION TO SPECIAL CIVIL APPLICATION NO. 1713 OF 2020 IN THE CASE OF NITA CHUNILAL PARMAR: 11. In addition to general submissions made by learned Sr. Counsel, as referred to hereinabove, regarding this petition, he has also submitted that there is no direct involvement of the detenu and she was only working with Rutugna Trivedi as an Accountant. He has also submitted that all the documents alleged to have been against the detenu does not land any credence to the fact that she was involved in smuggling of gold. He has also submitted that reliance placed on the statements of Jitendra Rokad, Mehul Bhimani and Divya Bhundiya, who have retracted their statements at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1979) 2 SCC 637; 3. Vijaykumar Dharna @Koka v. Union of India, reported in AIR 1990 SC 1184: (1990) 1 SCC 606; 4. Ashadevi v. K. Shivraj, reported in AIR 1979 Cri. L.J. 203; 5. R. Prakash V. State of Karnataka, reported in 1980 Cri.L.J. 165; 6. Binod Singh v. District Magistrate, Dhanbad, reported in AIR 1986 SC 2090; 7. K. Satyanaraya Subudhi v. Union of India, reported in AIR 1991 SC 1375; 8. Sita Ram Somani v. State of Rajasthan, reported in AIR 1986 SC 1072; 9. Sunil Fulchand Shah v. Union of India, reported in AIR 2000 SC 1023; 10. Rekha v. State of Tamil Nadu through Secretary to Government and another, reported in (2011) 5 SC 244; 11. Yumman Ongbi Lembi Leima v. State of Manipur and others, reported in (2012) 2 scc 176; 12. T.A. Abdul Rahman v. State of Kerala and others, reported in (1989) 4 scc 741; 13. Rajinder Arora v. Union of India and others, reported in (2006) 4 SCC 796; 14. Copy of Order dated 27.1.2020 passed in Writ Petition (Cri) No. 359 of 2019 by the Hon'ble Supreme Court of India, in the case of Pramodgiri Premgiri Goswami v. Union of India Ors. 15. Copy of Order dated 27.1.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der the Customs Act and recording of statement of such person under Section 108 of the Customs Act, Mr. Devang Vyas, learned ASG has vehemently submitted that these legal provisions are made to see to it that no illegal activities affect the foreign exchange as well as economic condition and the security of the State. He has also contended that any action passed under the COFEPOSA Act for detaining any person, particularly as provided statutorily, is a preventive action and not a punitive action. While referring the documentary evidence on record as well as entire order of detention and the affidavit-in-reply and the contents of certain statements referred to in detention order, Mr. Devang Vyas, learned ASG has submitted that in present case, the activities of smuggling was organized secretly and it is operated since 201415 and till last incident almost 4886.2 Kg of gold have been smuggled into India from Dubai and the value of gold is worth ₹ 1250 Crores and evasion of duty is almost ₹ 478 Crores. According to Mr.Vyas, learned ASG, the gold has been imported clandestinely, no duty is paid and there is illegality committed by all the persons against whom the authority h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the person concerned was smuggling or any activities detrimental to the economy and security of the State, the authority could pass preventive detention order as it is not a punitive action. 13.3 Mr. Vyas, learned ASG has also submitted that when there is ample material on record and on that basis the detaining authority has thought it proper to pass detention order, in that case the Court may not act as an Appellate Forum for scrutinizing the detention order. Learned ASG has also submitted that though judicial review of the action of the detaining authority is available, but, while reviewing the action of the authority in passing order of subjective satisfaction of the detaining authority, ordinarily the same may not be exercised by the Court. 13.4 Mr. Devang Vyas, learned ASG has also submitted that there is no delay on the part of the detaining authority in passing the impugned order as well as supplying documents thereof to the detenu. He has also submitted that so far as the petitioner Mr. Lokesh Sharma is concerned, the detention order was furnished on 3.8.2019 and ground of detention was supplied on 6.8.2019, clearly within statutory provision as contained in subse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority has passed the impugned order, which is legal and valid. 13.8 Mr. Devang Vyas, learned ASG has submitted that detenu Mr. Rutugna Trivedi is a Mastermind and he has smuggled gold from Dubai through various persons and there is material on record to sustain the detention order. While referring to the statement of Mr. Rutugna Trivedi, learned ASG has submitted that Rutugna Trivedi has given evasive reply and on perusal of the statement it appears that he is knowing almost all the persons and even used all email IDs. He has also contended that retraction of the statement at belated stage as when the person concerned were produced before the learned Judicial Magistrate, none has complaint that the statement have been recorded under pressure and coercion. According to Mr. Vyas, learned ASG the so called retraction of statement is not proper and the contents of the statement remains as it is as the person concerned has also made some writing in his name in his statement. 13.9 Regarding Petitioner Mr. Lokesh Sharma, Mr. Vyas, learned ASG has submitted that he is a person who has been arrested on 4.6.2019 and who had brought the gold from Dubai, which was handed over to him ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etenu is made after filing of the Bail Application and there was no retraction in the beginning. He has also submitted that due to retraction of the statement by the other detenu, even if it is believed, then there is further material placed on record i.e. statement of ground staff as well as staff of travel agent and the copy of the Notebook and exchange of messages on Wechat and through email, as well as Panchnama, to sustain the detention order. 13.14 Mr. Vyas, learned ASG has also submitted that the Advisory Board has confirmed detention order on 1.1.2020 in respect of Rutugna Trivedi as well as Nitaben Parmar as both of them were arrested on 14.10.2019 and the grounds of detention were supplied to them on 16.10.2019. He has narrated that detenu Nita Parmar was arrested on 14.10.2019; grounds were supplied on 16.10.2019 reference to the State was made in 20.10.2019, the report from Advisory Board was dated 19.10.2019 and the confirmation by the authority is dated 1.1.2020. Whereas regarding Lokesh Sharma, learned ASG has submitted that he was arrested on 3.8.2019 and grounds were supplied on 6.8.2019, reference to the State was made on 28.8.2019; report from Advisory Board w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sfied by the authority and it is incumbent duty of the detaining authority to explain the delay occurred in the matter. While inviting the attention of the Court regarding the ground raised in the petitions, which were added due to passing of detention order, and the ground raised therein as well as the reply filed by the authority, the learned Sr. Counsel has submitted that points raised by the Petitioner in his petition, has not been denied specifically by the authority and, therefore, the sole ground of delay is sufficient to set-aside the detention order as there is inordinate unexplained delay of 59 days from the date of detention order and about 4 years from 20132014 and there is no explanation given in the ground of detention nor in affidavit-in-reply. 15.1 Mr. Sanjanwala, learned Sr. Counsel has also submitted that the decisions relied upon by the Petitioners have not been referred to in the argument of Mr. Devang Vyas, learned ASG. He has submitted that in detention matter it is always found that when the Court have found that the detenu is entitled to be released on one ground, it is not necessary to go into the details of the other grounds. While referring to the judg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ASG is contrary to Section 10 of COFEPOSA, which provides for maximum period of detention i.e. one year and there is no flexibility. 15.3 Regarding the submission of Mr. Devang Vyas, learned ASG that in the detention matter, time is not relevant, learned Senior Counsel has submitted that the submission made by Mr. Vyas, learned ASG is contrary to the order of the Hon ble Supreme Court in other matters. Regarding the submission of Mr. Vyas, learned ASG that retraction is an afterthought, learned Senior Counsel has submitted that it cannot be believed even with reference to the grounds of detention as statement was recorded on 11.6.2019 and the same was retracted when the Petitioner was produced before the learned Magistrate. That JitendraRokad was arrested on 29.6.2019 and was produced before the learned Magistrate on 1.7.2019 and, therefore, there is no afterthought or delay. While in the case of Mehul Bhimani, the same thing has happened. According to him, this fact vitiates the Order of detention as, as retracted statement of codetenu cannot be the basis of the detention order. 15.4 Regarding decision relied upon by Mr. DevangVyas, learned ASG, the learned Senior Counsel M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble Supreme Court or by this Court or by the Delhi High Court, on the basis of doctrine of Parity, all these petitions require to be granted. He has repeatedly mention that there is 59 days delay in passing detention order and the same is not explained by the respondents and no submission has been made by the other side regarding the representation of the petitioners and the same are not objected to in the affidavit-in-reply. He has also contended that the grounds raised in the representation are not considered by the detaining authority or the higher authority. He has also stated that if there is no seizure of the gold, then there cannot be any confiscation of such goods, and therefore, the provisions of Sections 111 and 113 of the Customs Act is not applicable. 16. In the case of Adishwar Jain v. Union of India Anr. (supra), the Hon'ble Supreme Court has observed in Paras5, 8 and 15 as under: 5. We may first deal with the question of unexplained delay. In this regard we may notice the following dates: On 13.10.2003, Appellant was arrested. He was discharged on bail on 6.1.2004. Several inquiries were conducted both inside and outside India. A report in relation to o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve acted with greater promptitude both in making the order of detention as also in securing the arrest of the petitioner, and the petitioner would not have been allowed to remain at large for such a long period of time to carry on his nefarious activities... 17. In the case of Narendra Purshotam Umaro v. B.B. Gujral and Others (supra), the three Judges Bench of the Hon'ble Supreme Court has observed in Paras13, 14 and 17 as under: 13. It is, therefore, well settled that in case of preventive detention of a citizen, the Constitution by Art. 22 (5) as interpreted by this Court, enjoins that the obligation of the appropriate Government to afford the detenu the opportunity to make a representation and to consider that representation is distinct form the Governments obligation to constitute a Board and to communicate the representation, amongst other materials, to the Board to enable it to form its opinion and to obtain such opinion. 14. The nature of the dual obligation of the Government and the corresponding dual right in favour of the detenu under Art. 22 (5) was reiterated by this Court in Khairul Haque v. The State of West Bengal, W. P. No. 246 of 1969, decided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng authority records his satisfaction as under : I am satisfied it is necessary to detain you under COFEPOSA Act, 1974 with a view to preventing you from concealing, transporting smuggled goods as well as dealing in smuggled goods. This satisfaction clearly reflects the grounds contained in clauses (iii) and (iv) of S. 3(l) of the Act. The above satisfaction does not speak of smuggling of goods or abetting the smuggling of goods which are the grounds found in the Gurmukhi version of the detention order. There is, therefore, considerable force in the contention urged by the learned counsel for the appellant that on account of this variance the detenu was not able to effectively represent his case before the concerned authorities. In fact according to him the appellant was confused whether he should represent against his detention for smuggling of goods and /or abetting the smuggling of goods or for engaging, in transporting and concealing smuggled goods and / or dealing in smuggled goods. Besides the English version of the detention order was only for abetting the smuggling of goods. The satisfaction recorded in the Gurmukhi version of the grounds for detention is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peaking for the Constitution Bench of the Supreme Court said: The Courts have by judicial decisions carved out an area, limited though it be, within which the validity of the subjective satisfaction can yet be subjected to judicial scrutiny. The basic postulate on which the Courts have proceeded is that the subjective satisfaction being a condition precedent for the exercise of the power conferred on the executive, the Court can always examine whether the requisite satisfaction is arrived at by the authority; if it is not, the condition precedent to the exercise of the power would not be fulfilled and the exercise of the power would be bad. The learned Judge continued: Where the liberty of the subject is involved, it is the bounden duty of the Court to satisfy itself that all the safeguards provided by the law have been scrupulously observed and the subject is not deprived of his personal liberty otherwise than in accordance with law. 21. In the case of Binod Singh v. District Magistrate, Dhanbad and others (supra), the two Judges bench of the Hon'ble Supreme Court of India has observed in Para7 that: 7. It is well settled in our Constitutional framewo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of similar nature by this Court, the personal liberty of an individual is the most precious and prized right guaranteed under the Constitution in Part III thereof. The State has been granted the power to curb such rights under criminal laws as also under the laws of preventive detention, which, therefore, are required to be exercised with due caution as well as upon a proper appreciation of the facts as to whether such acts are in any way prejudicial to the interest and the security of the State and its citizens, or seek to disturb public law and order, warranting the issuance of such an order. An individual incident of an offence under the Indian Penal Code, however heinous, is insufficient to make out a case for issuance of an order of preventive detention . 24. T.A. Abdul Rahman v. State of Kerala and others (supra), it is observed in Para11 that: 11. Similarly, when there is unsatisfactory and unexplained delay between the date of order of detention and the date of securing the arrest of the detenu, such a delay would throw considerable doubt on the genuineness of the subjective satisfaction of the detaining authority leading to a legitimate inference that the detaini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent case, the Coordinate bench of this Court on 27.2.2020 has allowed the petition on the basis of the judgment of the Hon'ble Apex Court in the case of Pramodgiri Premgiri Goswami v. Union of India Ors (supra) and decision of Hon'ble Delhi High Court in the case of Mehulbhai Rasikbhai Bhimani v. Union of India and others (Supra) considered the fact that there was unexplained delay in passing hte detention order. 30. In the case of Pankajkumar Chakrabarty and Others v. State of West Bengal (supra), the Hon'ble Apex Court has observed that; Article 21 guarantees protection against deprivation of personal liberty save that in accordance with the procedure established by law. At first sight it would appear somewhat strange that the Constitution should make provisions relating to preventive detention immediately next after Art. 21. That appears to have been done because the Constitution recognizes the necessity of preventive detention on extraordinary occasions when control over public order, security of the country etc. are in danger of a breakdown. But while recognizing the need of preventive, detention without recourse to the normal procedure according to. law, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is now well settled that it is incumbent on the State to satisfy the Court that the detention of the petitioner/detenu was legal and in conformity not only with the mandatory provisions of the Act but also strictly in accord with the constitutional safeguards embodied in Art. 22(5). In return to a rule nisi issued by this Court or the High Court in a habeas corpus petition, the proper person to file the same is the District Magistrate who had passed the impugned order of detention and he must explain his subjective satisfaction and the grounds therefore and if for some good reason the District Magistrate is not available, the affidavit must be sworn by same responsible officer like the Secretary or the Deputy Secretary to the Government in the Home Department who personally dealt with or processed tile case in the Secretariat or submitted it to the Minister or other Officer duly authorised under the Rules of Business framed by the Governor under Art. 166 of the Constitution to pass orders on behalf of the Government in such matters: Niranjan Singh v. State of Madhya Pradesh2, Habibullah Khan v. State of West Bengal3, Jagdish Prasad v. State of Bihar and another4 and Mohd. Alam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tention against the concerned person was set-aside by the Court. 35. In case of Mahesh Kumar Chauhan @Banti v. Union of India and others (supra), and in case of Prem Lata Sharma (Smt) v. District Magistrate, Mathura and others (supra), it was observed that if there is delay in passing order on the representation of the detenu and it is unexplained then this fact itself vitiates the detention order. 36. In case of Smt. Gracy V. State of Kerala and another (supra), the Hon'ble Supreme Court has observed as under: 9. It being settled that the aforesaid dual obligation of consideration of the detenu's representation by the Advisory Board and independently by the detaining authority flows from Article 22(5) when only one representation is made addressed to the detaining authority, there is no reason to hold that the detaining authority is relieved of this obligation merely because the representation is addressed to the Advisory Board instead of the detaining authority and submitted to the Advisory Board during pendency of the reference before it. It is difficult to spell out such an inference from the contents of Article 22(5) in support of the contention of the learn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is no answer to say that the exclusion of a relevant document did not affect the decision to detain a person, in view of the other documents that were placed before the detaining authority or that the detaining authority would have come to the same conclusion even if he had considered the said document vide Attorney General of India vs. Amratlal Prajivandas, Ashadevi vs. K. Shivraj, Addl. Chief Secretary to the Govt. of Gujarat, Sita Ram Somani vs. State of Rajasthan ; Ayya vs. State of U.P. and Ahamed Nassar vs. State of Tamil Nadu 38. In case of S. Gurdip Sing v. Union of India and others, reported in AIR 1981 SCC 362, the Hon'ble Supreme Court has observed as under: 2. ...In our opinion, this case is clearly concluded by two recent Division Bench decisions of this Court, namely: Smt. Icchu Devi Choraria v. Union of India in Writ Petn. (Criminal) No. 2030 of 1980 decided on 991980 (reported in AIR 1980 SC 1983) and Smt. Shalini Soni v. Union of India. (Criminal Writ Petn. No. 4344 of 1980 decided on 24101980: (reported in 1980 Cri LJ 1487). In both these cases, this Court has taken the view that on a proper construction of Article 22 (5) of the Constitution, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubjective satisfaction based on materials. Normally, such satisfaction is not to be interfered with. On the facts of the case, the detaining authority has indicated as to why he was of the opinion that there is likelihood of detenu being released on bail. It has been clearly stated that in similar cases orders granting bail are passed by various courts. Appellant has not disputed correctness of this statement. Strong reliance was placed by learned counsel for the appellant on Rajesh Gulati v. Govt. of NCT of Delhi and Another [2002 (7) SCC 129]. The factual scenario in that case was entirely different. In fact, five bail applications filed had been already rejected. In that background this Court observed that it was not normal case. The High Court was justified in rejecting the stand of the appellant . 41. In the case of Gurdev Singh v. Union of India (Supra), the Hon'ble Supreme Court has observed in Para20 as under: 20..... Whether the detention order suffers from non-application of mind by the detaining authority is not a matter to be examined according to any straitjacket formula or set principles. It depends on the facts and circumstances of the case, the natur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onal liberty is one of the most cherished freedoms, perhaps more important than the other freedoms guaranteed under the Constitution. It was for this reason that the Founding Fathers enacted the safeguards in Article 22 in the Constitution so as to limit the power of the State to detain a person without trial, which may otherwise pass the test of Article 21, by humanizing the harsh authority over individual liberty. Since, preventive detention is a form of precautionary State action, intended to prevent a person from indulging in a conduct, injurious to the society or the security of the State or public order, it has been recognised as a necessary evil and is tolerated in a free society in the larger interest of security of the State and maintenance of public order. However, the power being drastic, the restrictions placed on a person to preventively detain must, consistently with the effectiveness of detention, be minimal. In a democracy governed by the rule of law, the drastic power to detain a person without trial for security of the State and/or maintenance of public order, must be strictly construed. This Court, as the guardian of the Constitution, though not the only guardi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... muggling activities which are having increasingly deleterious effect on the national economy and thereby serious effect on the security of the State. Section 3 of the COFEPOSA Act, which is not amended or repealed, empowers the authority to exercise its power of detention with a view to preventing any person inter alia from acting in any manner prejudicial to the conservation or augmentation of foreign exchange. If the activity of any person is prejudicial to the conservation or augmentation of foreign exchange, the authority is empowered to make a detention order against such person and the Act does not contemplate that such activity should be an offence. 9. The COFEPOSA Act contemplates two situations for exercise of power of preventive detention - (a) to prevent violation of foreign exchange regulations; and (b) to prevent smuggling activities. Under Section 2(e) of the COFEPOSA Act, smuggling is to be understood as defined under clause (39) of Section 2 of the Customs Act, 1962 which provides that smuggling in relation to any act or omission will render such goods liable to confiscation under Section 111 or Section 113.Section 111 contemplates confiscation of improper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not synonymous. The purposes are different. The authorities are different. The nature of proceedings is different. In a prosecution an accused is sought to be punished for a past act. In preventive detention, the past act is merely the material for inference about the future course of probable conduct on the part of the detenu. In light of the above reasoning, the Court while setting aside the order of the High Court held, 11. ...in our view the order passed by the High Court holding that what was considered to be the criminal violation of FERA has ceased to be criminal offence under FEMA, the detention order cannot be continued after 162000, cannot be justified . 45. The Constitution recognizes preventive detention though it takes away the liberty of a person without any enquiry or trial. Preventive detention results in negation of personal liberty of an individual; it deprives an individual freedom and is not seen as compatible with rule of law, yet the framers of the Constitution placed the same in Part III of the Constitution. While giving to an individual the most valuable right personal liberty and also providing for its safeguard, the Constitution ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the situations contemplated therein and to the extent provided. Section 11 empowers the Central Government or the State Government, as the case may be, to revoke any detention order . 44. In the case of J. Abdul Hakeem v. State of Tamil Nadu and Others (supra), the Hon'ble Supreme Court has observed in Para8 as under: 8. The principle of supply of the material documents to the detenu was considered by this Court in the matter of Radhakrishnan Prabhakaran Vs. State of Tamil Nadu and others (2000) 9 S.C.C. 170. In Para 8, this Court has said: 8. We make it clear that there is no legal requirement that a copy of every document mentioned in the order shall invariably be supplied to the detenu. What is important is that copies of only such of those documents as have been relied on by the detaining authority for reaching the satisfaction that preventive detention of the detenu is necessary shall be supplied to him From the aforesaid authorities it is clear that the detenu has a right to be supplied with the material documents on which the reliance is placed by the detaining authority for passing the detention order but the detention order will not be vitiate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lure on the part of the Detaining Authority, to examine and consider the germane and relevant question relating to imminent possibility of detenus being granted bail while recording its subjective satisfaction and passing the detention orders is concerned, at the outset, it is required to be noted that in paragraph 7, the Detaining Authority observed and stated as under: 7. I am aware that you, i.e., Shri Ashok Kumar Jalan are in judicial custody at present at Presidency Correctional Home, Alipore, Kolkata. However, there is an immediate possibility of your release from judicial custody and if you are released on bail, you are likely to continue to indulge in the prejudicial activities and therefore there is a need to issue a Detention Order against you under the COFEPOSA Act, 1974 with a view to prevent you from smuggling of gold and foreign currency in future. Therefore, it is evident that the Detaining Authority while passing the detention orders was aware of the fact that the detenus are actually in custody; that there is a real possibility of their being released on bail; and that on being so released they would in all probability indulge in prejudicial activities and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of detention can be passed against a person who is in detention or in jail, will always have to be determined in the circumstances of each case. Following the aforesaid decision of this Court, in the subsequent decision, in the case of N. Meera Rani v. Government of T.N. (1989) 4 SCC 418, in para 22, this Court observed and held as under: .Subsisting custody of the detenu by itself does not invalidate an order of his preventive detention and the decision must depend on the facts of the particular case; preventive detention being necessary to prevent the detenu from acting in any manner prejudicial to the security of the State or to the maintenance of public order etc. ordinarily it is not needed when the detenu is already in custody; the detaining authority must show its awareness to the fact of subsisting custody of the detenu and take that factor into account while making the order; but, even so, if the detaining authority is reasonably satisfied on cogent material that there is likelihood of his 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, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taining authority has casually or passingly referred to these documents or also relied upon them depends upon the facts and the grounds, which aspect can be examined by the Court. (6) In a case where detenu is released on bail and is at liberty at the time of passing the order of detention, then the detaining authority has to necessarily rely upon them as that would be a vital ground for ordering detention. In such a case the bail application and the order granting bail should necessarily be placed before the authority and the copies should also be supplied to the detenu. 50. Now applying the law laid down by this Court, referred to hereinabove, to the facts of the case on hand and considering the ground (para 7) and the various circumstances noted by the Detaining Authority, we are satisfied that the detention orders cannot be quashed on this ground. It is to be noted that the detenus have been granted bail by the Court on the very date the orders of detention were quashed by the High Court, i.e., on 2.8.2019. Therefore, the apprehension in the mind of the Detaining Authority that the detenus are likely to be released on bail was well founded and fortified. Therefore, the H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut the places in Pakistan which he was visiting. He was further told that in lieu of the supply of this information he had been receiving money from Pakistan. Nothing more was required to be intimated to enable him to make an effective representation. The facts which were not disclosed were not basic facts, and their nondisclosure did not affect the petitioner's right of making a representation. As recited in the communication under cover of which the grounds of detention were served on the detenue, those factual details were withheld by the detaining authority because in its opinion, their disclosure would have been against public interest. (emphasis supplied) 20. Once again, this very aspect found duly explained in Hansmukh v. State of Gujarat in the following words: (SCC pp. 18283, para18) 18. From these decisions it is clear that while the expression grounds in Article 22(5) , and for that matter, in Section 3(3) of the COFEPOSA, includes not only conclusions of fact but also all the 'basic facts' on which those conclusions are founded, they are different from subsidiary facts or further particulars of these basic facts. The distinction between ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subsidiary facts or further particulars of these basic facts. From the aforesaid, it is clear that each 'basic fact' would constitute a ground and particulars in support thereof or the details would be subsidiary facts or further particulars of the said basic facts which will be integral part of the 'grounds'. Section 3 of the Act does not use the term 'grounds'. No other provision in the Act defines 'grounds'. Section 3(3) deals with communication of the detention order and states that 'grounds' on which the order has been made shall be communicated to the detenue as soon as the order of detention is passed and fixes the time limit within which such detention order is to be passed. It is here the expression 'grounds' is used and it is for this reason that detailed grounds on which the detention order is passed are supplied to the detenue. Various circumstances which are given under subsection (1) of Section 3 of the Act, on the basis of which detention order can be passed, cannot be treated as 'grounds'. On the contrary, State of Gujarat v. Chamanlal Manjibhai Soni, reported in (1981) 2 SCC 24 case clarifies that there is onl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 wellsettled principle that any executive instruction like the guidelines cannot curtail the provisions of any statute or whittled down any provision of law. 32. 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. 45. The court must be conscious that the satisfaction of the detaining authority is subjective in nature and the court cannot substitute its opinion for the subjective satisfaction of the detaining authority and interfere with th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion is not regulation, it is something much more serious as it takes away the liberty of a person but it is accepted as a necessary evil to prevent danger to the community. 11. Even solitary incident may be sufficient for forming subjective satisfaction of passing detention order. 12. Each 'basic fact' would constitute a ground and particulars in support thereof or the details would be subsidiary facts or further particulars of the said basic facts which will be integral part of the 'grounds'. 13. It is well settled that the order of detention and for that purpose it is necessary that the ground of detention must show that the detaining authority was aware of the fact that the detenu was already in custody. The detaining authority may further satisfy that the detenu is to be released from custody under prejudicial activities of the detenu indicating 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. 14. Preventive detention results in negation of personal liberty of an individual; it deprives an individual freed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he detenu to receive the document which was taken into consideration by the detaining authority while formulating the grounds of detention is well recognized; but it is not that non-supply of each and every document provides a ground for setting aside the detention order. 22. It is for the detenu to establish that the non-supply of copies of the documents has impaired the detenu s right to make an effective and purposeful representation. The demand made by the detenu for the document merely on the ground that there is a reference in the grounds of detention, cannot vitiate the otherwise legal detention order. No hardandfast rule can be laid down in this behalf. What is essential is that the detenu must show that the failure to supply the documents had impaired his right, however, slight or insignificant it may be. 50. The COFEPOSA Act, 1974 has been enacted for the purpose of preventive detention in certain cases for the purposes of conservation and augmentation of foreign exchange and prevention of smuggling activities and for matters connected therewith. As per the object of the Act, as there were violations of foreign exchange regulations and smuggling activities were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. An order of preventive detention is also no barred to prosecution. 56. The order of preventive detention is based on a reasonable prognosis of future behavior of a person, based on his past, in light of his surrounding circumstances. 57. It is worthwhile to reproduce Section 3 of the COFEPOSA Act, which provides as under: Section 3: Power to make orders detaining certain persons (1) The Central Government or the State Government or any officer of the Central Government, not below the rank of a Joint Secretary to that Government, specially empowered for the purposes of this section by that Government, or any officer of the State Government, not below the rank of a Secretary to that Government, specially empowered for the purposes of this section by that Government, may, if satisfied, with respect to any person (including a foreigner), that, with a view to preventing him from acting in any manner prejudicial to the conservation or augmentation of foreign exchange or with a view to preventing him from- (i) smuggling goods, or (ii) abetting the smuggling of goods, or (iii) engaging in transporting or concealing or keeping smuggled goods, or ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es and for reasons to be recorded in writing, not later than twenty days, from the date of detention. 57.4 Thus, the time frame work has been provided in Section 3 regarding communication of the grounds of detention of the person concerned i.e. detenue. It has also revealed from subsection 3 of Section 3 that the satisfaction of the authority is material one and the said satisfaction should be subjective satisfaction. The grounds of such detention may be as referred to above in (i) to (v). 57.5 Now, in view of the provisions containing the purpose for which the detention order could be passed is reflected in (i) to (v) with words or in each clause. Considering the object of the Act, it needs to be observed that the word or is used here is for disjunctive purpose. Thus, the purpose as enumerated in clause (i) to (v) of subPage section(1) of Section 3 it itself separate one. At the same time, if against any person detention order is passed for more than 1 or 2 grounds, then that fact alone cannot be treated an illegal exercise or colourable exercise of power by the detaining authority. 58. At this stage, it is worthwhile to refer to Section 5(A) which has been added w.e. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... remaining ground or grounds. 59. Now, therefore, on conjoint reading of Section 3 with Section 5A it is crystal clear that the order of detention passed for more than two grounds and if one of the grounds is not applicable or vague or nonexistent or nonrelevant or not connected or any proximately connected with such person, such detention order cannot be declared as invalid detention order. If the detention order is valid for the purpose of any one of the grounds stated in clause (i) to (v) of subsection (1) of Section 3, then such order of detention, in the given facts and circumstances, can be treated as legal and valid. 60. The relevant provisions prescribing time limit for making reference to the Advisory Board and maximum period for deciding the same by the Advisory Board are contained in Section 8 of the COFEPOSA Act. The relevant provisions reads as under: SECTION 8: Advisory Board: For the purposes of subclause (a) of clause (4), and subclause (c) of clause (7) of Article 22 of the Constitution,- (a) xxx xxx xxx; (b) save as otherwise provided in section 9, the appropriate Government shall, within five weeks from the date of detention of a per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned appropriate Government to refer the detention order to the Advisory Board within five weeks from the date of detention of the person. At the same time, it is the duty of the Advisory Board to submit its report within eleven weeks from the date of detention of the person concerned. 60.3 Considering the provisions contained in Section 8 it clearly appears that the time bound procedure has been provided therein and it is not just a procedural exercise but it is a statutory prescribed time limit which has to be adhered to by concerned authority and the Advisory Board. 61. The word smuggling has been defined in clause (e) of Section 2 of COFEPOSA Act, wherein it is provided that smuggling has the same meaning as in clause 39 of Section 2 of Customs Act, 1962 or its grammatical variation and cognate expression shall be construed accordingly. Thus, which activity should be considered as smuggling for the purpose of deciding the activity which may fall in the definition of smuggling, one has to refer to clause 39 of Section 2 of the Customs Act, 1962. 61.1 On perusal of the clause 39 of Section 2 of Customs Act, 1962, it reveals that the word smuggling has been defined in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich had started in the year 201415. It is also alleged by the respondent that during the investigation it was found that about 4886.206 kg of gold valued at over ₹ 1300 crores have been smuggled into India from Dubai. The role attributed to Mr. Rutugna Trivedi (Petitioner in SCA No. 22512 of 2019) is described as Mastermind and he has also carried gold in past. The role attributed to Ms. Nitaben Chunilal Parmar (Petitioner in SCA No.1713/2020) as Close associate of Mastermind and maintaining the details of payment and purchases. So far as Mr. Lokesh Sharma (Petitioner in SCA No. 23147/2019 ) is concerned, he has been attributed the role of carrier. There are other persons namely Divya Kishor Bhundia, Shri Dharmagna Arvindkumar Trivedi, Shri Bhargav Kanubhai Tanti, Mr. Birendra Singh Yadav, Shri Mukeshkumar Bhaishankarbhai Trivedi, Shri Vipul Navinchandra Joshi are treated as Carriers. The role attributed to Shri Jigensh Savaliya who has filed separate Special Civil Application, is regarded as instrumental in taking gold out of the Airport premises after collecting the same from carrier. Thus, out of all of these persons, present Petitioners i.e. Rutugna Trivedi, Lokesh Sharm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nduct of law abiding persons. 66. It also reveals that the statement recorded by the authorities of the persons namely Lokesh Sharma, Nitaben Parmar etc., have retracted from their statement during the filing of bail application before the trial Court. The main contention of the Petitioners is that as the persons concerned have retracted their statement, there was no material before the authority to pass detention order on the basis of the statement recorded under Section 108 of the Customs Act. 67. Further, it appears from Para( ix) of the grounds of detention that searches were carried out at the following residential and business premises and this exercise was started from 4.6.2019 till 1.7.2019. It also appears from the grounds that the detaining authority has relied upon the statement of the following persons: 1. Mr. Jignesh Govindbhai Savaliya was recorded on 5.6.2019; 2. Mr. Lokesh Sharma was recorded on 5.6.2019; 3. Ms. Rekha Avinash Sharma, Airport Operations Manager, Globe Ground India Pvt. Ltd. Ahmedabad was recorded on 5.6.2019; 4. Samir Yusufbhai Sama, Supervisor with M/s. Aroon Aviation Pvt. Ltd, SVPI Airport, Ahmedabad was recorded on 18.6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 19) Mastermind who has also carried gold in the past 2. Lokesh Sharma (SCA No. 23147/2019 Carrier 3. NitabenChunilalParmar (SCA No. 1713/2020) Associate and Servant of RutugnaTrivedi and kept the details of payment and purchases. 70. Upon consideration of materials placed on record as well as the submission of both the sides, it is admitted fact that Pramodgiri Premgiri Goswami, who was detained under the provisions of COFEPOSA Act, has approached the Hon ble Supreme Court and the Hon ble Supreme Court has set-aside the detention order on the basis of the fact that there is no proximate link between events of March, 2013 and March, 2015 and the detention order, which is over four years later. 71. The Division Bench of Delhi High Court, while relying on the aforesaid decision of Supreme Court in case of Pramodgiri Premgiri Goswami v. Union of India and Ors. (Supra) has released Mr. Mehul Bhimani, on the ground that there was no proximate link between the events of January 2014 and July, 2015 and the impugned order which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to Jitendra Rokad and Mahul Bhimani in the aforesaid cases. Accordingly, decision rendered by this Court on 27.2.2020 in the case of Jitendra Rokad as well as decision of Division Bench of Honourable Delhi High Court in the case of Mehul Bhimani are not applicable in the present case as different roles are attributed to every individual and there is no question of application of principle of parity. Of course, the facts and statements, which are relied on by the detaining authority, are same, however, considering their participation in the alleged illegal activity and specific role attributed to the persons concerned, this Court is of the view that principle of parity is not applicable in the present case. 73. Regarding delay in passing detention order after detaining the detentu is concerned, it is crystal clear that when the detention order was passed on 2.8.2019, Mr.Rutugna Trivedi and Ms.Neeta Parmar, the petitioners herein were not in custody and they were evading the arrest on one pretext or the other. Whereas Mr.Lokesh Sharma was arrested on 4.6.2019 under the Customs Act. It also appears from the material placed on record that the material is voluminous and there are te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Savaliya, Shri Mehul Rasikbhai Bhimani, Shri Jitendrakumar Dhanjibhai Rokad and Shri Bhundia Divya Kishor as the same appear to be false, frivolous, afterthought with an intent to mislead/ divert the investigation. 74.1 It is revealed from the aforesaid observation by the detaining authority, it is crystal clear that Ms. Nitaben Chunilal Parmar, Mr. Jignesh Savaliya and Mr. Lokesh Sharma have retracted their statement recorded by Customs Officer under Section 108 of the Customs Act. It also appears from the detention order that with regard to present two petitions regarding the socalled retraction of statement by aforesaid persons, the detaining authority has referred to the said fact of retraction and also stated that such retraction is an afterthought. 74.2 On perusal of the grounds of detention, it appears that the detaining authority has taken into consideration retraction of statement by Shri Lokesh Sharma, Shri Jignesh Savaliya, Shri Mehul Bhimani, Shri Jitendra Rokad and Shri Bhundiya Kishor and dealt with it thoroughly and has reached to the conclusion that retraction of statements appear to be false, frivolous and afterthought with an intent to mislead/divert the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one bar of yellow metal and therefore he is required to be checked by the customs officers. Ms.Rekha Sharma introduced the person accompanying her as Shri Jignesh Savaliya. .. The AIU officers offer their personal search to Mr.Jignesh Savaliya before conducting his personal search, but Mr.Jignesh Savaliya denies saying that he is having full trust on the AIU officers. The AIU officer asks Mr.Jignesh whether he wants to be checked in front of executive magistrate or Superintendent of Customs, in reply he gives his consent to be searched in front of the Superintendent of Customs. On being questioned by the customs officers, Shri Jignesh Savaliya confesses that the brown coloured packets recovered from his person contains gold bars. On questioning by the officers he informs that these nine brown coloured packets containing Gold bars do not belong to him and were given to him by a passenger named Mr.Lokesh Sharma at a midway place in the aerobridg of bay no.32 and he had concealed the same in the pockets of the clothes worn by him. Shri Jignesh Savaliya further informed that the said passenger Shri Lokesh Sharma had arrived at Ahmedabad Airport by Fly Dubai Flight No.FZ43 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made themself available for interrogation, as referred to herein above. Said representation came to be rejected by order dated 21.10.2019 by the competent authority, which is at page 179 in the paper book; it also appears that on 16.12.2019, Mr.Rutugna Trivedi and Ms.Neeta Parmarpetitioners herein have moved Advisory Board. Now, as stated by the authority that such representation came to be rejected on 1.1.2020. At this juncture, it is pertinent to note that when Mr.Rutugna Trivedi and Ms.Neeta Parmar have made representation on 16.9.2019, they did not appear before the authority even after getting protective orders from this Court. It is also pertinent to note that the authority had to move this Court for necessary direction to the petitioners Mr.Rutugna Trivedi and Ms.Neeta Parmar to appear on a specified date. On such application, this Court has directed Mr.Rutugna Trivedi as well as his associate Mr.Neeta Parmar to appear before the authority and, accordingly, they have appeared on 14.10.2019 and they were arrested. This conduct of both these petitioners reflect their intentions and attitude towards legal order. It also appears from record that after getting protective order, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... considered the retracted statements of the persons concerned and has satisfied himself to pass the detention order against the petitioners. Considering the peculiar facts and circumstances of this case, this Court is of the view that no interference is required to be exercised on the subjective satisfaction of the detaining authority in passing such detention order. 78. It is a fact that the Constitution and the Supreme Court are very zealous of holding personal liberty of an individual but at the same time, the liberty of an individual has to be subordinated within reasonable bounds to the good of the people. Order of detention is clearly a preventive measure and device to afford protection to the society. It is also stated that when preventive detention is aimed to protect the safety and security of everyone, balance has to be struck between liberty of an individual and the needs of the society. 79. Considering the entire material placed on record, it is crystal clear that the detaining authority has properly applied his mind while passing individual detention order in respect of each of the petitioner. It is also crystal clear that necessary safeguards are followed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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