9911796707
TMI Blog2024 (11) TMI 70X X X X Extracts X X X X X X X X Extracts X X X X ..... Detenu was arrested on 06th March, 2024 and as per the record he moved a bail application on 1st April, 2024 and the proposal for detention was moved on 12th April, 2024 which is proximate in time. By way of additional affidavit filed by Respondent No. 3 it has come on record that after the proposal for the Detenu s detention was moved by the Sponsoring Authority on 12th April, 2024, the Detenu was granted bail vide order dated 16th April, 2024 passed by the ld. ACMM, the Sponsoring Authority/Respondent No. 3 sent an updated proposal on 30th April, 2024 to the Detaining Authority placing the said bail order on record as well as its intention to move for cancellation of bail. The aforesaid sequence of dates and events clearly show that the Sponsoring Authority/Respondent No. 3 sent a proposal for detention soon after the Detenu having preferred an application for bail. Looking at the facts of the present case and the voluminous record relied by the Detaining Authority, the nexus between the date of the incident and the passing of the impugned Detention Order cannot said to be delayed or having no live-link. Application seeking cancellation of bail was not placed before the Detaining ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ang Krishna Mishra, Mr. Vaibhav Chechi, Advocates for R-3 (M-9958846148). JUDGMENT AMIT SHARMA, J. 1. The present petition filed by the Petitioner Joyi Kitty Jospeh under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973 (in short Cr.P.C. ) seeks the following prayers:- (a) Issue a writ, order or direction especially in the nature of habeas corpus directing the forthwith release of the Detenue from custody as his detention is illegal; (b) Issue a writ, order or direction in the nature of certiorari to quash the detention order bearing F.No. PD-12001/13/2024-COFEPOSA dated 09.05.2024 passed under Section 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA Act, 1974), by the Respondent No. 2; and (c) Pass such other order or further order or orders as this Hon'ble Court may deem fit and proper under the circumstances of the case. 2. The present petition seeks quashing of the preventive Detention Order bearing F.No. PD-12001/13/2024-COFEPOSA dated 09th May, 2024 passed under Section 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ash amounting to Rs. 1,80,15,600/-was found at the premises mentioned above. Thereafter, the officers enquired with Shri Ummed Singh and Shri Mahipal Vyas about the source of the gold bars/coins/cut pieces and the source of Indian currency. On being enquired, they informed that 05 gold bars with foreign markings (weighing 4999.97 grams) and 15 cut pieces of gold bars with foreign markings (weighing 2711.41 grams) totally weighing 7711.38 grams had been brought to the shop premises for sale by Shri Mohammad Rafique Razvi alias Arif and Shri Mahendra Jain on 05.03.2024, and one gold bar with foreign marking weighing 1000 grams was brought for sale by Shri Shailesh of M/s Pravin Jewellers on 05.03.2024. It was further informed that the rest of the gold (6 gold bars weighing 409.97 grams with Indian markings, 757.540 grams gold which includes 3 crude gold kadas and assorted cut pieces of gold bars without markings, 5 gold bars with foreign markings weighing 500.07 grams and one gold coin and 05 gold bars of different sizes with foreign markings weighing 327.69 grams) weighing 1995.270 grams belong to their employer i.e. Mahi Bhai and Brijesh alias Birju and were meant for trading purpo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... remises of Shri Mohammad Rafique Razvi alias Arif and Shri Sameer Haroon Marchant alias Afzal Haroon Batatawala i.e you to carry out the search proceedings therein as it was suspected that some more smuggled gold could have been concealed at their residential premises. iv) Upon reaching of the DRI officers' team at the residential premises located at 1401-B Kanakia Hollywood, Yaari Road Versova, Shri Sameer Haroon Marchant alias Afzal Haroon Batatawala i.e you, slightly opened the door and on seeing the DRI officers immediately shut the door and prevented the DRI officers from entering the premises. After some time, the officers of DRI managed to enter the premises and observed that the house was in complete disarray. It appeared that the cupboards had been emptied and various items were lying in the rooms. It, therefore, became apparent that Shri Sameer Haroon Marchant alias Afzal Haroon Batatawala i.e you, had tried to destroy the evidence. An amount of Rs. 60,40,000/- and 4,600 UK Pounds were recovered under panchnama dated 05.03.2024 and subsequently seized vide seizure memo dated 06.03.2024 as sale proceeds of smuggled gold. v) The other team of DRI officers was sent to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .03.2024, he along with Shri Mahendra Jain alias Jetha had gone there to sell the smuggled gold. He further stated that while the exchange was underway, they were intercepted by the officers of DRI, Mumbai and 7711.38 grams of smuggled gold was recovered; that he acknowledges receiving approximately 8.5-9 kilograms of foreign-marked smuggled gold from Shri Sameer Haroon Marchant i.e you on 04.03.2024; that on 04.03.2024 itself, he had sold approximately 04 kg worth of smuggled gold to Shri Mahi Bhai and Shri Brijesh alias Birju; that he obtained an additional 6.5 kilograms of foreign-marked smuggled gold from Shri Sameer Haroon Marchant i.e. you increasing the total quantity of smuggled gold with him to approximately 11-11.5 kg; that out of this total, he sold 7711.38 grams to Shri Mahi Bhai and Shri Brijesh alias Birju, and the remaining gold was stored at his residence. Further, on being asked about the sale proceeds of 04 Kg of smuggled gold, he stated that the same was transferred by Mahi Bhai through hawala; that he received a total of 11-11.5 kgs of smuggled gold from Shri Sameer Haroon Marchant i.e you for selling the same in the local market; that he had gone to sell approx ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r his assistance. ix) Statement of Shri Sameer Haroon Marchant/Afzal Haroon Batatawala alias Afzal ie. you was recorded on 05.03.2024 under Section 108 of the Customs Act, 1962, wherein you, inter alia, admitted to assigning Mr. Mohammad Rafique Razvi alias Aarif the task of selling smuggled gold bars on your behalf and offered him a commission of Rs. 2,000 per Kg for each sale; that you started sending smuggled gold to Aarif on a regular basis which included foreign-marked gold bars, cut pieces of foreign-marked gold bars, melted gold bars etc. and used to send 2-3 Kg of smuggled gold to Shri Mohammad Rafique Razvi alias Aarif at a gap of every 2-3 days; that with regards to the modus operandi, you informed that a person named Amzad, residing in Dubai, is responsible for sending the smuggled gold from Dubai to India through carriers mainly in the form of bars and sticks; that upon their arrival at Mumbai International Airport, Amzad provides you with the details of the carrier through WhatsApp; that accordingly, based on this information, you would arrange a meeting at a pre-determined secure location; that subsequently, you and your wife Ms. Joyi Kitty Joseph would handle the dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sameer Haroon Marchant ie you cautiously opened the door slightly, and upon seeing some individuals outside, immediately shut it; that you then appeared to be in a state of panic, moving around the rooms and hall; that then you proceeded to your bedroom, grabbed your mobile phones, and threw them along with two yellow-colored metal bars out of the window of the bedroom facing Sai Nagar, CHS; that you also threw your car keys from the window of another bedroom; that regarding the number of mobile phones thrown away, he was uncertain, but he observed two or three mobile phones; that the individuals at the door continued to ring the doorbell, and it took Mr. Sameer Haroon Marchant i.e you 5-7 minutes to open the door; that it was only upon opening of the door that he realized the individuals outside were officers of the DRI. xii) Further statement of Shri Sameer Haroon Marchant/Afzal Haroon Batatawala alias Afzal i.e. you was recorded on 07.03.2024 under Section 108 of the Customs Act, 1962, wherein you, inter alia, admitted all three mobile phones viz. blue-coloured Samsung phone, grey-coloured Samsung phone and Samsung Fold phone recovered under panchanama dated 06.03.2024, belong t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... she picked up the phone and went towards the crowd to find out the matter; that she found two more phones were also found in the premise; that at that time a watchman came to her with an unclaimed gold bar, being the committee member of the society and treasurer of the society, she took the gold bar from him to keep it in the safe custody in the society. Thereafter, she took the phones and 01 gold bar found in the society with other committee members to keep it in safe custody. xiv) Statement of Ms. Anisah Zainab Rizvi was recorded on 07.03.2024 under Section 108 of the Customs Act, 1962, wherein she, inter alia, at around 6 pm, when she was taking round in the building, she saw crowd and the treasurer (Ayesha), who found three phones in the society premise; that at around 6-6:30 pm, while taking round in the society she found 01 gold bar and kept it in her bag and took it to her home; that she called the treasurer at around 9-9:30 pm, to hand it over to her but it could not be done; that in the morning, when she again tried the treasurer phone at 11-11:30 am, to hand it over, it was found that the treasurer has gone to the hospital, then at around 2-2:30 pm she went to her friend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... behind the sudden need to shift the almirahs and he was not aware of the contents of the almirah. xvii) The statement of Shri Surendra Harish Davdekar alias Bhuriya, currently overseeing the construction work at the farmhouse of Ms. Joyi Kitty Joseph, was recorded on 07.03.2024 under Section 108 of the Customs Act, 1962 wherein he, inter alia, admitted that he was asked by Ms. Joyi Kitty Joseph to keep the two almirahs at his place due to certain urgency. xix) The statement of Ms. Joyi Kitty Joseph was recorded on 06.03.2024 under Section 108 of the Customs Act, 1962 wherein she, inter alia, stated that three months back Shri Mohammad Rafique Razvi alias Aarif approached her for a potential job; that she asked Sameer Haroon Marchant i.e. you to help him and then you offered him (Aarif) to take up the task involving the sale of smuggled gold bars for a commission of Rs. 2000 per kilogram; that the commission is paid by her or you to Aarif in cash only so that no money trail is left behind; that on being asked about Amzad, she stated that Sameer Haroon Marchant i.e. you deal with Amzad; that cash recovered from your residence are the sale proceeds of the smuggled gold, as you are ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted that Ms. Joyi Kitty Joseph handed over the keys of the said premises in a brown colour handbag for safekeeping to him as he was her trusted person; that the said premises contain a huge amount of cash and silver bars. Accordingly, Shri Pathan opened the door of the said premises, and a search was confucted which led to further recovery of Indian Currency of Rs. 1,01,87,100/-, foreign currency of 3800 UK Pounds, 940 US Dollars and 10 silver bars/bullion weighing 9528.9 grams valued at Rs. 7,17,526/-. The said items were recovered under panchnama dated 08.03.2024. Valuation certificate for the same was issued by the govt. approved valuer on 11.03.2024. The said cash and silver bars were seized under seizure memo dated 19.03.2024. xxii) Shri Sameer Haroon Marchant i.e. you along with five other members of the syndicate were arrested under the provisions of Section 104 (1) of the Customs Act, 1962 on 06.03.2024 for various offences punishable under Section 135 of the Customs Act, 1962, vide arrest memo dated 06.03.2024. Shri Sameer Haroon Marchant i.e. you, Smt. Joyi Kitty Joseph and Shri Mohammad Rafique Noor Mohammad Razvi alisa Arif were given one day DRI custody till 07.03.2024 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any, is bound to take time. Phone number used on these mobiles are 7045771998, 9076367869 and 9820221356. Data from only one phone have been retrieved and on analysis of the forensic data retrieved, the following facts emerged: a) SIM was having phone no. 9076367869. b) Phone is Samsung Galaxy Z Fold, Model No. SM-P936B, IMEI-350383130192012, IMEI2- 353800710192010. c) From 01.01.2024 to 05.03.2024, 19 calls have been exchanged between you and Mohammad Rafique Razvi alias Aarif (9967869264) and on 05.03.2024 at 12:19 pm you contacted Aarif. d) You were browsing the flight booking websites and the flights tracking website regularly. In this regard, a Certificate dated 07.03.2024 from Cyber Forensic Laboratory, Mumbai under Section 65 B(4)(C) of the Evidence Act 1872 has been obtained. xxiv) The subscriber detail report (SDR) of the SIM used in one of the mobile phones having no. 9076367869 shows that it is registered in the name of Shri Sameer Haroon Marchant i.e. you and you have accepted the same in your statement dated 19.04.2024. Call Detail Report (CDR) of the other two phones having phone nos. 9820221356 and 7045771998 reveals that both the mobile phones were used in the vicin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re as under: S.No. File No. Issue Role/Status 1 NCB/ AZU/CR-05/2003 Smuggling of Methaqualone powder at Narsanda. Afzal Batatawala i.e you were financing the Methaqualone production and dealing in Mandrax tablets. Arrested vide Arrest Memo dated 13.05.2004. The supplementary complaint was filed in addition to the actual complaint dated 29.03.2004. The changes were confirmed by the NDPS Fast Track Court vide judgment dated 28.09.2007 and the appeal filed by you have been rejected by the Gujarat HC vide order dated 17.08.2012. An appeal was filed by you in the Supreme Court, and you were granted bail in September 2013 after spending over 9 years in jail. 2 DRI/M ZUIIR U/INT-62/2017 Smuggling of foreign NT-62/2017 marked gold bars weighing 3995 grams valued at 1,06,09,741/-at CSI Airport, Mumbai on 12.05.2017. Shri Sameer Haroon Marchant alias Afzal Haroon Batatawala i.e you hatched a conspiracy to smuggle gold into India. He was the kingpin of the syndicate. An SCN vide F. No. DRI/MZU/IRU/INT-62/2017 was issued on 01.11.2017 which was confirmed by OIO ADC/AK/ ADJN/52412018-19 dated 31.03.2019. xxviii) Smt. Joyi Kitty Joseph in her statement dated 06.03.2024, stated that Shri Sameer T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... visions of Customs Act, 1962. 5. It is evident that you i.e. Shri Sameer Haroon Marchant alias Afzal Haroon Batatawala have innate propensity to devise ways and means to smuggle foreign origin gold into India and to defraud the Government of its revenue. You i.e. Shri Sameer Haroon Marchant alias Afzal Haroon Batatawala with the aid of your trusted associates are running a well-organized smuggling network have established efficient mechanism in smuggling, concealing, possessing, transporting, carrying and/or dealing in the substantial quantities of foreign origin gold. You i.e. Shri Sameer Haroon Marchant alias Afzal Haroon Batatawala habitually and actively indulged yourself in the prejudicial activities, and your engagement is of the nature that brings out your propensity to indulge in gold smuggling in future also. 6. I am satisfied that, as evidenced and discussed in the foregoing paras, Shri Sameer Haroon Marchant alias Afzal Haroon Batatawala i.e. you have shown a general habit and propensity to indulge in fraudulent activities by way of smuggling goods, abetting the smuggling of goods, engaging in transporting or concealing or keeping smuggled goods, and dealing in smuggled ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... awala and adjudication proceedings are also likely to be initiated soon, which are however punitive in nature and independent of the preventive detention provided under the COFEPOSA Act, 1974. However, considering your i.e. Shri Sameer Haroon Marchant alias Afzal Haroon Batatawala's high propensity to indulge in the prejudicial activities, I am satisfied that in the meantime you should be immobilized by detention under COFEPOSA Act, 1974 with a view to prevent you from smuggling goods, abetting the smuggling of goods, engaging in transporting or concealing or keeping smuggled goods, and dealing in smuggled goods, in future. 10. Having regard to the chronological sequence of events in this case, the time required to scan the proposal along with the voluminous relied upon documents (RUDs), the time required to procure additional information, the time required to apply my mind to arrive at the subjective satisfaction and to formulate the Grounds of Detention, I am satisfied that the nexus between the dates of incident and the passing of this Detention Order as well as object of your detention has been well maintained. 11. I consider it to be against the public interest to disclose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espondent No. 3 before the ld. Sessions Court challenging the bail granted to Detenu on 16th April, 2024, was not placed before the Detaining Authority, despite the same being filed on 3rd May 2024 prior to the passing of the impugned Detention Order. Further, other important documents such as papers pertaining to the earlier complaint of 2004, judicial orders dated 28.09.2007, 17.08.2012 and/or order passed by the Hon ble Supreme Court etc. have not been placed on record. 5. It is argued that the apprehensions which are expressed in the impugned Detention Order are in fact on the same grounds on which the bail granted to the Detenu was opposed by the Sponsoring Authority/Respondent Authority before the ld. ACMM. It is submitted that, in fact, the bail order dated 16th April, 2024 considers the various grounds raised by the Sponsoring Authority/Respondent No. 3 for not granting of bail to the Detenu and the ld. Trial Court having considered the same has imposed various conditions in the bail order itself. Reference is made to paragraph 3 of the order granting bail as also paragraph 6, which are reproduced as under: 3. The investigation is under process. All out efforts are being ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oper to enlarge him bail on certain conditions. Therefore I pass following order:- ORDER 1. Application is allowed. 2. Accused be released on bail on his executing PR. Bond Rs.1,00,000/- (Rs One lakh only) with one or more sureties in amount. 3. He be provisionally released on his furnishing cash bail Rs.1,00,000/- (Rs. One Lakh only) in lieu of surety for 02 (two) months. 4. He shall not influence and tamper with the prosecution witnesses and evidence. He shall co-operate for further investigation of the case. 5. He is directed to remain present before the respondent for further 15 working days from the date of release from the jail in between 11:00 am to 02:00 pm, thereafter on every 1st and 15th Month if Holiday is not there and if Holiday falls on 1 and 15 on next working day in between 11:00 am to 02:00 pm and also as and when called by respondent in connection with investigation of this offence under written intimation, till further investigation is completed or till further order. 6. He shall surrender his passport to the respondent for the period of six months from the date of his arrest. The department to return passport to him after said period with due acknowledgment wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sentence and the appeal being Crl.A. No. 000344/ 2013 is pending before the Hon ble Supreme Court. The same would not constitute material for passing the impugned Detention Order as the same was immaterial. It is also argued that the arrest of the Detenu in 2017 in File No. DRI/MZU/IRU/INT-62/2017 under the Customs Act, 1962 also would not constitute relevant material as no prosecution had commenced under the said Act after the arrest. On these grounds, the counsel for the Petitioner submits that the Detenu deserves to be released. 9. Ld. Counsel for the Petitioner also submitted that the impugned Detention Order is vague and there is no clarity as to under which sub-clause of Section 3 of the COFEPOSA Act, the impugned Detention Order was passed. It was also argued that in the impugned Detention Order all the possibilities as mentioned in the COFEPOSA Act, 1974 have been mentioned under the various sub-clauses of Section 3, without exactly referring as to which particular provision was violated by the Detenu due to which the impugned Detention Order was passed. 10. It is also argued that no allegation has been made against the Detenu for absconding and violating the order dated 16 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... He further submitted that a plain reading of the impugned Detention Order would show the modus operandi adopted by the Detenu whereby large quantities of gold and cash were recovered from the places which were raided by the Sponsoring Authority on 5th March, 2024. 13. It is submitted that pursuant to the raid being conducted, statement of persons found at the said places had been recorded which reflect that there is a clear link to the Detenu. It is also submitted that the Detenu is involved in overseas smuggling and even if the Detenu is released for a short period he would be able to re-activate his entire network involved in the smuggling activities. The impact of such a release would be quite significant for the country s economy. It is further submitted that the allegation regarding the recording of the statement of the Detenu under force and coercion is false and baseless. Reliance has been placed on the judgment of Surjeet Singh Chhabra v. Union of India and Ors., (1997) 1 SCC 508 wherein the Court concluded that Custom Officials are not Police officers and the confession retracted, is an admission and binds the Detenu. 14. Ld. Counsel for Respondents No. 1 and 2 also submit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l activities through the Petitioner and other third parties, who are connected to him. 18. It is submitted that there is a direct link between the Detenu s activities and the impugned Detention Order, and the said link is still not broken. Lastly, it is submitted that the Detenu and his wife i.e., the Petitioner did not cooperate in the investigation. 19. Reference is also placed on the decision of the Kerala High Court in Jamseena v. Union of India Ors., 2021 SCC OnLine Ker 3572 [Ref. Pg. 20, Para 20) to argue that the proceedings for preventive detention under COFEPOSA Act cannot be equated with those in a Court of law. The relevant para is extracted hereunder: 20. [ ] There cannot be a parallel between prosecution in a Court of law and a detention order under the COFEPOSA Act. One is a punitive action whereas the other is a preventive act. In one case a person is punished on proof of his guilt on a standard of proof beyond reasonable doubt whereas in preventive detention a man is prevented from doing something which is necessary for reasons mentioned in Section 3 of the COFEPOSA Act to prevent. Applying the principles of the Evidence Act is foreign to the jurisdiction exercised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vast, it is argued that thus there is a clear propensity of the Detenu being involved again in illegal and unlawful activities upon his release. Finally, it is submitted that the Maharashtra State Board has already confirmed the detention of the Detenu. 23. Further, reliance is placed by the ld. Counsel for Respondents No. 1 and 2 upon the following decisions: i) State of Maharashtra Ors. v. Bhaurao Punjabrao Gawande, (2008) 3 SCC 613 ii) Ashok Kumar v. Delhi Administration Ors., (1982) 2 SCC 403 iii) Union of India Anr. v. Dimple Happy Dhakad, (2019) 20 SCC 609 iv) Union of India Ors. v. Arvind Shergill Anr., (2000) 7 SCC 601 v) Sunil Fulchand Shah v. Union of India, (2000) 3 SCC 409 vi) Haradhan Saha v. State of West Bengal, (1975) 3 SCC 198 vii) Rutugna Arvindkumar Trivedi v. Union of India, 2020 SCC OnLine Guj 1030 viii) Prakash Chandra Mehta v. Commissioner and Secretary., Government of Kerala, AIR 1986 SC 687 ix) Madan Lal Anand v. Union of India, (1990) 1 SCC 81 x) State of Maharashtra vs. Bhaurao Punjabrao Gawande, (2008) 3 SCC 613 xi) Naresh Kumar Goyal v. Union of India and Ors., (2005) 8 SCC 276 xi) State of Gujarat vs. Sunil Fulchand Shah, (1988) 1 SCC 600 xii) Surinde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gling activities cannot be given any weightage due to the aforesaid reasons. Further, all evidence suggests that the Detenu had wilfully thrown away his mobile phones and 2 gold bars when the DRI officers went for a search operation at his residence on 05th March, 2024. Therefore, it can be said that the Detenu has a tendency of tampering with the evidence and trying to mislead the investigation. 28. Ld. Counsel appearing for the Sponsoring Authority/Respondent No. 3 had filed an additional affidavit dated 6th September, 2024 in terms of the order dated 2nd September, 2024. As per the said additional affidavit, the initial proposal for detention of the Detenu under COFEPOSA Act, was sent by the Sponsoring Authority on 12th April, 2024, while the Detenu was still in judicial custody. The Detenu was released on bail by the ld. Trial Court vide order dated 16th April, 2024 in R.A. 191 of 2024 pursuant to which an updated proposal mentioning the release of the Detenu and the intention of Sponsoring Authority to apply for cancellation of bail was submitted to the Detaining Authority vide email dated 30th April, 2024. Further, he has handed over a copy of the updated proposal which was p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to address the grievance of the Detaining Authority, preventive detention ought not to be invoked. He further submitted that the provisions of the Customs Act, 1964 have also been amended and there are sufficient measures under the said law that can be taken even in respect of smuggling or evasion of duty which is the basis of the show cause notice dated 30th August, 2024. It is submitted that preventive detention is an exceptional provision which has to be used rarely and the same cannot be used for every offense under the Customs Act or under other statutes. Further, it is argued that the show cause notice was not itself placed before the Detaining Authority. The fact that the filing of the appeal against the order granting bail to the Detenu has also not been placed before Detaining Authority but only before the Screening Committee would itself show that there is an infraction in the procedure. It is also submitted that only stale material is referred to and relied upon by the Detaining Authority which shows that there is no live link between the material and the detention order which has been passed. 34. Reliance is placed upon the recent decision of the Hon ble Supreme Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same would have effected the decision of the Detaining Authority in one way or the other. 38. The impugned Detention Order is further challenged on the ground that there is no live-link between the impugned Detention Order and the alleged pre-judicial activity of the Detenu. It was submitted that the Detaining Authority has referred to past cases of the Detenu. One of the cases referred to is Case No. NCB/AZU/CR-05/2013. It is pointed out that in the said case the Detenu was convicted and his conviction is now under challenge before the Hon ble Supreme Court in Crl.A. No. 000344/ 2013. It is further submitted that the Detenu was in jail for 9 years and was released on bail by the Hon ble Supreme Court in September 2013. The second case referred to by the Detaining Authority is with respect to the year 2017 in Case No. DRI/MZU/IRU/INT-62/2017 in which prosecution has not been initiated. In view of the same it was urged that reliance could not have been placed on the aforesaid two cases by the Detaining Authority. So far as the present case of seizure is concerned the Detenu has already been granted bail while imposing conditions as pointed out hereinabove. It was submitted by r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ances and upon the subjective satisfaction of the Detaining Authority. In the present case it has been strenuously argued that the Detenu was arrested on 06th March, 2024 and was granted bail by the ld. ACMM on 26th April, 2024 and the fact that the order granting bail had imposed conditions on the Detenu, keeping in mind the apprehensions of the Authority with respect to his future involvement in illegal activities was sufficient and therefore there was no requirement of any order under the COFEPOSA Act. The Hon ble Supreme Court in Union of India v. Chaya Ghoshal, (2005) 10 SCC 97, while dealing with a similar situation under the COFEPOSA Act, wherein the Detenu was released on bail on 11th September, 2002 and the detention order was passed in November 2002, the Hon ble Supreme Court while dealing with the aforesaid issue observed and held as under:- 8. Before dealing with rival submissions, it would be appropriate to deal with the purpose and intent of preventive detention. Preventive detention is an anticipatory measure and does not relate to an offence, while the criminal proceedings are to punish a person for an offence committed by him. They are not parallel proceedings. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... between individual liberty on the one hand and the needs of an orderly society on the other. *** *** *** 15. In case of preventive detention no offence is proved, nor any charge is formulated and the justification of such detention is suspicion or reasonability and there is no criminal conviction which can only be warranted by legal evidence. Preventive justice requires an action to be taken to prevent apprehended objectionable activities. ( See R. v. Halliday [1917 AC 260 : (1916-17) All ER Rep Ext 1284 : 169 ER 1252] and Kubic Darusz v. Union of India [(1990) 1 SCC 568 : 1990 SCC (Cri) 227 : AIR 1990 SC 605].) But at the same time, a person's greatest of human freedoms i.e. personal liberty is deprived, and, therefore, the laws of preventive detention are strictly construed, and a meticulous compliance with the procedural safeguard, however technical, is mandatory. The compulsions of the primordial need to maintain order in society, without which enjoyment of all rights, including the right of personal liberty, would lose all their meanings, are the true justifications for the laws of preventive detention. This jurisdiction has been described as a jurisdiction of suspicion , ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... minal offence or to be proceeded against for preventing him from committing offences dealt with in Chapter VIII of the Code of Criminal Procedure would not by itself debar the Government from taking action for his detention under the Act. Second, the fact that the police arrests a person and later on enlarges him on bail and initiates steps to prosecute him under the Code of Criminal Procedure and even lodges a first information report may be no bar against the District Magistrate issuing an order under the preventive detention. Third, where the person concerned is actually in jail custody at the time when an order of detention is passed against him and is not likely to be released for a fair length of time, it may be possible to contend that there could be no satisfaction on the part of the detaining authority as to the likelihood of such a person indulging in activities which would jeopardise the security of the State or the public order. Fourth, the mere circumstance that a detention order is passed during the pendency of the prosecution will not violate [sic] the order. Fifth, the order of detention is a precautionary measure. It is based on a reasonable prognosis of the future ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al activities; and (3) if it is felt essential to detain him to prevent him from so doing. If an order is passed after recording satisfaction in that regard, the order would be valid. In the case at hand the order of detention and grounds of detention show an awareness of custody and/or a possibility of release on bail. *** *** *** 22. In a matter of detention, the law is clear that as far as subjective satisfaction is concerned, it should either be reflected in the detention order or in the affidavit justifying the detention order. Once the detaining authority is subjectively satisfied about the various offences labelled against the detenu, habituality in continuing the same, difficult to control him under the normal circumstances, he is free to pass an appropriate order under Section 3 of the 1986 Act by fulfilling the conditions stated therein. We have already concluded that there is no infirmity either in the reasonings of the detaining authority or the procedure followed by it. We are also satisfied that the detenu was afforded adequate opportunity at every stage and there is no violation of any of the safeguards. In these circumstances, we reject the contention raised by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder:- 9. While considering the first argument of the learned counsel, we must notice at the outset that there is no statutory provision against detaining a person based on a single incident provided the detaining authority had material before it to come to a reasonable opinion that from the surrounding circumstances coupled with the incident in question a satisfaction as to the future illegal activities of the detenu could be inferred. This is clear from the very judgment sought to be relied upon by the learned counsel in the case of Chowdarapu Raghunandan v. State of T.N. [(2002) 3 SCC 754 : 2002 SCC (Cri) 714 : JT (2002) 3 SC 110] wherein at para 13 of the said judgment this Court held that in an appropriate case, an inference could legitimately be drawn even from a single incident of smuggling that the person may indulge in smuggling activity but for that purpose antecedents and nature of the activities carried out by a person are required to be taken into consideration for reaching justifiable satisfaction that the person was engaged in smuggling and that with a view to prevent further smuggling, it was necessary to detain him. 10. We will now consider the facts of this case t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n currency which is handed over by the detenu to Tilak Raj Sharma are sufficient to form a reasonable conclusion that the detenu is likely to indulge in similar activities in future also. Therefore, we find no merit in this argument. 45. So far as the ground taken by the ld. counsel for the Petitioner that the application seeking cancellation of bail was not placed before the Detaining Authority is concerned, it is noted in the additional affidavit on behalf of Sponsoring Authority/Respondent No. 3, that in the updated proposal sent to the Detaining Authority on 30th April, 2024, the intention to challenge the order granting bail was mentioned; however, the actual application for cancellation of bail was filed only on 06th May, 2024 and since the impugned Detention Order was passed on 09th May, 2024, in the considered opinion of this Court, the same would not amount to non-supply of a vital document inasmuch as the same was not before the Detaining Authority. Further, filing for cancellation of bail would not vitiate the impugned Detention Order as same cannot be considered as an alternate to a Detention Order. The fact that the Sponsoring Authority can move for cancellation of bai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngly 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. (emphasis supplied) 46. In Jaseela Shaji (supra) relied upon by the Ld. Counsel for the Petitioner, Hon ble Supreme Court noted that a document which was extensively relied upon by the Detaining Authority was not supplied to the Detenu which is not the case here. 47. The impugned Detention Order was also challenged on the ground that the same is vague as there is no clarity as to under which sub-clause of Section 3 (1) of the COFEPOSA Act the said order was passed. It was contended that in the impugned Detention Order all the possibilities mentioned in the said provision have been referred to without exactly referring as to which particular sub-clause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iv) of the Section 3 (1) of the Act and not to sub-clause (v). It is further noted that the Detaining Authority has nowhere used or between the sub-clauses but it has only used or within sub-clause (iii). 47.4 In the judgment relied upon by learned counsel appearing on behalf of the Detenu, i.e., Jagannath Mishra (supra) Hon ble Supreme Court was dealing with the situation where the order of detention contains 6 grounds, however, in the affidavit placed on record only two grounds were mentioned. It was further noted by the Hon ble Supreme Court that in the detention order the Detaining Authority had used or between the grounds mentioned therein, thus showing that the same was a copy of the relevant provisions of the Act under which the detention order was made. In the present case as it has already been pointed out hereinabove, the Detaining Authority had not used or amongst the grounds mentioned in the said order and has clearly spelt out the facts and circumstances which bring the case of the Detenu under the aforesaid sub-clauses of Section 3 (1) of the COFEPOSA Act. 48. During the course of the hearing, ld. counsel for Respondent no. 1 and 2 has placed on record a judgment of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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