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TMI Blog2024 (12) TMI 1372X X X X Extracts X X X X X X X X Extracts X X X X ..... 2024 upon travelling from Sharjah to Jaipur by Air Arabia. On the basis of suspicious behavior of the Petitioner, a personal search was conducted by Customs officers and a notice was served upon the Petitioner under Section 102 of the Customs Act, 1962 (in short, 'Customs Act'). During the said search, certain metal was recovered from the sandals worn by the Petitioner. Upon investigation by a valuer, the said metal was found to be gold with 99.50 purity, weighing 2466.00 grams and valued at Rs. 1,57,82,400/- (Rs. One Crore Fifty-Seven Lakhs Eighty-Two Thousand Four Hundred only) as per valuer's Report No. 02/CUST/Jan/2324 dated 11th April, 2024. ii. Thereafter statement of the Petitioner was recorded under Section 108 of the Customs Act, and he revealed that he has been involved in the business of marble and granite and that he regularly visits Sharjah and this was the first instance when he tried to smuggle gold in order to avoid customs duty. iii. The Petitioner in his statement also disclosed that he had bought this gold from a shop named "YASS GOLD" based in Dubai. Upon further enquiry, the Petitioner revealed that he, along with one Mr. Mustafa and Mr. Vishal Sawant, who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led a representation before the said Advisory Board, however, the same was rejected. Subsequently, upon submission of the report by the Advisory Board, Central Government invoked powers conferred under Section 8(f) of the COFEPOSA Act and confirmed the detention of the Petitioner on 18th June, 2024. 3. The facts with respect to the present case have been discussed in detail by the Detaining Authority/Respondent No.2 in the impugned detention order and the same are reproduced as under: - "i. Shri Pradeep Kumar Nehra S/o Shri Harphool Singh Nehra, R/o F-71, Industrial Area, Jaipur Road, Sikar, Rajasthan having Passport No. Z5413210 and Z3079231 i.e. you arrived from Sharjah to Jaipur by Air Arabia Flight No. G-9-435 on 11.01.2024 at about 03:30 hrs. When you approached the X-ray gate, customs officers asked you whether you had any dutiable goods with you, in reply to which you denied carrying any such goods. You had filed a Nil declaration under Section 77 of the Customs Act, 1962. Based on suspicious behaviour, Customs officers decided to conduct personal search of Shri Pradeep Kumar Nehra i.e. you and served upon a Notice under Section 102 of the Customs Act, 1962. During the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paying the customs duty. This gold which was in the form of paste metal belongs to you only. You yourself bought this gold in the form of paste metal from a shop by the name of YASS GOLD which is in Dubai. Mustafa, a 42 years old resident of Hyderabad who is involved in the work of smuggling and lives in Sharjah told you about this shop. Mustafa used to take money from Shri Pradeep Kumar Nehra i.e. you and make profit by smuggling gold and gave some part of the profit back to Shri Pradeep Kumar Nehra i.e. you. You stated that Mustafa has sent gold through Hyderabad airport in India about five times and submitted that you do not know who brought the gold to Hyderabad airport because Mustafa used to do all that work. You further told that the work of receiving gold at Hyderabad airport is done by a person namely Shri Vishal Sawant (mobile No. 7889195285) aged about 42 years whom you have never met. Shri Pradeep Kumar Nehra i.e. you told that you were coming to Sikar to attend a meeting on sports matter when Mustafa told you that the person who was supposed to carry gold to Hyderabad airport refused to take the gold at the last moment. Since you were coming to India and the gold was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in shoes and sprayed as a powder in undergarments etc. Shri Vishal used to melt/extract said smuggled gold and sell it from his shop. The details of delivery of said smuggled gold was with Sh. Mustafa only. For the payment of the gold you used to contact Sh. Vishal and he sent the money through Hawala transactions. Shri Pradeep Kumar Nehra i.e. you further admitted that Sh. Mustafa used to share the passport copies of the gold carriers and Sh. Nehra i.e. you used to book/process their tickets and visa yourself the payment of which was adjusted in the profit with Sh. Mustafa. You stated that you were not aware who this gold (which was smuggled to Hyderabad) was delivered to. Upon perusal of your various chats showing methods of concealment of gold in photos/videos you stated that these methods of gold concealment for smuggling were shared with you by the employees of Yass Gold i.e. Shri Sahib, Mama, Sachin, Sabu. vi. Shri Pradeep Kumar Nehra i.e. you was arrested on 12.01.2024 under Section 104 of the Customs Act, 1962 in contravention of section 132, 135(1) (a) & 135 (1) (b) of the Customs Act, 1962. Shri Pradeep Kumar Nehra i.e. you was produced before the Hon'ble Economic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quest of 2 days' remand. The Hon'ble Court again accorded remand of Shri Pradeep Kumar Nehra i.e. you for one day to Customs till dated 17.01.2024. x. During statement dated 17.01.2024, Shri Nehra i.e. you were shown your travel history wherein between 05.09.2023 to 29.12.2023 (i.e. approximately 3-4 months), you had travelled between India and UAE 32 times to and from various locations including Mumbai, Goa, Indore, Ahmedabad, Delhi, Jaipur. Embark and disembark locations in these trips were often different and your trips were in a very short span of time. You were shown your chat with Sh. Vishal dated 24.10.2023 wherein the details of five transactions in August, 2023 were there which showed 2995.560 g, 3000.820 g, 2995.450 g, 2995.350 g, 1996.670g which you admitted was related to gold smuggling. You were also shown a chat dated 01.05.23 which you agreed indicated smuggling of 2895.84 g gold which you had sent to Hyderabad. xi. Shri Pradeep Kumar Nehra i.e. you were again produced before the Hon'ble Economic offence Court on dated 17.01.2024 and the Hon'ble Court ordered you to judicial custody. xii. Retractions to the statements were filed by Pradeep Kumar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being shown the picture of Shri Pradeep Kumar Nehra i.e. you, he identified the person in picture as Shri Pradeep Kumar Nehra i.e. you and told that Sh. Nehra i.e. you came to his shop himself 5-6 times in the years 2022 and 2023 and put his dated signature on pictures. He admitted that in last two years, Shri Pradeep Kumar Nehra i.e. you have sent the gold around 25-30 times to his shop through you or some person sent by you and the payment of the gold has been sent by him through hawala to Sharjah. xvi. Statement of Shri Vishal Abaso Sawant was recorded on 07.02.2024, wherein he, inter-alia, stated that various audio notes retrieved from the iphone of Shri Pardeep Kumar Nehra i.e. you have been heard by him and confirmed that these notes are related to smuggling of gold and payment of gold through hawala. Various slips of due amount have been interchanged between Shri Vishal and Shri Pradeep Kumar Nehra i.e. you and Shri Vishal has confirmed that these all are related to smuggling of gold and hawala. He admitted that Shri Pradeep Kumar Nehra i.e. you have sent 25-26 kilograms of smuggled gold at Hyderabad during the months of November & December 2023. There are various transact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Pradeep Kumar Nehra i.e. you concealed in that iron xxii. In his statement dated 24.02.2024, Shri Vishal Abaso Sawant confirmed that Shri Pradeep Kumar Nehra i.e.. you has smuggled around 25-26 Kilograms of Gold during the month of November and December 2023 and handed over to him in Hyderabad. xxiii. Second bail application filed by Shri Pradeep Kumar Nehra ie, you before the Hon'ble Economic Offences court was rejected by Hon'ble Court dated 14.03.2024. Another Second Bail application was filed by Shri Pradeep Kumar Nehra i.e. you before Honourable District and Sessions Court, Jaipur District. Honourable ADJ III, District and Sessions Court, Jaipur District denied bail on 18.03.2024. Aggrieved by the order of Hon'ble ADJ Court, Shri Pradeep Kumar Nehra i.e. you have filed second bail application before the Hon'ble Rajasthan High Court and bail application was rejected by the Hon'ble Rajasthan High Court vide order dated 03.04.2024." (emphasis supplied) SUBMISSIONS ON BEHALF OF THE PETITIONER 4. Learned Counsel for the Petitioner submitted that the latter is already in custody in connection with alleged recovery of gold and the prosecution in respect of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ors. (1989) 3 SCC 173: 1989 SCC OnLine SC 205; (iii) Rajammal v. State of Tamil Nadu & Anr. (1999) 1 SCC 417: 1998 SCC OnLine SC 1023; (iv) Rattan Singh and Another v. State of Punjab and Others (1981) 4 SCC 481: AIR 1982 SC 1; to argue that the delay in passing the detention order ought to be explained by the Sponsoring Authority almost on a day-to-day basis, in order to justify the passing of the detention order. It was further submitted that the Hon'ble Supreme Court has repeatedly held that treating the representation in a callous or a negligent manner would render the detention order illegal. 9. Secondly, it is submitted that the repeated rejection of the bail applications of the Petitioner, ought to have been sufficient for the Central Government not to confirm the impugned detention order as the sole ground of propensity to repeat the offence is rendered improbable. In addition, it was argued that the bail applications of the Petitioner had been rejected by three judicial forums viz, the learned Trial Court, learned Sessions Court and the Rajasthan High Court. Though these facts have been noted in the impugned Detention Order, no justifiable cause has been provided as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 24 by Respondent No.2. Hence, it can be said that the matter was considered in an expeditious manner. Insofar as the delay of forwarding the representation by the Jail Authorities is concerned, it is argued that it is for the Jail Superintendent/Respondent No.3 to explain as to why the representation was forwarded in a delayed manner. ANALYSIS AND FINDINGS 13. Heard learned Counsels for the parties and perused the records. Non-application of mind by the Detaining Authority 14. For the purposes of the present petition, the following dates are relevant: - 12th January, 2024 The Petitioner was arrested 22nd January, 2024 First bail application before the learned Economic Offence Court was rejected. 24th January, 2024 First application before the learned Sessions Court was rejected. 09th February 2024 Application for bail was dismissed by the Hon'ble Rajasthan High Court. 14th March, 2024 Second bail application was rejected by the learned Economic Offence Court 18th March, 2024 Second bail application rejected by the learned Session Court 03rd April, 2024 Second application for bail rejected by the Hon'ble Rajasthan High Court 03rd April, 2024 Proposal sent by Spon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 in future. 10. I am aware that prosecution under Section 135 of the Customs Act, 1962 has been launched against you i.e. Shri Pradeep Kumar Nehra 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 Shri Pradeep Kumar Nehra's i.e. your high propensity to indulge in the prejudicial activities, I am satisfied that in the meantime you should be immobilised by detention under the COFEPOSA Act, 1974 with a view to prevent you from smuggling goods, abetting the smuggling of goods and engaging in transporting or concealing or keeping smuggled goods in future." (emphasis supplied) The above observation made by the detaining authority to the extent that the Petitioner was likely to be released from judicial custody, is without any material. This is in view of the fact that the bail applications of the Petitioner had already been dismissed twice by the Hon'ble Rajasthan High Court by that time, and admit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion when it was passed was not invalid and on relevant considerations, the service of the order was not on proper consideration. 8. It may be mentioned that in the petition it is nowhere stated that the detenu has since been released or that the prospect of his imminent release was properly and with seriousness considered by the detaining authority." 18. The Hon'ble Supreme Court in N. Meera Rani v. Government of Tamil Nadu and Another (1989) 4 SCC 418, has observed and held as under: - "11. The contents of the detention order and its accompanying annexure clearly show that the detaining authority was aware and conscious of the fact that the detenu was already in custody in connection with the Bank dacoity at the time of making the detention order. The fact that the detenu's application for grant of bail in the dacoity case had been rejected on 22-8-1988 and he was remanded to custody for the offence of bank dacoity punishable under Section 397 IPC is also evident from the record. The detention order came to be made on 7-9-1988 on the above grounds in these circumstances. In the detention order the detaining authority recorded its satisfaction that the detenu's preven ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se an attempt has been made for some time to construe some of the recent decisions as modifying the principle enunciated by the Constitution Bench in Rameshwar Shaw case [AIR 1964 SC 334 : (1964) 4 SCR 921 : (1964) 1 Cri LJ 257] . 22. We may summarise and reiterate the settled principle. 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, the detention order can be validly made even in anticipation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver, the fact that his repetitive efforts to secure bail had been unsuccessful till the High Court demonstrates that he was not likely to be released on bail when the impugned order of detention was being passed. 21. The Courts would normally hesitate to substitute the "subjective satisfaction" with its own opinion and interfere with the order of detention, however, such satisfaction should be after proper application of mind. In case, the Court finds the same being passed on account of non-application of mind, then the same can be set aside by this Court while exercising its power under Article 226 of the Constitution of India. 22. The Hon'ble Supreme Court in Ameena Begum v. State of Telangana and Others (2023) 9 SCC 587 while referring to various judgments with respect to judicial reviewability of a detention order, has observed and held as under: - "15. In Rameshwar Shaw v. District Magistrate, Burdwan [Rameshwar Shaw v. District Magistrate, Burdwan, 1963 SCC OnLine SC 33 : AIR 1964 SC 334], a Constitution Bench speaking through Hon'ble P.B. Gajendragadkar, J. (as the Chief Justice then was) in course of interdicting an order of detention passed under Section 3 of the D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passage of time, and expansion and development of law, it is no longer the law that a preventive detention action, howsoever lawful it might appear on its face, cannot be invalidated by the constitutional courts. This is so, as at present, there is no administrative order affecting rights of the subjects that can legitimately claim to be impregnably guarded by a protective shield, which judicial scrutiny cannot penetrate. 23. Apart from the aforesaid decisions, multiple decisions have been rendered by this Court over the years which provide suitable guidance to us to complete the present exercise; however, we wish to conclude this discussion by referring to one decision of this Court delivered [Rekha v. State of T.N., (2011) 5 SCC 244 : (2011) 2 SCC (Cri) 596] little in excess of a decade back by a Bench of 3 Judges. 24. In Rekha v. State of T.N. [Rekha v. State of T.N., (2011) 5 SCC 244 : (2011) 2 SCC (Cri) 596], this Court observed that : (SCC pp. 253-55, paras 21 & 29) "21. It is all very well to say that preventive detention is preventive not punitive. The truth of the matter, though, is that in substance a detention order of one year (or any other period) is a punishmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fied in the order of detention based on an anticipation that an offence is likely to be committed by him seems to be an aspect which does not sync with the norms and ethos of our very own Constitution and the decisions of this Court in which the concept of "life" has been explained in such a manner that "life" has been infused in the letters of Article 21 (see Common Cause v. Union of India [Common Cause v. Union of India, (1999) 6 SCC 667 : 1999 SCC (Cri) 1196]). Nonetheless, so long clause (3) of Article 22 of the Constitution itself authorises detention as a preventive measure, there can be no two opinions that none can take exception to such a measure being adopted and it is only a limited judicial review by the constitutional courts that can be urged by an aggrieved detenu wherefor too, in examining challenges to orders of preventive detention, the Courts would be loath to interfere with or substitute their own reasoning for the subjective satisfaction arrived at by the detaining authority. Since the object of a preventive detention law is not punitive but preventive and precautionary, ordinarily it is best left to the discretion of the detaining authority." (underline suppl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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