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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 ..... the Petitioner therein, who was already in jail at the time of service of the detention order, has observed and held that 'If a man is in custody and there is no imminent possibility of his being released, the power of preventive detention should not be exercised. In the instant case when the actual order of detention was served upon the detenu, the detenu was in jail. There is no indication that this factor or the question that the said detenu might be released or that there was such a possibility of his release, was taken into consideration by the detaining authority properly and seriously before the service of the order. A bald statement is merely an ipse dixit of the officer. If there were cogent materials for thinking that the detenu might be released then these should have been made apparent.' In the present case, apart from the impugned detention order, even in the counter affidavit dated 17th September, 2024 filed on behalf of the Respondent Nos. 1 and 2, it has not been demonstrated that there was a possibility of the Petitioner being released from the judicial custody to justify the impugned order of detention. Substantial delay in the consideration of representa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 are residents of Hyderabad, were part of a smuggling syndicate and a substantial amount of foreign origin gold was smuggled by them into India. iv. It is alleged that upon forensic examination of the electronic devices belonging to the Petitioner which were seized by Customs officers upon his arrival at the Jaipur Airport, substantial incriminating materials were found against him. It is alleged that the Petitioner, with the aid of his trusted associates is running a well-organized network and has established an efficient mechanism of smuggling, concealing, possessing, carrying and dealing with substantial quantities of foreign-origin gold in its primary form. v. On the basis of the alleged involvement of the Petitioner in the said activities, he was arrested on 12th January, 2024 under Section 104 of the Customs Act for committing acts in con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 personal search, nothing objectionable was found/ recovered. Thereafter, the Customs officials checked the sandals of Shri Pradeep Kumar Nehra i.e. you on the x-ray machine and saw the dark black image in your two brown colour sandals which appeared heavy in weight. Both of your sandals appeared to have a paste of metal covered in transparent polythene with black coloured tapes, one each on the bottom of the sole. Thereafter, the customs officers called valuer Shri Lokesh Kumar Kasliwal to check the type of said metal, its purity, quantity and conduct its valuation. After investigation, Shri Kasliwal declared the said metal to be gold and extracted fifteen pieces of gold of 99.50 percent purity weighing 2466.00 grams 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/232 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 in paste form, at Mustafa's insistence you agreed to smuggle the gold with the intention of not paying customs duty. Therefore, on Mustafa's advice, you brought the gold in paste form hiding it in the soles of both of your sandals and was caught by the Customs officials at Jaipur International Airport. Thus, Shri Pradeep Kumar Nehra i.e. you confessed in your statement that he smuggled gold to India due to your need for money and greed. iv. Follow up search was conducted by Customs Jaipur at the ancestral residence of Sh Pradeep Kumar Nehra S/o Sh Harphool Singh Nehra i.e. you, Village Katrathal, Distt-Sikar and M/s Shri Krishna Granite, F-71, Industrial Area, Jaipur Road, Sikar, nothing incriminating was found in the aforementioned premises. v. In your statement dated 12.01.2024, Shri Pradeep Kumar Nehra i.e. you admitted that in the last five -six month ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ass 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 Offence Court, Jaipur on dated 13.01.2024 with request of 5 days' remand. The Hon'ble Court accorded remand of Shri Pradeep Kumar Nehra i.e. you to Customs till dated 16.01.2024. vii. In your statement dated 13.01.2024, Shri Pradeep Kumar Nehra i.e. you stated about your various firms registered in Dubai as well as in India and your partners in these firms. On being asked about the pictures related to smuggling of gold, Shri Pradeep Kumar Nehra i.e. you again reiterated that you used to buy gold for smuggling from YASS gold in Dubai. The pictures showing methods of concealment of gold in machines like Iron, toaster, vacuum cleaner, juicer, nebuliser etc. have been sent by the employees of YASS gold. You reiterated that you have smuggled gold only 5 times to Hyderabad as mentioned by you earlier. Upon being asked about you ticket to Hyderabad dated. 11.09.2023 found ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 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 Nehra i.e. you on 18.01.2024. xiii. DRI Hyderabad Zonal Unit conducted the follow up action at the premises of Shri Vishal Abaso Sawant, House No. 21-5-198, Kali Kaman, Charminar, Hyderabad Jubilee Charminar, Hyderabad, Telangana. Follow up search was conducted, however, nothing incriminating was found in the aforementioned premises. xiv. Statement of Shri Vishal Abaso Sawant was recorded by DRI Hyderabad on 20.01.2024, whereunder he stated that he started work at the firm Nayan Gold, located at 22-5-198, Kali Kaman, Charminar, Hyderabad. The firm is involved in testing of gold, remelting of gold, exchange of gold and silver and bullion trading. Shri Vinod Panwar is the proprietor of Nayan Gold. On being asked about Shri Pradeep Kumar Nehra i.e. you, he stated that Shri Pradeep Kumar Nehra i.e. you were from Jaipur and approached them at Nayan Gold for selling of remelted gold. Shri Prad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mar 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 transaction of gold and money in the chat of Shri Vishal Abaso Sawant and Shri Pradeep Kumar Nehra i.e. you which he admitted that the said transaction were related to smuggling of gold. xvii. Statement of Shri Vishal Abaso Sawant was recorded on 08.02.2024 wherein he, inter-alia, stated that he has deleted various pictures of gold and transaction/accounts which were related to smuggling of gold and its payment which has been retrieved during the forensic of his phone. In the said statement it has been stated that Shri Jitu Resident of Sangli, Maharastra used to collect money on behalf of Shri Pradeep Kumar Nehra i.e. you and then send the same to Shri Pradeep Kumar Nehra through Hawala i.e. you. xviii. Statement of Shri Vishal Abaso Sawant recorded on 09.02.2024, wherein he, inter-alia, stated that Shri Khaleel alias Murtaza Ali used to bring the gold smuggled by Shri Pradeep Kumar Nehra i.e. you to their s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... than 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 the said case is pending before the learned Economic Offences Court, Jaipur, and therefore, there was no need to detain him under the COFEPOSA Act. Further, there was no imminent possibility of the release of the Petitioner as the successive bail applications filed by him were rejected six times by three different forums. 5. It was further submitted that the impugned detention order was passed after a substantial delay as the alleged incident took place on 11th January, 2024 and the detention order was not passed until 12th April, 2024. Thus, the link between the prejudicial activity alleged to be committed by the Petitioner and the activities sought to be curbed by the impugned detention order stood snapped. 6. Learned Counsel for the Petitioner has assailed the impugned detention order primarily on two grounds. Firstly, there has been a substantial delay in the consideration of representation of the Petitioner signe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 to how the propensity to commit illegal acts would exist when, admittedly, the Petitioner is already under detention/judicial custody. Thus, it is submitted that the non-application of mind while passing the impugned detention order would also render it liable to be quashed. It was further argued that the safeguards for detention cannot be fulfilled in this manner and the impugned detention order is, thus, not sustainable. Reliance is placed upon a judgment passed by this Court in Rizauddin @ Riyajudden @ Pintu vs Union of India Ors. 2024: DHC: 6831-DB. SUBMISSIONS ON BEHALF OF THE RESPONDENTS 10. Learned Standing Counsel on behalf of the Respondent Nos. 1 and 2 submitted that all the vital documents have been placed by the Sponsoring Authority before the Detaining Authority/Respondent No. 2 and the impugned detention order has been passed with a view to prevent the Petitioner from smuggling of goods, abetting the smuggling of goods and e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mic Offence Court 18th March, 2024 Second bail application rejected by the learned Session Court 03 rd April, 2024 Second application for bail rejected by the Hon ble Rajasthan High Court 03 rd April, 2024 Proposal sent by Sponsoring Authority 05 th April, 2024 The proposal was received by the Office of Detaining Authority 08 th April,.2024 The said Proposal placed before the Central Screening Committee for consideration 12 th April, 2024 Impugned order of detention was passed 17 th April, 2024 Order of detention was executed on the Petitioner 1 st April, 2024 Case referred to the Advisory Board, Hon ble Rajasthan High Court 22 nd May, 2024 The Advisory Board, Hon ble Rajasthan High Court, after hearing the detenue/Petitioner, recommended the confirmation of the detention order 18 th June, 2024 Confirmation order passed by the competent authority 15. The learned Counsel for the Petitioner has submitted that since successive bail applications of the Petitioner have been rejected by three forums, i.e., learned Trial Court, learned Sessions Court and the Hon ble High Court, therefore, there was no justifiable cause for passing the impugned order of detention. It was submitted that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dicial custody, is without any material. This is in view of the fact that the bail applications of the Petitioner had already been dismissed twice by the Hon ble Rajasthan High Court by that time, and admittedly, no other application seeking bail was pending at that time when the impugned order was passed. 17. The Hon ble Supreme Court in Binod Singh v. District Magistrate, Dhanbad (1986) 4 SCC 416: 1986 SCC OnLine SC 335, while setting aside the detention order against the Petitioner therein, who was already in jail at the time of service of the detention order, has observed and held as under: - 7. It is well settled in our constitutional framework that the power of directing preventive detention given to the appropriate authorities must be exercised in exceptional cases as contemplated by the various provisions of the different statutes dealing with preventive detention and should be used with great deal of circumspection. There must be awareness of the facts necessitating preventive custody of a person for social defence. If a man is in custody and there is no imminent possibility of his being released, the power of preventive detention should not be exercised. In the instant ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 preventive detention was necessary to prevent him from indulging in activities prejudicial to maintenance of public order in which he would indulge if he was allowed to remain at large. The above quoted paras 18 and 19 of the Annexure to the detention order clearly disclose the factual position. However, it may be pointed out that the detention order read along with its annexure nowhere indicates that the detaining authority apprehended the likelihood of the detenu being released on bail in the dacoity case and, therefore, considered the detention order necessary. On the contrary, its contents, particularly those of the above quoted para 18 clearly mention that the detenu had been remanded to custody for being proceeded against in due course and even though his name was not mentioned in the FIR as one of the dacoits who participated in the commission of the armed Bank dacoity yet the documents clearly revealed that the detenu was an active participant in the conspiracy to loot the bank in further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 to operate on his release. This appears to us, to be the correct legal position. 23. Applying the above settled principle to the facts of the present case we have no doubt that the detention order, in the present case, must be quashed for this reason alone. The detention order read with its annexure indicates the detaining authority's awareness of the fact of detenu's jail custody at the time of the making of the detention order. However, there is no indication therein that the detaining authority considered it likely that the detenu could be released on bail. In fact, the contents of the order, particularly, the above quoted para 18 show the satisfaction of the detaining authority that there was ample material to prove the detenu's complicity in the Bank dacoity including sharing of the booty in spite of absence of his name in the FIR as one of the dacoits. On these facts, the order of detention passed in the present case on 7-9-1988 and its confirmation by the State Government on 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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 Detention Act held as follows : (AIR p. 337, paras 7-8) 7. There is also no doubt that if any of the grounds furnished to the detenu are found to be irrelevant while considering the application of clauses (i) to (iii) of Section 3 (1) (a) and in that sense are foreign to the Act, the satisfaction of the detaining authority on which the order of detention is based is open to challenge and the detention order liable to be quashed. Similarly, if some of the ground supplied to the detenu are so vague that they would virtually deprive the detenu of his statutory right of making a representation, that again may introduce a serious infirmity in the order of his detention. If, however, the grounds on which the order of detention proceeds are relevant and germane to the matters which fall to be considered under Section 3 (1) (a), it would not be open to the detenu to challenge the order of detention by arguing that the satisfaction of the detaining authority is not reasonably based on any of the said grounds. 8. It is, ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ention 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 punishment of one year's imprisonment. What difference is it to the detenu whether his imprisonment is called preventive or punitive? * * * 29. Preventive detention is, by nature, repugnant to democratic ideas and an anathema to the Rule of law. No such law exists in the USA and in England (except during war time). Since, however, Article 22 (3) (b) of the Constitution of India permits preventive detention, we cannot hold it illegal but we must confine the power of preventive detention within very narrow limits, otherwise we will be taking away the great right to liberty guaranteed by Article 21 of the Constitution of India which was won after long, arduous and historic struggles. It follows, therefore, that if the ordinary law of the land (the Penal Code and other penal statutes) can deal with a situation, recourse to a preventive detention law will be illegal. [Ed. : It would appear that this entire extract from paras 21 and 29 of Rekha, ( 2011) 5 SCC 244 : (2011) 2 SCC (Cri) 596 , and in particular the observation in para 29, that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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