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TMI Blog2025 (2) TMI 754X X X X Extracts X X X X X X X X Extracts X X X X ..... [2024 (1) TMI 4 - SUPREME COURT], it has been specifically held by the Hon'ble Supreme Court that a constitutional court, when called upon to test the legality of orders of preventive detention, would be entitled to examine certain aspects referred in paragraph 28.1. to 28.10 of the said decision. In the case of Saraswathi Seshagiri [1982 (3) TMI 252 - SUPREME COURT], the Hon'ble Supreme Court has observed that the concerned detenue tried to export Indian Currency to the tune of Rupees 2,88,900.00 to a foreign country in a planned and pre-meditated manner by clever concealment of it in several parts of his baggage and, therefore, the Hon'ble Supreme Court observed that the detaining authority was justified in coming to the conclusion that he might repeat his illegal act in future also. His past act in the circumstances might be an index of his future conduct. Thereafter, the Hon'ble Supreme Court observed that the authority may prosecute the offender for an isolated act or acts of an offence for violation of any criminal law, but if it is satisfied that the offender has a tendency to go on violating such laws, then there will be no bar for the State to detain him under a Preventiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , as has been contended by the petitioner. Therefore, when the detaining authority after satisfying itself subjectively after considering all the relevant material, passed the impugned order of detention, the same cannot be interfered with while exercising power under Article 226 of the Constitution of India.
Petition dismissed. X X X X Extracts X X X X X X X X Extracts X X X X ..... Ko Ko Latt, Htin Linn Phyo, Arun Kumar and Pappu Kumar were apprehended on 13.12.2023 at Gaya International Airport and total 12004 grams of foreign origin gold was recovered and seized. Based on the intelligence input, simultaneous search was conducted by the officers of Directorate of Revenue Intelligence (DRI) at the premises of the petitioner, i.e., Kunal Kishore. During the search, total 124000 US Dollars were recovered from his residence in presence of the petitioner and two independent witnesses. The recovery and seizure memo was prepared on the spot. Further, voluntary statement of the petitioner was recorded on 14.12.2023 under Section 108 of the Customs Act, 1962. It is alleged that the petitioner admitted his involvement in the said smuggling syndicate and delivery and stated about the said syndicate that Md. Salim used to inform him about the quantity of gold coming by Myanmar International flight. He used to convey the said information to Arun Kumar and Pappu Kumar, who, it is further alleged, used to collect the foreign origin gold from the Marshals in the flight as per directions of Md. Salim. Kunal Kishore (the petitioner) used to receive the foreign origin gold fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... present. However, on the basis of the intelligence inputs, a search was conducted by the DRI in the premises of the petitioner and during the said search, petitioner was found present at his house. It is alleged by the detaining authority in the impugned order that on being asked about his involvement in smuggling of gold, petitioner admitted his involvement in smuggling of foreign origin gold through Gaya International Airport. It is also alleged during the search of his house, total 124000 US Dollar were recovered. On being asked about the said recovered foreign origin gold, the petitioner stated that he has earned the said foreign currency by smuggling the foreign origin gold. Further, it is contended by learned senior counsel that the petitioner was not present at the time of receiving of gold or for delivering the gold and the gold was not recovered from the possession of the petitioner. It is further submitted that on the basis of the so-called confessional statement of the petitioner recorded by the Customs Officers, he has been implicated. 4.1. It is contended that there is no antecedent of the petitioner and there was no apprehension on the part of the detaining authoriti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is a need to prevent the petitioner from smuggling of goods. 5.2. It is submitted that the said order of detention was executed on 11.03.2024 and the grounds of detention along with all the documents relied upon by the Detaining Authority for arriving at his subjective satisfaction were also served upon the petitioner on the very same day. 5.3. The petitioner was informed about his right to represent against his detention by the Detaining Authority to the Central Government as well as to the Advisory Board. 5.4. Learned ASG submits that the petitioner submitted two separate representations, both dated 04.04.2024, to the Detaining Authority and the Central Government, which were received on 12.04.2024 and 15.04.2024 respectively through the jail authorities. The Detaining Authority carefully examined the said representations and disposed of the same which was communicated to the petitioner on 25.04.2024. 5.5. It is further submitted that the Advisory Board considered the matter on 29.04.2024 and 13.05.2024 and opined that detention of the petitioner is justified. The said opinion of the Advisory Board has been considered by the Central Government and thereafter the Central Gove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ery and seizure memo dated 13.12.2023 was prepared on the spot. The petitioner and the independent witnesses put their signatures. It is specific case of the respondent that voluntary statement of the petitioner was recorded on 14.12.2023 under Section 108 of the Customs Act, wherein the petitioner has admitted his involvement in smuggling syndicate. It is the specific case of the respondent that the petitioner has not retracted from his statement given under Section 108 of the Customs Act. 6.1. It is the specific case of the respondents that the petitioner has further admitted in the said statement that around 200 kgs of foreign origin gold has been smuggled by him with the help of Arun Kumar and Pappu Kumar during last one year and that the petitioner used to get 1300 US Dollar for each kg. of foreign origin gold smuggled out of Gaya International Airport. 6.2. The respondent authorities filed the criminal complaint under the provisions of the Customs Act and proceedings for confiscation has also been initiated against the petitioner. The petitioner was arrested pursuant to the criminal complaint filed against him. 6.3. Now, it is the main contention of the petitioner that as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i) 514 : AIR 1986 SC 315] : [AIR p. 316 : SCC p. 234, SCC (Cri) p. 516, para 6] "On a reading of the grounds, particularly the paragraph which we have extracted above, it is clear that the order of detention was passed as the detaining authority was apprehensive that in case the detenue was released on bail he would again carry on his criminal activities in the area. If the apprehension of the detaining authority was true, the bail application had to be opposed and in case bail was granted, challenge against that order in the higher forum had to be raised. Merely on the ground that an accused in detention as an undertrial prisoner was likely to get bail an order of detention under the National Security Act should not ordinarily be passed." But, where, as here, there are other grounds, the reference by the detaining authority to the prospects of grant of bail could be no more than an emphasis on the imminence of the recurrence of the offensive activities of the detenue. Even a single instance of activity tending to harm "public order" might, in the circumstances of its commission, reasonably supply justification for the satisfaction as to a legitimate apprehension of a future re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 13. In this case, the detaining authority's satisfaction consisted of two parts - one : that the appellant was likely to be released on bail and two : that after he was so released the appellant would indulge in smuggling activities. The detaining authority noted that the appellant was in custody when the order of detention was passed. But the detaining authority said that "bail is normally granted in such cases". When in fact the five applications filed by the appellant for bail had been rejected by the courts (indicating that this was not a "normal" case), on what material did the detaining authority conclude that there was "imminent possibility" that the appellant would come out on bail? The fact that the appellant was subsequently released on bail by the High Court could not have been foretold. As matters in fact stood when the order of detention was passed, the "normal" rule of release on bail had not been followed by the courts and it could not have been relied on by the detaining authority to be satisfied that the appellant would be released on bail. (See in this context Ramesh Yadav v. District Magistrate [(1985) 4 SCC 232 : 1985 SCC (Cri) 514 : AIR 1986 SC 315], AIR a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion laws, the decision of the Constitution Bench in Haradhan Saha [Haradhan Saha v. State of W.B., (1975) 3 SCC 198 : 1974 SCC (Cri) 816] still holds the field and to the extent the learned Judges in Rekha [Rekha v. State of T.N., (2011) 5 SCC 244 : (2011) 2 SCC (Cri) 596] sound a note discordant with the law laid down in Haradhan Saha [Haradhan Saha v. State of W.B., (1975) 3 SCC 198 : 1974 SCC (Cri) 816] ought not to be construed as acceptance by us as the correct exposition of law. 28. In the circumstances of a given case, a constitutional court when called upon to test the legality of orders of preventive detention would be entitled to examine whether: 28.1. The order is based on the requisite satisfaction, albeit subjective, of the detaining authority, for, the absence of such satisfaction as to the existence of a matter of fact or law, upon which validity of the exercise of the power is predicated, would be the sine qua non for the exercise of the power not being satisfied; 28.2. In reaching such requisite satisfaction, the detaining authority has applied its mind to all relevant circumstances and the same is not based on material extraneous to the scope and purpose of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndex of his future conduct. 10. It was next contended for the detenue. that detenue. could be prosecuted under the Customs Act and as such his preventive detention was uncalled for. The counsel for the detenue. in support of his argument strongly relied upon Smt. Hemlata Kantilal Shah V/s. State of Maharashtra, AIR 1982 SC 8. That case instead of supporting the detenue. goes against him. This Court dealing with the point held- "Possibility of a prosecution or the absence of it is not an absolute bar to an order of preventive detention, the authority may prosecute the offender for an isolated act or acts of an offence for Violation of any criminal law, but if it is satisfied that the offender has a tendency to go on violating such laws, then there will be no bar for the State to detain him under a Preventive Detention Act in order to disable him to repeat such offences. What is required is that the detaining authority is to satisfy the Court that it had in mind the question whether prosecution of the offender was possible and sufficient in the circumstances of the case. In some cases of prosecution it may not be possible to bring home the culprit to book as in case of a professi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... All that is necessary is that there should be real and proper consideration by the Government and the Advisory Board." 6.11. In the Case of State of Maharashtra v. Bhaurao Punjabrao Gawande (supra), in paragraphs 36 and 37, the Hon'ble Supreme Court has observed as under: - "36. Liberty of an individual has to be subordinated, within reasonable bounds, to the good of the people. The framers of the Constitution were conscious of the practical need of preventive detention with a view to striking a just and delicate balance between need and necessity to preserve individual liberty and personal freedom on the one hand and security and safety of the country and interest of the society on the other hand. Security of State, maintenance of public order and services essential to the community, prevention of smuggling and black marketing activities, etc. demand effective safeguards in the larger interests of sustenance of a peaceful democratic way of life. 37. In considering and interpreting preventive detention laws, courts ought to show greatest concern and solitude in upholding and safeguarding the fundamental right of liberty of the citizen, however, without forgetting the historica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l v. Union of India [(1992) 1 SCC 434 : 1992 SCC (Cri) 184] , Ashok Kumar v. Delhi Admn. [(1982) 2 SCC 403 : 1982 SCC (Cri) 451] and Bhawarlal Ganeshmalji v. State of T.N. [(1979) 1 SCC 465 : 1979 SCC (Cri) 318] )" 6.13. From the aforesaid decisions rendered by the Hon'ble Supreme Court, it can be said that the object of detention under the detention law is not to punish, but to prevent the commission of certain offences. Further, in the recent decision rendered by the Hon'ble Supreme Court in the case of Ameena Begum (supra), it has been specifically held by the Hon'ble Supreme Court that a constitutional court, when called upon to test the legality of orders of preventive detention, would be entitled to examine certain aspects referred in paragraph 28.1. to 28.10 of the said decision 6.14. In the case of Saraswathi Seshagiri (supra), the Hon'ble Supreme Court has observed that the concerned detenue tried to export Indian Currency to the tune of Rupees 2,88,900.00 to a foreign country in a planned and pre-meditated manner by clever concealment of it in several parts of his baggage and, therefore, the Hon'ble Supreme Court observed that the detaining authority was justified in co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Constitution Bench in the case of Haradhan Saha (supra) still holds the field and to the extent the learned Judges in the case of Rekha (supra) sound a note discordant with the law laid down in Haradhan Saha (supra) it ought not to be construed as acceptance by the Hon'ble Supreme Court in the said case {Ameena Begum (supra)} as the correct exposition of law. 6.17. Therefore, at this stage, we would like to refer the decision rendered by the Hon'ble Supreme Court in the case of Haradhan Saha (supra), wherein the Constitution Bench of the Hon'ble Supreme Court in the year 1975 has observed in paragraphs 19, 32 and 34, as observed hereinabove, that an order of detention may or may not relate to an offence, it is not a parallel proceeding. It does not overlap with prosecution even if it relies on certain facts for which prosecution may be launched or may have been launched. An order of preventive detention may be made before or during prosecution. Further, an order of preventive detention may be made with or without prosecution and in anticipation or after discharge or even acquittal. Further, pendency of prosecution is no bar to an order of preventive detention. Further, it has b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Another contention raised by the petitioner is that there was a delay in service of the order of detention by contending that the detention order has been passed on 06.03.2024, which was communicated to him on 29.05.2024. However, we are of the view that the aforesaid contention is also misconceived. From the records, it transpires that the order of detention was passed on 06.03.2024, which was duly executed on the petitioner on 11.03.2024. Thereafter, the petitioner made representation on 04.04.2024 to the detaining authority and the Central Government, which was received on 12.04.2024 and 15.04.2024 respectively, which were duly considered by the concerned authorities and, in the meantime, the case of the petitioner was referred to the Advisory Board on 10.04.2024 and after conducting the proceedings on 29.04.2024 and 13.05.2024, the Advisory Board gave the opinion and opined that the detention of the petitioner is justified. The said opinion has been duly considered by the Central Government and thereafter the Central Government also confirmed the impugned detention order, which was communicated by the Deputy Secretary of the Government of India vide order dated 29.05.2024. Ther ..... X X X X Extracts X X X X X X X X Extracts X X X X
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