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TMI Blog2025 (3) TMI 444X X X X Extracts X X X X X X X X Extracts X X X X ..... ear, the arrest being on 05.03.2024. That there is clear nonapplication of mind since the allegations are raised under clauses (i) to (iv) of Section 3(1) of the COFEPOSA Act, in an omnibus manner, clearly revealing the bias of the detaining officer. The attempt was to somehow obtain preventive detention of the person who was arrested on the basis of the offences alleged; in which crime he was granted bail by the jurisdictional Court, imposing very stringent conditions. Then, the Department had moved an application for cancellation of bail which was never pursued and importantly, the said application was not placed before the detaining authority. The detaining authority, thus, did not have the opportunity to consider the grounds raised for cancellation of bail and to consider as to why preventive detention should be made when such an application for cancellation of bail was pending before the competent Court. A cancellation would have resulted in the detenu being taken back in custody, in which event there was no cause for shackling the appellant on a preventive basis. When a judicious consideration was possible, as to whether the appellant should be taken back in custody, an order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etenu and they were stated to be acting as agents to sell the gold in the market on a commission basis. There were no documents produced pertaining to the cash and gold, to substantiate the legal sourcing of such goods and the same was seized by the officers of the Directorate of Revenue Intelligence "DRI" who had conducted the raid. 7. The DRI officers then, based on the statements under Section 108 of the Customs Act, 1962 "Customs Act", raided the residential premises of the detenu. The attempt made by the inmates to prevent entry was thwarted by the officers and the premises were found to be in complete disarray clearly indicating attempts to conceal contraband and other evidence regarding the smuggling activities carried on by the residents therein. The mobile phones and contraband, thrown away, were recovered from the office bearers of the Society of the residential complex and further contraband was also recovered from the residential premises of the detenu. The statements under Section 108 of the Customs Act reveal that continued smuggling activities involving gold bars and cut pieces of foreign origin was carried on by a syndicate headed by the detenu, in which Mohammad R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ansmitted to the agents who would sell them in the market on a cash basis without invoices or bills; the proceeds of which minus the commission is received by the detenu. There is a complete chain of activity revealed which commences with the detenu and ends with him, bringing in the ingredients of all the four provisions. 9. We, further, notice from the detention order, which has been extracted in the judgment of the High Court, from paragraph 3 to 9 where the satisfaction has been entered by the detaining authority. The detenu was found to be a habitual offender and a key person of the well-organized syndicate involved in smuggling and disposal of foreign gold brought illegally into India, which activity was habitually carried out through his associates without declaration before the customs authorities and without payment of applicable duties. The smuggling of gold was for the purpose of illegal profiteering putting the national economy into danger which activity was sought to be curbed by the detention order. The detenu was found to have indulged in the activities amounting to smuggling under both the Customs Act and the COFEPOSA Act. The detenu was also found to have an innat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e do not find either of these points, vitiating the impugned order, since, neither is the subject matter of offence under the NDPS Act referred to in the detaining order nor is the involvement in the said crime a ground taken for detention under the COFEPOSA Act. As is noticed above, reference to the NDPS case is only to emphasise the propensity of the detenu to involve in such illegal activities by even changing the name officially, to supress his real identity. We do not find any reason to hold the detention to be illegal on the ground of a mere reference to the NDPS case; which we reiterate is only to emphasise the change in name resorted to by the detenu after being released on bail. 11. The decision in Khaja Bilal Ahmed v. State of Telangana (2020) 13 SCC 632 deprecated the order of the detaining authority which merely referred to a pending criminal case, without any clear indication and casual connection to hold it as the basis of an order of detention. We have already found that, here, the involvement in a case under the NDPS Act, was not raised as a ground, anywhere in the detention order. The incidents which led to the impugned detention order commenced on a raid in the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plied to by the DRI, Mumbai on 15.04.2024. 14. The jurisdictional Magistrate released the detenu on bail vide order dated 16.04.2024 on certain conditions. The order of the Magistrate is extracted in the impugned judgment. The contentions raised by the DRI regarding the all-pervasive role of the detenu and his propensity to indulge in such smuggling activities, detrimental to the interest of the nation was considered in juxtaposition with the contention raised by the accused; on the basis of the investigation carried out thus far. The specific ground raised by the prosecution of apprehension of involvement in similar type of smuggling activity was reckoned by the jurisdictional Magistrate while granting bail and imposing conditions to prevent the detenu from engaging in such smuggling activities. The various conditions are revealed from the order extracted and have been referred to in paragraph-(xxii) of the detention order. However, nothing is stated by the detaining authority as to why the conditions are not sufficient to prevent the detenu from engaging in further activities of smuggling; which was the specific ground on which the conditions were imposed while granting bail. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e true distinction between a threat to "law and order" and acts "prejudicial to public order", which was not to be determined merely by the nature or quality of the act complained of, but was held to lie, in the proper degree and extent of its impact on the society. It was held that there could be instances where "disturbance of public order" would not be attracted but still, would fall within the scope of maintenance of "law and order". It was held that :- "preventive detention laws-an exceptional measure reserved for tackling emergent situations-ought not to have been invoked in this case as a tool for enforcement of "law and order" (sic para 47), especially when the existing legal framework to maintain law and order is sufficient to address the offences under consideration. 19. Likewise, in the present case, we are not concerned as to whether the conditions imposed by the Magistrate would have taken care of the apprehension expressed by the detaining authority; of the detenu indulging in further smuggling activities. We are more concerned with the aspect that the detaining authority did not consider the efficacy of the conditions and enter any satisfaction, however subjective i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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