quashing the detention orders passed against the detenues. is correct ?

In the present case, huge volume of gold had been smuggled into the country unabatedly for the last three years and about 3396 kgs of the gold has been brought into India during the period from July 2018 to March, 2019 camouflaging it with brass metal scrap. The detaining authority recorded finding that this has serious impact on the economy of the nation. Detaining authority also satisfied that the detenues have propensity to indulge in the same act of smuggling and passed the order of preventive detention, which is a preventive measure. Based on the documents and the materials placed before the detaining authority and considering the individual role of the detenues, the detaining authority satisfied itself as to the detenues’ continued propensity and their inclination to indulge in acts of smuggling in a planned manner to the detriment of the economic security of the country that there is a need to prevent the detenues from smuggling goods. The High Court erred in interfering with the satisfaction of the detaining authority and the impugned judgment cannot be sustained and is liable to be set aside.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1064 2019

(Arising out of SLP(Crl.) No.5459 of 2019)

  1. UNION OF INDIA
  2. JOINT SECRETARY (COFEPOSA),

GOVT. OF INDIA, MINISTRY OF FINANCE …Appellants

VERSUS

DIMPLE HAPPY DHAKAD …Respondent

WITH

CRIMINAL APPEAL NO. 1066 2019

(Arising out of SLP(Crl.) No.5408 of 2019)

CRIMINAL APPEAL NO. 1067 2019

(Arising out of SLP(Crl.) No.5460 of 2019)

CRIMINAL APPEAL NO. 1065 2019

(Arising out of SLP(Crl.) No.5396 of 2019)

J U D G M E N T

R. BANUMATHI, J.

Leave granted.

  1. These appeals arise out of the judgment dated

25.06.2019 passed by the High Court of Judicature at Bombay

1

in W.P. (Crl.) Nos.2843 and 2844 of 2019 in and by which the

High Court has quashed the detention orders dated 17.05.2019

passed against the detenues. The appellants-Union of India in

appeals arising out of SLP(Crl.) Nos.5459 and 5460 of 2019

have challenged the impugned judgment quashing the

detention orders. While quashing the detention orders, the High

Court has stayed the operation of its own order for a period of

one week to enable the appellants to approach the Supreme

Court. Being aggrieved by the stay, the detenues-respondents

have preferred appeals arising out of SLP(Crl.) Nos.5396 and

5408 of 2019 before this Court. All the appeals shall stand

disposed of by this common judgment.

  1. The facts giving rise to these appeals are that pursuant to

an investigation by the office of Directorate of Revenue

Intelligence in the matter of smuggling of foreign origin gold by

a syndicate of persons from UAE to India. On 28.03.2019

search and interception of two vehicles i.e. a Honda Activa

Scooter and a Honda City car was held. It was noticed that

there were two persons Abdul Ahad Zarodarwala and Shaikh

Abdul Ahad, employee of Zarodarwala. Search of the vehicles

2

resulted in recovery of 75 kgs of gold in the form of five circular

discs valued at Rs.24.5 crores. Follow-up searches were

conducted in the offices and residential premises of the

connected persons resulted in further recovery of 110 kgs of

gold and currency amounting to Rs.1.81 crores. Shoeb

Zarodarwala, Abdul Ahad Zarodarwala and Shaikh Abdul Ahad

were summoned and their statements were recorded and they

are alleged to have made statement regarding receiving of

smuggled gold from respondent detenu-Nisar Pallathukadavil

Aliyar.

  1. Facts in SLP (Crl.) No. 5408 of 2018: Case of the

appellants is that the respondent-detenu Nisar Pallathukadavil

Aliyar is a full-time organised smuggler of large quantities of

gold and is the mastermind of the smuggling syndicate and has

been smuggling gold into India since 2016. It is stated that two

companies, viz. M/s. Al Ramz Metal Scrap Trading and M/s.

Blue Sea Metal FZE were floated and registered by the

appellant in the name of one Kalpesh Nanda for exporting

metal scrap to India which is alleged to cover cargo to smuggle

gold. It is alleged that detenue Nisar Aliyar ensured that the

3

sale proceeds of the smuggled gold were siphoned off to Dubai

through hawala. It is alleged that Nisar Aliyar created a wide

network of people to look after the operations at every stage

and was smuggling gold into India since 2016 and is alleged to

have smuggled more than 3300 kgs of gold having

approximate value of Rs.1000 crores and is alleged to be a

mastermind of the smuggling syndicate. Detenu Nisar Aliyar

was arrested on 31.03.2019 for commission of offences

punishable under Section 135 of the Customs Act, 1962 and

his statement was recorded.

  1. Facts in SLP (Crl.) No. 5396 of 2019: Detenu-Happy

Arvindkumar Dhakad is a Director of Bullion Trading Firm and

is a jeweller. As per the appellants, investigations revealed that

the husband of the detenu Happy Dhakad was directly dealt

with Shoeb Zarodarwala and Jignesh Solanki who are his

relatives by buying gold from Nisar Aliyar. Detenu Happy

Dhakad is alleged to have abetted Nisar Aliyar in his illegal

activities of receiving and concealing smuggled gold and

disposing it off through his jewellery outlets and is said to have

played a vital role. It is alleged that through multiple jewellery

4

outlets owned by him and his relatives, detenu-Happy Dhakad

disposed of the foreign origin smuggled gold easily. Follow up

searches were conducted at various offices and residential

premises of persons found connected with smuggling of gold. A

total quantity of 110 kgs of gold was recovered from these

premises. Thirty-one pieces of gold carrying a total weight of

20.4 kgs and 11.5 kgs of foreign marked gold bars totally

valued at Rs.10.21 crores, Rs. 28.53 lakhs cash and

unaccounted cash of Rs.28.53 lakhs and Rs.44.50 lakhs were

seized respectively from the office and residence of detenu

Happy Dhakad and he did not have any documents for his

possession of gold. In his statement recorded on 29.03.2019,

detenu Happy Dhakad is alleged to have accepted that 20.4

kgs of gold recovered from his premises was from the

smuggled gold supplied to him by appellant Nisar Aliyar and the

other 11.5 kgs of foreign marked gold was procured from other

sources. Detenu Happy Dhakad was arrested on 29.03.2019

for the offence punishable under Section 135 of the Customs

Act, 1962 and was remanded to judicial custody.

5

  1. The Detaining Authority-Joint Secretary (COFEPOSA), on

being satisfied that the detenues have high propensity to

indulge in the prejudicial activities, with a view to prevent them

from smuggling and concealing smuggled gold in future,

passed the orders of detention dated 17.05.2019 under Section

3 of the Conservation of Foreign Exchange & Prevention of

Smuggling Activities Act, 1974 (COFEPOSA). The detention

orders and the grounds of detention were served on the

detenues on 18.05.2019. The copies of the relied upon

documents were served on the detenues on 21.05.2019 and

22.05.2019.

  1. The detention orders dated 17.05.2019 was assailed by

the detenues by filing writ petitions before the High Court. The

High Court vide interim order dated 04.06.2019 directed the

appellant to consider the writ petitions as a representation of

the detenues. Accordingly, the representation was considered

and the same was rejected by the Joint Secretary

(COFEPOSA) who did not find any justification in modification

of the detention orders.

6

  1. By the impugned order dated 25.06.2019, the High Court

quashed the detention orders by holding that there was no

application of mind by the Detaining Authority in passing the

detention orders. The High Court held that as per the principles

laid down in Kamarunnisa v. Union of India (1991) 1 SCC 128,

there was no application of mind indicating the satisfaction of

the detaining authority that there was imminent possibility of

detenues being released on bail. The High Court also held that

though the detention orders and grounds of detention were

served on the detenues on 18.05.2019, the detenues were not

served with the copies of relied upon documents and material

particulars along with the orders of detention and grounds of

detention and there was violation of Article 22(5) of the

Constitution of India and violation of Guideline No.21 of “Hand

Book on Compilation of Instructions on COFEPOSA matters”.

The High Court did not accept the contention of the Department

that the preparation of copies of documents and bulk of records

did not enable the respondents to serve the relied upon

documents simultaneously with the orders of detention upon

the respondents. Holding that the preventive detention was in

7

violation of Articles 21 and 22(5) of the Constitution of India and

the Guidelines, the High Court quashed the detention orders

dated 17.05.2019. As pointed out earlier, the High Court,

however, stayed the operation of its own judgment for a period

of one week which we have extended.

  1. Mr. K.M. Natraj, learned Additional Solicitor-General

appearing for the appellant-Union of India has submitted that

the orders of detention and the grounds were served on the

detenues on 18.05.2019 and since the documents were

voluminous containing 2364 pages, the copies of which were

served on the detenues on 21.05.2019 and 22.05.2019

respectively is well within the time period stipulated in Section

3(3) of the COFEPOSA Act. While so, it was submitted that the

High Court was not right in quashing the detention orders on

the ground that the relied upon documents were not served

upon the detenues together with the detention orders and that

there was violation of Guideline No. 21 (Part A of Do’s) and

Guideline No. 9 (Part B of Don’ts) which is only a guideline to

the officers. The learned Additional Solicitor-General further

submitted that “Hand Book on compilation of instructions on

8

COFEPOSA matters from July 2001 to February, 2007” is only

in the nature of guidelines for the officers of the department in

dealing with COFEPOSA matters and the said guidelines itself

direct that care to be taken in communication/service of the

detention orders, grounds of detention and relied upon

documents and the statutory period of service laid down in the

COFEPOSA Act. The learned Additional Solicitor-General

further submitted that based on the materials placed before the

detaining authority, the detaining authority satisfied itself as to

the likelihood of the detenues being released on bail and while

so, the High Court erred in quashing the detention orders on

the ground that in the detention orders “there was no finding

that there was real possibility of their being released on bail by

the Court”. The learned Additional Solicitor General urged that

the present case involves huge volume of gold systematically

smuggled into the country in the last three years and more than

3300 kgs of gold has been brought during the period from July

2018 to March 2019 and the detaining authority after

considering that the detenues have propensity to indulge in the

offence passed the detention orders and such subjective

9

satisfaction of the detaining authority cannot be lightly

interfered with by the Court.

  1. Mr. Mukul Rohatgi, learned senior counsel appearing for

the detenues relied upon number of judgments and contended

that the grounds of detention and relied upon documents are to

be served on the detenues pari passu and in the instant case,

serving of the relied upon documents and grounds of detention

piecemeal deprives the detenues from making effective

representation. Taking us through the grounds of detention, the

learned senior counsel submitted that the detaining authority

has recorded its awareness only as to the custody of the

detenues and the dismissal of the bail application and the

satisfaction of the detaining authority as to the likelihood of the

detenues being released on bail is significantly absent and the

absence of such satisfaction vitiates the detention orders.

Reliance was placed upon Kamarunnisa and other judgments.

The learned senior counsel further submitted that it was not

possible for the detaining authority to pass all fifteen detention

orders in one day after perusal of 2364 pages of documents

describing role of each individual which clearly shows non10

application of mind by the detaining authority. Placing reliance

upon Rekha v. State of Tamil Nadu through Secretary to

Government and Another (2011) 5 SCC 244, it was submitted

that in cases of preventive detention orders, procedural

requirements are the safeguards and non-compliance of the

procedural requirements vitiates the detention orders. It was

submitted that upon consideration, the High Court has rightly

quashed the detention orders that the detention order is an

infraction of Article 22(5) of the Constitution of India and noncompliance of the Guidelines of “Hand Book on compilation of

instructions on COFEPOSA matters” and the impugned order

warrants no interference.

  1. We have carefully considered the rival submissions and

perused the impugned order and other materials on record.

We have also carefully gone through the various judgments

relied upon by both sides. The following points arise for

consideration in these appeals:-

(i) Whether the orders of detention were vitiated on the

ground that relied upon documents were not served

along with the orders of detention and grounds of

detention? Whether there was sufficient compliance

11

of the provisions of Article 22(5) of the Constitution of

India and Section 3(3) of the COFEPOSA Act?

(ii) Whether the High Court was right in quashing the

detention orders merely on the ground that the

detaining authority has not expressly satisfied itself

about the imminent possibility of the detenues being

released on bail?

  1. The present case relates to alleged smuggling of huge

volume of gold of more than 3300 kgs of gold camouflaging it

with brass metal scrap. Detenue Nisar Aliyar is stated to be the

mastermind and kingpin of the syndicate who along with others

smuggled gold from UAE to India. Detenu Happy Dhakad

abetted smuggling by receiving smuggled gold from Nisar

Aliyar and his group and disposing them off through jewellery

outlets run by him and his relatives. The respondents were

arrested for the offence punishable under Section 135 of the

Customs Act on 29.03.2019 and their statements were

recorded under Section 108 of the Customs Act. The orders of

detention were issued on 17.05.2019. The detention orders

along with grounds of detention were served on the detenues

on 18.05.2019. Since the documents were running into 2364

12

pages and there were fifteen detention orders passed against

various detenues, the compilation of documents was served on

detenues on 21.05.2019 and 22.05.2019 respectively. Section

3(3) of COFEPOSA Act states that “the detenue should be

communicated with the order of detention and the grounds as

soon as may be after detaining him but ordinarily not later than

five days……” According to the appellants, in the present case,

the orders of detention and the grounds were served on the

detenues on 18.05.2019. However, since the documents were

voluminous running about 2364 pages, the same was served

on the detenues on 21.05.2019 and 22.05.2019 respectively

which, of course, was within the time period stipulated under

Section 3(3) of the Act.

  1. In the detention orders dated 17.05.2019, though it was

expressly mentioned that the documents mentioned in the list

relied upon by the detaining authority are served upon the

detenues along with the detention orders, the relied upon

documents were served upon the detenues between

20.05.2019 and 22.05.2019. The High Court quashed the

detention orders dated 17.05.2019 on the ground that on

13

18.05.2019, the detention orders and the grounds of detention

were served on the detenues; but the relied upon documents

and other material particulars were not served upon the

detenues together with the grounds of detention. After

extracting the relevant portion of the detention orders, the High

Court held that though it was stated that the relied upon

documents were served upon the detenues along with the

detention orders, actually they were not served on the

detenues together with the detention orders and the grounds of

detention and while so, the appellants cannot have recourse to

Section 3(3) of the COFEPOSA Act, 1974. The relevant portion

of the detention orders where the detaining authority has stated

that the relied upon documents are being served upon the

detenues along with the grounds of detention reads as under:-

“9. While passing the Detention Order under the provisions of

the Conservation of Foreign Exchange and Prevention of

Smuggling Activities Act, 1974, I have relied upon the documents

mentioned in the enclosed list, which are also being served to

you along with the Grounds of Detention.

  1. You i.e. Shri Happy Arvindkumar Dhakad have the right to

represent against your detention to the Detaining Authority, to the

Central Government as well as to the Advisory Board. If you

wish to avail this right, you should send your representation

14

through the Jail Authorities where you are detained, in the

manner indicated below…” [underlining added]

  1. Guideline No.21 of Do’s of “Do’s and Don’ts in handling

COFEPOSA matters”, stipulates that the grounds of detention

and relied upon documents must be invariably served together

on the detenu (including the copies translated into the language

known to and understood by the detenu, wherever necessary)

and these should be served as quickly as possible but within

the statutory time limit of five days from the date of his

detention. In Part-B dealing with Don’ts of “Do’s and Don’ts in

handling COFEPOSA matters”, Guideline No.9 lays down that

the grounds of detention and relied upon documents should not

be given on different dates. For quashing it on the ground of

non-serving of the grounds of detention and relied upon

documents along with the detention orders, the High Court held

that there was violation of Guideline No.21 in Part-A dealing

with Do’s of “Do’s and Don’ts in handling COFEPOSA matters”,

and Guideline No.9 in Part-B dealing with the Don’ts of “Do’s

and Don’ts in handling COFEPOSA matters”. Guideline No.21

15

and Guideline No.9 dealing with “Do’s and Don’ts in handling

COFEPOSA matters”, read as under:-

“Do’s and Don’ts in handling COFEPOSA matters

A. Do’s

………

  1. The Grounds of detention and the relied upon documents

be invariably served together to the detenu (including the

copies translated into the language known to and understood

by the detenu, wherever necessary) and these should be

served as quickly as possible but within the statutory time

limit of five days from the date of his detention.

B. Don’ts

……

  1. Grounds of detention and relied upon documents should

not be given on different dates.”

  1. Contention of the learned senior counsel for the

respondents is that though the detention orders served upon

the detenues states that the relied upon documents mentioned

in the list are also being served upon the detenues along with

the grounds of detention, the relied upon documents were not

actually served upon the detenues and such non-application of

mind of the detaining authority vitiates the detention orders

apart from depriving the detenu from making effective

representation. The learned senior counsel further submitted

16

that there is clear breach of the guidelines containing Do’s and

Don’ts and the respondents were deprived of his right of

personal liberty without following the procedure established by

law. The learned senior counsel submitted that the High Court

relied upon its own judgments of co-ordinate Benches in

Criminal Writ Petition Nos.2/1996, 4/1996, 824/1995 and

690/1996 and rightly held that the relied upon documents were

not served together with the orders of detention and grounds of

detention on 18.05.2019 and hence, there is no question of the

appellants taking recourse to Section 3(3) of the COFEPOSA

Act.

  1. In support of his contention that the detention orders are

liable to be quashed on the ground that the documents and

materials forming basis of the detention orders had not been

supplied, the learned senior counsel for the respondents placed

reliance upon Virendra Singh v. State of Maharashtra (1981) 4

SCC 562 and Ana Carelina D’souza (Smt.) v. Union of India

and others AIR 1981 SC 1620 and number of other judgments.

It was submitted that the High Court rightly relied upon

Kamleshkumar Ishwardas Patel v. Union of India and others

17

(1995) 4 SCC 51 wherein the Supreme Court had observed

that while discharging the constitutional obligation to enforce

the fundamental rights of the people, more particularly, the right

to personal liberty, the gravity of the allegations cannot

influence the process and that to enforce the fundamental

rights of the people, more particularly, the right to personal

liberty, certain minimum procedural safeguards are required to

be “zealously watched and enforced by the court”.

  1. In Virendra Singh, the order of detention was passed on

09.10.1980 and the grounds of detention and other documents

and materials were supplied to the detenu on 01.11.1980 when

he was arrested; but without the documents and the materials

which were later served on 05.11.1980. The Supreme Court

quashed the detention order and held as under:-

“1. …..Admittedly, the order of detention was passed on October

9, 1980 and the grounds were supplied to the detenu on

November 1, 1980 when he was arrested but without the

documents and materials which were supplied on November 5,

  1. The detenu made a representation on November 13, 1980

which was disposed of on December 13, 1980. In this case as

the documents and the materials forming the basis of the order

of detention had not been supplied to the detenu along with the

order of detention when the same was served on him, the order

18

is rendered void as held by this Court in Icchu Devi Choraria v.

Union of India (1980) 4 SCC 531 and in Shalini Soni v. Union of

India (1980) 4 SCC 544. Moreover, the order of detention suffers

from another infirmity, namely, that the representation made by

the detenu was disposed of by the detaining authority more than

a month after the representation was sent to it. No reasonable

explanation for this delay has been given which violates the

constitutional safeguards enshrined under Article 22(5) and

makes the continued detention of the detenu void. For these

reasons, therefore, we allow this petition and direct the detenu to

be released forthwith.”

By a reading of the above that as there was a long gap

between the order of detention and the arrest and also

inordinate delay in considering and disposal of the

representation, the Supreme Court quashed the detention

order.

  1. In yet another decision relied upon by the learned counsel

for the respondents i.e. Ana Carelina D’souza, facts are not

clear. The detention order was quashed mainly on the ground

of non-supply of the relied upon documents along with the

grounds of detention. It is not known whether the statutory time

limit of five days was complied with or not. It has been held by

the Supreme Court in several cases that mere service of the

grounds of detention is not in compliance of the mandatory

19

provision of Article 22(5) of the Constitution of India unless the

grounds are accompanied with the documents which are

referred to are relied on the grounds of detention. In the

decisions relied upon by the learned senior counsel for the

respondents, the detention order was quashed in the facts and

circumstances of those cases viz. (i) that the relied upon

documents were served beyond the statutory mandate of five

days; and (ii) that there was inordinate delay in disposal of the

representation. The decisions relied upon by the learned

senior counsel for the respondents being in the factual context

of respective cases are not applicable to the present case.

  1. Section 3(3) of the Conservation of Foreign Exchange &

Prevention of Smuggling Activities Act, 1974 (COFEPOSA)

states that the detenu should be communicated with the order

of detention and the grounds ‘as soon as may be’ after

detaining him ‘but ordinarily not later than five days and in

exceptional cases and for reasons to be recorded in writing not

later than fifteen days from the date of detention. Sub-section

(3) of Section 3 of the COFEPOSA Act, 1974 reads as under:-

“3. Power to make orders detaining certain persons.

……

20

(1) + (2)……..

(3) For the purposes of clause (5) of Article 22 of the

Constitution, the communication to a person detained in

pursuance of a detention order of the grounds on which the order

has been made shall be made as soon as may be after the

detention, but ordinarily not later than five days, and in

exceptional circumstances and for reasons to be recorded in

writing, not later than fifteen days, from the date of detention.”

[underlining added]

Section 3(3) of the COFEPOSA Act stipulates the statutory

period of five days to serve the grounds of detention and in

exceptional circumstances and for reasons to be recorded not

later than fifteen days from the date of detention. Section 3(3)

of the COFEPOSA Act thus allows a leeway of five days at

least for the grounds of detention and the documents relied

upon in the grounds to be served on the detenues. By the term

“as soon as may be…..”, the statute considers five days as a

reasonable time in normal circumstances to convey the

grounds of detention to the detenues. There is no statutory

obligation on the part of the detaining authority to serve the

relied upon documents on the very same day of the service of

the order of detention. In view of the time stipulated in Section

3(3) of COFEPOSA Act and the language used in Article 22(5)

21

of the Constitution of India “….earliest opportunity……”, nonserving of copies of documents together with detention order

cannot be a ground to quash the detention order.

  1. In the case of Sophia Gulam Mohd. Bham v. State of

Maharashtra and Others (1999) 6 SCC 593, the Supreme

Court has held that “the use of the words “as soon as may

be…..” indicate a positive action on the part of the detaining

authority in supplying the grounds of detention and that there

should not be any delay in supplying the grounds on which the

order of detention was based”. Likewise, it was held that “the

use of the terms “….earliest opportunity….” in Article 22(5) also

carry the same philosophy that there should not be any delay in

affording adequate opportunity to the detenu of making a

representation against the order of detention”. In Icchu Devi

Choraria v. Union of India and Others (1980) 4 SCC 531, the

Supreme Court held that “clause (5) of Article 22 and subsection (3) of Section 3 of the COFEPOSA Act provide that the

grounds of detention should be communicated to the detenu

within five or fifteen days, as the case may be”. The expression

“as soon as may be” cannot be read in isolation from the

22

phrase “but ordinarily not later than five days”. [Vide Jasbir

Singh v. Lt. Governor, Delhi and another (1999) 4 SCC 228].

On a proper construction of clause (5) of Article 22 read with

Section 3(3) of the COFEPOSA Act, 1974, it is necessary that

documents and other materials relied upon in the grounds of

detention should be furnished to the detenu along with grounds

of detention or in any event not later than five days and in

exceptional circumstances and for reasons to be recorded in

writing not later than fifteen days from the date of detention.

  1. In the present case, the detention orders and the grounds

of detention were served upon the detenues on 18.05.2019.

The relied upon documents were served upon them between

20.05.2019 and 22.05.2019 i.e. within five days from the date

of serving of detention orders i.e. 18.05.2019. As pointed out

earlier, Section 3(3) of COFEPOSA Act provides for the

statutory period of five days to serve the grounds of detention

and the relied upon documents. It was pointed out that the

relied upon documents were running into 2364 pages and

fifteen detention orders were passed against various detenues

and therefore, the compilation of the documents was served on

23

the detenues on 21.05.2019. As rightly contended by the

learned Additional Solicitor-General, the preparation of copies

of voluminous documents was a time-consuming process and it

took time to serve the compilation of documents upon the

detenues and therefore, the orders would not be illegal.

Section 3(3) of COFEPOSA Act mandates to furnish the

documents within five days. Admittedly, the copies have been

furnished within the said period. The statutory requirement

therefore has been complied with.

  1. There is no statutory obligation on the part of the

detaining authority to serve the grounds of detention and relied

upon documents on the very same day; more so, when there is

nothing to show that the detaining authority was guilty of

inaction or negligence. The principle laid down by the Supreme

Court in Mehdi Mohamed Joudi v. State of Maharashtra and

others (1981) 2 SCC 358 that non-supply of documents and

material pari passu would vitiate the detention order must be

understood in the context of Section 3(3) of the COFEPOSA

Act. Serving of detention order, grounds of detention and

supply of documents must be contemporaneous as mandated

24

within the time limit of five days stipulated under Section 3(3) of

the COFEPOSA Act and Article 22(5) of the Constitution of

India.

  1. In Jasbir Singh v. Lt. Governor, Delhi and another (1999)

4 SCC 228, it was held that for computing the period of five

days, the date on which the detention order was served has to

be excluded. In the case in hand, therefore for computing the

period of five days, the date 18.05.2019 has to be excluded.

The grounds of detention and the relied upon documents have

been served upon the detenues from 20.05.2019 to 22.05.2019

which is well within the statutory period of five days and there is

no infraction of sub-section (3) of Section 3 of the COFEPOSA

Act.

  1. In the present case, the grounds of detention and relied

upon documents were served upon the detenues within five

days from 18.05.2019 – the date of detention orders i.e. on

21.05.2019 and 22.05.2019. The term pari passu has to be

read with the statutory provision of Section 3(3) of the

COFEPOSA Act which would mean that the grounds of

detention and relied upon documents are served within five

25

days and for reasons to be recorded within fifteen days with

explanation. Only when such rule is vitiated, it can be said that

they were not furnished together. The High Court erred in

quashing the detention orders on the ground that the

documents and the material were not supplied pari passu the

detention orders.

  1. The “Hand Book on Compilation of Instructions on

COFEPOSA matters” from July 2001 to February 2007 –

contain instructions of do’s and don’ts to be followed relating to

COFEPOSA matters. Referring to Guideline No.21 (Part A of

Don’s and Don’ts in handling COFEPOSA matters) and

Guideline No.9 (Part B of Don’s and Don’ts in handling

COFEPOSA matters), the High Court held that there is violation

of the guidelines which would vitiate the detention orders.

  1. The “Hand Book on Compilation of Instructions on

COFEPOSA matters” is only in the nature of guidelines for the

officers of the department in dealing with COFEPOSA matters.

The said guidelines direct that “care to be taken in

communication/service of detention order” and the grounds of

detention and relied upon documents should be served as

26

quickly as possible but within the statutory time limit of five

days from the date of detention order. The said guidelines were

fully complied with. Also, it is well-settled principle that any

executive instruction like the guidelines cannot curtail the

provisions of any statute or whittled down any provision of law.

  1. The High Court quashed the detention orders on yet

another ground that the detaining authority has to record

grounds of detention indicating the reasons with the satisfaction

that there is imminent possibility of detenue’s release from the

custody and after release, such person is likely to continue to

indulge in the prejudicial activities and the detention orders

nowhere expressly mention the satisfaction of the detaining

authority as to the imminent possibility of the detenue’s release

on bail and continue to indulge in the prejudicial activities. The

High Court held that the tests laid down in Kamrunnissa are not

satisfied. The High Court held that mere role played by detenu

Nisar Aliyar in smuggling gold or role of another detenu Dimple

Happy Dhakad in aiding and abetting Nisar Aliyar in the illegal

activities of smuggling do not dispose with the necessity of

27

recording satisfaction that there is no imminent possibility of the

detenues being released on bail.

  1. Drawing our attention to the grounds of detention, the

learned senior counsel for the respondents has submitted that

the detaining authority has recorded its awareness as to the

custody of the detenues and the dismissal of their bail

applications. It was submitted that the satisfaction of the

detaining authority as to the imminent possibility of the

detenues being released on bail is significantly absent which

vitiates the detention orders. Placing reliance upon

Kamrunnissa, it was submitted that when the detention orders

do not record the satisfaction of the detaining authority as to

the possibility of detenues being released on bail and if so

released, there is likelihood of their indulging in prejudicial

activities; and absence of finding as to the possibility of the

detenu being released on bail would vitiate the detention order

and the High Court rightly quashed the detention orders.

Placing reliance upon number of judgments, the learned senior

counsel submitted that the preventive detention order should

28

not be passed merely to pre-empt or circumvent the

enlargement on bail.

  1. The learned Additional Solicitor-General has submitted

that the detaining authority was aware that the detenu was

already in custody up to 20.05.2019 which is clearly recorded in

the grounds of detention. Taking us through the grounds of

detention, the learned Additional Solicitor-General urged that

the detaining authority has succinctly brought out the role of the

detenu in the smuggling syndicate and thereafter recorded the

satisfaction as to detenu’s propensity and likelihood of his

indulging in the smuggling activity and the subjective

satisfaction of the detaining authority based upon the material

particulars cannot be interfered with by the court. In support of

his contention, the learned ASG placed reliance upon Vijay

Kumar v. Union of India and others (1988) 2 SCC 57 and other

judgments.

  1. It is well settled that the order of detention can be validly

passed against a person in custody and for that purpose, it is

necessary that the grounds of detention must show that the

detaining authority was aware of the fact that the detenu was

29

already in custody. The detaining authority must be further

satisfied that the detenu is likely to be released from custody

and the nature of activities of the detenu indicate that if he is

released, he is likely to indulge in such prejudicial activities and

therefore, it is necessary to detain him in order to prevent him

from engaging in such activities.

  1. After reviewing all the decisions, the law on the point was

enunciated in Kamarunnisa v. Union of India and Another

(1991) 1 SCC 128 where the Supreme Court held as under:-

“13. From the catena of decisions referred to above it seems

clear to us that even in the case of a person in custody a

detention order can validly be passed (1) if the authority passing

the order is aware of the fact that he is actually in custody; (2) if

he has reason to believe on the basis of reliable material placed

before him (a) that there is a real possibility of his being released

on bail, and (b) that on being so released he would in all

probability indulge in prejudicial activity and (3) if it is felt

essential to detain him to prevent him from so doing. If the

authority passes an order after recording his satisfaction in this

behalf, such an order cannot be struck down on the ground that

the proper course for the authority was to oppose the bail and if

bail is granted notwithstanding such opposition, to question it

before a higher court. What this Court stated in the case of

Ramesh Yadav (1985) 4 SCC 232 was that ordinarily a detention

order should not be passed merely to pre-empt or circumvent

enlargement on bail in cases which are essentially criminal in

30

nature and can be dealt with under the ordinary law. It seems to

us well settled that even in a case where a person is in custody,

if the facts and circumstances of the case so demand, resort can

be had to the law of preventive detention. …….”

  1. The same principle was reiterated in Union of India v.

Paul Manickam and Another (2003) 8 SCC 342 where the

Supreme Court held as under:-

“14. …….. Where detention orders are passed in relation to

persons who are already in jail under some other laws, the

detaining authorities should apply their mind and show their

awareness in this regard in the grounds of detention, the

chances of release of such persons on bail. The necessity of

keeping such persons in detention under the preventive

detention laws has to be clearly indicated. Subsisting custody of

the detenu by itself does not invalidate an order of his preventive

detention, and the decision in this regard 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 or economic stability 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.

If the detaining authority is reasonably satisfied with cogent

materials 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.

Where the detention order in respect of a person already in

31

custody does not indicate that the detenu was likely to be

released on bail, the order would be vitiated. (See N. Meera

Rani v. Govt. of T.N. (1989) 4 SCC 418 and Dharmendra

Suganchand Chelawat v. Union of India (1990) 1 SCC 746) The

point was gone into detail in Kamarunnissa v. Union of India

(1991) 1 SCC 128. ……” [underlining added]

  1. Whether a person in jail can be detained under the

detention law has been the subject matter for consideration

before this Court time and again. In Huidrom Konungjao Singh

v. State of Manipur and Others (2012) 7 SCC 181, the Supreme

Court referred to earlier decisions including Dharmendra

Suganchand Chelawat v. Union of India (1990) 1 SCC 746 and

reiterated that if the detaining authority is satisfied that taking

into account the nature of the antecedent activities of the

detenu, it is likely that after his release from custody he would

indulge in prejudicial activities and it is necessary to detain him

in order to prevent him from engaging in such activities.

  1. In Veeramani v. State of T.N. (1994) 2 SCC 337 in para

(6), the Supreme Court held as under:-

“6. From the catena of decisions of this Court it is clear that even

in the case of a person in custody, a detention order can validly

be passed if the authority passing the order is aware of the fact

that he is actually in custody; if he has reason to believe on the

32

basis of the reliable material that there is a possibility of his being

released on bail and that on being so released, the detenu would

in all probabilities indulge in prejudicial activities and if the

authority passes an order after recording his satisfaction the

same cannot be struck down.”

  1. In the light of the well settled principles, we have to see, in

the present case, whether there was awareness in the mind of

the detaining authority that detenu is in custody and he had

reason to believe that detenu is likely to be released on bail

and if so released, he would continue to indulge in prejudicial

activities. In the present case, the detention orders dated

17.05.2019 record the awareness of the detaining authority:- (i)

that the detenu is in custody; (ii) that the bail application filed by

the detenues have been rejected by the Court. Of course, in

the detention orders, the detaining authority has not specifically

recorded that the “detenu is likely to be released”. It cannot be

said that the detaining authority has not applied its mind merely

on the ground that in the detention orders, it is not expressly

stated as to the “detenue’s likelihood of being released on bail”

and “if so released, he is likely to indulge in the same

prejudicial activities”. But the detaining authority has clearly

33

recorded the antecedent of the detenues and its satisfaction

that detenues Happy Dhakad and Nisar Aliyar have the high

propensity to commit such offences in future.

  1. The satisfaction of the detaining authority that the detenu

is already in custody and he is likely to be released on bail and

on being released, he is likely to indulge in the same prejudicial

activities is the subjective satisfaction of the detaining authority.

In Senthamilselvi v. State of T.N. and Another (2006) 5 SCC

676, the Supreme Court held that the satisfaction of the

authority coming to the conclusion that there is likelihood of the

detenu being released on bail is the “subjective satisfaction”

based on the materials and normally the subjective satisfaction

is not to be interfered with.

  1. The satisfaction of the detaining authority that the detenu

may be released on bail cannot be ipse dixit of the detaining

authority. On the facts and circumstances of the present case,

the subjective satisfaction of the detaining authority that the

detenu is likely to be released on bail is based on the materials.

A reading of the grounds of detention clearly indicates that

detenu Nisar Aliyar has been indulging in smuggling gold and

34

operating syndicate in coordination with others and habitually

committing the same unmindful of the revenue loss and the

impact on the economy of the nation. Likewise, the detention

order qua detenu Happy Dhakad refers to the role played by

him in receiving the gold and disposing of the foreign origin

smuggled gold through his multiple jewellery outlets and his

relatives. The High Court, in our view, erred in quashing the

detention orders merely on the ground that the detaining

authority has not expressly recorded the finding that there was

real possibility of the detenues being released on bail which is

in violation of the principles laid down in Kamarunnisa and

other judgments and Guidelines No.24. The order of the High

Court quashing the detention orders on those grounds cannot

be sustained.

  1. Guideline No.24 of (Part A of Do’s) stipulates that when

the detenu was in judicial custody, the detaining authority has

to record in the grounds of detention its awareness thereof and

then indicate the reasons for the satisfaction that there is

imminent possibility of his release from the custody and after

release such person is likely to continue to indulge in the same

35

prejudicial activities. As discussed earlier, the detention order

shows the application of mind of the detaining authority based

on the materials available on record, facts and circumstances

of the case, nature of activities and the propensity of the

detenues indulging in such activities.

  1. After we have reserved the matter for judgment, the

learned senior counsel for the respondent-detenu has drawn

our attention to the detention order No.PD-12001/34/2019-

COFEPOSA dated 01.07.2019 passed against one Ashok

Kumar Jalan (Kolkata) under the COFEPOSA Act and

submitted that in the said detention order, the detaining

authority – Joint Secretary (COFEPOSA) has recorded the

satisfaction as to the likelihood of the detenu being released on

bail and in the present case, non-recording of such satisfaction

clearly indicates non-application of mind. The said detention

order dated 01.07.2019 has no relevance to the present case.

It does not strengthen the contention of the respondent as to

the non-application of mind of detaining authority, which

contention we have rejected for the reasons recorded supra.

36

  1. The learned senior counsel for detenues submitted that

personal liberty and compliance of procedural safeguards are

the prime consideration and since the procedural requirements

are not complied with violating the personal liberty of the

detenues, the High Court rightly quashed the detention orders

and the same cannot be interfered with. As discussed earlier, in

the case in hand, the procedural safeguards are complied with.

Insofar as the contention that the courts should lean in favour of

upholding the personal liberty, we are conscious that the

Constitution and the Supreme Court are very zealous of

upholding the personal liberty of an individual. But the liberty of

an individual has to be subordinated within reasonable bounds

to the good of the people. Order of detention is clearly a

preventive measure and devised to afford protection to the

society. When the preventive detention is aimed to protect the

safety and security of the nation, balance has to be struck

between liberty of an individual and the needs of the society.

  1. Observing that the object of preventive detention is not to

punish a man for having done something but to intercept and to

37

prevent him from doing so, in Naresh Kumar Goyal v. Union of

India and others (2005) 8 SCC 276, it was held as under:-

“8. It is trite law that an order of detention is not a curative or

reformative or punitive action, but a preventive action, avowed

object of which being to prevent the antisocial and subversive

elements from imperilling the welfare of the country or the

security of the nation or from disturbing the public tranquillity or

from indulging in smuggling activities or from engaging in illicit

traffic in narcotic drugs and psychotropic substances, etc.

Preventive detention is devised to afford protection to society.

The authorities on the subject have consistently taken the view

that preventive detention is devised to afford protection to

society. The object is not to punish a man for having done

something but to intercept before he does it, and to prevent him

from doing so………”.

  1. Considering the scope of preventive detention and

observing that it is aimed to protect the safety and interest of

the society, in State of Maharashtra and others v. Bhaurao

Punjabrao Gawande (2008) 3 SCC 613, it was held 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

38

services essential to the community, prevention of smuggling

and blackmarketing activities, etc. demand effective safeguards

in the larger interests of sustenance of a peaceful democratic

way of life.

  1. 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 historical background in which

the necessity—an unhappy necessity—was felt by the makers of

the Constitution in incorporating provisions of preventive

detention in the Constitution itself. While no doubt it is the duty of

the court to safeguard against any encroachment on the life and

liberty of individuals, at the same time the authorities who have

the responsibility to discharge the functions vested in them under

the law of the country should not be impeded or interfered with

without justification (vide A.K. Roy v. Union of India (1982) 1

SCC 271, Bhut Nath Mete v. State of W.B. (1974) 1 SCC 645,

State of W.B. v. Ashok Dey (1972) 1 SCC 199 and ADM v.

Shivakant Shukla (1976) 2 SCC 521).” [underlining added].

  1. The court must be conscious that the satisfaction of the

detaining authority is “subjective” in nature and the court cannot

substitute its opinion for the subjective satisfaction of the

detaining authority and interfere with the order of detention. It

does not mean that the subjective satisfaction of the detaining

authority is immune from judicial reviewability. By various

decisions, the Supreme Court has carved out areas within

39

which the validity of subjective satisfaction can be tested. In the

present case, huge volume of gold had been smuggled into the

country unabatedly for the last three years and about 3396 kgs

of the gold has been brought into India during the period from

July 2018 to March, 2019 camouflaging it with brass metal

scrap. The detaining authority recorded finding that this has

serious impact on the economy of the nation. Detaining

authority also satisfied that the detenues have propensity to

indulge in the same act of smuggling and passed the order of

preventive detention, which is a preventive measure. Based on

the documents and the materials placed before the detaining

authority and considering the individual role of the detenues,

the detaining authority satisfied itself as to the detenues’

continued propensity and their inclination to indulge in acts of

smuggling in a planned manner to the detriment of the

economic security of the country that there is a need to prevent

the detenues from smuggling goods. The High Court erred in

interfering with the satisfaction of the detaining authority and

the impugned judgment cannot be sustained and is liable to be

set aside.

40

  1. In the result, the impugned judgment of the High Court

dated 25.06.2019 in W.P. (Crl.) Nos.2843 and 2844 of 2019

quashing the detention orders of the detenues viz. Happy

Arvindkumar Dhakad and Nisar Pallathukadavil Aliyar is set

aside and the appeals preferred by Union of India are allowed.

Consequently, the appeals preferred by the detenues shall

stand dismissed.

…………………………..J.

[R. BANUMATHI]

…………………………..J.

[A.S. BOPANNA]

New Delhi;

July 18, 2019

41