JOYI KITTY JOSEPHversusUNION OF INDIA & ORS.

           [2025] 3 S.C.R. 419 : 2025 INSC 327

                     Joyi Kitty Joseph
                              v.
                    Union of India & Ors.
              (Criminal Appeal No.1180 of 2025)
                          06 March 2025
  [Sudhanshu Dhulia and K. Vinod Chandran, JJ.]


                     Issue for Consideration
The wife of the detenu; detained under the provisions of the
Conservation of Foreign Exchange and Prevention of Smuggling
Activities Act, 1974 (COFEPOSA Act) is challenging the order of
detention.

                            Headnotes†
Conservation of Foreign Exchange and Prevention of
Smuggling Activities Act, 1974 – Detenu was detained under
the provisions of the COFEPOSA Act – It was contended that
there was non-application of mind since the allegations were
raised under clauses (i) to (iv) of s.3(1) of the COFEPOSA Act,
in an omnibus manner, revealing the bias of the detaining
officer – It was further contended that 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:
Held: In the instant case, the facts reveal that the detenu has not
only been involved in smuggling of goods, but also has abetted
such smuggling of goods through carriers, engaged in receiving
the same, dispatching it to middle-men for keeping it concealed
in their premises and effecting sale through them; who were paid
a commission – This definitely brings in the ingredients of each of
the clauses under (i) to (iv) of s.3(1) – The jurisdictional Magistrate
released the detenu on bail vide order dated 16.04.2024 on certain
conditions – 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
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       in such smuggling activities – 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 – It was for the detaining authority to
       look into the conditions imposed by the Magistrate and enter into
       a subjective satisfaction as to whether the same was sufficient to
       avoid a preventive detention or otherwise, insufficient to restrain
       him from further involvement in similar smuggling activities –
       The criminal prosecution launched and the preventive detention
       ordered are on the very same allegations of organised smuggling
       activities – The detaining authority ought to have examined the
       bail conditions – Whether they were sufficient to curb the evil of
       further indulgence in identical activities; which is the very basis of
       the preventive detention ordered – Since detention order is silent
       on that aspect, the detention order is interfered with – Hence, the
       order of detention is set aside – The detenu directed to be released
       forthwith. [Paras 7, 14, 15, 19, 20, 22]

                                Case Law Cited
       Rameshwar Lal Patwari v. State of Bihar [1968] 2 SCR 505 : AIR
       1968 SC 1303; Vijay Narain Singh v. State of Bihar [1984] 3 SCR
       435 : (1984) 3 SCC 14 – relied on.
       Narendra Purshotam Umrao v. B.B. Gujral [1979] 2 SCR 315 :
       (1979) 2 SCC 637; Khaja Bilal Ahmed v. State of Telangana [2019]
       18 SCR 1174 : (2020) 13 SCC 632; Ameena Begum v. State of
       Telangana and Others (2023) 9 SCC 587; Rekha v. State of T.N.
       [2011] 4 SCR 740 : (2011) 5 SCC 244; Haradhan Saha v. State
       of W.B. [1975] 1 SCR 778 : (1975) 3 SCC 198 – referred to.

                                   List of Acts
       Conservation of Foreign Exchange and Prevention of Smuggling
       Activities Act, 1974; Narcotic Drugs and Psychotropic Substances
       Act, 1985; Customs Act, 1962; Constitution of India.

                                List of Keywords
       Detenu; Preventive detention; Bail; Bail conditions; Smuggling;
       Section 3(1) of the COFEPOSA Act; Reasonableness of
       consideration; Subjective satisfaction; Judicial Review; Detaining
       authority; Liberty.
[2025] 3 S.C.R.                                                           421

                   Joyi Kitty Joseph v. Union of India & Ors.


                              Case Arising From
      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
      1180 of 2025
      From the Judgment and Order dated 29.10.2024 of the High Court
      of Delhi at New Delhi in WPCRL No. 1901 of 2024

                           Appearances for Parties
      Advs. for the Appellant:
      Farook M. Razack, Sr. Adv., Faisal Farook, Shubail Farook, Kshitij
      Kumar, Sharad Kumar Puri, Mrs. Priya Puri.
      Advs. for the Respondents:
      Vikramjit Banerjee, A.S.G., Gurmeet Singh Makker, Anuj Srinivas
      Udupa, Shubhendu Anand, Kartikeya Asthana, Sarthak Karol,
      Ms. Priyanka Terdal.

                   Judgment / Order of the Supreme Court

                                  Judgment

      Leave granted.
2.    The wife of the detenu; detained under the provisions of the
      Conservation of Foreign Exchange and Prevention of Smuggling
      Activities Act, 19741, is before us challenging the order of detention.
      There is no challenge to the procedural aspects which have been
      scrupulously complied with. The High Court, before whom the
      detention order and its subsequent confirmation have been assailed
      rejected the contentions; which decision is impugned in the above
      appeal. The detention order, impugned before the High Court, is
      produced as Annexure P-1.
3.    We have heard Mr. Farook M. Razack, learned Senior Counsel for
      appellant and Mr. Vikramjit Banerjee, learned Additional Solicitor
      General for India for the respondents.
4.    Essentially, three grounds are raised before us to secure the release
      of the detenu who is behind bars for almost a year, the arrest being



1    “the COFEPOSA Act”
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       on 05.03.2024. That there is clear non-application 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 for preventive detention ought to
       have been avoided, which would also be in violation of the salutary
       provisions under Article 14, 19 and 21 of the Constitution of India,
       1951. The last ground urged is that the impugned order refers to a
       conviction in a case involving narcotics which conviction is challenged
       before the Hon’ble Supreme Court by way of an appeal in which the
       detenu is also released on bail. The crime itself was registered way
       back and the incident has no live link with the order of detention. It
       is also urged that the proviso to Section 3(1) of the COFEPOSA Act
       specifically prohibited a detention under that provision if an order of
       detention can be made under Section 3 of the Narcotic Drugs and
       Psychotropic Substances Act, 19852.
5.     To press home the contention of complete non-application of mind,
       the learned Senior Counsel for the appellant relied on a number
       of decisions. Clauses (i) to (iv) of Section 3(1) in seriatim refers to,
       smuggling goods (i), abetting the smuggling of goods (ii), engaging
       in transporting or concealing or keeping smuggled goods (iii) and
       dealing in smuggled goods otherwise than by engaging in transporting
       or concealing or keeping smuggled goods (iv). To consider whether
       the allegations against the detenu falls within all these, necessarily,


2    “NDPS Act”
[2025] 3 S.C.R.                                                        423

                     Joyi Kitty Joseph v. Union of India & Ors.


      we have to go through the detention order detailing the allegations
      raised against the detenu.
6.    There was intelligence gathered that the detenu along with his wife
      (appellant-herein) were operating a syndicate involved in smuggling
      foreign original gold into India and selling it in the market. There
      was also specific intelligence regarding the transmission of 10 kg. of
      smuggled gold through named persons for selling in the local Mumbai
      market at a specified location; a shop room, wherein a raid was
      conducted on 05.03.2024. Huge cache of gold bars, coins and cut
      pieces along with a huge quantity of Indian currency was recovered
      from the premises. On enquiry with the persons present in the shop,
      it was disclosed that the contraband was brought in by Mohammad
      Rafique Noor Mohammad Razvi @ Aarif and Mahendra Jain and
      kept therein for sale in the local market on a cash basis without
      any invoice or bill. Mohammad Rafique Noor Mohammad Razvi @
      Aarif and Mahendra Jain on being questioned admitted to the gold
      having been brought and kept at the shop on instructions from the
      detenu 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 Intelligence3 who had conducted the raid.
7.    The DRI officers then, based on the statements under Section
      108 of the Customs Act, 19624, 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


3    “DRI”
4    “Customs Act”
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       Rafique Noor Mohammad Razvi @ Aarif and Mahendra Jain acted
       as commission agents, the actual sale having been carried out
       through Ummed Singh and Mahipal Vyas, employees of the agents.
       All of them confirmed their involvement in the smuggling activities
       carried on by the detenu, who was the kingpin of the operation.
       Mohammad Rafique Noor Mohammad Razvi @ Aarif confessed to
       his involvement of smuggling gold bars acting as an agent for the
       detenu at a commission of Rs. 2000/- per kilogram. According to
       him, the detenu used to send 2 to 3 kilograms of smuggled gold,
       with foreign markings, every day for sale, upon which, the agent
       used to contact Mahendra Jain at his shop; which was the subject
       matter of the raid from which premises, the sale was effected. On
       the basis of the statement recorded of the aforesaid persons which
       was confirmed by the statement of the detenu under Section 108
       of the Customs Act, the modus operandi of smuggling gold from
       Dubai to India through carriers, receipt of the same at Mumbai
       Airport at a pre-determined location by the detenu and his wife,
       the subsequent delivery to Mohammad Rafique Noor Mohammad
       Razvi @ Aarif and sale through him on a commission basis has
       been detailed in the order of detention. We are convinced that the
       above facts reveal that the detenu has not only been involved in
       smuggling of goods, but also has abetted such smuggling of goods
       through carriers, engaged in receiving the same, dispatching it to
       middle-men for keeping it concealed in their premises and effecting
       sale through them; who were paid a commission. This definitely
       brings in the ingredients of each of the clauses under (i) to (iv) of
       Section 3(1)1.
8.     Narendra Purshotam Umrao v. B.B. Gujral,5 held that the different
       grounds mentioned in Section 3(1) are all regarding smuggling of
       goods and the word smuggling includes abetting smuggling activities.
       Therein also, the contention of non-application of mind was held to
       be not sustainable since there is always, on facts, overlapping of
       smuggling and its abetting. As was noticed above, in the present case
       it has been clearly substantiated that the detenu was at the helm
       of affairs of the smuggling of gold, a continuing activity, wherein he
       had engaged carriers to carry out the act of smuggling, from whom
       the smuggled goods were received either by him or his wife, alone


5    (1979) 2 SCC 637
[2025] 3 S.C.R.                                                         425

                Joyi Kitty Joseph v. Union of India & Ors.


     or together and then transmitted 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 innate propensity to devise ways and means to smuggle foreign
     gold into India which was done through a well-organized smuggling
     network and an established mechanism operated through trusted
     associates. The habitual indulgence in such fraudulent activities by
     way of smuggling goods, abetting of smuggling of goods, engaging
     in transporting and concealing or keeping the smuggled goods and
     dealing in such smuggled goods at the cost of government revenue
     and national security was found to be with a clear motive of illegal
     enrichment with no concern to the general economy and national
     security interests. The detenu was found to have played a vital role
     in smuggling foreign original gold through the organized network and
     executing disposal of such smuggled goods with meticulous planning
     and deliberate design, regardless of the consequences to the society
     at large. The detaining authority not only has detailed the various
     aspects of smuggling carried out by the detenu but has also brought
     out the ingredients of each of clauses (i) to (iv) of Section 3(1) for
     the purpose of ordering preventive detention, validated further by
     the huge seizures made from different locations.
10. The further contention taken by the appellant is of there being no
    live link insofar as the reference to the case under the NDPS Act;
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       the subject matter of which cannot also be proceeded with under
       the COFEPOSA Act, due to the prohibition in the proviso to Section
       3(1). True, there is a reference to the crime under the NDPS Act as
       one in which the appellant was involved. However, the same was
       only in relation to the specific ground taken by the detaining authority
       that after release of the detenu from jail in Baroda, in October, 2013;
       pursuant to the bail granted by this Court, the detenu had officially
       changed his name from ‘Afzal Haroon Batatawala’ to ‘Sameer
       Haroon Marchant’, in which name he was arrested in a case of gold
       smuggling in the year 2017. We do not find any reference made to
       the allegations in the narcotics case in the operative portion of the
       detention order. It cannot be disputed that there is no live link with
       the arrest in the narcotics case, in which, by the year 2013, he had
       spent nine years of the sentence awarded. The subject matter of
       a narcotics case cannot also be a ground for preventive detention
       under Section 3(1) of the COFEPOSA Act. Be that as it may, we
       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 Telangana6 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 premises of the detenu’s associates followed up with successive
    raids at the residence of the detenu and other associates, from all
    of which locations there was recovery of huge cache of contraband;


6   (2020) 13 SCC 632
[2025] 3 S.C.R.                                                       427

                Joyi Kitty Joseph v. Union of India & Ors.


     commending us to uphold the subjective satisfaction entered into by
     the detaining authority.
12. The last contention raised is with respect to the application for
    cancellation of bail having not been placed before the detaining
    authority. The impugned judgment has specifically considered the
    said ground and finds that the application for cancellation of bail
    was filed on 06.05.2024 and the detention order was passed on
    09.05.2024. There was no possibility of placing the said document
    before the detaining authority and the same would not amount to
    non-supply of a vital document, since the cancellation of bail cannot
    be considered as an alternative to a detention order. We would,
    rather, emphasise on the undisputed fact that both the parties are
    in agreement that the cancellation of bail has not been pursued
    by the department. The grounds for cancellation of bail could not
    have swayed the detaining authority this way or that way; since it
    was not competent on the authority to speculate as to whether the
    jurisdictional Court would permit such cancellation. In fact, if the
    application for cancellation of bail was allowed then probably the
    situation would have been different. We are also of the opinion that
    the non-supply of the application for cancellation of bail would not be
    a compelling circumstance to find the order itself to be vitiated. We
    find absolutely no reason to interfere with the preventive detention
    order on the grounds stated herein above.
13. However, as the sentinel on the qui vive we cannot, but, notice a
    compelling ground, which was not argued before us. Admittedly,
    after the successive raids and the arrest of the accused, including
    the detenu, the accused were remanded to judicial custody. The
    original confessional statements were retracted when they were
    produced before the Additional Chief Metropolitan Magistrate at the
    19th Court, Esplanade, Mumbai. The detenu was initially placed in
    judicial custody till 19.03.2024 and an extension was subsequently
    granted till 01.04.2024 by the jurisdictional Magistrate who further
    extended the judicial custody till 15.04.2024. The bail application
    dated 01.04.2024 before the jurisdictional Magistrate was replied
    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
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       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.
15. We are not examining the conditions imposed by the Magistrate
    since it was for the detaining authority to look into it and enter into
    a subjective satisfaction as to whether the same was sufficient to
    avoid a preventive detention or otherwise, insufficient to restrain him
    from further involvement in similar smuggling activities. As has been
    held in Rameshwar Lal Patwari v. State of Bihar 7 :
            “The formation of the opinion about detention rests with
            the Government or the officer authorised. Their satisfaction
            is all that the law speaks of and the courts are not
            constituted an Appellate Authority. Thus the sufficiency of
            the grounds cannot be agitated before the court. However,
            the detention of a person without a trial, merely on the
            subjective satisfaction of an authority however high, is a
            serious matter. It must require the closest scrutiny of the
            material on which the decision is formed, leaving no room
            for errors or at least avoidable errors. The very reason
            that the courts do not consider the reasonableness of the
            opinion formed or the sufficiency of the material on which it
            is based, indicates the need for the greatest circumspection
            on the part of those who wield this power over others.’
                                      [underlining by us for emphasis]



7   AIR 1968 SC 1303
[2025] 3 S.C.R.                                                         429

                    Joyi Kitty Joseph v. Union of India & Ors.


16. If there is a consideration, then the reasonableness of the consideration
    could not have been scrutinised by us in judicial review, since we
    are not sitting in appeal and the provision for preventive detention
    provide for such a subjective satisfaction to be left untouched by
    the Courts. However, when there is no such consideration then we
    have to interfere.
17. Ameena Begum v. State of Telangana and others8 held that the
    observations in Rekha v. State of T.N.9; that preventive detention is
    impermissible when the ordinary law of the land is sufficient to deal
    with the situation was per incuriam to the Constitution Bench decision
    in Haradhan Saha v. State of W.B.10, in the limited judicial review
    available to constitutional courts in preventive detention matters.
    The Courts would be incapable of interference by substituting their
    own reasoning to upset the subjective satisfaction arrived at by the
    detaining authority, especially since preventive detention law is not
    punitive but preventive and precautionary.
18. In Ameena Begum8, this Court was concerned with the 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


8    (2023) 9 SCC 587
9    (2011) 5 SCC 244
10   (1975) 3 SCC 198
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       of the conditions and enter any satisfaction, however subjective it is,
       as to the conditions not being sufficient to restrain the detenu from
       indulging in such activities.
20. Ameena Begum,8 noticed with approval Vijay Narain Singh v. State
    of Bihar 11 and extracted paragraph 32 from the same:
             “It is well settled that the law of preventive detention is
             a hard law and therefore it should be strictly construed.
             Care should be taken that the liberty of a person is not
             jeopardised unless his case falls squarely within not be
             used merely to clip the wings of an accused who is involved
             in a criminal prosecution. It is not intended for the purpose
             of keeping a man under detention when under ordinary
             criminal law it may not be possible to resist the issue of
             orders of bail, unless the material available is such as
             would satisfy the requirements of the legal provisions
             authorising such detention. When a person is enlarged on
             bail by a competent criminal court, great caution should
             be exercised in scrutinising the validity of an order of
             preventive detention which is based on the very same
             charge which is to be tried by the criminal court.”
                                       [underlining by us for emphasis]

21. The criminal prosecution launched and the preventive detention
    ordered are on the very same allegations of organised smuggling
    activities, through a network set up, revealed on successive raids
    carried on at various locations, on specific information received,
    leading to recovery of huge cache of contraband. When bail was
    granted by the jurisdictional Court, that too on conditions, the detaining
    authority ought to have examined whether they were sufficient to
    curb the evil of further indulgence in identical activities; which is the
    very basis of the preventive detention ordered. The detention order
    being silent on that aspect, we interfere with the detention order
    only on the ground of the detaining authority having not looked into
    the conditions imposed by the Magistrate while granting bail for the
    very same offence; the allegations in which also have led to the
    preventive detention, assailed herein, to enter a satisfaction as to


11   (1984) 3 SCC 14
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                   Joyi Kitty Joseph v. Union of India & Ors.


     whether those conditions are sufficient or not to restrain the detenu
     from indulging in further like activities of smuggling.
22. We, hence, allow the appeal and set aside the order of detention.
    The detenu shall be released forthwith, if still in custody.
23. Pending application(s), if any, shall stand disposed of.

     Result of the case: Appeal allowed.



     †
         Headnotes prepared by: Ankit Gyan