Supreme Court of India
UNION OF INDIA 2. JOINT SECRETARY (COFEPOSA), GOVT. OF INDIA, MINISTRY OF FINANCEversusDIMPLE HAPPY DHAKAD
- Citation
- 2019 INSC 777
- Decided
- 18 July 2019
- Disposal
- Disposed off
- Bench
- R BANUMATHI
Holding
The detention orders are valid as the grounds and the relied‑upon documents were served within the statutory five‑day period, and the guidelines are not mandatory; the High Court’s quashing is set aside.
Summary
The Union of India sought to detain Dimple Happy Dhakad and Nisar Pallathukadavil Aliyar under the Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, 1974 (COFEPOSA) for allegedly smuggling over 3,300 kg of gold from the UAE. Detention orders dated 17‑05‑2019 were served on 18‑05‑2019, while the voluminous documents relied upon were served on 21‑05‑2019 and 22‑05‑2019, within the five‑day period prescribed by Section 3(3) of COFEPOSA. The High Court quashed the orders, holding that the documents were not served pari‑passu with the detention order and that the detaining authority had not expressly recorded a likelihood of release on bail. The Supreme Court held that the statutory requirement is satisfied by serving the documents within five days, that the "Hand Book" guidelines are merely advisory and cannot curtail statutory provisions, and that the detaining authority’s subjective satisfaction, as reflected in the grounds, is sufficient. Consequently, the High Court’s order was set aside.
Issues considered
- Whether the failure to serve the relied‑upon documents together with the detention order (pari‑passu) invalidates the detention under COFEPOSA.
- Whether the service of grounds of detention and documents within five days complies with Section 3(3) of COFEPOSA and Article 22(5) of the Constitution.
- Whether the detaining authority must expressly record its satisfaction that the detenues are likely to be released on bail and will resume prejudicial activities.
- Whether the "Hand Book on Compilation of Instructions on COFEPOSA matters" is binding on the detaining authority.
Legislation cited
- Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, 1974s. 3, s. 3(3)
- Customs Act, 1962s. 108, s. 135
Subjects
preventive detentionCOFEPOSAArticle 22(5)procedural compliancesmuggling of golddetention orderguidelines vs statutesubjective satisfactionbail
Judgment
[2019] 8 S.C.R. 1153 1153
1. UNION OF INDIA A
2. JOINT SECRETARY (COFEPOSA), GOVT. OF INDIA,
MINISTRY OF FINANCE
v.
DIMPLE HAPPY DHAKAD B
(Criminal Appeal No. 1064 of 2019)
JULY 18, 2019
[R. BANUMATHI AND A. S. BOPANNA, JJ.]
Conservation of Foreign Exchange & Prevention of C
Smuggling Activities Act, 1974 – s.3 – Customs Act, 1962 – ss.135,
108 – Appellants-Union of India case that respondents smuggled
huge volume of gold weighing more than 3300 kgs. from UAE to
India – Respondents were arrested for the offence punishable u/
s.135 of the Customs Act – Orders of detention were passed on
D
17.05.2019 against the respondents u/s.3 of COFEPOSA – Detention
orders were served on respondents-detenues on 18.05.2019 however,
compilation of documents was served on detenues on 21.05.2019
and 22.05.2019 – High Court quashed the detention orders on the
ground that the relied upon documents were not served upon the
detenues together with the detention orders and there was violation E
of guideline No.21 (Part A of DO’s) and guideline No.9 (Part B of
Don’ts) of “Hand Book on compilation of Instructions on
COFEPOSA matters” – On appeal, held:s.3(3) of COFEPOSA
stipulates the statutory period of five days to serve the grounds of
detention and in exceptional circumstances and for reasons to be
F
recorded not later than fifteen days from the date of detention – In
the instant 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 detention
orders i.e. 18.05.2019 – Therefore, the statutory requirement was G
complied with – The High Court erred in quashing the detention
orders on the ground that the documents and materials were not
supplied pari passu the detention orders – In so far, “Hand Book on
compilation of Instructions on COFEPOSA matters” is concerned,
H
1153
1154 SUPREME COURT REPORTS [2019] 8 S.C.R.
A the said guidelines were also fully complied with – Also, it is well
settled principle that any executive instructions like guidelines
cannot curtail the provisions of any statute or whittled down any
provision of law – Thus, impugned judgment of the High Court
quashing the detention orders set aside.
B Conservation of Foreign Exchange & Prevention of
Smuggling Activities Act, 1974 – s.3 – Appellants-Union of India
alleged that respondents smuggled huge volumes of gold from UAE
to India – Detaining Authority-Joint Secretary (COFEPOSA) being
satisfied that the respondents had high propensity to indulge in the
prejudicial activities, passed order of detention dated 17.05.2019
C u/s.3 of the COFEPOSA Act – High Court quashed the detention
orders on the 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
D prejudicial activities – On appeal, held: The detention orders dated
17.05.2019 recorded the awareness of the detaining authority : (i)
that the detenue is in custody; (ii) that the bail application filed by
the detenues was rejected by the Court – Merely because in the
detention orders, the detaining authority has not specifically
recorded that the ‘detenue is likely to be released’, ‘detenue’s
E likelihood of being released on bail’ and ‘if so released, he is likely
to indulge in the same prejudicial activities’ , it cannot be said that
detaining authority did not apply its mind – The detaining authority
had clearly recorded the antecedent of the detenues – On the facts
and circumstances of the present case, the subjective satisfaction
F of the detaining authority that the detenue is likely to be released
on bail was based on materials – On perusal of the grounds of
detention, it is clear that detenues were indulging in smuggling of
gold and disposing of the foreign origin smuggled gold through
jewellery outlets – High Court erred in quashing the detention orders
merely on the ground that the detaining authority had not expressly
G recorded the finding that there was real possibility of the detenues
being released on bail – Thus, order of the High Court not
sustainable.
Allowing the appeals of Union of India and dismissing the
appeals of detenues, the Court
H
UNION OF INDIA & ANR. v. DIMPLE HAPPY DHAKAD 1155
HELD : 1. Section 3(3) of the Conservation of Foreign A
Exchange & Prevention of Smuggling Activities Act, 1974
(COFEPOSA) 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
B
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 C
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) of
the Constitution of India “….earliest opportunity…...”, non-serving
of copies of documents together with detention order cannot be
D
a ground to quash the detention order. [Para 19] [1169-C-E]
2. 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, E
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 F
of the documents was served on the detenues on 21.05.2019. As
rightly contended by the 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 G
the documents within five days. Admittedly, the copies have been
furnished within the said period. The statutory requirement
therefore has been complied with. [Para 21] [1170-C-F]
H
1156 SUPREME COURT REPORTS [2019] 8 S.C.R.
A 3. 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
B
documents are served within five 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
C supplied pari passu the detention orders. [Para 24] [1171-C-E]
4. 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
D communication/service of detention order” and the grounds of
detention and relied upon documents should be served as 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
E any statute or whittled down any provision of law. [Para 26]
[1171-G-H; 1172-A]
5. 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
F detaining authority was aware of the fact that the detenu was
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
G therefore, it is necessary to detain him in order to prevent him
from engaging in such activities. [Para 30] [1173-C]
6. In the light of the well settled principles, 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
H
UNION OF INDIA & ANR. v. DIMPLE HAPPY DHAKAD 1157
that detenu is likely to be released on bail and if so released, he A
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
B
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 C
authority has clearly recorded the antecedent of the detenues
and its satisfaction that detenues have the high propensity to
commit such offences in future. [Para 35] [1175-D-G]
7. The satisfaction of the detaining authority that the detenu
may be released on bail cannot be ipse dixit of the detaining D
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 one
detenu has been indulging in smuggling gold and operating
syndicate in coordination with others and habitually committing E
the same unmindful of the revenue loss and the impact on the
economy of the nation. Likewise, the detention order qua the
other detenu 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 F
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 G
be sustained. [Para 37] [1176-B-E]
Sophia Gulam Mohd. Bham v. State of Maharashtra
and Others (1999) 6 SCC 593 : [1999] 1 Suppl. SCR
H
1158 SUPREME COURT REPORTS [2019] 8 S.C.R.
A 421 ; Icchu Devi Choraria v. Union of India and Others
(1980) 4 SCC 531 : [1981] 1 SCR 640 ; Mehdi
Mohamed Joudi v. State of Maharashtra and others
(1981) 2 SCC 358 ; Jasbir Singh v. Lt. Governor, Delhi
and another (1999) 4 SCC 228 : [1999] 2 SCR 706 ;
Senthamilselvi v. State of T.N. and Another (2006) 5
B
SCC 676 : [2006] 3 Suppl. SCR 24 ; Naresh Kumar
Goyal v. Union of India and others (2005) 8 SCC
276 : [2005] 4 Suppl. SCR 17 ; State of Maharashtra
and others v. Bhaurao Punjabrao Gawande (2008) 3
SCC 613 : [2008] 3 SCR 967 – relied on.
C Virendra Singh v. State of Maharashtra (1981) 4 SCC
562 ; Ana Carelina D’souza (Smt.) v. Union of India
and others AIR 1981 SC 1620 – held inapplicable.
Kamarunnisa v. Union of India (1991) 1 SCC 128 :
[1990] 1 Suppl. SCR 457 ; Rekha v. State of Tamil Nadu
D through Secretary to Government and Another (2011)
5 SCC 244 : [2011] 4 SCR 740 ; Kamleshkumar
Ishwardas Patel v. Union of India and others (1995) 4
SCC 51 : [1995] 3 SCR 279 ; Vijay Kumar v. Union of
India and others (1988) 2 SCC 57 ; Kamarunnisa v.
E Union of India and Another (1991) 1 SCC 128 : [1990]
1 Suppl. SCR 457 ; Union of India v. Paul Manickam
and Another (2003) 8 SCC 342 : [2003] 4 Suppl. SCR
618 ; Huidrom Konungjao Singh v. State of Manipur
and Others (2012) 7 SCC 181 : [2012] 5 SCR 1173 ;
Dharmendra Suganchand Chelawat v. Union of India
F (1990) 1 SCC 746 : [1990] 1 SCR 303 ; Veeramani v.
State of T.N. (1994) 2 SCC 337 : [1994] 1 SCR 616
– referred to.
Case Law Reference
G [1990] 1 Suppl. SCR 457 referred to Para 8
[2011] 4 SCR 740 referred to Para 10
(1981) 4 SCC 562 held inapplicable Para 16
AIR 1981 SC 1620 held inapplicable Para 16
H [1995] 3 SCR 279 referred to Para 16
UNION OF INDIA & ANR. v. DIMPLE HAPPY DHAKAD 1159
[1999] 1 Suppl. SCR 421 relied on Para 20 A
[1981] 1 SCR 640 relied on Para 20
[1999] 2 SCR 706 relied on Para 20
(1981) 2 SCC 358 relied on Para 22
(1988) 2 SCC 57 referred to Para 29 B
[1990] 1 Suppl. SCR 457 referred to Para 31
[2003] 4 Suppl. SCR 618 referred to Para 32
[2012] 5 SCR 1173 referred to Para 33
C
[1990] 1 SCR 303 referred to Para 33
[1994] 1 SCR 616 referred to Para 34
[2006] 3 Suppl. SCR 24 relied on Para 36
[2005] 4 Suppl. SCR 17 relied on Para 41
D
[2008] 3 SCR 967 relied on Para 42
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 1064 of 2019.
From the Judgment and Order dated 25.06.2019 of the High Court
of Judicature at Bombay in Criminal Writ Petition No. 2844 of 2019. E
With
Criminal Appeal Nos. 1066, 1067, 1065 of 2019.
K. M. Natraj, ASG, Mukul Rohatgi, Vikram Chaudhri, Sr. Advs.,
Ms. Binu Tamta, Rajat Nair, Sharat Nambiar, Ms. Aruna Pai, Kanu F
Agrawal, Rajeev Ranjan, Shantnu Sharma, B. Krishna Prasad, Saurabh
Kirpal, Sanjay Agarwal, Ashish Batra, Wattan Sharma, Sarthak Sachdev,
Harshit Sethi, Gautam Awasthi, Advs. for the appearing parties.
The Judgment of the Court was delivered by
R. BANUMATHI, J. 1. Leave granted. G
2. These appeals arise out of the judgment dated 25.06.2019 passed
by the High Court of Judicature at Bombay 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 H
1160 SUPREME COURT REPORTS [2019] 8 S.C.R.
A 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
B
disposed of by this common judgment.
3. 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
C 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 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
D 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.
E
4. 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
F 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 sale proceeds of the
smuggled gold were siphoned off to Dubai through hawala. It is alleged
G 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
H the Customs Act, 1962 and his statement was recorded.
UNION OF INDIA & ANR. v. DIMPLE HAPPY DHAKAD 1161
[R. BANUMATHI, J.]
5. Facts in SLP (Crl.) No. 5396 of 2019: Detenu-Happy A
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
B
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 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 C
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
D
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 E
arrested on 29.03.2019 for the offence punishable under Section 135 of
the Customs Act, 1962 and was remanded to judicial custody.
6. 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 F
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. G
7. 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 H
1162 SUPREME COURT REPORTS [2019] 8 S.C.R.
A Secretary (COFEPOSA) who did not find any justification in modification
of the detention orders.
8. 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
B 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
C 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
D 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 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
E out earlier, the High Court, however, stayed the operation of its own
judgment for a period of one week which we have extended.
9. 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
F 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
G 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
COFEPOSA matters from July 2001 to February, 2007” is only in
H
UNION OF INDIA & ANR. v. DIMPLE HAPPY DHAKAD 1163
[R. BANUMATHI, J.]
the nature of guidelines for the officers of the department in dealing with A
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
B
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 C
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 satisfaction of the detaining authority
D
cannot be lightly interfered with by the Court.
10. 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 E
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 F
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
non-application of mind by the detaining authority. Placing reliance upon G
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 H
1164 SUPREME COURT REPORTS [2019] 8 S.C.R.
A quashed the detention orders that the detention order is an infraction of
Article 22(5) of the Constitution of India and non-compliance of the
Guidelines of “Hand Book on compilation of instructions on
COFEPOSA matters” and the impugned order warrants no interference.
11. We have carefully considered the rival submissions and perused
B 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
C the orders of detention and grounds of detention? Whether
there was sufficient compliance 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
D 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?
12. The present case relates to alleged smuggling of huge volume
of gold of more than 3300 kgs of gold camouflaging it with brass metal
E 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
F 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 pages and there were fifteen detention orders passed against
G 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
H on the detenues on 18.05.2019. However, since the documents were
UNION OF INDIA & ANR. v. DIMPLE HAPPY DHAKAD 1165
[R. BANUMATHI, J.]
voluminous running about 2364 pages, the same was served on the A
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.
13. 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 B
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 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. C
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 D
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 E
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.
10. You i.e. Shri Happy Arvindkumar Dhakad have the right to F
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 through
the Jail Authorities where you are detained, in the manner indicated
below…” [underlining added]
G
14. 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 H
1166 SUPREME COURT REPORTS [2019] 8 S.C.R.
A 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
B
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 and Guideline No.9 dealing with “Do’s and Don’ts in
handling COFEPOSA matters”, read as under:-
C “Do’s and Don’ts in handling COFEPOSA matters
A. Do’s
………
21. The Grounds of detention and the relied upon documents
D 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.
E B. Don’ts
……
9. Grounds of detention and relied upon documents should
not be given on different dates.”
F 15. 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
G apart from depriving the detenu from making effective representation.
The learned senior counsel further submitted 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
H
UNION OF INDIA & ANR. v. DIMPLE HAPPY DHAKAD 1167
[R. BANUMATHI, J.]
Court relied upon its own judgments of co-ordinate Benches in Criminal A
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.
B
16. 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 C
of other judgments. It was submitted that the High Court rightly relied
upon Kamleshkumar Ishwardas Patel v. Union of India and others
(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 D
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”.
17. In Virendra Singh, the order of detention was passed on E
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:-
F
“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, 1980. 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 G
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 is rendered void as held by
this Court in Icchu Devi Choraria v. Union of India (1980) 4
H
1168 SUPREME COURT REPORTS [2019] 8 S.C.R.
A 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
B
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
C considering and disposal of the representation, the Supreme Court
quashed the detention order.
18. 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
D 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 provision of Article 22(5) of the Constitution of India unless
E 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
F 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.
19. Section 3(3) of the Conservation of Foreign Exchange &
Prevention of Smuggling Activities Act, 1974 (COFEPOSA) states that
G 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:-
H
UNION OF INDIA & ANR. v. DIMPLE HAPPY DHAKAD 1169
[R. BANUMATHI, J.]
“3. Power to make orders detaining certain persons. A
……
(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 B
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]
C
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 D
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 E
stipulated in Section 3(3) of COFEPOSA Act and the language used in
Article 22(5) of the Constitution of India “….earliest opportunity…...”,
non-serving of copies of documents together with detention order cannot
be a ground to quash the detention order.
20. In the case of Sophia Gulam Mohd. Bham v. State of F
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 G
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 sub-section (3) of Section 3 of the
H
1170 SUPREME COURT REPORTS [2019] 8 S.C.R.
A 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 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
B
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.
C 21. 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
D 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 the detenues on 21.05.2019.
As rightly contended by the learned Additional Solicitor-General, the
E 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
F statutory requirement therefore has been complied with.
22. 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
G 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 within the time limit
H
UNION OF INDIA & ANR. v. DIMPLE HAPPY DHAKAD 1171
[R. BANUMATHI, J.]
of five days stipulated under Section 3(3) of the COFEPOSA Act and A
Article 22(5) of the Constitution of India.
23. 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 B
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.
C
24. 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 D
within five 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. E
25. 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 F
and Don’ts in handling COFEPOSA matters), the High Court held that
there is violation of the guidelines which would vitiate the detention orders.
26. 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 G
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 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
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1172 SUPREME COURT REPORTS [2019] 8 S.C.R.
A instruction like the guidelines cannot curtail the provisions of any statute
or whittled down any provision of law.
27. 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
B 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.
C 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 recording satisfaction that there is no
imminent possibility of the detenues being released on bail.
D 28. 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
E 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
F 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 not be passed merely to pre-empt or circumvent
the enlargement on bail.
G 29. 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
H
UNION OF INDIA & ANR. v. DIMPLE HAPPY DHAKAD 1173
[R. BANUMATHI, J.]
out the role of the detenu in the smuggling syndicate and thereafter A
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
B
(1988) 2 SCC 57 and other judgments.
30. 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 already in custody. The detaining
authority must be further satisfied that the detenu is likely to be released C
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.
31. After reviewing all the decisions, the law on the point was D
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 E
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 F
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 G
ordinarily a detention order should not be passed merely to pre-
empt or circumvent enlargement on bail in cases which are
essentially criminal in nature and can be dealt with under the
ordinary law. It seems to us well settled that even in a case where
H
1174 SUPREME COURT REPORTS [2019] 8 S.C.R.
A 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.
…….”
32. The same principle was reiterated in Union of India v. Paul
Manickam and Another (2003) 8 SCC 342 where the Supreme Court
B 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
C 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
D 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
E 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 custody does not
F 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. …...”
G [underlining added]
33. 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
H
UNION OF INDIA & ANR. v. DIMPLE HAPPY DHAKAD 1175
[R. BANUMATHI, J.]
decisions including Dharmendra Suganchand Chelawat v. Union of A
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.
B
34. 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 C
he is actually in custody; if he has reason to believe on the 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.” D
35. 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 E
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 F
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 recorded
the antecedent of the detenues and its satisfaction that detenues Happy
Dhakad and Nisar Aliyar have the high propensity to commit such offences G
in future.
36. 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
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1176 SUPREME COURT REPORTS [2019] 8 S.C.R.
A 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.
B
37. 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
C indicates that detenu Nisar Aliyar has been indulging in smuggling gold
and 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
D 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.
E The order of the High Court quashing the detention orders on those
grounds cannot be sustained.
38. 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
F 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 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,
G nature of activities and the propensity of the detenues indulging in such
activities.
39. 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
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UNION OF INDIA & ANR. v. DIMPLE HAPPY DHAKAD 1177
[R. BANUMATHI, J.]
passed against one Ashok Kumar Jalan (Kolkata) under the COFEPOSA A
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
B
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.
40. 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 C
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 D
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 E
between liberty of an individual and the needs of the society.
41. Observing that the object of preventive detention is not to
punish a man for having done something but to intercept and to prevent
him from doing so, in Naresh Kumar Goyal v. Union of India and
others (2005) 8 SCC 276, it was held as under:- F
“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 G
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
H
1178 SUPREME COURT REPORTS [2019] 8 S.C.R.
A 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………”.
42. Considering the scope of preventive detention and observing
that it is aimed to protect the safety and interest of the society, in State
B 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
C 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 blackmarketing activities,
D 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,
E 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
F 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
G Shukla (1976) 2 SCC 521).” [underlining added].
43. 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
H
UNION OF INDIA & ANR. v. DIMPLE HAPPY DHAKAD 1179
[R. BANUMATHI, J.]
satisfaction of the detaining authority is immune from judicial reviewability. A
By various decisions, the Supreme Court has carved out areas within
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
B
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 C
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
D
detaining authority and the impugned judgment cannot be sustained and
is liable to be set aside.
44. 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 E
Union of India are allowed. Consequently, the appeals preferred by the
detenues shall stand dismissed.
Ankit Gyan Appeals disposed of.
F
G
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