Summary
The wife of a person detained under the COFEPOSA Act for running a gold-smuggling syndicate challenged the detention. The Supreme Court rejected the grounds argued (omnibus invocation of clauses (i) to (iv) of Section 3(1), reference to an old NDPS case, and non-placement of a bail-cancellation application before the detaining authority), but set aside the detention on a ground it noticed itself: the detenu had been released on bail with conditions imposed specifically to prevent further smuggling, and the detaining authority recorded no satisfaction as to why those conditions were insufficient.
Issues
- Whether invoking all four clauses (i) to (iv) of Section 3(1) of the COFEPOSA Act showed non-application of mind by the detaining authority.
- Whether reference in the detention order to the detenu's earlier conviction under the NDPS Act vitiated the order for want of a live link, or attracted the bar in the proviso to Section 3(1).
- Whether the failure to place the department's application for cancellation of bail before the detaining authority vitiated the order.
- Whether the detention order could stand when the detaining authority did not consider the conditions on which the jurisdictional Magistrate had granted bail for the same allegations.
Provisions considered
- Section 3(1), clauses (i) to (iv), Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974The clauses cover smuggling goods, abetting smuggling, engaging in transporting, concealing or keeping smuggled goods, and otherwise dealing in smuggled goods. The detention order detailed a chain of activity from receipt of gold smuggled from Dubai through carriers, delivery to commission agents, concealment in their premises and cash sales without invoices; this brought in the ingredients of each clause, and overlapping of smuggling and abetment does not indicate non-application of mind. (¶¶ 4, 5, 7, 8, 9)
- Proviso to Section 3(1), Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974The appellant argued that the proviso bars COFEPOSA detention where an order can be made under Section 3 of the NDPS Act. The Court found that the NDPS case was not a ground of detention and was mentioned only to explain the detenu's change of name after release on bail, so the proviso was not attracted. (¶¶ 4, 10, 11)
- Section 108, Customs Act, 1962Statements recorded under Section 108 of the agents, their employees and the detenu himself formed the basis of the raids and of the detaining authority's narrative of the smuggling operation. (¶ 7)
Held
- The plea of non-application of mind failed. The detention order, read with the grounds, showed the detenu heading a syndicate that smuggled gold from Dubai, received it at Mumbai airport, passed it to commission agents who concealed it and sold it for cash; the ingredients of each of clauses (i) to (iv) of Section 3(1) were made out, and as held in Narendra Purshotam Umrao v. B.B. Gujral, overlapping of smuggling and its abetment on the facts does not make the invocation of several clauses unsustainable. (¶¶ 5, 7, 8, 9)
- The subject matter of a narcotics case cannot be a ground of preventive detention under Section 3(1) of the COFEPOSA Act, and there was admittedly no live link with the old NDPS arrest. But the NDPS case was neither referred to in the operative portion nor taken as a ground; it was mentioned only to emphasise the detenu's propensity shown by officially changing his name after release on bail. A mere reference of that kind does not render the detention illegal. (¶¶ 10, 11)
- The application for cancellation of bail was filed on 6 May 2024 and the detention order passed on 9 May 2024, so it could not have been placed before the detaining authority. Cancellation of bail is not an alternative to detention, the authority could not speculate on whether the court would cancel bail, and the department never pursued the application; its non-supply was not a vital omission vitiating the order. (¶ 12)
- Courts do not sit in appeal over the subjective satisfaction of the detaining authority or examine the sufficiency of the grounds; the reasonableness of a consideration cannot be scrutinised in judicial review. But where there is no consideration at all of a relevant aspect, the Court must interfere. (¶¶ 15, 16, 17)
- Where the criminal prosecution and the preventive detention rest on the very same allegations and the jurisdictional Magistrate has granted bail on conditions imposed precisely to prevent repetition of the smuggling activity, the detaining authority must examine whether those conditions are sufficient to curb further indulgence and record a satisfaction, however subjective, that they are not. The detention order here referred to the bail conditions but was silent on their efficacy; on that sole ground, noticed by the Court though not argued, the detention was set aside. (¶¶ 13, 14, 19, 20, 21)
Result
Appeal allowed; order of detention set aside; detenu to be released forthwith if still in custody. Pending applications disposed of.