Conservation of Foreign Exchange & Prevention of 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 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 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 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 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, 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.
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 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 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 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 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 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
HELD : 1. Section 3(3) of the Conservation of Foreign 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 a leeway of five days at least for the grounds of detention and the documents relied upon in the grounds to be served on the detenues. By the term “as soon as may be…..”, the statute considers five days as a reasonable time in normal circumstances to convey the grounds of detention to the detenues. There is no statutory obligation on the part of the detaining authority to serve the relied upon documents on the very same day of the service of the order of detention. In view of the time stipulated in Section 3(3) of COFEPOSA Act and the language used in Article 22(5) 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. [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, Section 3(3) of COFEPOSA Act provides for the statutory period of five days to serve the grounds of detention and the relied upon documents. It was pointed out that the relied upon documents were running into 2364 pages and fifteen detention orders were passed against various detenues and therefore, the compilation of the documents was served on the detenues on 21.05.2019. As rightly contended by the Additional Solicitor-General, the preparation of copies of voluminous documents was a timeconsuming process and it took time to serve the compilation of documents upon the detenues and therefore, the orders would not be illegal. Section 3(3) of COFEPOSA Act mandates to furnish the documents within five days. Admittedly, the copies have been furnished within the said period. The statutory requirement therefore has been complied with. [Para 21] [1170-C-F]
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 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 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 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 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 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 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 that detenu is likely to be released on bail and if so released, he would continue to indulge in prejudicial activities. In the present case, the detention orders dated 17.05.2019 record the awareness of the detaining authority:- (i) that the detenu is in custody; (ii) that the bail application filed by the detenues have been rejected by the Court. Of course, in the detention orders, the detaining authority has not specifically recorded that the “detenu is likely to be released”. It cannot be said that the detaining authority has not applied its mind merely on the ground that in the detention orders, it is not expressly stated as to the “detenue’s likelihood of being released on bail” and “if so released, he is likely to indulge in the same prejudicial activities”. But the detaining authority has clearly 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 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 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 erred in quashing the detention orders merely on the ground that the detaining authority has not expressly recorded the finding that there was real possibility of the detenues being released on bail which is in violation of the principles laid down in Kamarunnisa and other judgments and Guidelines No.24. The order of the High Court quashing the detention orders on those grounds cannot be sustained. [Para 37] [1176-B-E]
Sophia Gulam Mohd. Bham v. State of Maharashtra and Others (1999) 6 SCC 593 : [1999] 1 Suppl. SCR
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 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.
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 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. 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 (1990) 1 SCC 746 : [1990] 1 SCR 303 ; Veeramani v. State of T.N. (1994) 2 SCC 337 : [1994] 1 SCR 616 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
This page is for informational and research purposes only and does not constitute legal advice. Consult a qualified advocate for advice specific to your situation.