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 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]
As published in the Supreme Court Reports, Supreme Court of India. Headnotes prepared by: Ankit Gyan. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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